Janice Chung

The complainant, a TTC employee diagnosed with narcolepsy, was forced to transfer from the Transportation Division to the Maintenance Division due to his disability.

Under the collective agreement, he lost all his accrued seniority upon transfer.

The TTC agreed to accommodate him by restoring his full seniority, but the Union refused, arguing it would violate the collective agreement and cause undue hardship.

The Board of Inquiry found that the seniority provisions discriminated against disabled workers and that the Union failed to prove undue hardship.

The Union was ordered to grant the complainant full seniority, cease applying the discriminatory provision, and pay $22,000 in damages for mental anguish.

The applicant employer applied under section 65(2) of the Labour Relations Act, 1995 to terminate the responding party union's bargaining rights.

The union brought a motion to dismiss the application for failing to disclose a prima facie case.

The Board found that the union had not slept on its rights and was making efforts to bargain, despite unsmooth negotiations.

Applying the principle that section 65(2) is to be used as a shield and not a sword, the Board granted the motion and dismissed the employer's application.