Ontario Liquor Boards Employees’ Union (Fenech) v. The Crown in Right of Ontario (Liquor Control Board of Ontario), 2002 CanLII 45765

GSB# 2152/95, 1577/96

UNION# OLB128/95, OLB050/96

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union

(Fenech)

Grievor

-and-

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE Eva E. Marszewski Vice-Chairperson

FOR THE GRIEVOR Elizabeth Mitchell

Counsel

Koskie Minsky

Barristers & Solicitors

FOR THE EMPLOYER Alison Renton

Counsel

Liquor Control Board of Ontario

HEARING January 14, March 2, 23, 24, April 1,May 5, 12, June 29, November 3, 4, 1998; February 23, March 30, April 13, June 3, July 9, 1999; April 10, 11, and 17, 2000.

On July 12, 1995, the Grievor, Catherine Fenech, filed a Stage 3 grievance alleging a violation of Article 31.7, the allocation of hours by seniority, and seeking full reimbursement for lost hours and lost seniority. On March 8, 1996, the Grievor filed another grievance at Stage 2, alleging that the employer had refused to accept her change of availability notice again and seeking full monetary redress and adjustment of her seniority. The Grievor has alleged that as a result of the Employer’s discrimination and failure to accommodate her disabilities, she has suffered financial and emotional losses. The grievances have thus raised four issues. Does the Grievor meet the definition of handicapped under the definition of the Human Rights Code? If so, has the Employer engaged in discriminatory practices against the Grievor? If so, has the Employer met its duty to accommodate the Grievor in her employment short of creating undue hardship to the Employer? If the Employer has not met its duty to accommodate the Grievor, what are the appropriate remedies in all the specific circumstances of this case?

The evidence discloses that the Grievor is single, in her early 30’s, has a commerce degree, is self-supporting. Up until 1994, she had full-time employment elsewhere and was, therefore, only available on Thursday and Friday nights, as well as Saturdays (days). At the time of her right hand (wrist) injury, the Grievor held the position of Customer Service Representative (formerly Liquor Store Clerk), reporting to the Store Manager. The Job Description for the position reads as follows:

Purpose of Position: To provide prompt and courteous customer service, merchandising and inventory management of product, store security and also social responsibility regarding the sale of the product. To assist in the business and facilities management of the store.

Duties and Responsibilities:

Under the supervision of the Store Manager, the position performs retail support activities by:

CUSTOMER SERVICE

Ensuring customer service standards are maintained in all facets of store operations by:

• greeting and acknowledging customers; service the customer promptly, courteously and with tact; determining customer needs and preferences, and providing product knowledge and information as requested;

• performing cashier duties as assigned; processing Special Occasion Permits as requested;

• using good judgement in handling customers’ queries and complaints;

• maintaining a “Ready for Business” environment by filling shelves, information rack, displays, ensuring cash register area is ready, coin boxes are located at cash register, turning on climate control and background music (if available); improving general appearance of the store;

• supporting community sponsored programs;

• providing additional services to meet customer needs such as locating product, carry outs, special orders, etc.;

• advising management of customer needs / requests and identify listing opportunities, etc.

MERCHANDISING

Participating in the maintenance of a well merchandised store that is “Ready for Business” by:

• participating in appropriate and timely execution of corporate merchandising directives e.g. signage as per corporate direction and standards;

• exhibiting knowledge of application, of participation in: merchandising initiatives; IMAGE program, shelf-management program such as implementing plan-o-grams, category layout, product display directives; and listing and de-listing program;

• ensuring fully stocked shelves and displays, refrigeration units fully stocked with cold product; stock replenishment is completed in the following order: stock outs, displays, best sellers, others;

• contributing an ongoing exchange of information with Category Management to providing feedback on results of Merchandising initiatives; recommending products for listings.

INVENTORY MANAGEMENT

Ensuring that the correct quantity of inventory is at the store at the proper time by:

• exhibiting ability to order quantities consistent with customer demand;

• unloading, storing and rotating stock in orderly, systematic and safe manner;

• monitoring inventory levels versus requirements and taking / suggesting appropriate remedial action;

• maintaining knowledge and application of corporate social responsibility practices, SMAART, Liquor Control and License Acts;

• participating in operating the store in an environmentally responsible manner with appropriate awareness of environmental implications of decisions made and actions performed.

SOCIAL RESPONSIBILITY

• exhibiting positive public image: adherence to dress code, visible to the public, and promoting social responsibility re: use of alcohol;

• ensuring that issues of product quality are addressed immediately;

• knowing and applying relevant LCBO policies and procedures and legislation (Occupational Health and Safety Act, Workers’ Compensation Act, WHIMIS, Human Rights Code, etc.) guidelines.

BUSINESS MANAGEMENT

• assisting in forecasting sales re: sales history, local events, marketing opportunities;

• properly interpreting Store Income Statements to include data sourcing, analysis, interpretation and application;

• assisting in purchasing inventory / supplies; minimizing expenses and proposing cost savings;

• offering suggestions on how to improve operational efficiency.

FACILITIES MANAGEMENT

• contributing to the day-to-day store maintenance and cleanliness by performing the following tasks: ensuring parking lot and landscaping are clean and maintained, all lighted signs are in good working order, exterior of building is in good condition, interior of building has clean floors, all lights are working, store hours are posted at entrance, walls and shelving are well maintained, carts and baskets are maintained, the maintenance of the wine well, washrooms are cleaned on a daily basis and the office is neat and organized;

• participating in preventative programs; participating in Store Maintenance Checklist program.

SECURITY

• maintaining control of cash register tray, safe and all cash;

• verifying all records for accuracy;

• carrying out proper shipping and receiving procedures;

• alerting of and minimizing potential shoplifting;

• advising Store Manager of instances of theft by employees;

• advising Store Manager of potential security risks;

• operating security systems; following security procedures.

CONTINUOUS LEARNING

• achieving training standards required (e.g. Product Knowledge levels as designated);

• participating in corporate promotion and training programs and applying principles (e.g. Customer Service Excellence, IMAGE, “That’s the Spirit”, Workplace Harassment, New SMAART, etc.);

• sharing knowledge, experience and expertise with co-workers and new employees (i.e. transfers, new Casuals, Christmas Casuals, etc.).

OTHER

• performs other duties as requested.

Knowledge and Skill (required to perform the job at full working level)

Previous related retail knowledge, experience and skills. Tact, diplomacy, good verbal and written communication skills; the ability to maintain effective interpersonal relations with customers and fellow staff members; mathematical and clerical skills, ability to operate a cash register with speed and accuracy and a good knowledge of cashiering procedures; initiative and reliability; ability to work with minimal supervision in routine duties; ability to meet the essential physical requirements of the position; a working knowledge of relevant retain policies / procedures / guidelines / manuals; general knowledge of products sold by the LCBO; demonstrated awareness of the LCBO strategies e.g. Customer Service Standards of Excellence, Ready for Business Standards; completion of Product Knowledge level as designated up to level 3.

The parties were very helpful in setting out an agreed chronology of events and statement of facts relevant to the determination of this case. The parties’ “Agreed Chronology of Events” is set out below. The statements enclosed by square brackets [ ] indicate additional allegations of fact submitted by the Union but not agreed to by the Employer.

July 13, 1992 Grievor is offered casual employment by LCBO at store 20

[Exhibit #1]

May 1993-March 1994 Grievor has full-time employment with Can Amera Foods and worked Thursday and Friday evenings and Saturday days as a casual at the LCBO

July 1[8], 1994 Grievor allegedly injured at work and seeks medical attention. Grievor alleges she [subsequently] advised Store Manager, Jerry Wojtiw (“Wojtiw”), and that hours cut back; LCBO denies being told of alleged injury and denies hours are cut back

December 23, 1994 Grievor’s first medical note – “should avoid activities that cause repetitive wrist movements ie: working as a cashier”; duration of restrictions unspecified [Exhibit #11]

December 31, 1994 Wojtiw assigns Grievor to cash; [Grievor objects but works on cash, further injures right hand, then] leaves to seek medical attention; WCB Employer’s Record of Injury/Disease Form 7 filed [Exhibit #14]

January 17, 1995 Grievor provides Physician’s Report [Exhibit # 15] advising can perform CSR duties with her left hand

Grievor claims hours are reduced to 6-8 hours per week; LCBO alleges that January is the slowest month, and Grievor is scheduled according to seniority

[Note: Grievor files grievance for lost hours, March 30, 1995, for period December 1994 to March 1995.

Resolved by Minutes of Settlement January 15, 1996.]

[Note: Grievor performs work duties with her left hand until October 1995.]

March 20, 1995 Modified Work Plan #1 “Extension” drafted [Exhibit #18] for period March 20 to May 14, 1995; Grievor to perform duties which do not involve the use of her right hand (such as light housekeeping, customer service, floor surveillance); Grievor to be scheduled as “per seniority (no wage loss)”.

April/May 1995 Grievor requests change in availability [Exhibit #4A]

LCBO declines request “until the completion of your modified work program” [Exhibit #4B]

LCBO refers Grievor for an assessment by the Orthopaedic and Arthritic Hospital

[Note: From this point on, the LCBO refuses to assign Grievor hours by seniority, alleging she is limited by her “availability”, which cannot be changed while on modified duties. She is scheduled a maximum of 16 hours per week until October 1995.]

June 15, 1995 Dr. Wright produces a report [Exhibit #22]; he provides a final diagnosis of “extensor carpi ularis tenosynovitis of the right wrist”

He recommends, “Presently, she is not medically restricted from working, but she will certainly have functional restrictions in terms of discomfort and we feel that the restrictions outlined above are still realistic”

He recommends some treatment options

[Note: Evidence of Gerry Beuk is that LCBO now realizes the Grievor’s injury is likely permanent and he discusses that with Nicole Mahoney.]

July 12, 1995 Grievor files Stage 3 grievance alleging violation of Article 31.7 (allocation of hours by seniority) (Exhibit #5)

July 21, 1995 Grievor [verbally requests change of availability] and writes further request to change her availability [Exhibit #6A]

Gerry Beuk (“Beuk”) receives by fax January 19, 1996 [Exhibit #6A] and sends response February 29, 1996 [Exhibit #6C] “unable to grant her request as it does not fall within operational needs of the store”

September 21, 1995 (Grievance) [Meeting] at Store 20, attended by Beuk, Nicole Mahoney (“Mahoney”), the Grievor, and Union Representative, Don McDermott (“McDermott)

Modified Work Plan #2 [Exhibit #23] executed for period September [21] to November 5, 1995. Restrictions and job functions identified. “Alternate job function in accordance with discomfort level”. Grievor to provide update of medical conditions after October 6, 1995 appointment; schedule “as per normal hours of work”

October 3, 1995 WCB allows the right hand claim [Exhibit #24]

October 5, 1995 Grievor files a Health and Safety [Incident] Report with respect to her left hand and elbow and lays off work [Exhibit #25]

October 11, 1995 Grievor provides Physician’s Report indicating left elbow, wrist and right wrist tendonitis. Report states “Able to do inventory checking and other activities without lifting at all or cashiering for one week then able to return to modified restrictions of attached form” [Exhibit #26]

October-December 1995 Grievor off work

October-November 1995 Store 20 under renovations. Permanent store closed and temporary store in 50’ trailer operated with limited number of employees

[Note: Evidence of Jerry Wojtiw is that casual employees junior to the Grievor worked at the trailer during this period.]

December 11, 1995 Grievor transferred to Store 1 for pilot project as a “greeter” over Xmas period [Exhibit #28A]; Grievor believes temporary re-assignment, but LCBO states that no assurances given that transfer would be temporary

[Note: Evidence of Gerry Beuk is that he thought the transfer was for the Christmas period and that Larry Flynn made the decision it was permanent.]

December 12, 1995 Modified Work Plan #3 [Exhibit #27] (entered into between) [executed by] Grievor and Store Manager Paul Mancini (“Mancini”) for period December 12, 1995 to January 8, 1996. Restrictions of no lifting and no cashiering identified. Job duties to include customer service and floor surveillance. Grievor to be scheduled as per seniority

January 1996 Grievor’s scheduled hours drop after Greeter Pilot Project expires; Grievor alleges her hours drop to 14 per week [or fewer]

LCBO alleges January is the slowest month of the year

January 15, 1996 Grievance meeting at (Store 1) [Burlington Regional Office] attended by Beuk, Yolanda Simone (“Simone’), Grievor and Jean Chaykowsky (“Chaykowsky”). Mahoney brought in briefly.

LCBO alleges Grievor raises concerns about her job functions, specifically, discomfort in holding bottles. Grievor disagrees and alleges LCBO setting undue restrictions

January 17, 1996 Grievor provides Health Care Provider’s Note [Exhibit #30], indicating no lifting and no cashiering and “would benefit from light duties such as assisting customers … [until January 24/96 when patient will be assessed by WCB doctors”. Under “Duration” he notes “to be assessed by WCB doctors at Jan. 24/96 assessment.”]

January 19, 1996 Grievor submits another request to change her availability [Exhibit #6B]

January 20, 1996 Grievor alleges her last day of work on the schedule for January and is off work until March 1996

January 26, 1996 LCBO sends letter to Grievor [Exhibit #31] advising “unable to continue to accommodate you, and I will be requesting that the Workers’ Compensation Board advise me on the suitability of the work we have provided you”

February 9, 1996 LCBO corresponds with WCB and Grievor with respect to the suitability of modified work [Exhibits #32 and #49]

February 16, 1996 WCB advises Grievor the modified work is suitable [Exhibit #62]

February 22, 1996 Mahoney writes Grievor confirming modified work programme available [Exhibit #39]

February 26, 1996 Beuk writes to Grievor, responding to her January request to change availability, and advising “unable to grant your request as it does not fall within the operational needs of the store. You will continue to be scheduled hours of work as per the modified work agreement previously in effect” [Exhibit #6C]

March 1, 1996 Meeting regarding Grievor’s return to work attended by Mancini, Mahoney, Grievor, McDermott

Modified Work Plan #4 executed for an indefinite period [Exhibit #33]; restrictions identified as no lifting, no cashiering. Job duties to include customer service and floor surveillance. MWP #4 notes: “Schedule as per operational requirements with no wage loss.” Grievor signs “without prejudice” beside the scheduling notations.

Grievor offered use of hands-fee walkie-talkie, but refuses.

[Note: This is the last meeting/conversation between Nicole Mahoney and the Grievor.]

[Note: From this time forward, LCBO schedules the Grievor to a maximum of 15 hours per week, always on Thurs., Fri. evenings, Saturday days. Hours not replaced if Grievor is unavailable or holiday falls on one of these dates. LCBO’s rational is that 15 hours represents a “no wage loss” schedule. The ceiling is moved to 19 hours per week on the terms described in Exhibit #77A in August 1998.]

March 7, 1996 Grievor returns to work at Store 1. Schedule maximum 15 hours per week

March 8, 1996 Grievor files grievance at Stage 2 re refusal to change availability request [Exhibit #7]

[Note: Between April and August 1996, the Store Manager imposes discipline of the Grievor for not working on the second Thursday of each month and/or for not producing a medical note to substantiate that she was at a Support Group meeting on that night. Grievor received written warning, 1, 3, and 5 day suspensions. Grievances resolved by Minutes of Settlement, Exhibit #76, in June 1997.]

June 25, 1996 Grievor provides Health Care Provider’s Report [Exhibit #52], which lists restrictions to include: “no lifting – [as outlined previously by WCB]” “no [regular] carrying, [as outlined previously]”, “no repetitive pushing [of trolleys occasional only]”, and identifies injury area as both arms (lower and upper), wrists, shoulders and neck

[Note: This is the last medical report requested by the LCBO until the Dr. Chung report in November 1998.]

Christmas 1996 LCBO alleges Greeter Pilot Project not re-activated. Grievor continues to work maximum 15 hours per week, or less due to statutory holidays (resolved by Minutes of Settlement) as per [Exhibit #77A] which LCBO alleges is in accordance with operational requirements of store. LCBO hires security guard services for Christmas period

[Note: Store Manager’s (Mancini) evidence is that a “watered down” version of the greeting project existed over Christmas ’96, with employees sharing that work. The Grievor received no additional hours]

October 24, 1997 WCB recognizes left wrist injury [Exhibit #43] [as a permanent disability]

November 14, 1997 Pilot project of “Bottle Your Own” opens at Store 1; CSR functions in BYO are different from CSR functions in liquor stores

[Note: All evidence consistent that Grievor not considered, nor assessed, for this position. Assessment does occur in 1999/2000 as a result of the grievance proceeding.]

January 14, 1998 1^st arbitration hearing date

August 13, 1998 Grievor’s duties expanded to include: price changes / signage; light housekeeping; gathering carts; re-stocking information racks; clearing away empty boxes on floor, and providing boxes to cash areas as requested [Exhibit #77A]

August 20, 1998 Grievor’s hours or work extended on Thursday and Friday evenings until (10:00) [11:00 p.m.] [Exhibit #77A)]

[Note: These changes were made in consultation with the Grievor and the Union. The Grievor’s evidence is that she expressed a willingness to attempt other duties, e.g. such as using the scanner and trying the tasting booth, and she was told to await assessment for these functions.]

November 19, 1998 Grievor assessed by Dr. Chong, a physician of her choice. He concluded, “With respect to work placement … it is my opinion that she will have difficulty performing these occupational essential tasks as outlined in the job description provided (of Customer Service Representative). Any form of repetitive gripping and lifting of objects similar to the ones documented in the videotape would bring on the onset of her problems… it would be inadvisable for her to engage in work of a similar nature because of the direct relationship to her physical problems” [Exhibit #77B]

February 18, 1999 LCBO contracts with Work Able to perform an ergonomic assessment of the Grievor and CSR duties of BYO at Store 1; Work Able was a company the (Grievor) [Union] had suggested

[Note: The Union had actually proposed either Work Able or Dr. Geoffrey Wright, and had indicated a preference of Dr. Wright. The LCBO chose from the Union’s recommendations.]

March 12, 1999 Grievor, Union, and LCBO attend assessment of the BYO position

[Note: No other job functions, such as the use of the scanner or the duties at the tasting booth, were part of the assessment]

Work Able produces report titled “LCBO ‘Bottle Your Own” Ergonomic Assessment [Exhibit #77C]

[Note: Major conclusions, pg 13: “It is felt that the Customer Service Occupation at the ‘Bottle Your Own’ section would not put Ms. Fenech under any excessive risk … The physical demands identified … is within the above recommendations.”]

July 19 & 20, 1999 Grievor attends at Work Able’s offices for beginning of 5- day ergonomic assessment. Aborted on day 2. Grievor and Union request assessment by different assessor, and suggest Dr. Geoff Wright

Fall 1999 Union and LCBO agree to have Grievor ergonomically assessed by Dr. Geoff Wright

January 5, 2000 Dr. Wright conducts ergonomic assessment of Grievor in the BYO position

February 6, 2000 Dr. Wright produces preliminary analysis of Grievor’s ability to perform CSR duties in BYO. Concludes: “…the job of a CSR in the LCBO’s BYO Store is generally within Ms. Fenech’s physical abilities. The exceptions are those requirements of the work tasks which involved repetitive gripping and lifting of objects and work activities where reaching above the shoulder would occur. The use of easily implementable workplace accommodations would bring these physical requirements within Ms. Fenech’s physical abilities”

March 28, 2000 LCBO, Grievor and Dr. Wright meet at BYO to discuss what physical changes and equipment must occur for Grievor to perform CSR duties at BYO

The parties filed a further Agreed Statement of Facts with respect to the events from August 20, 1998 to July 23, 1999 as follows:

1. Effective August 20, 1998, the Grievor’s hours of work were extended on Thursday and Friday evenings until 10:00 p.m.

2. Effective August 13, 1998, the Grievor’s duties were expanded to: price changes/signage; light housekeeping (kitchens, bathrooms); gathering carts; re-stocking information racks; clearing away empty boxes on the floor, and providing boxes to the cash areas as requested.

3. The Employer made a good faith payment to the Grievor, by cheque dated November 2, 1998, in the amount of $7,125.19, less deductions required by law, to compensate the Grievor for the following:

i. two hours per shift worked for each Thursday and Friday evening from the period January 19, 1996 to August 19, 1998;

ii. the five 6-hour shifts missed because of statutory holidays falling on a Thursday or Friday from 1996 to 1998;

iii. five hours’ pay to acknowledge Store 1 was open until midnight on December 4, 5, 12, 18, 19, 1997.

The Parties agreed that this good faith payment would be made without admission of liability by any party. The parties agreed that they could make any argument before the Arbitrator regarding any issues in the payment of damages, if any, although the amount of the good faith payment will be deducted from any damages the Arbitrator may find owing by the Employer.

4. During the 1998 Christmas season, the Grievor was scheduled as follows: December 21^st, from 5:00 p.m. to 11:00 p.m.; December 22^nd, from 5:00 p.m. to 11:00 p.m.; December 23^rd, from 5:00 p.m. to 11:00 p.m.; December 24^th, from 10:00 a.m. to 6:00 p.m.; December 28^th, from 5:00 p.m. to 11:00 p.m.; December 29^th, from 5:00 p.m. to 11:00 p.m.; December 30^th, from 5:00 p.m. to 11:00 p.m.; December 31^st, from 12:00 a.m. to 6:00 p.m.; January 2^nd, from 10:00 to 6:00 p.m.

5. The Grievor was medically assessed by Dr. John Chong, a physician of her choice, on November 21, 1998.

6. Dr. Chong’s medical report, dated November 20(sic), 1998, was received by the Employer on January 8, 1999. Dr. Chong’s report stated, “With respect to work placement, it is my opinion that she will have difficulty performing these occupational essential tasks as outlined in the job description provided. Any form of repetitive gripping and lifting of objects similar to the one documented in the video tape would bring on the onset of her problems” (copy of which is enclosed).

7. On or about February 19, 1999, the Employer contracted with Work Able to perform an ergonomic assessment of the Grievor with respect to working as a CSR in Store 1 in the BYO section, and a Physical Demands Analysis of the BYO CSR position was performed on Friday, March 12, 1999;

8. The Grievor was scheduled to attend a 5-day ergonomic assessment at Work Able’s offices from July 19 to 23, 1999, to assess her ability to perform the CSR function in BYO.

It is useful to set out the following additional facts. The evidence is unclear with respect to the question of whether or not the Grievor reported her right wrist injury to Wojtiw before December 1994. The first medical note confirming the Grievor’s right wrist problems is dated December 23, 1994. The Employer‘s Form “Report of Injury” dated December 24, 1994, concluded that the diagnosis was “right wrist tendonitis. Activities at the time of injury – cashiering.” Wojtiw testified that sometime by the end of December 1994, the Grievor objected to working on cash. He consulted with his District Manager, Gerry Beuk and they nevertheless decided that the Grievor should go back on cash. He told her: “if you can’t work cash, you can’t work at all”. Wojtiw cut back her work hours, claiming that there was no modified work. However, there were at least two employees at the store that never did cash and the Union submitted that it might have been possible to organize the Grievor’s work without a cash function. Nevertheless, the Grievor was assigned back on cash and her right hand became so sore she could not bend a finger. The Grievor then went off work after December 31, 1994 and started physiotherapy for six weeks. The Physician’s Report, dated January 3, 1995, stated the “Patient has a hand tendonitis which has been lingering because of persistent misuse.” It specified no end date to the restriction. According to the Grievor, when she handed the note to the Employer, she received a very unsympathetic response. The January 9, 1995 letter from Nicole Mahoney, Human Resources Assistant at the LCBO, to the Workers’ Compensation Board, Claims Adjudication Services, states:

As noted on the form, the worker has reported a problem with her right wrist and has requested that she be placed on modified duties. As a result, Ms. Fenech is performing modified duties, i.e. greeting customers, product knowledge, floor surveillance, and other light duties which do not involve the use of her right wrist, at no wage loss.

We do have a concern, however, that she knew about this problem with her wrist, since July, 1994, and that she failed to report this fact to her employer until December 24, 1994.”

The Grievor then also did a lot of stock duties with her left hand. A further Physician’s Report, dated January 17, 1995, indicated that the Grievor was able to use her left hand fully but noted that she could only perform modified work with restrictions. The Modified Work Plan #1 covered the period March 20 to May 14, 1995, and stated:

Accommodation Requirements: No lifting beyond 3 lbs. – no carrying Extension beyond 3 lbs. – no typing – writing – sorting – worker will perform light housekeeping duties, customer service, floor surveillance, and other duties which do not involve the use of her right hand

The Grievor’s March 30, 1995, grievance covering the period December 1994 to March 30, 1995, was resolved in January 1996. Upon her return to work, sometime in April / May 1995, the Grievor tried to file a Change Availability form with the Employer. Her April 28 letter to Wojtiw indicated that effective immediately, her availability was:

Mon. to Wed. 5 – 9

Thurs. & Fri. 9 am – 9 pm

Sat. 9 am – 6 pm

Wojtiw refused to accept her request to change her availability and testified that he believed that it was not possible to change availability when on a modified work program. Her May 13^th letter to Wojtiw pointed out that neither her modified work program nor the medical recommendations contained any restrictions on the number of hours that she could or should work. Both Wojtiw and Mancini later admitted at this hearing that with able-bodied employees it was easy to change an employee’s availability.

On May 19, 1995, Nicole Mahoney sent a letter to the Orthopoaedic and Arthritic Hospital to Janet Greenbank, the Director of the Regional Evaluation Centre, stating as follows:

As we discussed, Catherine Fenech will attend the Orthopaedic and Arthritic Hospital and she will be seen by Dr. Stewart Wright, on June 15, 1995 at 9:00 a.m.

I have enclosed a job description which depicts the physical requirements of Catherine’s job and I have also included a copy of the modified work plan that she has been on since December, 1994. She has been seen by Dr. Weltman, Family Practice and Medical Centre, Etobicoke, since January 3, 1995, however, to date her medical condition remains unchanged. On April 4, 1995, I was advised by the Workers’ Compensation Board that Catherine’s medical diagnosis (tendonitis) was not compatible with the pre-accident job description and her claim was denied.

Although we continue to make every effort to accommodate Ms. Fenech, we are anxious to have her resume her regular job duties, or at least to have them increased to a more reasonable level.

On June 15, 1995, Dr. C. Stewart Wright, from the Orthopaedic and Arthritic

Hospital reported to Mahoney as follows:

She is a 27 year old right handed cashier with the LCBO. She has worked with them for about 3 years and does stock and cash work. Since July 1994, she has had problems of a right wrist tendonitis. She has had her WCB claim denied. …

In July 1994, she noted the onset of discomfort along the dorsal ulnar aspect of her right wrist. She took some time off work but her symptoms never resolved. Since then she has also developed some stiffness in the digits. This was particularly so at the end of a busy day when she was doing a lot of work on the cash. By the end of December 1994, she was getting increased pain. She went off work for about a week and has been doing modified work since then. This work involves no lifting from floor to waist of greater than 3 lbs., no carrying greater than 3 lbs., no writing, sorting or typing. She performs light housekeeping activities, customer service, floor surveillance and other duties not involving the right hand.

Recommendations:

We have suggested to her that she should seriously consider having a steroid injection in the area of the discomfort and if this does not help to settle the symptoms, she might even need to consider a tenosynovectomy of this area.

We have suggested to her, as well, that she needs to look at a proper wrist support to use when the wrist is sore or when she is doing things that may make the wrist sore. We have talked as well about the types of strengthening and stretching exercises that she should be doing.

Presently, she is not medically restricted from working, but she will certainly have functioning restrictions in terms of discomfort and we feel that the restrictions outlined above are still realistic. She has been advised to be in touch with the family physician to review the situation as far as a steroid injection is concerned, to see whether he would do this or whether he would refer her back to the physiatrist or rheumatologist who had seen her previously.

The Grievor decided that the steroid injections and surgery were not suitable for her. At the same time, management began to realize that the Grievor’s injury was, in all likelihood, permanent. The following month, on July 21, she attempted to speak to G. Beuk , the District Manager, to have her availability changed so that she could get assigned more hours. Her second change of availability request was refused and she was not assigned more hours. The Grievor understood that there was lots of work at Store #20. Two employees were off work and the store was being staffed by Casuals from other stores including Casuals with less seniority than the Grievor. Two outside employees were given 40 hours each, but the Grievor was only assigned 16 hours per week.

In July 1995, the Grievor stopped lifting more than 3 pounds as her left wrist was also becoming compromised. However, Mahoney’s handwritten note dated August 11, 1995, stated as follows:

Spoke to C. Fenech concerning her MWP. Advised her that according to our information, she does not have a medical problem with her left arm or wrist and that she is expected to perform certain duties, i.e., stocking shelves, dusting, facing up with her left hand. She said she would not and she also said that she would not lift or do anything with either arm. I suggested having a meeting and she said no – because they won’t give me hours during the day. I advised her that if her condition has worsened to the point where she cannot perform any duties that Gerry advised me that he might not be able to accommodate her until her condition improved.

She also advised me that WCB was going to overturn their original decision to deny the claim because she had informed them what pathological liars we all are (re: the job w/computer co. doing data entry). She also told me she was filing Human …

By September 18, 1995, the relationship between the Grievor and Mahoney was deteriorating further. In a letter to the Workers’ Compensation Board Claims Adjuster, Nicole Mahoney wrote:

Ms. Fenech advised you that the cash register height was 44 inches. We measured the height of the cash drawer and it measures 41 inches from the floor. In addition, our cash registers have two cash drawers, and the lower cash drawer, which could have been utilized, had she so requested, measures 36 inches.

We have investigated the possibility that Ms. Fenech was overpaid by one half hour on October 8, 1994, as a means of pacifying her after having had a quarrel with Mr. Wojtiw, her manager, over her wrists. Mr. Wojtiw was questioned and he denies having had a quarrel with her on the date in question. In fact, the store records clearly indicate that on October 8, 1994, Catherine’s cash drawer did not balance at the end of her shift and she was required to stay at work 20 minutes late in order to sort out the problem. Therefore, as per our collective agreement, Catherine was paid for an extra half hour.

A grievance meeting was held on September 21, 1995 at which time the second Modified Work Plan was developed for the period September 21 to November 5, 1995. Another handwritten note stated as follows:

… she will also get information on her left arm (she is beginning to experience problems with her left arm. Duties to be assigned as of September 21, 1995: customer service, i.e., greeting cust. & provide assistance; facing up & loading fridge (alternate job function in accordance with Catherine’s discomfort level); floor surveillance; dusting, tidy kitchen area, dry mopping; stock miniature racks”.

The Workers’ Compensation Board allowed the Grievor’s right hand claim on October 3, 1995.

On October 5, the Grievor developed pain in her left elbow while stocking a refrigerator with beer bottles. The Incident Report was filed the same day and the Physician’s Report on October 11. She was off work from October 5 to December 11, 1995.

When she returned to work in December, she was assigned to perform the greeter function over the Christmas holidays even though the Doctor had approved inventory checking and other activities. The third Modified Work Plan was implemented by December 12, 1995. The Job Duties were to Include: “Customer service (greet customers, provide assistance with product selection, etc…) floor surveillance”. Thus, for the Christmas period in 1995, the Grievor was assigned to the Greeting Project at Store #1. After the greeter assignment finished, her assigned job hours dropped to 14 per week without consultation with her. The Grievor also thought that her assignment at Store #1 was a temporary assignment but later it turned out to be, to her surprise, a permanent transfer.

In an acrimonious grievance meeting held on January 15, 1996, Gerry Beuk told the Union and the Grievor that he would examine whether the Grievor could continue her modified work plan at all. The Grievor was accused of violating her work program and the Grievor accused the Employer of violating Human Rights legislation. The January 17, 1996, Health Care Provider’s Report stated that the Grievor

“Would benefit from light duties such as assisting customers, etc. with no lifting or cashiering until Jan. 24/96 when patient will be assessed by WCB doctors”.

On January 19, 1996, the Grievor tried for the third time to file her Change of Availability form. She advised her Employer that she would be available, effective immediately, Mondays to Fridays: 9 am to 11.15 pm and Saturdays from 9 am to 6 pm. As outlined below, the Employer again turned down her request to change her availability. The next day, her Modified Work Program was stopped and her name was dropped from the schedule altogether.

On January 24, she attended the Rehabilitation Clinic. The Grievor was off work from January 20 until March1996. In a January 26, 1996 letter to the Grievor, Beuk wrote as follows:

This letter is further to our meeting on January 15, 1996, during which you advised me that you have concerns with regard to continuing your modified work program because occasionally you feel that, although you are not obligated to, you may occasionally lift a bottle from the shelf to assist a customer and this action causes you pain and discomfort.

I have now had an opportunity to reflect on your comments and concerns, and I have carefully reviewed this matter.

As you are aware, you have been on a modified work program, at no wage loss, since you advised your supervisor, on December 24, 1994, that you were experiencing problems with your right wrist. Your role since then has been to greet customers and provide customer service.

We are unable to modify this job further as it does not involve any physical activity with the exception of walking and standing.

Therefore, we are unable to continue to accommodate you, and I will be requesting that the Workers’ Compensation Board advise me on the suitability of the work we have provided you.

On February 9, 1996, Mahoney wrote to the Grievor:

As you are aware, we were advised on January 15, 1996, that you had concerns with regard to continuing your modified work program because you feel obligated to lift the occasional bottle off the shelf to hand to a customer.

Your modified work program remains available to you, however, in view of your concerns, we feel it is imperative that we review your medical restrictions and level of disability with the Workers’ Compensation Board. We will also be requesting the intervention of a Caseworker to assist in your return to work.

Beuk wrote to the Grievor on February 29 and advised that her January request to change her hours of availability was declined as “it does not fall within the operational needs of the store”. The Union agreed that the Employer thus effectively superceded the Grievor’s seniority rights citing operational needs. A subsequent meeting, attended by management, the Union and the Grievor, was less than pleasant. The Employer maintained its position that the Grievor was restricted to her schedule on Thursday and Friday evenings and Saturday days. Mahoney continued to maintain her position that the Grievor could only be assigned up to a maximum of 15 hours of work per week. Mahoney repeatedly put the onus on the Grievor to demonstrate what job duties she was capable of performing. In the meantime, she gave the Grievor the most limited job duties available.

At one point, the Grievor had also complained that the cash registers were too high. Mahoney considered the issue by having the height of the cash registers measured. She decided they were not too high for the Grievor. The Union suggested that the necessary accommodation would have been quite simple in the circumstances. A small platform could have been placed on the floor thereby raising the level of the Grievor’s arms, and also thus lowering, in relative terms, the height of the cash register.

By March 1, 1996, there was a total breakdown in communications between Mahoney and the Grievor. The Union alleged that Mahoney never met with or spoke to the Grievor after March 1, 1996, even though she continued to be responsible for the management of the Grievor’s file. The evidence does not disprove the union’s allegation. After March 1, 1996, the Grievor was disciplined for failure to attend work on the second Thursday evening of each month even though she had advised the Employer that she was attending meetings of a support group. The issues related to the Grievor’s attendance at the support group were eventually resolved by the parties in June, 1997.

Mancini testified that he could have scheduled the Grievor for 40 hours per week if he had scheduled her according to seniority, but he was concerned that he would not get “a bang for his buck” with the Grievor. He made no effort to assess the store’s schedule to determine which periods were busy or to investigate and assess the Grievor’s suitability for a variety of other duties at the store.

Mancini acknowledged that the store would start to get busy around 2:00 pm but the Grievor was not asked to come in earlier than her usual start time of 5:00 p.m. She continued to be assigned a maximum of 15 hours per week until August, 1998, when her weekly hours were increased to 19.

In a September 7, 1997 memo, Mancini wrote to the Grievor about her availability and scheduled shifts as follows:

My Responsibility in the case of emergency hours is to fill the shift with minimal effect and effort. All hours will be scheduled in accordance with your availability sheet and absolutely no changes will be accepted unless a written request is received detailing why, when and how long and I will consider it. I am holding you to your contracted availability and will accept no excuses or changes to shifts. ….. should your availability to work not be compatible with the operational needs of the store, your suitability to work at this store or the LCBO will be reassessed at that time.

The Employer decided that the Grievor’s work was not productive to the LCBO and it did not consider a re-training program for the Grievor. It was not until 1999 that the Employer arranged to do an assessment of the Grievor’s capabilities to perform other duties.

I find that the evidence adduced shows that Mancini could have accommodated the Grievor from 1996 on and increased her weekly work hours, particularly at times like Christmas and other busy periods. For example, Mancini testified that he hired between 35 and 40 Christmas casuals to accommodate the 1998 Christmas rush. His store exceeded benchmarks and was doing very well financially. The busiest hours at the store were between 2 and 7-8 pm. The Grievor was scheduled from 5pm to 9 pm. Mancini took no steps to investigate which duties the Grievor would have been able to perform and made no effort to find out what type of accommodation could have given her more work hours. He never checked her ability to operate the computer, did not give her the keys to the machine but criticized her for asking other employees to access it for her.

Sometimes, extra days were scheduled to implement sign changes in the stores. The Grievor could have been scheduled extra hours by being assigned work hours during the sign change process. The Employer could have but did not provide her with a raised Writing Board even though it was clear that she could do more writing with it. The evidence shows that the Grievor was not assessed for any of the following jobs: the toe holder job, the tasting booth, gift wrapping, stocking miniatures, doing signs or displays, or Special Occasion Permits. She was not given an access code to enable her to use the computer even though the computer was available to her. I find that on the whole of the evidence adduced before me, the Grievor could have actually been assigned up to 40 hours per week throughout this period of time had the Employer accepted the Grievor’s change of availability forms, identified a “bundle” of duties and assigned these duties to her. It is possible that the Grievor might not have been able to perform all of the duties assigned, but she would have had a chance to try them out and having such a chance she might have been able to demonstrate that she could perform them. As it was, I find that she was arbitrarily deprived of the opportunity to at least attempt the performance of such duties.

The Union’s various assertions can therefore be summarized as follows. The Union has asserted that the Employer failed to accommodate the Grievor in the following ways. First, the Union alleged that the employer failed to involve the Grievor from the outset in developing her own plan. The lack of real involvement escalated into total breakdown in communication between the case co-ordinator, Nicole Mahoney, and the Grievor. It was argued that the case co-ordinator should have assigned the Grievor’s file to someone else or management should have replaced the case co-ordinator.

Second, in 1995, when management first learned that the Grievor’s right hand was compromised by the Modified Work Plan, it took no steps to investigate further, or to take action to mitigate her loss.

Third, Management failed to include Grievor’s own ideas about how her disability might best be accommodated. So her suggestions with respect to the height of cash register were ignored, as was her willingness, in 1998, to be assessed on scanners and other job functions. Also, her concerns about additional hours were ignored.

Fourth, Management set completely unreasonable restrictions in the Grievor’s modified work plan. She was extremely restricted, work was not particularly meaningful and she was assigned very restrictive duties. Her situation became a vicious circle: she could not get more hours, because the work not productive. She could not get more productive work because they would not allow her to get more hours. The duties should have been appropriate and temporary so that she could have room for progression. From 1995 to 1998, she was a greeter, a much more restrictive job than necessary, given the options at the workplace.

Fifth, the LCBO failed to switch gears from temporary to permanent accommodation in June 1995. Further to Wright’s report and meeting with Nicole Mahoney and Gerry Beuk, management did not investigate permanent accommodation. They had a positive duty to assess other duties at Store #1, as well as at other stores, locations and at warehouses. Management was under an obligation to identify appropriate positions, and to seek the consent of the Union if assigning the Grievor to any such positions involved collective agreement rights. Management’s duty towards the Grievor crystallized in June 1995.

Sixth, even considering the store’s Greeter’s functions, the store manager made no attempt to make the Grievor’s work more meaningful. He could have given her the keys to the cabinet that contained the more expensive bottles. Some office work was available in the morning and it could have been made available in the afternoon. She could have been assigned to Signage and she could have received extra hours. These were things within her capability without placing undue hardship upon the Employer.

Seventh, the unilateral imposition of the 15 hours rule prevented the Grievor from receiving rehabilitation as the Employer then took the position that she suffered from no wage loss. Since Paul Mancini looked at 15 hours as a ceiling, her seniority rights were limited, and the Grievor suffered a real wage loss throughout. In addition, the 15 hours was very inflexible as there was no replacement of time lost.

The Union also alleged that there was no attempt by the Employer to investigate the actual cost of accommodation. No cost analysis was produced at this hearing. As well, the Union submitted that since, at some point, the Employer committed to provide the BYO position to the Grievor, the issue raised by the Employer of the Grievor’s incapacity to perform the essential duties of the position was inapplicable.

Counsel for the Union relied upon the following case law in support of its submissions before this Board: Ontario Human Rights Commission, et al, and Simpson-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 23 D.L.R. (4^th) 321 (SCC); York County Hospital and Ontario Nurses’ Association (1992), 1992 CanLII 14494 (ON LA), 26 L.A.C. (4^th) 384 (Watters); McMaster University and SEIU, Local 532 (1993), 1993 CanLII 16657 (ON LA), 31 L.A.C. (4^th) 257 (Brunner); United Air Lines and International Association of Machinists and Aerospace Workers (1993), 1993 CanLII 16768 (CA LA), 33 L.A.C. (4^th) 89 (MacIntyre); Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1993), 1993 CanLII 16706 (ON LA), 35 L.A.C. (4^th) 357 (Fisher); Metropolitan General Hospital and Ontario Nurses’ Association (1993), 1993 CanLII 16714 (ON LA), 37 L.A.C. (4^TH) 113 (Brown); Mount Sinai Hospital and Ontario Nurses’ Association (1996), 1996 CanLII 20325 (ON LA), 54 L.A.C. (4^th) 261 (Brown); Mount Sinai Hospital and Ontario Nurses’ Association (1997), 1997 CanLII 26795 (ON LA), 66 L.A.C. (4^th) 221 (Emrich); Orangeville Police Services Board and Orangeville Police Association (1994), 1994 CanLII 18634 (ON LA), 40 L.A.C. (4^th) 269 (Knopf); Re Calgary District Hospital Group and United Nurses of Alberta, Local 121-R (1994), 1994 CanLII 18594 (AB GAA), 41 L.A.C. (4^th) 319 (Ponak); Board of Governors of Riverdale Hospital and Canadian Union of Public Employees, Local 79 (1994), 1994 CanLII 18582 (ON LA), 41 L.A.C. (4^th) 24 (Knopf); Greater Niagara General Hospital and Ontario Nurses’ Association (1995), 1995 CanLII 18313 (ON LA), 50 L.A.C. (4^TH) 34 (Brown); Lever Brothers Ltd. and Teamster-Chemical, Energy & Allied Workers, Local 132 (1995), 1995 CanLII 18341 (ON LA), 51 L.A.C. (4^th) 373 (Harris); Ontario Public Service Employees Union and Ministry of Community and Social Services [1996] O.J. #608 (Ont. Div. Ct.); Maple Leaf Foods Inc. and United Food & Commercial Workers, Local 175/633 (1996), 1996 CanLII 20332 (ON LA), 60 L.A.C. (4^th) 146 (Kirkwood); ReTarxien Co. and Canadian Auto Workers, Local 1090 (1997), 1997 CanLII 25109 (ON LA), 62 L.A.C. (4^th) 129 (Armstrong); Excerpts from Human Rights Code, R.S.0. 1990, c. H.19; “Guidelines for Assessing Accommodation Requirements for Persons with Disabilities”, Ontario Human Rights Commission, published August 1989; “The Duty to Accommodate at Arbitration: An Arbitrator’s Perspective”, Labour Arbitration Yearbook 1996-7 (Picher); The Municipality of Metropolitan Toronto and The Canadian Union of Public Employees, Local 79 (Smith) (1991), (Springate); Pacific Press and Communications, Energy and Paperworkers Union, Local 115-M (1998) 1998 CanLII 30129 (BC LA), 73 L.A.C. (4^th) 35 (Bruce); Valley Rite-Mix Ltd. and Teamsters, Local 213 (Serben Grievance) (1997)B.C.C.A.A.A. No. 204 (Blasina); Wight v.Ontario (Office of the Legislative Assembly ) [1998] O. H. R. B. I. D. No. 13, (Mikus); McKinnon v. Ontario (Ministry of Correctional Services) [1998] O.H.R.B.I.D.(H.A.Hubbard).

Counsel for the Employer submitted that in order to resolve the issues raised in this hearing as articulated by the Union, it is necessary to determine the essential functions of the Customer Service Representative (CSR) position and compare those to the essential functions of the BYO position as the two may be different. She submitted that the essential functions of the CSR position, as testified by all management witnesses, were cashiering and warehousing. In addition, the Employer relied upon the medical documentation, the Manager’s Assessment forms, the Modified Work Plans and the WCB correspondence. Consequently, it was submitted that if the Grievor was incapable of performing the essential functions of the CSR position, the Employer did not have a duty to accommodate her. However, beyond that, if it was found that the Employer did have a duty to accommodate the Grievor, it was submitted that the Employer had in fact accommodated the Grievor beyond the point of undue hardship.

Counsel for the Employer relied upon the following case law: Re Better Beef Ltd. and United Food & Commercial Workers International Union, Region 18 (1994), 1994 CanLII 18761 (ON LA), 42 L.A.C. (4^TH) 244 (B. Welling); Bonner v. Minister of Health (Ont.) (1992) 92 CLLC 17,019 (H.A. Hubbard); Re Fenwick Automotive and U.S.W.A, Local 7454 (1999), 1999 CanLII 20393 (ON LA), 84 L.A.C. (4^th) 271 (B.A. Kirkwood); Re Stelco Inc., Hilton Works and United Steelworkers of America, Local 1005 (1995), 1995 CanLII 18410 (ON LA), 50 L.A.C. (4^th) 301 (W.A. Marcotte); Re Community Nursing Home-Port Hope and United Food & Commercial Workers International Union, Local 175 & 633 (1996), 1996 CanLII 20405 (ON LA), 60 L.A.C. (4^th) 35 (M.R. Gorsky); Re Ontario English Catholic Teachers’ Association and Office and Professional Employees’ International Union (1996), 1998 CanLII 30057 (ON LA), 61 L.A.C. (4^th) 109 (Burkett); Re Calgary Herald and Calgary Printing Trades Union, Local 1 (1995), 1995 CanLII 18387 (AB GAA), 52 L.A.C. (4^th) 393 (D.G. Tettensor); Re Canada Post Corp. and Canadian Union of Postal Workers (Godbout) (1993), 1993 CanLII 16715 (CA LA), 32 L.A.C. (4^TH) 289 (T.A.B. Jolliffe); (Board of School Trustees, School District No. 23 (Central Okanagan), et al. V. Renaud, et al. (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4^th) 577 (S.C.C.); Alberta Human Rights Commission v. Central Alberta Dairy Pool; Canadian Human Rights Commission et al., Interveners (1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4^th) 417 (S.C.C.); Re Pan Abrasive Inc. and United Steelworkers of America, Local 8777 (1993), 1993 CanLII 16664 (ON LA), 38 L.A.C. (4^TH) 434 (J.T. Clement); Re Interlink Freight Services and Transportation Communications Union (1996), 1996 CanLII 20454 (CA LA), 55 L.A.C. (4^th) 289 (M.G.Picher); Re Hamilton Civic Hospitals and Canadian Union of Public Employees, Local 794 (1994), 1994 CanLII 18646 (ON LA), 44 L.A.C. (4^TH) 31 (R.L.Kennedy); Re Peerless-Cascade Plastics Ltd. and Canadian Automobile Workers, Local 195 (1991), 1991 CanLII 13471 (ON LA), 20 L.A.C. (4^th) 263 (E.E.Palmer); Re Pullman Trailmobile Canada Ltd. and United Automobile Workers, Local 397 (1982), 1982 CanLII 4993 (ON LA), 4 L.A.C. (3d) 243 (H.D.Brown); Ontario Public Service Employees Union, Local 255 v. Ontario [1997] O.J. No. 533 (D. Lissaman); Ontario Nurses’ Association and Orillia Soldiers Memorial Hospital et al. (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692 (Doherty)(Ont. C. A.); Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital et al. [1999] S.C.C.A. No. 118 (Major); OLBEU v. The Crown in Right of Ontario (Liquor Control Board of Ontario) (Kruczaj) (1996) Unreported decision of the Grievance Settlement Board March 25, 1996 (#1359 / 93) (Briggs); O. L. B. E. U. v. The Crown in Right of Ontario (Goncalves) (Feb. 23, 2000) Unreported Decision of the Grievance Settlement Board #134 / 99 (R.Brown); Re Canada Post Corporation and Canadian Union of Postal Workers (1984), 1984 CanLII 5171 (CA LA), 16 L.A.C. (3d) 283 (C. McKee); Re A.G. Simpson Co. and Canadian Auto Workers, Local 222 (1996) 1996 CanLII 20303 (ON LA), 58 L.A.C. (4^TH) 411 (R.L.Kennedy); Re Apex Metals Inc. and Canadian Auto Workers, Local 1524 (1997) 1997 CanLII 24944 (ON LA), 64 L.A.C. (4^TH) 289 (E.E.Palmer).

DECISION:

As set out above, this case presents four issues. First, does the Grievor meet the definition of ‘ handicapped’ under the definition as set out in the Ontario Human Rights Code. Second, assuming that the Grievor meets the definition of handicapped under the Ontario Human Rights Code, then has the LCBO engaged in discriminatory practices against the Grievor contrary to Sections 2.1(b) and 31 of the Collective Agreement as well as the provisions of the Ontario Human Rights Code? Third, if the Employer has in fact engaged in discriminatory practices, then has the Employer met its duty to accommodate in the Grievor in her employment to the point of undue hardship? Within this issue is the issue raised on behalf of the employer, namely, was the Grievor capable of performing the essential functions of the position, and if not, did the Employer have a further duty to accommodate the Grievor. Finally, if the Employer has not bet its duty to accommodate the Grievor to the point of undue hardship, then what are the appropriate remedies?

1. Does the Grievor meet the definition of handicapped?

Sections 10 and 17 of the Ontario Human Rights Code R.S.O. 1990,

c.19 sets out the following definitions:

10. (1) Definitions

“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, …caused by bodily injury,…without limiting the generality of the foregoing, including…any lack of physical co-ordination…

(e) an injury or disability for which benefits were claimed or received under the Workers’ Compensation Act;…

17. (1) Handicap – A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap.

(2) Accommodation - The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person 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.

The evidence called by the Union has established that the Grievor’s physical condition falls within the statutory definition of handicapped. All medical and doctors’ notes consistently confirm this point. The December 23, 1994 Doctor’s note specified that the Grievor had “wrist tendonitis” and should avoid “repetitive wrist movements” such as cashiering. By March 21, 1995, the Physician’s Report concluded that the Grievor had a chronic right hand tendonitis due to overuse. At first, as of April 4, 1995, the Workers’ Compensation Board advised the Grievor that she had not established that her injury was the result of a work-related accident. However, by October 3, 1995, the WCB Entitlement Adjudicator determined that, on balance, the Grievor’s claim for health care benefits related to her right hand injury was to be allowed. In addition, on October 5, 1995, a Health and Safety Incident Report was filed noting that the Grievor had injured her left elbow and wrist at work while lifting bottles of beer into a fridge. She went off work and filed a report with the WCB for her left arm and wrist. By October 24, 1997, the WCB recognized that the Grievor’s left wrist injury was a permanent disability. I find that the Grievor falls within the definition of handicapped as set out in Sections 10 and 17 of the Ontario Human Rights Code.

Consequently, the issues between the parties are related to the causes, nature, extent and consequences of the Grievor’s injuries and handicap, and the extent to which they could have been, should have been or were accommodated by the Employer.

2. Has the Employer engaged in discriminatory practice based on handicap?

The following provisions of the Collective Agreement apply to this case:

1. (b) There shall be no discrimination or harassment practiced by reason of ....handicap, as defined in the Ontario Human Rights Code.

Article 31 of the Collective Agreement ensures that the protection of the provision of Article 1(b) applies to casual employees. In addition, Section 5 of the Ontario Human Rights Code provides as follows:

5. (1) Employment – 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.

(2) Harassment in employment – Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of … handicap.

The LCBO Administration Manual dated April 30, 1991, Section: Working Conditions; Subject: Modified Work Program, sets out the policy established by the Employer to be followed by managers when dealing with injured employees. It reads as follows:

“Summary

The purpose of the Modified Work Program is to assist employees with injuries / illnesses (which affect their ability to perform their jobs) return to work. The Program is available to employees who are absent due to illness and/or injury …

Placement

Management. An employee who is qualified and deemed capable / suitable for the duties of another or modified position may be placed (taking precedent over the normal promotional procedure), in co-operation with the department concerned.

Bargaining Unit. An employee will be placed in accordance with the provisions contained in the Collective Agreement.

A Modified Work Committee has been established comprised of 7 members…

The Modified Work Committee will review positions within the LCBO to recommend to management any potentially suitable positions for rehabilitative employment …

Program Withdrawal / Termination

When it is determined that an employee is unable to continue in the work placement, the employee’s Director may recommend withdrawal from the Program. Where it is determined that the employee is not co-operating with the ongoing supervision of activities, the employee’s Director may recommend termination of participation in the Program and the Workers’ Compensation Board will be notified, where applicable. The Case Co-ordinator will meet the appropriate Director, the Employee, the Union representative, and the Human Resource Co-ordinator to discuss the recommendation and to find appropriate alternatives.”

Under the heading: “Working Conditions; Subject: Employment of Persons With a Disability, the LCBO Administration Manual dated June 30, 1995, states:

“Accommodation / Positions Requirements

Employees. An employee requesting accommodation for a disability must provide his/her District Manager/Department Director with:

• details of his/her limitations including consent to release medical information, if applicable

• a list of the duties of the position he/she is capable of performing.

Note: The employee must be provided with a full outline of the duties his/her position to assist him/her in fulfilling this requirement.”

The LCBO Administration Manual dated November 29, 1996; in Section: Working Conditions; Subject: Equal Employment Opportunity states:

“Objective of Equal Employment Opportunity

The objective of equal employment opportunity is to provide an environment where all employees and members of the public are provided with equal opportunities in all aspects of employment, such as hiring, training and development, promotion, performance appraisals, terminations, and daily treatment of employees.

Means of Achieving Objective

• provide reasonable accommodation as required.”

The LCBO also has a No Wage Loss Policy which is derived from Section 53 of the Workers’ Compensation Board Vocational Rehabilitation. Section 53(5) reads as follows:

53(5) Second contact re: assessment

The Board shall offer a vocational rehabilitation assessment to every worker

a) who has not returned to the worker’s pre-injury employment or alternative employment of a nature and at earnings comparable to the pre-injury employment within six months after notice of the accident under section 22 is filed;

b) who is not receiving vocational rehabilitation services; and

c) who is not receiving or has not received a vocational rehabilitation program.

The Employer took the position vis a vis the Grievor that since she suffered no wage loss, she was not entitled to vocational rehabilitation services.

The Union raised two questions, the answers to which, it submitted, would determine whether or not violations of the human rights provisions had occurred. Was the Grievor entitled to be assigned additional hours of work and was the Employer entitled to refuse to allow the Grievor the right to change her availability?

a) Was the Employer entitled to refuse the Grievor’s request to change her availability?

At least three times after April, 1995, the Grievor tried to submit Change of Availability forms which would have identified additional hours that she was available to be on call for work. The Employer consistently declined to accept the Grievor’s Change of Availability forms, thereby precluding her even from the possibility of increasing her work hours. Had the Employer accepted the Grievor’s change of availability request forms, the Grievor would have at least had the opportunity to be considered for the assignment of more hours and of other duties.

While working at Store 20, Wojtiw declined her request the first time saying that her “availability” could not be changed while she was on modified duties. He turned down her second request on the basis that it did not fall within operational needs of the store. He did not indicate what efforts he made, if any, to determine what work she was capable of doing that might fit the “operational needs” of the store. After her transfer to Store 1, on January 19, 1996, the Grievor again sought to hand in her Change of Availability forms but Mancini declined her request, also stating that her request did not fall within the operational needs of the store. During his testimony, he agreed that the Grievor would have been assigned to work 40 hours per week but for her disability.

One Christmas season, to accommodate the Employer, the Grievor did work up to 40 hours. The evidence does not disclose a business justification for the Employer’s refusal to let the Grievor alter her availability.

After March 1996, the Grievor was assigned to work from 5 to 9 p.m., hours which constituted less than a full shift. The Grievor’s Saturday hours were also different from the hours of other employees. According to Mancini, the store was busy from 2 – 9 p.m. and yet the Grievor was asked to start three hours later, at 5 p.m. The Grievor’s requests to change her availability for work were consistently refused even though other employees were able to change their availability with ease. I find that on the evidence adduced before me, the Employer’s refusal to allow the Grievor to change or increase her availability constitutes both unequal treatment with respect to employment and discrimination based upon handicap.

b) Was the Grievor entitled to be assigned additional hours of work?

Given my finding that the Employer was in breach of its obligations to the Grievor merely by refusing to allow her to file a Change of Availability form, it follows that if the Employer had accepted the Grievor’s Change of Availability Forms, the Grievor would have been, ipso facto, available for more call-in opportunities and thus for additional hours of work. I thus also find that the Employer discriminated against the Grievor on the basis of her handicap by not even attempting to assign additional hours of work to her. The Grievor was entitled to her regular scheduling and her call-in shifts according to her seniority. However, due to her handicap she also needed to be accommodated to whatever extent was possible in her workplace, short of undue hardship on her employer.

What type of accommodation was possible short of undue hardship? The Customer Service Representative job description sets out an extensive list of duties. It was submitted on behalf of the Employer that cashiering and warehousing were essential functions of the job and thus any accommodation of the Grievor required that the Grievor be able to continue to fulfil those duties, even in another position. However, according to Beuk, cashiering duties are only approximately 30% of the duties set out in the Grievor’s Customer Service Representative position. Had the employer actively assessed the Grievor at the outset and investigated the question of re-arranging and “bundling” of duties, the Grievor could have been assigned more hours. According to Dr. Wright’s Report, the Customer Service Representative position in the Bottle Your Own department was assessed to be an appropriate job as it was within Ms. Fenech’s physical abilities”. From at least November 1997, the Grievor could have been assigned many more hours per week in the customer service representative job in the Bottle Your Own section. Certainly, by February 6, 2000, Dr. Wright’s preliminary analysis concluded so. Had the Employer made an effort as early as 1996 to evaluate the type of job functions that the Grievor could have done that would have been useful to the Employer, other possible job duties could have been identified much earlier than they actually were.

3. Did the Employer meet its obligations to accommodate the Grievor short of creating undue hardship?

The Ontario Human Rights Commission has published “Guidelines for Assessing Accommodation Requirements for Persons with Disabilities”. These Guidelines specify the “Standards for Assessing Undue Hardship”. Relevant excerpts read as follows:

A. The Code prescribes three factors which are to be considered in assessing whether a requested accommodation would cause undue hardship. These are cost, outside sources of funding, if any, and health and safety requirements, if any. …

D. The Code and the guidelines notably exclude other factors from consideration by specifically designating cost and health or safety factors as determinants of undue hardship. For example, there is no provision for “business inconvenience” or “undue interference” with the enterprise responsible for accommodation in determining undue hardship. …If there are demonstrable costs attributable to decreased productivity, efficiency or effectiveness, they can be taken into account in assessing undue hardship under the cost standard, providing that they are quantifiable and demonstrably related to the proposed accommodation.

E. Another element which cannot be considered in assessing undue hardship is customer preference, or other third party preferences. It is well established in human rights case law that third party preferences do not constitute a justification for discriminatory acts, and the same rule applies here.

The following guidelines relate to the issue of “Demonstrating Undue Hardship”:

1. The onus of proving undue hardship is on the person responsible for accommodation.

2. A person who requests accommodation has a responsibility to communicate his or her needs in sufficient detail and to co-operate in consultations to enable the person responsible for accommodation to respond to the request.

3. There must be objective evidence for determining financial costs, effects of projected costs on the enterprise responsible for accommodation, … as detailed in preceding sections. Objective evidence includes, but is not limited to, items such as full financial statements and budgets, scientific data, information and data resulting from empirical studies, expert opinion, detailed information about the activity and the requested accommodation, information about the conditions surrounding the activity and their effects on the person with a disability, and similar kinds of information.

The law is clear that the Employer is expected to exercise its duty to accommodate the Grievor and her disability, but not to the extent of causing undue hardship to the Employer and its operations. The onus lies on the Employer to demonstrate that it has met its duty and that further accommodation will result in undue hardship to the Employer.

The Supreme Court of Canada examined the nature of an Employer’s duty to accommodate an employee pursuant to the provisions of the Ontario Human Rights Code, R.S.O.1980, c. 30. in the case of Re Ontario Human Rights Commission et al. and Simpson-Sears Ltd. (Supra), at page 337, the Court stated:

Following the well-settled rule in civil cases, the plaintiff bears the burden. He who alleges must prove. Therefore, under the Etobicoke rule as to burden of proof, the showing of a prima facie case of discrimination, I see no reason why it should not apply in cases of adverse effect discrimination. The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of answer from the respondent-employer. Where adverse effect discrimination on the basis of creed is shown and the offending rule is rationally connected to the performance of the job, as in the case at bar, the employer is not required to justify it but rather to show that he has taken such reasonable steps toward accommodation of the employee’s position as are open to him without undue hardship. It seems evident to me that in this kind of case the onus should again rest on the employer, for it is the employer who will be in possession of the necessary information to show undue hardship, and the employee will rarely, if ever, be in a position to show its absence. The onus will not be a heavy one in all cases. In some cases it may be established without evidence; for example, a requirement that all employees work on Saturday in a business which is open only on Saturdays, but once the prima facie proof of a discriminatory effect is made it will remain for the employer to show undue hardship if required to take more steps for its accommodation that he has done. In my view, the board of inquiry was in error in fixing the commission with the burden of proof.

In this case the respondent-employer called no evidence. While the evidence called for the complainant reveals some steps taken by the respondent towards her accommodation, there is no evidence in the record bearing on the question of undue hardship to the employer. The first reaction of the complainant’s announcement that she would not be able to continue to work on Saturdays was the response that she would have to resign her job. Within a few days, and before she left her employment, the employer on its own initiative offered part-time work, which was accepted. In addition the employer agreed to consider Mrs. O’Malley for other jobs as they became vacant. All of the vacancies of which Mrs. O’Malley had notice required Saturday work except one and for that one she was not qualified. There was no evidence adduced regarding the problems which could have arisen as a result of further steps by the respondent, or of what expense would have been incurred in rearranging work periods for her benefit, or of what other problems could have arisen if further steps were taken towards her accommodation. There was therefore no evidence upon which the board chairman could have found that such further steps would have caused undue hardship for the respondent, and thus have been unreasonable. In the absence of such evidence, I can only conclude that the appeal must succeed.

The Employer has maintained at all times that it has discharged its duty to the Grievor and accommodated her fully short of causing undue hardship. In the decision in Re Calgary District Hospital Group and United Nurses of Alberta, Local 121-R (Supra), at page 326, the Board of Arbitration examined the particulars and extent of the duty to accommodate as follows:

With respect, the Board disagrees that the employer had fulfilled its obligation to accommodate the Grievor. The duty to accommodate goes beyond investigating whether an employee can perform an existing job – it involves investigating whether something can be done to existing jobs to enable the employee to perform a job. Having determined that the Grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted – short of undue hardship to the hospital – in order to enable the Grievor to return to work despite her physical limitations. Based on the evidence, it is the Board’s conclusion that this type of investigation either was not carried out or was conducted in a superficial manner. The duty to accommodate obligates the employer to diligently examine the possibility of adapting the work place in order to enable the Grievor to work; it is the Board’s conclusion that this was not done.

Accordingly, the grievance is sustained. The employer is directed to conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the Grievor’s physical limitations can be accommodated. There is no fixed definition of what in practice constitutes undue hardship, but the Board notes that some cost and disruption will not normally constitute undue hardship unless the degree of cost and disruption becomes excessive. In a health care setting, adjustments that clearly jeopardize patient safety will constitute undue hardship, however.

The Board also wishes to note that the duty to accommodate is not a one-way street. The duty to accommodate places obligations on an employee to facilitate her own return to work by demonstrating flexibility and a co-operative attitude. In the instant case, the Grievor must accept that her injuries mean that things in the work place cannot be the same for her as they were prior to her injury. There is now a considerable amount of arbitration and other decisions in the health care setting that can provide guidelines to the employer and the Grievor: see Re Calgary District Hospital Group (Meehan), and Re Metropolitan General Hospital.

For the purpose of determining whether or not adverse effect discrimination took place, it is not necessary to establish the mens rea or the intent to discriminate in order to make a finding that discriminatory conduct actually occurred. The Supreme Court of Canada has clearly established that the court may consider adverse effect discrimination as “a contradiction of the terms of the code stating, at page 332, as follows:

“An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.”

Moreover, as set out in McMaster University and Service Employees International Union, Local 532 at page 275, the employer has a positive duty to search for ways in which an employee’s handicap can be accommodated, and is stated as follows:

“…the prime responsibility to accommodate is that of the Employer. That is plain as well from s. 17(2) of the Human Rights Code but it is true that the employee must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such accommodation. In this case, it would appear that the initiative was taken by Nolk. It was he who brought it to the attention of the Employer that he wished to be given an opportunity to perform modified duties but the Employer refused, taking the position that unless he was able to do all of the functions of the auto mechanic position, there was nothing else available. In my opinion, its job search was far from extensive and fell well below the standard that was required in order to discharge its duty to accommodate. As the authorities indicate, it had to find a solution short of undue interference with its business operations. It did not initiate a proposal that was reasonable but simply took the position that unless Nolk could perform all of the tasks that an auto mechanic had to do, there was nothing that could be done for him.

… [the employer’s positive duty …] includes searching out other jobs, broadening the search beyond the employees current department, making reasonable efforts to see what functions can be performed by the employee and giving the employee the opportunity to try to perform functions or jobs that might be deemed appropriate.”

In the decision of United Airlines v. International Association of Machinists & Aerospace Workers, at pages 101-103, the Board found that the duty to accommodate in cases of adverse effect discrimination was not a minimal duty. It was not necessary for the Grievor to perform all job duties. Moreover, the Grievor was entitled to be given the opportunity to demonstrate his or her capabilities. Excerpts from this decision read as follows:

“The ratio of Central Alberta Dairy Pool is obscure; although all seven judges agreed in the result, there was a 4-3 split in approach. Wilson J. for four members of the court resiled somewhat from Bhinder, and its application to adverse effect discrimination. She concluded that Bhinder was now incorrect where BFOR [Bona Fide Occupational Requirement] has an adverse discriminatory effect; in such a case the question is whether the employer could have accommodated the employee adversely affected without “undue hardship”, and she explains this term to some extent [at p. 439]:

I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. I begin by adopting those identified by the board of inquiry in the case at bar – financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities. The size of the employer’s operation may influence the assessment of whether a given financial cost is undue or the ease with which the work force and facilities can be adapted to the circumstances. Where safety is at issue both the magnitude of the risk and the identity of those who bear it are relevant considerations. This list is not intended to be exhaustive and the results which will obtain from a balancing of these factors against the right of the employee to be free from discrimination will necessarily vary from case to case. (Emphasis added.)

Sopinka J. came to the same conclusion by a different route, using the duty to accommodate as the touchstone for the determination of the validity of the BFOR defence. The qualification is only reasonable if accommodation to the individual cannot be accomplished without undue hardship.

The concept of “undue hardship” was re-examined recently by the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4^th) 577, [1992] 2 S.C.R. 970, 71 B.C.L.R. (2d) 145. Sopinka J. for a unanimous court, stated that notwithstanding the existence of a BFOR, the employer has a duty to accommodate in cases of adverse effect discrimination, and this is not a minimal duty. This was not a “safety” case; it, like Central Alberta Dairy Pool, is a “worker with a different religious holiday” case.

…. However, if the Grievor is to be restricted (for the time being at least) to this job function, the next question is whether accommodating this employee with such a limitation on his assignable duties is “undue hardship” on the employer. On the evidence before me, I find that it is not. The rather unusually wide range of duties within this job classification cannot be used to prove that this employee can do “little” of his job, where there are significant areas in which specialization is normal although not universal. There appears to be ample evidence that the Grievor could be fully employed at the restricted task. He should be started on a part-time basis, and, if he is satisfactory on this basis after a reasonable trial period, then he should (if he chooses) be tried in this function on a full-time basis. Gradually he should be tried on some other aspects of the job, always with safety considerations in mind. With reasonable co-operation on his part, on the part of his supervisors, on the part of the union, and on the part of his fellow employees, he may gradually be able to return to a significant, if not complete, range of various job duties. The union did undertake to co-operate in this regard, and it is worth noting the recent decision of the Supreme Court of Canada in Central Okanagan School District, supra, which makes it clear that the union has a clear duty to assist in the accommodation, even if it should run counter to collective agreement provisions.”

Arbitrator Fisher’s decision in Municipality of Metro Toronto and CUPE (Supra) confirmed an arbitrator’s duty to consider the Human Rights Code further to an expanded jurisdiction under S.45(8), paragraph 3, of the Labor Relations Act.

In the case of Metro General Hospital and ONA (Supra) at pages 120-121, the Board found that it was not necessary that the Grievor perform the full duties of the position.

In Mt. Sinai Hospital v. Ontario Nurses’ Association (Supra), at page 271, Arbitrator R. M. Brown stated:

“Adopting the broad and liberal interpretation which is appropriate in human rights cases, we interpret the duties or requirements attending the right to equal treatment so as to include not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee. If a number of such tasks can be consolidated into a new job without undue hardship, the employer is obliged to do so.”

Moreover, in the same case, Arbitrator Brown proceeded to describe the test of proportionality as follows on pages 273-4:

“In a disability case, this balancing exercise should be conducted by comparing the cost of accommodation with the benefit resulting from it in the particular circumstances. Consider the disabled Employee who is at a very large disadvantage caused by his or her handicap, and assume all of the employment-related burdens of this person’s disability could be eliminated at very little cost to the Employer. In this scenario, the hardship imposed by accommodation would not be undue because the benefit greatly exceeds the cost. Compare the foregoing example with another where the disadvantage removed by accommodating an Employee would be very small in relation to the cost of eliminating it. In this context, the hardship of accommodation would be undue because the cost far exceeds the benefit. We believe the latter example is the type of case addressed by the following remarks about the duty to accommodate made by Sopinka, J. in Renaud, supra (p.593):

The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntrye, J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all of the circumstances is turned down, the Employer’s duty is discharged.

The general principle of proportionality which emerges from the foregoing analysis is that the burden which an employer should be required to bear varies inversely with the consequential relief flowing to a disabled Employee. One corollary of this principle is that more should be done to provide work to someone who otherwise would remain outside the active workforce, without any of the rewards of employment, than to place a person in one job rather than another. By the same token, if a handicapped Employee wishes to perform the type of work done before being disabled, more should be done to achieve this result in cases where the alternative job is very inferior than in cases where this alternate assignment is only slightly less advantageous to the individual.

In assessing the relative benefit to an employee of various jobs, consideration should be given not only to wages and other financial benefits but also to the non-monetary rewards of employment. The importance of these non-pecuniary matters was acknowledged by Dickson C.J.C in Reference re Public Service Employee Relations Act (Alta.) (1987), 87 C.L.L.C. par. 14,021 (S.C.C.), in the context of litigation under the Canadian Charter of Rights and Freedoms (at p. 12,180):

In the present case, however, we are concerned with interests which go far beyond those of a merely pecuniary nature.

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium or psychological, emotional and physical elements of a person’s dignity and self-respect.

Just as active employment confers non-economic advantages not enjoyed by those outside the workplace, one type of work may entail greater benefits of this sort does another. This is one reason why a disabled employee may wish to return to the sort of employment held before disability struck.

In Mount Sinai Hospital v. Ontario Nurses’ Association (Supra), at page 254, Arbitrator Emrich quoted the same passage from Arbitrator Brown’s decision in the Mt. Sinai case quoted above. Emrich followed the ratio set out in the decision in Calgary District Hospital Group and United Nurses of Alberta, Local 121-R (Supra), where the duty to accommodate was described as follows on pages 326 – 327:

“The duty to accommodate goes beyond investigating whether an employee can perform an existing job – it involves investigating whether something can be done to existing jobs to enable the employee to perform a job.

The Board also wishes to note that the duty to accommodate is not a one-way street. The duty to accommodate places obligations on an employee to facilitate her own return to work by demonstrating flexibility and a co-operative attitude. In the instant case, the Grievor must accept that her injuries mean that things in the work place cannot be the same for her as they were prior to her injury.”

In Re Greater Niagara Hospital and Ontario Nurses’ Association (Supra), on pages 49 – 50, the Board examined the issue of “bundling” of duties, and whether they can be created into a “job of work”. The Board found that the “bundling” of existing duties would not constitute undue hardship to the Hospital. The Board reasoned as follows:

“While there has been no specific position posed for work in the clinic and the hospital is not required to create a new position in order to accommodate the Grievor, where there exists a discrete bundle of duties performed by specific nurses who are assigned to those duties on a regular schedule and those types of duties fall within the Grievor’s medical restrictions, we find that there would be no hardship for the hospital to allow the Grievor to perform that work and to establish her ability to perform those duties existent in the pre-op assessment clinic.

A job or work involves a bundle of duties and while the hospital did not and is not required to create a new position of clinic nurse, in that context, there is a job of work to be done which exists for nurses in the surgical area with particularity of functions in the clinic during their focus in the clinic. That is the hospital’s requirement in these circumstances as the performance of those existing duties by the Grievor would not entail undue hardship for the hospital. It is the board’s conclusion that the Grievor should be provided an opportunity to demonstrate her physical ability to perform the duties required in the pre-op assessment clinic.

It is the board’s award that the grievance is allowed to the extent to provide accommodation of the Grievor in the performance of the work in the pre-op assessment clinic. The Grievor should be returned to direct employment with the hospital and assigned to such duties for a period of three months from the date of this award by which the Grievor will have an opportunity to establish that she can properly carry out those functions required by the hospital in the pre-op assessment clinic. If, within that time, it is found by the hospital in consultation with the Grievor and the association that she cannot reasonably perform those job functions, the Grievor shall be removed from direct employment and her present employment relationship with the hospital re-established.”

In Maple Leaf Foods Inc. and United Food & Commercial Workers, Local 175/633 (Supra), at pages 159-162, the arbitrator found that the Employer has a positive obligation to enter into a dialogue with the employee and investigate the possibilities for accommodation:

“In this case, the Employer has cooperated with the Grievor and the Union in attempting to find a solution to the duty to accommodate, but the duty imposed by statute is more than a cooperative and responsive one. There must, of necessity, be a dialogue to determine if an employee can be accommodated. On the one hand, an employer cannot comply with the duty of accommodation, unless the Grievor provides the information he or she has on the restrictions and handicap. The employer must know what the employee’s needs are, to be able to assess and meet the restrictions. On the other hand, as the employer is in the unique position of knowing and managing its workforce, the ultimate duty rests on the Employer to accommodate the Grievor to the point of undue hardship. At the same time, although it is not incumbent upon the Union to determine how the accommodation is to take place, without input into the process, appropriate accommodation may not be made and needless time and energy expended.

The level of accommodation to the point of undue hardship is in the words of Mr. Justice Sopinka in Central Okanagan (supra), not a de minimis one. On the evidence before me, I do not find that cooperating with the Union and following the plan that the Union proposed in an attempt to find a solution to this problem, is accommodation to the employee to the level of undue hardship.

The level of undue hardship does impose some limitations on the ability of a person who is handicapped to return to work. There are no guarantees that a person who is handicapped will obtain a job. As Chairperson Knopf stated in Riverdale at p. 42, “Employers must try to accommodate employees. But this does not mean the work place or the work must be fundamentally changed. The duty to accommodate goes only to the point that it will create undue hardship…”. Similarly, as in Re Hamilton Civic Hospitals (supra), an Employer is not required to maintain a handicapped person in a position that is not in itself a useful and productive job in the context of the Employer’s operation. In my view, as held in the Bonner (supra) decision, and as provided in section 17(1) of the Human Rights Code, s. 17(1) of the Human Rights Code only relieves the Employer of liability, if the Grievor cannot do the essential duties of the position, without imposing undue hardship on the Employer by attempting to accommodate the Grievor. The Employer has not reached this point.

There is not sufficient evidence before me to determine whether the Employer could, or could not, accommodate the Grievor using the higher duty expressed in the award. As an example, there is no evidence as to whether some of the work assigned to various positions could be rearranged, or whether the change that would be necessary to accommodate the Grievor would have created problems with the operation of the collective agreement, the interchangeability of the workforce, or affect other employees’ rights. There may be instances where jobs can be modified in a non-substantive way by assigning the work that cannot be done by the Grievor to another employee without causing material disruption to the workforce. In essence, there are many ways to accomplish the same tasks in an equally productive way for the Employer. It is not sufficient for the Employer to say that the Grievor cannot perform any of the job descriptions, but the Employer must also be able to show that the job descriptions cannot be changed without imposing undue hardship on the Employer.”

The Employer’s duty to accommodate an employee’s disability without undue hardship, as examined by all the foregoing caselaw cited, can be broken down into several component parts and summarized as follows:

1. The Employer is under a positive, active duty which is to be exercised in good faith. This means that the Employer must engage in a good faith dialogue with the employee who needs to be accommodated to determine the employee’s needs. A dialogue implies that there is a two-way conversation in such a way that each side is prepared to articulate needs clearly and each side is willing to listen attentively and actively to the other.

2. The Employer must be involved in a search for the duties that the employee can fulfil. In doing so, there must be a diligent examination of the particulars of the duties identified by the search to ensure that the duties match the employee’s needs.

3. The group of duties that the employee can fulfil can be compiled into a “bundle of duties” that the employee can then be asked to fulfil as the ‘new job’.

4. The employee’s total number of duties can be reduced from the number listed in that employee’s job description to a new and reduced number of duties. Consequently, the Employer should not necessarily expect the employee to perform all the duties cited in the Job Description in question, nor even the full extent of any one of these duties (if the duties can be broken down into steps and it is feasible to assign others to perform some of these steps).

5. The bundle of existing duties or tasks can be consolidated into a new job if that can be done without undue hardship to the employer. Once the new “bundle of duties” has been identified, the employee should have the opportunity to demonstrate his/her capabilities in performing the new set of duties or tasks without prejudice to their continuing right to be accommodated short of creating undue hardship to the employer.

6. The duty to accommodate is a continuing duty imposed upon the Employer by the caselaw.

7. The duty to accommodate is subject to the “undue hardship” restriction. An employer is not required to accommodate an employee’s disability if doing so would impose undue hardship upon the Employer.

8. Undue hardship may mean:

• financial hardship or

• it may arise from the imposition of such demands on the workplace as to make the accommodation requirements not realistic or feasible or

• impose unduly upon the rights of other employees.

• Contravention of health and safety requirements

9. If an Employer wishes to raise the “undue hardship” argument, there must be proof of such hardship, financial or otherwise, with evidence that demonstrates such ‘undue hardship’ and its effects upon the employer and the workplace.

In the instant case, I find that the Employer has not presented any evidence of undue hardship, financial or otherwise, beyond assertions that accommodating the Grievor might not have been efficient, “the biggest bang for the buck”, convenient or in keeping with “operational needs.” Moreover, I also find that the Employer did not take a proactive role in establishing a positive dialogue with the Grievor, or in investigating and evaluating the roles and duties that might have been performed by the Grievor as already detailed above. Consequently, I find that the Employer did not meet its obligations to accommodate the Grievor short of creating undue hardship.

REMEDIES:

Having reviewed and considered all of the evidence and submissions of both counsel, I find that the Grievor’s two grievances must be allowed. Consequently, I hereby declare that the Employer has violated Articles 2.1(b) and 31.7 of the Collective Agreement, that the Employer has failed to comply with its duty to accommodate the Grievor short of undue hardship, contrary to the provisions of the Ontario Human Rights Code. I hereby order that the Employer be required to remedy its violations as follows:

1. The Union has claimed damages for the period of July 24, 1994 to December 1994. However, since the Grievor did not report her wrist injury until December 24, 1994, I do not feel that an award of damages against the Employer is justified for this period of time as the employer had no opportunity to address the Grievor’s circumstances prior to her report of her wrist injury.

2. The Union has also claimed damages for the periods April 2, 1995 to December 1995 and March 1996 until the present. On numerous occasions during these two periods of time, the Grievor requested that her hours of availability be changed but the Employer refused to accept her requests. The Employer’s outright refusals demonstrate an inflexibility which is contrary to the spirit of the duty to accommodate, a duty which is characterized by flexibility, a two-way dialogue with the Grievor, an investigation of alternatives and a give and take type of attitude. By June 1995, the Grievor was found to be permanently disabled, yet the Employer still took no steps to assess the Grievor’s ability to perform various job duties. Before 1998, the Grievor could have been accommodated by the “bundling” of duties as described in some of the cases. Post 1998, the accommodation could have been attempted by putting her into the BYO job. The Grievor is to be compensated for all the hours that were worked by employees junior to her during these periods of time up to the total weekly hours for which she would have been available, according to the change of availability sheets that she attempted to submit.

3. I award interest on all of the amounts owing to the Grievor pursuant to item #2 above.

4. The Employer is required to adjust the Grievor’s seniority from the date of hire, September 6, 1995, according to the established formula applied to the calculation of seniority for part-time employees, that being the “total hours worked” divided by a “full-time employee’s hours”. The calculation of “total hours worked” should be adjusted to reflect additional hours that she would have worked had her change of availability notices been accepted and had she been assigned the additional hours that junior employees were assigned.

5. The Union has also sought damages for mental distress and anguish pursuant to the provisions of the Ontario Human Rights Code, as suffered by the Grievor as a result of the harassment and discrimination that she suffered at the hands of the Employer and its employees. The claim for damages for mental distress and anguish falls outside the usual Collective Agreement provisions and remedies and is invoked pursuant to Section 5.41(1)(b) of the Ontario Human Rights Code.

There is caselaw that has now established that a Board of Arbitration is required to assume full remedial authority with respect to workplace issues and can look to other employment-related statutes. Consequently, it “is empowered to put an aggrieved party, so far as can reasonably be done, in the same position as if a collective agreement had not been violated, as long as the remedy is compensatory in nature and not punitive. The Municipality of Metropolitan Toronto and The Canadian Union of Public Employees Local 79 (Supra) raises the question of foreseeability of damages at pages 16-17 as follows:

“The Polymer decision is now generally accepted as establishing that a board of arbitration is empowered to put an aggrieved party, so far as can reasonably be done, in the same position as if a collective agreement has not been violated. The cases relied on by the parties indicate that a claimed loss to be compensated if it can be shown to have been a direct, tangible and foreseeable result of a breach of the collective agreement. Where, however, the collective agreement limits the losses that can be compensated, then as noted in the B.P. Oil Ltd. case, the board of arbitration cannot award compensation for other possible loses.

In that we have not heard the full evidence of the parties we are also not in a position to rule on the other matters relevant to the Union’s claim that the Grievor should receive damages for pain and suffering. We do not yet know whether the Municipality actually violated the collective agreement and/or prior settlements as alleged by the Union. Neither do we know whether the Grievor encountered any actual pain or suffering and, if he did, to what extent it may have been caused by improper conduct on the part of the Municipality. At this point we are also not in a position to assess how foreseeable it was that actions taken by the Municipality might result in pain or suffering to the Grievor. Since we cannot make any determination with respect to these matters, we also cannot assess the applicability of the reasoning contained in the various cases referred to above.”

Arbitrator Bruce in Pacific Press and Communications, Energy & Paperworkers Union (Supra), on page 78, stated as follows:

“… the Union claims damages in tort arising out of a course of conduct by the Employer surrounding its failure to pay disability benefits to the Grievor pursuant to the terms of the Plan. The elements of this tort, as described by McLachlin J. (as she then was) in Rahemtulla v. Vanfed Credit Union (Supra) are:

1. flagrant and extreme conduct inflicting mental suffering.

2. foreseeable that the conduct of the Employer would cause distress or suffering.

3. the conduct of the Employer produced a visible and provable illness.

[ then continuing, at page 80, as follows: ]

This course of conduct, including the direct communication with the Grievor when advised against this by her physician, threatening discipline if she did not return to work, failure to disclose Dr. Oakey’s report to either the Grievor or London Life, and the continued refusal to recognize the obvious connection between the emotional and physical components of her disability, was either calculated to cause the Grievor mental suffering or reckless in that regard.

Arbitrator Bruce awarded damages of $8,000 for mental distress, an award that he considered to be in the mid-range from $4,000 to $20,000. His award took into account evidence from various witnesses, including medical evidence, with respect to the effect of the Employer’s actions upon the Grievor’s emotional distress.

In Wright v. Ontario (Office of the Legislative Assembly) (Supra), the Board of Inquiry found that two separate breaches of the Code had occurred and awarded $1,000 as general damages for the stress that the Grievor had suffered as a result of the breach even though some of the breaches had been cured. In that case, Arbitrator Mikus found, at page 325, as follows:

“The Complainant was discriminated against when her probationary period was extended for a year. The evidence was that the usual practice was to extend it for the length of the absence. The recommendation of her direct supervisor was consistent with that practice. For reasons that could not or would not be explained to the Board, her probationary period was extended for a longer time than the practice would have allowed. Because there was not apparent reason for the extension, the only conclusion one could reach is that it was for reasons related to her pregnancy.

There have been two separate breaches of the Code; one concerning the denial of sick leave benefits from January 4 to March 10, 1988 and one concerning the extension of the probationary period. The sick leave benefits were ultimately paid to the Complainant and no damages are owing for this breach.”

In the case of McKinnon v. Ontario (Supra), the Board of Inquiry found the employees jointly liable with employer and awarded general damages in the amount of $19,500. The Board found the employer vicariously liable for the conduct of its employees.

Counsel for the Union reviewed the factual basis for the Grievor’s claim of mental distress. It was submitted that the Grievor was vulnerable and the representatives of LCBO acted with disregard for the Grievor’s state of mind and with reckless disregard of her rights.

The following facts were referred to in support of this allegation. When the Grievor brought a doctor’s note, Wojtiw told her she could go home. On December 31, 1994, Wojtiw wanted her on cash and disregarded her doctor’s note which advised that the Grievor not be put on cash, even though there were three people who could do the work on cash. He required her to work on cash and predictably, she injured her wrist. His total disregard for her medical condition was irresponsible. His reply to the Grievor that she could not change her hours of availability also disregarded her condition.

Further, in 1995, when Wojtiw noticed that the Grievor’s left hand was being overused and thus compromised, neither he nor anyone else in management did anything about it and the Grievor further injured her left wrist. The Employer knew or should have known that its lack of flexibility in dealing with the Grievor could well contribute to her injuries.

Nicole Mahoney’s attitude and conduct towards the Grievor was particularly uncaring and dismissive. She made no effort to investigate any other duties which might have been possible for Grievor to perform. This in itself constituted a violation of the Grievor’s rights. Moreover, it was Mahoney who was in charge of the Grievor’s file, and it was her ultimate responsibility for managing the Grievor’s case, communicating the Grievor’s circumstances to the Store Managers, and investigating and identifying ways to accommodate the Grievor. However, the evidence indicates that Mahoney stopped communicating with the Grievor in the Summer of 1996.

The job of greeter as specified by the Employer was rigid and inflexible and the restricted hours resulted in loss of wages. In addition, the rigidity imposed by the Employer was stressful upon Grievor. She repeatedly requested more hours but the Employer did not attempt to address her concerns. It was not until 1998/1999 that the parties actually engaged in discussions that demonstrated a genuine effort to accommodate the Grievor.

I find that the Grievor was discriminated against when her doctor’s advice was disregarded by Wojtiw, when Mahoney first undermined the Grievor’s credibility, then still continued to suspect the Grievor’s motives even after the WCB validated her claim, and further ceased to interact with the Grievor, when Wojtiw and Mancini refused to accept the Grievor’s Change of Availability notices for reasons which can, at best, be described as facile and self-serving.

It must, however, also be acknowledged that unlike the cases cited by Counsel for the Union, the Grievor presented no supporting evidence, apart from her own testimony, to show the nature and extent of her mental stress as caused by the Employer’s behaviour. In view of all of the evidence adduced before me and the cases and law cited, I award the Grievor $2,000 as general damages for the mental stress that she has suffered as a result of the Employer’s breaches of its obligations to accommodate her handicap.

The parties have asked that they be permitted to address the issues of compensation and quantum damages separately as some of the relevant evidence, such as, for example, the store’s schedules, have not been filed as evidence to date. I remain seized of the matters dealt with by this case in the event that the parties are unable to reach an agreement with respect to the implementation, compensation and damage issues herein.

Dated at Toronto, this 17^th day of May, 2002.