Re The Crown in right of Ontario (Ministry of Health) and Ontario Public Service Employees' Union (Martin)
[Indexed as: Ontario (Ministry of Health) and O.P.S.E.U. (Martin), Re] File No. 1582/91 Ontario, Crown Employees Grievance Settlement Board, N.V Dissanayake, Vice-Chair,, J. White, D, Clark. May 3, 1993.
EMPLOYEE GRIEVANCE alleging improper denial of promotion. Grievance allowed.
R. Davis and others, for the union. D. Jarvis and others, for the employer.
DECISION This is a grievance filed by Mr. Ken Martin, alleging that the employer contravened art. A.1 of the collective agreement by denying him a position of general cleaner in the housekeeping department of the Mental Health Centre ("the MHC"), Pene-tanguishene, Ontario. He seeks a declaration to that effect and a direction that he be awarded a general cleaner position effective the date the positions were actually filled. The two applicants who were successful in the competition, Ms Angela Forget and Mr. John Steele, were present at the hearing as observers but elected to not participate actively. The facts material to this grievance were presented to the board on agreement. No viva voce evidence was adduced by either party.
The grievor, at the relevant time, was employed at the MHC in its housekeeping department as a part-time cleaner in the unclassified service. On July 9, 1991, the employer posted two vacancies for general cleaner positions, classified as Cleaner 2. The competition was restricted to persons employed in the housekeeping depart-ment of the MHC. Including the grievor, there were 16 applicants, all part-time unclassified employees. The selection process consisted of a review of the applications and résumés and interviews, at which each applicant was assigned marks based on experience, references, and the answers to the interview questions. In addition, each appli-
cant's attendance record in the immediately preceding one-year period, i.e., July, 1990 to July, 1991, was reviewed. The applicants' marks based on interview answers, experience and references, ranged from a high of 60 out of 70 to a low of 54.5 out of 70. The grievor scored 58 marks and was ranked 11th out of the 16 applicants. Mr. Steele and Ms Forget each scored 57 and were ranked 13th and 14th respectively. The selection panel concluded
that the marks of the 16 applicants were so close that they were relatively equal. Therefore, it was decided to apply seniority in the bargaining unit as the determining factor. Out of the 16 applicants, the grievor had the greatest seniority in the bargaining unit. Ms Forget and Mr. Steele were next. It is the
employer's position that even though the grievor had the greatest seniority, the two incumbents were awarded the two vacancies because the panel concluded that the grievor did not demonstrate the minimum qualifications and ability to perform the general
cleaner duties, or at least that his qualifications and ability were inferior to those of Ms Forget and Mr. Steele It is common ground that this conclusion as to the grievor's
qualifications and ability was based solely on a review of his attendance record. In the immediately preceding year, July, 1990 to July, 1991, the grievor was absent on 19 days, 17 days as a result of a compensable work injury (hereinafter referred to as "WCB"), and 2 days due to illness. In addition, the employer presented information relating to the grievor's attendance record dating back to 1987. While it is not clear whether the selection panel took into
account the grievor's attendance record beyond the immediately preceding one-year period, the employer presented to the board the grievor's complete attendance record, which is as follows:
YEAR SICK DAYS WC.B. OTHER TOTAL DAYS 1987 20 Nil .5 20.50 1988 19.38 Nil 3.5 22.88 1989 7.25 Nil 1.5 8.50 1990 4 17 1 22.50 1991 0 14 1 15.00 Most of the grievor's sick days in 1987 and 1988 were a result of snowmobile accidents. In July, 1988, the employer met with the grievor and discussed its concern about the level of his absences. He was put on notice that unless there was a noticeable improve-ment his contract may not be renewed. In March, 1991, the
employer reassigned the grievor to different work in an attempt to assist him to recover from his recurring knee ailments and improve his attendance. In April, 1991, after the grievor had returned from
his last WCB absence, the employer met with him again to review his attendance record and he was put on notice again that unless his attendance improved, his contract may not be renewed. Union counsel concedes that in 1987/1989 the grievor's atten-dance was poor. However, he points out that the grievor has fully recovered from the injuries he suffered in the snowmobile accidents and that there were no lingering effects that could possibly affect his regular attendance. He submits that if the WCB absences are excluded, the grievor's attendance record from 1989 represents "a success story" indicating an excellent response to the concerns expressed by the employer. Thus he points out that, excluding WCB absences, in 1989 he had only 71/2 sick days, in 1990 only 4 sick days and that since his return to work in April, 1991, from the last WCB absence, up to the date of hearing (July 29, 1992) he has had only one sick day. Counsel submits that if the WCB absences are excluded the employer has absolutely no basis to conclude that the grievor's attendance is unacceptable to such a level that he could be said to lack the qualifications and ability to perform the general cleaner job. The employer did not advance the position that its decision was justified by the grievor's non-WCB absences alone. Thus the crux of this grievance is whether the denial of the position on the basis
of a consideration of the grievor's WCB absences, constitutes a violation of art. A.1, which reads as follows:
Article 1— No Discrimination/Employment Equity A.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 991) [sic] of the Ontario Human Rights Code (OHRC).
The parties agree that this article has the effect of incorporating by reference, the relevant provisions of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 ("the Code"). It is the union's position that by considering the grievor's WCB absences in evaluating his qualifications and ability, the employer discriminated against the grievor by reason of handicap as defined in the Code. The provisions of the Code relevant to this dispute are as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.
10(1) In Part I and in this Part,
"because of handicap" means for the reason that the person has or has had, or is believed to have or have had,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including
diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment,
or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,
(b) a condition of mental retardation or impairment, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act .. .
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground
but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the
person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(3) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.
The employer's position is that the denial of the position to the grievor was solely because of the level of absences per se and that the reasons for the absences were not considered. As employer counsel put it, "the selection panel did not care whether absences were culpable, or whether they were due to illness, WCB injuries or whatever". Counsel for the employer filed copies of the MHC policy relating to attendance which is set out in its administrative manual, as well as the policy adopted by the MHC housekeeping
department itself. Both stipulate, inter alia, that regular atten-dance is important and that attendance will be considered in evaluating employee performance. Those policies do not distin-guish between WCB absences and other absences. The employer takes the position that in considering the grievor's absences in the course of the job competition, the selection panel acted in accord-ance with these attendance policies.
Submissions Counsel for the union agrees that, as a general matter, the employer is entitled to consider an employee's absenteeism record during a job competition. However, counsel submits that where an employer lumps together WCB absences and other absences and relies on the WCB absences, in whole or in part, to conclude that the employee lacks the necessary qualifications and ability, that constitutes a direct discrimination "by reason of handicap" within the meaning of s. 10(1)(e) of the Code. In addition, counsel takes the position that while a policy of considering all absences without regard to the reasons for the absences, may be neutral on its face, in its application there is adverse impact discrimination against a
group of persons identified by a prohibited ground of discrimina-tion, namely, handicap. This, according to counsel, results in a contravention of s. 11(1) of the Code. Counsel submits that under s. 11(2) an obligation arises to accommodate the grievor to the point of undue hardship and that this has not been done at all. Counsel urges the board to conclude that the employer in effect penalized the grievor by reason of his handicap, i.e., his past WCB absences. Since the grievor has had an acceptable level of absences
apart from the WCB absences and since there is no suggestion that at the time of the competition the grievor had any injuries or illnesses that would prevent him from attending work regularly, it is counsel's position that by denying him a position based on past WCB absences, the employer contravened art. A.1 of the collective agreement.
The employer's primary position is that the facts before the board do not bring the grievor within the definition of "handicap" in the Code. It is submitted that the prohibition in the Code against discrimination by reason of handicap was not intended to extend to persons suffering injuries or illnesses of short duration. Counsel submits that to be handicapped a person must suffer a chronic condition which has resulted in a continuing disability. Reliance is placed on Ouimette v. Lily Cups Ltd. (1990), 90 C.L.L.C. 1117,019, 12 C.H.R.R. D/19, where a board of inquiry (Ontario) chaired by
Dr. D. Baum found that the flu (gastroenteritis) was not a
handicap within the meaning of the Code. Counsel also cited to the board Re Queensway-Carleton Hospital and C. U.PE., Loc. 2875 (1990), 17L.A.C. (4th) 23(Thorne), and Nielson v. Sandman Four Ltd. (1986), 7 C.H.R.R. D/3329(B.C.). In addition he relied on a document prepared by the Ontario Human Rights Commission titled "Guidelines for Interpretation of `Because of Handicap' ".
Secondly, employer counsel submits that if the board concludes that the grievor came within the definition of "handicap", the union has not met its onus of establishing that there has been either direct or constructive discrimination by reason of that handicap.
With regard to direct discrimination, counsel points out that the reason for the grievor's absences or the fact that he had received WCB benefits had nothing to do with the employer's decision. The decision was based on his level of absenteeism per se, regardless of what caused the absences. Relying on Black v. Gaines Pet Foods, unreported decision dated April 28, 1992, board of inquiry chaired by Professor G.H. McKechnie [reported 92 C.L.L.C. ¶17,025, 17C.H.R.R.D/150], counsel argues that for a violation of the Code to occur, the prohibited grounds must have been a "proximate cause" for the employer's decision. It is his position that the proximate
cause for the decision had nothing to do with WCB. Rather, the proximate cause was the grievor's level of absenteeism. With regard to constructive discrimination or adverse impact discrimination employer counsel submits that for s. 11(1) of the Code to apply, the board must be satisfied that the employer's attendance policy impacts upon a protected group, in this case the handicapped. While counsel concedes that the policy affects employees absent due to WCB injuries, it is his position that that
by itself does not result in constructive discrimination within the meaning of s. 11. Where the group or class affected is too broad
s. 11 does not apply, he submits. He draws an analogy between the facts in Re Lily Cups and the facts here. There it was held that since everyone can catch the flu, the class was too broad for s. 11
to apply. Likewise, anyone working can suffer a WCB injury. The protected group is the entire work-force in Ontario covered by
WCB legislation. Counsel goes on to submit that if there had been constructive discrimination against the grievor, these facts come within the exception in s. 11(1)(a). Arbitrators have consistently recognized that attendance is a legitimate requirement to be considered in job competitions. Ability to regularly attend work is a fundamental term of any employment contract. Therefore, it is submitted that regular attendance is a reasonable and bona fide requirement within the meaning of s.11(1)(a).
Finally, employer counsel submits that the attendance policy must be found to be a reasonable and bona fide requirement because the employer had afforded reasonable accommodation to
the grievor to the point of undue hardship. He points to the meetings with the grievor, where the employer expressed its concerns about his attendance and warned him that it was not acceptable. He was provided assistance to overcome his injuries. He submits that if the employer did not accommodate the grievor, he would have lost his job in 1988 or 1989. Counsel argues that under s. 11(2) the duty to accommodate to the point of undue hardship entails a rearranging of the work place or the work process, so that the employee will be able to function despite his handicap. However, if the employee cannot report to work, there is no accommodation possible. The grievor's handicap is not being able to come to work. That is a handicap that cannot be accommo-dated. As counsel puts it "the employer has to accommodate the handicap — not the inability to do one's job."
The decision Definition of "because of handicap" The only basis upon which the grievor seeks protection under art. A.1 and the Code is that he was discriminated because of handicap. Therefore he must bring himself within the protected group as defined in the Code. Section 10(1) of the Code (p. 132) defines "because of handicap". There are five categories described in that definition, which are said to come within the phrase. These
are set out under cls. (a) to (e) inclusive. On any reasonable reading of the definition there can be no doubt whatsoever that the clauses are set out disjunctively. This is very clear from the use of the word "or" at the end of cl. (d). Therefore the proper way to read the definition is to read the preamble of the definition with each of the clauses. The proper reading of cl. (e) is:
"because of handicap" means for the reason that the person has or has had or is believed to have or have had,
(e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act .. .
As long as a person comes within the above language, he comes within the definition of "handicap" under cl. (e). The point is that, to be considered handicapped for purposes of the Code, a person need only come within any one of the clauses listed under cls. (a) to (e).
In our view, when the Code is read in this manner, the employer's position that the grievor is not handicapped because he has no continuing or permanent disability must fail. Counsel relies on Re Lily Cups, supra, and the guidelines of the Human Rights Commission in support of his position. We will deal with each. In
(i)
any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordina-tion, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a dog guide or on a wheelchair or other remedial appliance or device,
our view, Re Lily Cups has no relevance to this proceeding in that there the board of inquiry was dealing with s. 9(b)(i) [S.O. 1981, c. 53], which is now s.10(1)(a). That paragraph deals with:
At p. 16,170 the board of inquiry found as follows: In my view, it would be wrong to attempt to stretch the meaning of illness under s. 9(b)(i) of the Code to include the flu. It would be wrong to do so, in
part, because of the effect of such a construction on the high purpose otherwise achieved by the interpretation provision in protecting those who are actually or perceived to be materially impaired through illness. Where the Code calls for defined groups to be protected, the Commission would include literally everyone suffering from a few days' illness. I cannot accept that the intent of s.9(b)(i) is to embrace such kinds of discrimination.
It is clear that the board there is attempting to define the meaning of the term "illness" in s. 10(1)(a). The board points out that the high purpose of s.10(1)(a) is "in protecting those who are actually or perceived to be materially impaired through illness".
Thus, quite correctly in our view, it was held that a temporary illness for a few days does not come within the purpose of
s. 10(1)(a). That interpretation of s. 10(1)(a), in our view, has no relevance to the interpretation of s. 10(1)(e), which specifically deals with WCB injuries. As already noted s.10(1)(e) must be read disjunc-tively from all of the preceding cls. (a) to (d). Counsel's interpreta-tion requires that if a person is to come within s. 10(1)(e) he must not only meet the conditions set out in cl. (e), i. e. , that he has or has had an injury or disability for which benefits were claimed or received under the Workers' Compensation Act, but also meet the requirements of cl. 10(1)(a). This interpretation is not possible given the disjunctive structure of the whole definition provision. Besides, such an interpretation would render cl. (e) redundant. The effect would be to read it out of the Code. This is so because, if a person can satisfy the terms of any of the preceding cls. (a) to (d), he would already be within the definition of "handicapped" for the
purpose of the Code and his circumstances relating to any WCB injury or disability would be irrelevant. This leads us to the "Guidelines for Interpretation of `Because of
Handicap"' , which, we were advised by counsel, is a document prepared by the Ontario Human Rights Commission for internal use of its staff. It is apparent that these guidelines were issued in response to the Re Lily Cups decision, supra. Thus the document begins with the following two paragraphs:
Following the decision of the Board of Inquiry in Ouimette y Lily Cups, these guidelines have been developed to apply a purposive interpretation to the definition of "because of handicap" contained in section 9(b) of our Code.
They define the direction and approach to be taken in advising potential complainants about the Commission's jurisdiction, as well as in preparing recommendations for Commission decisions under s. 33(1)(c).
The document then contains a discussion about the conditions of disadvantage which were intended to be addressed by the prohibi-tion against discrimination because of handicap. The balance of the document consists of discussions under three different titles "Phys-ical Disabilities", "Mental Disabilities" and "WCB Claims". The discussion under "WCB Claims" reads:
Subsection (v): WCB Claims 10. An applicant or employee cannot be rejected, terminated or otherwise adversely affected because he or she made a WCB claim or received WCB benefits.
- If an injury or other medical condition does not fall within the definition of handicap in accordance with the criteria set out above, the mere fact that a WCB claim has been made or WCB benefits received does not convert such injury or condition into a handicap within the meaning of the Code. However, where WCB claims or benefits are involved, the Officer should ascertain whether the WCB claim or benefit itself was a
reason for the adverse decision or action taken against the complainant.
The "criteria set out above" in para. 11 above refers to the discussions under physicial and mental disabilities, dealt with in the Code in s. 10(1)(a), (b) and (c). Employer counsel interprets this para. 11 as a statement by the Human Rights Commission
that, to be "handicapped" within the meaning of s. 10(1)(e) a person must not only meet the criteria set out therein, but also the criteria relating to physical or mental disability. Therefore, the argument goes, where a person relies on a physical WCB injury it must be established that the criteria set out under "Physical Disabilities" must be satisfied. These according to the document include:
(i) The condition or perceived condition is permanent, ongoing or of some persistence; and
(ii) The condition or perceived condition is not commonplace or widely shared;
(iii) The condition or perceived condition is a substantial or material limit on an individual in carrying out some of life's important functions.
This board does give serious consideration to an interpretation of the Code by the commission. Nevertheless, we are not bound by such interpretation, particularly if we are convinced that that interpretation is incorrect. This board's mandate is to interpret art. A.1 and the provisions of the Code objectively and in accord-ance with the accepted canons of interpretation. In our view, the guideline at item 10 states the law correctly. However, then the paragraph under item 11 qualifies that state-ment. In our respectful opinion if para. 11 means that a claimant must satisfy the definition of "handicap" in s. 10(1)(a) to (d), in order to be considered handicapped for purposes of s.10(1)(e), that is not supportable by any reasonable interpretation. As already
noted, given the disjunctive language used in s. 10(1), each clause set out under cls. (a) to (e) is a separate means of coming within the definition. If a person has to satisfy the criteria in cls. (a) to (d) in order to qualify under cl. (e), cl. (e) is meaningless superfluous-ness. Such an interpretation runs afoul of a fundamental canon of interpretation of statutes. In our view, s.10(1)(e) has a distinct purpose of protecting
persons who have suffered compensable injuries. It is a recognition by the legislature that there are inherent risks in the course of employment and that persons who are unfortunate enough to suffer work-related injury or disability ought not to be adversely affected by that reason. Counsel suggested that it is absurd to consider a person who cuts his finger at work and is absent for one day on compensation to be "handicapped". While that may sound absurd in the abstract, when considering the purpose of s.10(1)(e), it is not. The prohibi-tion against discrimination because of handicap is the vehicle the legislature has chosen to afford protection to employees who suffer WCB injuries or disabilities. For example, if a reinstatement agreement authorizes automatic discharge where an employee has 12 or more absences in a 12-month period, and if employee X has 11 non-compensable absences and one WCB absence, the result of s. 10(1)(e) is that employee X will not be subject to automatic discharge. Such employee, because he meets the test in s.10(1)(e),
is not considered "handicapped" for all purposes. All it means is that his suffering of the WCB injury or his claiming or receipt of benefits should not be used, in whole or in part, as a basis for a decision adversely affecting him.
In our view, only such an interpretation would explain why the legislature found it necessary to address WCB injuries and disabili-ties in a separate paragraph, when it had already dealt with injuries and disabilities generally in four preceding paragraphs. The legislative purpose was to ensure that the prohibited grounds in s. 10(1)(e), namely, the suffering of an injury of disability for which compensation is received under the Workers' Compensation
Act, will not be the proximate cause of any decision adversely affecting such employee. Authority for this position is found in Black v. Gaines Pet Foods, supra. There the complainant had a lengthy absence from work due to cancer, which all parties agreed was a handicap within the
meaning of the Code. Following surgery, she returned to work with no apparent effects of the surgery or her cancer. However, subsequently she had a number of absences which were not related to any handicap. She was dismissed for excessive absenteeism. She alleged that she had been discriminated because of handicap contrary to the Code. The board of inquiry dismissed her complaint. In doing so, at p. 16,224, it observed:
Firstly, if the employer is to be held to a strict accounting of the absence related to cancer, as suggested by the Commission, the Respondents could never discharge Ms Black because one of the absences would always be the absence due to cancer. That absence cannot be expunged because it in fact happened, it is well encapsulated and it forms part of a long history of absences of various reasons.
Secondly, if that absence were in and of itself, the proximate cause or the direct cause of discharge, a violation of the Code could be found; however, the facts point in the opposite direction. The termination of Ms Black's
employment followed an absence of approximately forty days because of a neck and shoulder injury. Given the past record of absences, for a variety of reasons, only one of which was related to cancer, one could easily find that this Complainant was unable to present evidence that would give anyone assur-ance that she could be an attendant employee in the future.
(Emphasis added.) Later in its award at p. 16,224, the board observed that, "Once the absence due to cancer was finalized, the employer had the right to expect an attendant employee. That did not occur", and again [at p. 16,225], "... however, a review of Ms Black's full absentee-ism record, even with the cancer absence removed, would indicate that the employer was justified in its decision". While the board dismissed the complaint and held that the employer had not discriminated on the basis of handicap, it was not because the board was of the opinion that the employer was entitled to make the decision on the basis of the employee's
absences due to handicap. The complaint was dismissed only because the board concluded on the basis of the evidence that even if the "protected absences" were discounted, the rest of the employee's absenteeism record justified the decision to dismiss her. In other words, the protected absences were not a proximate cause of the employer's decision. While the board held that the employer was not required to remove the cancer-related absences from the over-all consideration of her absenteeism record, it was expressly held that "if the cancer related absence had been the cause of the termination, or a proximate cause of the termination, the Respon-dents could have violated the Code" (p. 16,225). The facts before us are clearly distinguishable. The employer does not suggest that if the protected absences were discounted, there was any justification for denying the grievor the position. Indeed it is clear that such a position is not supportable because in 1990 and 1991 the grievor had only 5.5 days and one day of non-WCB absences respectively. Therefore, in this case the employer cannot justify its decision on the basis of the grievor's non-WCB absences. In other words, unlike in Gaines Pet Foods here the handicap-related absences were a proximate cause, if not the primary cause, for the employer's decision. We have observed that the decisions relied upon by employer counsel including Re Lily Cups, supra, do not address the meaning of "handicap" as it relates to WCB injuries under s. 10(1)(e). However, there are a number of arbitration awards that do. In Re Glengarry Industries/Chromalox Components and U.S.W., Loc. 6976 (1989), 3L.A.C.(4th)326(Hinnegan), the board dealt with the predecessor section to s.10(1)(e). There the grievor had been absent from work for over six months due to a
compensable injury. She was terminated on the basis of an "automatic termination" clause in the collective agreement, which provided that "employment shall be terminated ... if the employee is absent due to sickness or accident for a period of six (6) consecutive months". After concluding that it was entitled to interpret the collective agreement taking into account all relevant legislation including the Human Rights Code, 1981, the board at pp. 330-2 observed:
Here, there is no issue of just cause for discharge pursuant to the management's rights clause in that that was not the basis for the grievor's termination. Rather, she was terminated by the employer pursuant to the express provisions of art. 9.07(f), a quite separate and distinct provision of the collective agreement from that of just cause for discharge pursuant to the management's rights clause, and the narrow issue before me is whether the provisions of the Human Rights Code, 1981 referred to above, preclude the
application of that collective agreement provision to an employee absent due to a compensable injury.
At the outset, it can be stated that the provisions of the Code referred to do not invalidate or nullify s-s. (f) of art. 9.07 for all purposes. It applies generally to any employee absent for a period of six months due to any
sickness or accident, while the Code addresses only those injuries or disabilities compensable under the Workers' CompensationAct.
Accordingly, the Code has no application to other employees found within that provision and cannot, therefore, nullify it for all purposes. The only question is whether the provisions of the Code render an employee on workers'
compensation an exception to that provision.
In interpreting art. 9.07 in the context of the Human Rights Code, 1981 it must be noted, firstly, that the provisions of the Code referred to do not
expressly prohibit the termination of an employee absent due to a compensa-ble injury; rather, it dictates that an employee has a right to equal treatment with respect to her employment and may not be treated differently from other employees because of her compensable injury, now included as a handicap
under the Code. Thus, the question for determination here is whether the grievor was, in fact, treated differently or unequally because of her handicap.
There is no question that the grievor was treated no differently from other employees absent for six months due to sickness or accident. Similarly, there is little question that she was treated differently from the majority of the employees in the bargaining unit and that that difference in treatment was due to her absence which, in turn, was due to her compensable injury. Those
other employees are entitled to the benefit of the standard of "proper cause" for termination, which entitles an employee to test the employer's application of that standard at arbitration, bringing to bear all of the established arbitral
principles and policies applicable to innocent absenteeism in general.
The grievor, on the other hand, was subject to automatic termination due to her innocent absence as a result of her compensable injury. Accordingly, under the automatic termination provision, she does not have the same right as other employees to challenge her termination within the standard of proper cause.
In my view, that must be deemed unequal or different treatment from that of the majority of the bargaining unit employees with respect to her employment. In the result, it must be concluded that the Human Rights Code, 1981 precludes the application of art. 9.07(f) to an employee on
workers' compensation benefits.
In Re Clarke Transport Canada Inc. and Teamsters Union, Loc. 938 (1990), 16L.A.C.(4th)160(Gray), the grievor was subject to a reinstatement agreement which among other things made him liable to discharge if he failed to maintain an attendance record which was at least equal to the plant average. The grievor was discharged on the basis that he failed to fulfil this, as well as other conditions of the reinstatement agreement. The "human rights" issue before the board was set out at p. 165 as follows:
The employer felt it was entitled to terminate the grievor because of the length of time he had been absent from work, even if there was no disciplinable conduct on the grievor's part. His attendance record was clearly
worse than the Toronto terminal average, but only if his absences due to work place injury are taken into account. The employer's reliance on those absences raises an issue under the Human Rights Code, 1981, S.O. 1981, c. 53 ("the Code"), because the injuries which led to those absences were injuries for
which benefits were received under the Workers' Compensation Act, R.S.O. 1980, c. 539.
Section 4(1) [amended 1986, c. 64, s. 18(5)] of the Code provides that "Every person has a right to equal treatment with respect to employment without discrimination because of ... handicap." Infringement of this right
is prohibited by the Code. Section9(1)(b) [amended 1984, c. 58, s. 39] defines "because of handicap" to mean "for the reason that the person has or has had, or is believed to have had" among other things "an injury or disability for
which benefits were claimed or received under the Workers' Compensation Act". The union argues that para. 3 of the minutes of settlement cannot be applied so as to justify termination on the basis only of the grievor's absence due to compensable injury.
While the board upheld the grievor's discharge on the grounds that he had breached other conditions of his reinstatement agree-
ment, it was held that the discharge was not justified on the basis of his level of absenteeism, which exceeded the plant average only if his WCB absences were taken into account. After citing Re Glengarry Industries, supra, and Re North Bay Civic Hospital and C. U.P.E., Loc. 139 (Corkish), January 24, 1990 (H.D. Brown), unreported [summarized 17 C.L.A.S. 26], arbitrator Gray at p. 167 states:
I agree with and adopt the analysis in those decisions. In so far as para. 3 of the minutes of settlement here purport to authorize termination of the grievor if his rate of non-disciplinable absenteeism exceeds the terminal average, the
Code precludes its application in these circumstances because the grievor's absences exceed the terminal average only as a result of absences due to injuries for which the grievor received workers' compensation benefits. The
fact that the grievor and the union agreed to the terms of the minutes of settlement does not preclude them from invoking the Code in this way: Ontario Human Rights Com'n v. Borough of Etobicoke (1982), 132 D.L.R.
(3d) 14, [1982]1S.C.R.202, 82 C.L.L.C. ¶17,005.
[Emphasis added.] The facts before us are analogous. The atten-dance policy of the employer did not distinguish between WCB absences and other absences. It therefore had the effect of adversely impacting upon employees who have suffered compens-able injuries or disabilities. In the present case the employer's decision could not be justified on the basis of the grievor's
absenteeism record without the WCB absences. Thus, those absences were a proximate cause for the adverse consequences that befell the grievor. This is a direct discrimination on the basis
of handicap as defined by s. 10(1)(e) of the Code to the extent that it does not distinguish between WCB and other absences. The effect of s. 10(1)(e) is to require that such a distinction be made. Therefore it also follows that it is in contravention of art. A.1 of
the collective agreement.
Constructive discrimination The employer's policy on attendance could be said to be neutral on its face in that it does not take into account the reason for absence. Its concern is the absence per se. However, in its application it is not neutral because it has an adverse impact on a group protected by the Code, i. e. , those who suffer compensable injuries or disabilities. The result of the rule is that such persons
are denied rights, which they would have otherwise enjoyed. We cannot agree with employer counsel that the class is too broad because, as he put it, just as much as anyone can catch the flu (Re Lily Cups, supra), anyone can get injured at work. In s. 10(1)(e) the protected class is precisely defined by the statute itself. That class consists of persons who have or have had injuries or disabilities for which benefits were or are received. We find that there is constructive discrimination under s.11(1) in the application of the attendance policy. Therefore under s. 11(2), a duty to accommodate the handicap to the point of undue hardship arose. The evidence is uncontradicted that in the most recent two
years preceding the competition, the grievor's attendance has been satisfactory, except for his WCB absences. Similarly, there was agreement that the grievor had fully recovered from all his injuries and illnesses, compensable and non-compensable, so that there was no present impediment to his regular attendance. Indeed the evidence was that since returning to work from his last WCB
absence in April, 1991, until the date of the hearing on July, 1992, the grievor has had no WCB absences and only one day absent due to illness. If the employer was to accommodate the grievor's
handicap to any degree, the most it had to do was to disregard the past WCB absences in these circumstances. In so doing, in our view the employer did not have to take any significant risk, because the grievor has had no lingering effects from his past problems. His present ability to attend work regularly is supported by the agreed
fact that in the 15 months preceding the hearing date the grievor has had just one day of absence in total. Therefore, we conclude that, in the circumstances, the employer did not accommodate the grievor's handicap at all. In summary, it is the finding of the board that the denial of a position of general cleaner resulted in direct discrimination against
the grievor because of handicap as defined in s. 10(1)(e) of the Code; that the application of the employer's attendance policy, without excluding WCB absences, resulted in constructive discrim-ination as described in s. 11(1) of the Code, and that the employer did not accommodate the grievor's handicap to the point of undue hardship as required by s. 11(2) of the Code. By contravening those provisions of the Code, the employer ipso facto contravened art. A.1 of the collective agreement.
Remedy By way of remedy, the union seeks a declaration that the employer contravened art. A.1 of the collective agreement. In addition to this remedy, it seeks a direction that the grievor be appointed to one of the posted positions of general cleaner, retroactive to the date it was filled. Counsel for the employer takes the position that the latter remedy is inappropriate for two reasons. First, it is pointed out the grievor was employed in the unclassified service at the time of the job posting. As such, art. 4 of the collective agreement relating to job postings and filling of vacancies did not apply to him. There-fore, he could not have grieved the result of the job competition under art. 4. Counsel submits that by overturning the decision of the selection panel and appointing the grievor to one of the vacancies, the board would in effect be applying art. 4 to an unclassified employee. He submits that the board has no jurisdic-tion to do so. Secondly, counsel for the employer points to the evidence that the two incumbents, Ms Forget and Mr. Steele, have identical seniority dates. He submits that in that situation the board has no rational basis upon which to decide which of the two incumbents should vacate the position to make way for the grievor. He contends that any choice made by the board will necessarily be arbitrary. The board concludes that the grievor should be appointed to one of the general cleaner positions and that it has jurisdiction to make such a direction. In our view, such a direction has nothing whatsoever to do with art. 4. The board has found a violation of the collective agreement. In the circumstances the board derives its remedial authority from s. 19(1) of the Crown Employees Collec-tive Bargaining Act, R.S.O. 1990, c. C.50. Under the provision, where the board finds a violation, it has a broad authority, and indeed an obligation, to remedy that wrong. (In this regard see, generally, the decision of the Divisional Court [unreported] in Re O.PS.E. U. (Berry) and Ministry of Community & Social
Services.) The objective in fashioning a remedy must be to attempt as best as we can, to put the grievor in the same position he would
have been in, if not for the employer's breach. Here, a number of facts become pertinent. The employer agreed that all of the applicants were more or less equal on the basis of the results of the interview process. Therefore the employer decided to award the positions solely on the basis of seniority. It is also agreed that the grievor was the most senior out of the 16 applicants. Thus the grievor would have been made the first job offer. That did not happen only because of the employer's consideration of the grievor's absenteeism record. The employer considered his absen-teeism record to be so poor that it concluded that the grievor lacked the qualifications and ability to perform the duties of the
posted position. It is clear that this conclusion in turn was justified only because the employer considered the grievor's WCB-related absences in breach of the Code and the collective agreement. The employer, even at arbitration, did not take the position that it would have been justified in reaching the same conclusion based on the grievor's non-WCB absences alone. Indeed, considering that in the two years immediately preceding the competition the grievor had so few non-WCB-related absences, such a conclusion could not reasonably have been made. Since the board has decided that the employer was not entitled to take into account WCB absences in its decision-making process, there can be little doubt that if not for that breach, the grievor's attendance record would not have been considered to be poor, and as the most senior applicant, he would have been offered a vacancy first.
We do not consider the employer's second submission to be a valid reason to not award a remedy, which is otherwise warranted and appropriate. The board's finding is that, based on his seniority, the grievor would have been the first to be appointed to one of the two vacancies. That would have left one other position vacant. It would have been then, and it is now, up to the employer to determine which of the two incumbents should be preferred. If the employer is not in a position to distinguish between the two on the basis of seniority, it will have to do so by a consideration of other legitimate criteria. This is no different from what any employer would have to do where two employees with a common seniority date apply for a single vacancy. In the result, this grievance is allowed. The board declares that the employer contravened art. A.1 of the collective agreement when it denied the grievor a position of general cleaner. The board further directs that the grievor be appointed to a position of general cleaner, effective the date the first of the two vacancies was
in fact filled. The grievor is entitled to be compensated for all losses that resulted from the employer's breach, including interest. The board remains seised in the event the parties have difficulty in quantifying the compensation owing or in implementing the terms of this decision in any other respect.