GSB# 2003-1194, 2003-1195, 2003-1608, 2003-2037, 2003-2046, 2003-3657

UNION# OLB318/03, OLB322/03, OLB356/03, OLB394/03, OLB410/03, OLB082/04

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union (Sanfilippo)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

R. Graham Williamson Koskie Minsky LLP Barristers and Solicitors

FOR THE EMPLOYER

Alison Renton Counsel Liquor Control Board of Ontario

HEARING

March 11, June 11, September 24, October 18, November 9, November 10, 18, 19, 30, December 1, 2004.

Decision

This proceeding arises from six (6) grievances filed by the grievor, Ms. Karen Sanfilippo. Five (5) of the grievances stem from the Employer’s decision not to schedule the grievor for overtime on Sundays and on other premium days in the approximate period April, 2003 to February, 2004. The remaining grievance relates to a complaint that the Employer refused to provide the grievor with accommodated work after February 11, 2004. The Union asserts that the Employer’s actions constitute a violation of both the collective agreement and the Human Rights Code.

The hearing of this matter was both lengthy and complex. A substantial amount of evidence and argument was presented over the course of ten (10) days of hearings. All of this evidence and argument has been considered in the fashioning of this Award.

The parties at the outset agreed that the grievor is disabled and is entitled to the protection of the Human Rights Code. They differed, however, as to whether the Employer accommodated the grievor to the point of undue hardship. Given the nature of this issue, the employer agreed to proceed first with the presentation of evidence. The Employer’s evidence was presented by Mr. Chuck Robbins, Ms. Jan Meek, Mr. Mark Wagner and Mr. Don Thibodeau. Mr. Robbins has been employed by the LCBO since 1980 and has been a Store Manager for approximately ten (10) years. He became the Manager of Store #593 in Byron, Ontario in April, 2003. From that date forward, Mr. Robbins was the grievor’s Manager. Ms. Meek has been employed by the LCBO since 1988. She is a Human Resources Advisor and, in that capacity, is responsible for the management of Workplace Safety and Insurance Board (WSIB) claims. Ms. Meek assumed carriage of the grievor’s WSIB file in September, 2002. Mr. Wagner has been employed by the LCBO since 1996. He has been the Human Resources Manager for the Western Region since 1999. Mr. Wagner was actively involved in the grievor’s file from mid-2003 onwards. Ms. Meek reports directly to Mr. Wagner. Mr. Thibodeau has been employed by the LCBO since 1972. He serves as the District Manager for District #5. Mr. Thibodeau oversees the operations of thirty (30) Stores in London, Ontario and the surrounding area. Ms. Meek, Mr. Wagner and Mr. Thibodeau all work out of the Regional Office in London.

The Union elected not to call any evidence. Counsel for the Union indicated that he was content to rely on the evidence of the Employer’s witnesses and on the exhibits filed. A list of the exhibits is appended hereto.

The grievor was hired as a casual Customer Service Representative (CSR) in November, 1993. She became a permanent full-time CSR in June, 2001. At the time material to this case, the grievor worked at Store #593 in Byron. The record discloses that the grievor suffered a work-related injury to her left arm in May, 1998 and a further work-related injury to her back in June, 2002. Both injuries resulted in a degree of permanent impairment. The grievor claimed and received WSIB benefits in respect of these injuries. Work restrictions were imposed following the initial injury in 1998.

Store #593 is a ‘B’ Store. At the relevant time, the Store operated on a double shift basis, that is, there was both a day shift and an afternoon shift Monday through Saturday. On these days, the Store was open between 9:30 a.m. and 10:00 p.m. The Store was also open on Sunday between the hours of 12:00 noon and 5:00 p.m. The complement of staff at Store #593 was as follows: a Manager (Mr. Robbins); an Assistant Manager; a Product Consultant; four (4) permanent full-time CSR’s, including the grievor; and six (6) casual employees. With the exception of the Manager, all of these positions fall within the bargaining unit. The positions of Assistant Manager and Product Consultant are rated higher than the permanent full-time CSR position. The casual positions are lower rated.

A CSR is expected to perform cashiering, stock handling and customer service functions. Mr. Robbins listed the cashiering duties, as follows: greet the customer at the cash register; ask the customer a series of questions; enter the purchases on the cash register by either scanning the product or manually entering the transaction on the keyboard; key in Air Miles or credit card numbers; bag or box purchases; and offer a carry-out, if required. He similarly listed the following stock handling duties: remove pallets of product from the delivery truck to the warehouse area of the Store; scan the load through the use of a hand held scanner; remove all cases from the pallets; place cases that are to be put in stock on carts and remove to the Store floor; put stock on the shelves in the Store; and place remaining stock on the shelves in the warehouse area. Mr. Robbins stated that the weight of product in cases varies according to the size of the box and the number of bottles contained therein. In his words, the cases are “fairly heavy”. Mr. Robbins asserted that the customer service function is not an independent function as it is connected to the performance of the cashiering and stock handling duties. He advised that CSRs are expected to engage in customer service at all times. This view was shared by Mr. Thibodeau. He testified that the customer service function is a component of both cashiering and stock handling. Both witnesses testified that the Store Manager or Shift Leader may also assign a variety of other tasks to the CSR. Mr. Robbins maintained that the above-described duties were consistently performed by CSRs in all of the Stores he has worked in.

A substantial number of documents were filed in this proceeding relating to the grievor’s medical condition and to her physical ability to perform the work of a CSR. Not all of these documents need to be referenced for purposes of this Award. It is necessary, however, to address certain of the documents in order to provide some context for how this dispute arose.

When Ms. Meek assumed responsibility for the grievor’s WSIB file, the grievor was working under the terms of a Modified Work Plan dated July 2, 2002 (Exhibit #40). This document outlined the following restrictions:

Accommodation Requirements...................................

Based on medical dated Oct. 19/99 and Feb. 22/02:

Restrictions are for left arm. Avoid repetitive pinch/

push/pull with non-Dominant left hand; avoid

repetitive lifting with left hand; light/moderate loads

only with left hand; carrying not more than 10 lbs.

with left hand.

Based on medical dated June 12/02: Restrictions for

lower back walking as tolerated; standing not more

than 60 min; no bending/twisting; lifting floor to

waist and waist to head 30 lbs. limit repetition; carrying not

more than 10 lbs.; pushing/pulling trolley not more

than 6 cases of liquor.

Job Duties to Include

Cashiering not more than 30 mins at one time;

facing up and dusting waist level and above;

stocking shelves waist level and above with

product put on carts by others; light maintenance;

customer service; surveillance; gift wrapping; store ambience;

ALL DUTIES THAT ALL REPETITIVE IN NATURE

MUST BE ROTATED.................................................

It is apparent that, at this juncture, the grievor was performing the cashiering and stock handling duties, as modified.

Following the receipt of a Health Care Provider’s Report dated August 22, 2002 (Exhibit #41), Ms. Meek sought clarification from Dr. Peter Dzongowski, the grievor’s personal physician. Dr. Dzongowski responded by way of another Health Care Provider’s Report dated November 18, 2002 (Exhibit #43) and a medical report dated November 20, 2002 (Exhibit #44). The former indicates that the grievor was not to lift or engage in repetitive work with her left arm for a period of two (2) weeks. The latter reads, as follows:

“I am replying to your most recent letter. You had a number of questions relating to Ms. Sanfilippo’s restrictions. I have filled out numerous forms on her behalf to try and clarify things. As you know, her symptoms come and go. When she has a flare-up, she is quite restricted, whereas other times when she is functioning well, she can do a number of things. As far as the details of the restrictions, you can appreciate that without performing an in-store assessment, it is nearly impossible to try to specify these issues in detail. For this reason, the patient is allowed to pace herself. As an example, when the symptoms are minimal, the patient is able to work cash and perform some repetition. When her arm symptoms flare, she is no longer able to do these tasks and may require significant limitations, such as customer service.

Due to the number of Health Care Provider Reports requested, it would appear that this continues to be an area of confusion. I reviewed the chart and note that I have provided eight Health Care Provider Reports in the past nine months. I think the best thing would be to obtain an occupational evaluation and have someone on site to assess the jobs and specify tasks suitable for the injury. I will be contacting WSIB to arrange such testing.

I note that Dr. Dzongowski subsequently extended the restrictions set out in Exhibit #43 by a further six (6) weeks (Exhibit #45) and that the WSIB approved the grievor’s claim for lost time and health care benefits from November 16, 2002 (Exhibit #46).

Mr. Paul McNorgan, an Ergonomist with the Operations Division of the WSIB, conducted an on-site visit at Store #593 on February 13, 2003. He met with the grievor and Kelly Harrigon, who was then the Store Manager, in an effort to provide suggestions with respect to how the former could be effectively accommodated. His report, filed as Exhibit #47, reads in part:

“The primary duties of customer service clerk include:

*Cashier

*Ringing in product

*Bagging purchases

*Tendering cash/cards

*Stocking shelves, loading coolers

*Pulling up product on shelves

*Loading/unloading cases in storage area/refrigerator area of store

*Completing scanning requirements

*Customer service

*answering product inquiries

*directing customers to product

*Store maintenance

*Sweeping mopping floor

*Dusting bottles

The duties this worker has been able to perform includes telephone calling of customers, store surveillance for theft, clerical duties including computer work and mark down reports, inventory counts and stock checks.

The worker has tried on several occasions to increase duties by incorporating more “regular duties” but has not been successful in any of these attempts.

While there is accommodation potential in this store to reduce some of the case handling work (portable lift devices, telescoping flexible conveyors, height adjustable carts, etc.) The handling of individual bottles/cans in the major job functions (cashier, stocking shelves, pulling up product) requires gripping and lifting activities with both hands and arms. The repetitiveness of this activity is related to the store volume in stores having weekly and seasonal variations.

The worker has not demonstrated an ability to progress to regular duties and this is suggestive that the pre injury job is not suitable. Accommodation of the individual product handling activities does not appear possible at this time. If more specific functional capabilities with respect to weight and frequency tolerance are know (sic.) it may be possible to be more specific for accommodation of the regular functions of this work (exposure limits related to duration or frequency).

The current duties that this worker is performing (surveillance, counting inventory, straightening rack labels) are not consistently available and often result in this worker having to ask the manager what she should be doing. At the time on the onsite review the store manager did suggest a work project was required that would be able to provide a few weeks of consistent work for this worker. The work is computer related and the worker did express some concern about her ability to tolerate prolonged computer duties. Frequent breaks (every 30 minutes 1-2 minutes break from left-hand use) are recommended.

The manager emphasized that there is always some suitable work they can find for this worker to perform however the worker did express frustration over not being able to do what is required of the pre injury job. She did indicate feeling non-productive during a lot her time at work.

The ability of this employer to competitively sustain this worker at this LCBO store location is questionable. The level to which her work has been limited would likely prevent her from being able transfer to other stores or being successful in a similar retail environment.

Currently the medical information for this worker does not provide much indication of potential functional improvement nor is current objective functional quantification present. It may be possible for further diagnostic clarification with respect to nerve involvement in the neck region as this may be affecting the left arm function. Also updated medical precautions may help the employer in determining ongoing work for this worker.

With current information it would not appear that this worker is able to perform her full pre-injury job. Accommodation potential to benefit this worker is limited and the employer’s ability to sustain the worker to her and their satisfaction is questionable.”

Ms. Meek in her evidence confirmed that the grievor was not performing cashiering or stock handling functions at the time the above report was prepared.

Following the receipt of further medical documentation, the Employer decided that the grievor could return to the cashiering and stock handling functions subject to certain restrictions. The revised Modified Work Plan dated March 12, 2003 (Exhibit #50) reads, in part:

“Accommodation Requirements

No repetitive use of left arm (elbow), lifting floor to waist 30 lbs., lifting waist to head 10 lbs., carrying 30 lbs. and pushing/pulling 55 lbs.

Job Duties to Include

Cashiering – NO MORE THAN 30 minutes at which time Karen should take a 10 minute break from using her arms by doing customer service, store surveillance; after 10 minutes of not using arms Karen can alternate with the following; facing up alternating arms, stocking shelves single bottles only (no litre and a half bottles) alternating arms, dusting of bottles, miniatures etc., office work. No lifting cases (will review after April 13/03). Karen should ensure after a maximum of 30 minutes of repetitive use of her arms that she is to take a 10 minute break from doing anything with her arms-she can walk the store during this time doing customer service, store surveillance.

DUTIES TO BE PERFORMED ON A ROTATIONAL BASIS”

It appears from the evidence that the above Modified Work Plan was not followed for long, as the grievor experienced problems within two (2) to three (3) days of the change and lost further time away from work due to a reaggravation of the arm injury. More specifically, the grievor ceased performing the cashiering and stock handling functions, as modified.

In early April, 2003, the Employer, with the grievor’s approval, arranged for a doctor to doctor consult between Dr. Dzongowski and Dr. Lyndon Mascarenhas of Sibley & Associates Inc. In his letter of April 4, 2003, (Exhibit #52), Dr. Mascarenhas reported, as follows:

“Dr. Dzongowski essentially outlined to me that he felt the next appropriate step would be to perform a Functional Abilities Evaluation to determine what Ms. Sanfilippo could and could not do from a functional perspective. He felt that we had reached the end as far as medical options were concerned. There appeared to be no further follow-up, either from a physiatry, neurological or orthopedic perspective”

A Functional Abilities Evaluation (FAE) was undertaken by Sibley & Associates Inc. on April 24, 2003. A detailed report was filed as Exhibit #59. The pertinent part of the document states:

“The employer indicated that the client’s job responsibilities prior to her injuries included: operating the cash register, unloading stock, storing stock, rotating stock, general dusting and cleaning, wet and dry mopping, emptying garbage cans and computer work. The employer indicated that the client has had difficulties with repetitive cash register work and that she is also on modified duties which restrict her cash register usage, lifting and repetitive movements. When assessing Ms. Sanfilippo’s current job restrictions and modifications and the results of her Functional Evaluation it is recommended that the client continue with the current modifications and restrictions and that she not increase her duties until she has commenced an exercise program to increase her overall strength levels.

It is further recommended that the client commence a strength program as outlined above, with the assistance and guidance from a Kinesiologist, for a period of 3 months. At the end of the 3 month strength program, it is then recommended that Ms. Sanfilippo be re-evaluated to determine if she has progressed enough to change her job duties, restrictions and modifications.

Following the issuance of the FAE report, the grievor visited a kinesiologist for purposes of setting up an exercise program. It is Ms. Meek’s understanding that the grievor experienced considerable pain at the initial session, and indeed after, and for that reason the initiative was discontinued. It appears that, as a consequence, the recommended programs were not completed.

The grievor was off work in the period August 8 to August 26, 2003 because of an arm problem. She returned to work on August 26th and August 27th but was then off again until September 3, 2003. These absences prompted Mr. Thibodeau to write Dr. Dzongowski for purposes of obtaining a prognosis for the future. His letter of September 30, 2003 (Exhibit #64) reads:

“As you are aware Karen has been on modified duties of no repetitive use of her arms for the last nine months. In the nine months Karen has had a cortisone shot, physiotherapy, and a Functional Abilities Evaluation (FAE). With the FAE it was suggested Karen start an exercise program 3 times a week for 3 months at which point she would be reevaluated to see if their had been any improvement. It was also suggested that a Kinesiologist be with her for the first 4 or 5 sessions to ensure proper performance of the exercise plan. With the help of WSIB a Kinesiologist was provided for Karen. Unfortunately Karen was unable to complete these 4 or 5 sessions as she stated she was in too much pain and even lost time from work due to the amount of pain she was in.

Currently Karen continues to come to work performing customer service duties. She continues to miss time from work due to the pain in her arms.

We would like to know what the prognosis is for the future. Will Karen be able to at anytime in the future start increasing her duties. In your opinion will she ever be able to do any cashiering? Is she involved in any type of treatment for her condition?”

Dr. Dzongowski responded to this request by his report of October 28, 2003 (Exhibit #67). His conclusions were stated as follows:

“Ms. Sanfilippo suffers from three separate injuries.

1. She had an injury to her neck and has degenerative disc disease which gives her neck and arm pain.

2. She has fairly severe left lateral epicondylitis which is a repetitive strain injury preventing repetitive tasks such as cashier duties.

3. She has low back pain and is limited in her ability to stand or sit in one position for prolonged periods of time.

As such, the prognosis is poor. I do not think she will be able to return to cashiering. Her treatment currently consists only of medications. She has exhausted other treatment modalities”

At this point, it is necessary to elaborate on the duties performed by the grievor in the period April, 2003 to February, 2004. As stated previously, Mr. Robbins became the Manager of Store #593 in April, 2003. At that time, the grievor was on restricted duties and was not performing any cashiering or stock handling functions. Mr. Robbins testified that the grievor was primarily involved in the performance of customer service and other non-physical work. He stated that this work included the following tasks: servicing customers on the floor; answering the telephone; taking customer orders over the telephone; arranging for price changes and “month ends”; preparing material on the computer for displays; checking bin tags to ensure the accuracy of prices; and dealing with defective stock. Mr. Robbins described these tasks as “jobs that have to be done”. At one point in his testimony, Mr. Robbins appeared to suggest that the completion of the aforementioned tasks did not represent a full days work. He described these tasks as “sporadic duties” and stated that “we had a hard time keeping Karen busy” as “there wasn’t a whole lot of things for her to do”. At another juncture, Mr. Robbins was asked whether the work the grievor was doing was of value to Store #593 for forty (40) hours a week. I recorded his response as follows: “What she did had to get done, so Yes”. I was left with the impression that this answer was premised, to a certain extent, on the fact the grievor also performed various duties which might otherwise have been done by the Manager, Assistant Manager or Product Consultant. Mr. Robbins noted that, on occasion, he had to remind the grievor not to engage in tasks beyond her restrictions. Apparently, she would from time to time assist other staff by operating the cash register for a few customers or by doing a carry-out with her good arm. A Performance Appraisal of the grievor’s work dated June 16, 2003 was filed as Exhibit #14. She received an overall performance rating of “solid performance”, as she met the “expectations of a qualified and experienced employee”. The grievor wrote the following comment on the appraisal form: “.........I try not to reinjure them, but sometimes doing the simplest thing can be irritating. I do find it hard to be productive 40hrs a week, so I look forward to more training.”

Mr. Robbins advised that he was required to schedule additional staff when the grievor was on duty in order to ensure there were sufficient employees to perform the cashiering and stock handling functions. He acknowledged that the additional employees did not always work a full eight (8) hour shift. Mr. Robbins stated that he documented the extra hours worked by employees who were “covering” for the grievor. By way of example, he recorded the following number of extra hours on the Store schedule (Exhibit #12): week of July 20, 2003-20 hours; week of November 9, 2003-20 hours; week of December 14, 2003-40 hours; and week of December 21, 2003-24 hours. Mr. Thibodeau testified that he receives a Recap of Accommodations form from Store Managers which shows the number of hours worked by casual employees in each accounting period when filling in for an employee on restrictions. The Recap of Accommodations forms relating to the grievor were filed as Exhibit #85. Mr. Thibodeau stated that, while he reviewed the forms, they did not have any bearing on the ultimate decision to put an end to the grievor’s employment at Store #593. He advised that the document was used simply to capture the number of replacement hours. In Mr. Thibodeau’s words, “cost would not be a deciding factor in whether we would accommodate some one”.

As mentioned above, Store #593 is open on Sundays between the hours of 12:00 noon and 5:00 p.m. Mr. Robbins indicated that, at the time material to this dispute, only three (3) employees were required to work the Sunday shift and that all of them were expected to perform cash, stock and carry-outs. Employees wishing to volunteer for Sunday work were required to indicate their availability on a Sunday Availability Report (Exhibit #13). In the normal course, employees would be selected for such work on the basis of a Letter of Agreement found at page 205 of the collective agreement. Pursuant to the Letter, Sunday work is to be first offered to permanent full-time employees in order of seniority. If fewer than the required number of full-time employees volunteer, the work is next to be offered to permanent part-time employees in order of seniority. If fewer than the required number of part-time employees volunteer, then the work is to be offered to casual employees again in order of seniority. Despite this contractual provision, Mr. Robbins did not schedule the grievor to work on Sundays or on other premium days, with the exception of the Christmas period, in the period April, 2003 to February, 2004 notwithstanding that she had indicated she was willing and available to work on certain of these days. Mr. Robbins testified that he was directed by Mr. Thibodeau to schedule in this manner as the grievor was physically unable to perform the required tasks. To be clear, this direction resulted in more junior employees being scheduled for the premium hours. Mr. Robbins acknowledged that he did not make an individual assessment as to whether there was any work available on Sundays which the grievor could perform. Rather, he merely complied with the direction given by his District Manager. It appears on the evidence that the grievor was scheduled to work certain premium hours over the Christmas 2003 holiday period. Mr. Robbins explained that the volume of customers in that busy period justified placing an employee on the sales floor to assist customers.

Mr. Thibodeau agreed that he directed Mr. Robbins not to put the grievor on the Sunday schedule for overtime purposes. He stated that this direction was given in July, 2003. His recollection on this point is consistent with the following notation Mr. Robbins put on the Sunday Availability Report:

“Karen will not be put on schedules for Sunday overtime, until Chuck is directed to do so by District Manager.”

The notation is dated July 15, 2003. Mr. Thibodeau suggested that the grievor may, in fact, have worked some Sundays prior to that date. This apparent discrepancy in the evidence is not material for purposes of resolving this dispute as the parties agreed they would try to assess the extent of the grievor’s loss if the Union was successful in establishing a general entitlement to the hours in issue.

Mr. Thibodeau described Sundays as a “put through” day. He stated that the primary responsibility of staff working on such a day is to take care of customers and to ensure the shelves are full of product. Mr. Thibodeau testified that the Stores are operated with minimum staff on Sundays and that all of the scheduled employees must be able to work on cash, stock the shelves and refrigerator as necessary, and do carry-outs for customers. In his words, the employees are expected to “multi-task” and to perform “the full range of duties”. It was Mr. Thibodeau’s evidence that, in his judgment, the grievor was physically incapable of meeting this expectation. Mr. Thibodeau stressed that, because of the lower level of staffing on Sundays, employees are not required to engage in the type of office and backroom functions performed during the regular week. By way of example, he noted that a Manager would not schedule an employee to come in on a Sunday or other holiday to take inventory. Rather, the preference is to have such work done without attracting premium pay. Mr. Thibodeau observed that the Employer schedules “Sunday to a minimum because it is a premium pay day”. It is clear from the entirety of Mr. Thibodeau’s evidence that his direction was intended to apply to Sundays and other holidays, with the possible exception of Christmas or some other peak period. He acknowledged that with respect to the latter, the increased volume of business might support the scheduling of the grievor to perform customer service on the sales floor.

Mr. Thibodeau testified that he instructed Mr. Robbins in October, 2003 to not assign office work, including use of the computer, to the grievor. He was concerned that this type of repetitive work may have contributed to the grievor’s lost time in August, 2003. It is clear that the grievor did not agree with this further restriction. Mr. Thibodeau’s notes of a conversation with the grievor on October 6, 2003 (Exhibit #81) disclose that the grievor told him that she felt the Employer was being too cautious by not letting her perform office work. Mr. Thibodeau in his evidence advised that he preferred to err on the side of caution given the repetitive nature of the work. He acknowledged that he did not seek a medical opinion on this issue and that he did not bring anyone into the Store to assess if the office work fell within the grievor’s restrictions. Mr. Thibodeau also observed that office work is primarily the function of the Manager or Assistant Manager, although at times it can be delegated to a CSR.

Ms. Meek testified that she was asked by WSIB staff in July, 2003 if the Employer would consider a Labour Market Re-entry (LMR) plan for the grievor. After discussing the matter with Mr. Wagner, it was decided that she should explore the costs of this option. Ms. Meek subsequently asked Mr. Alkarim Kanji, the Manager of Corporate Health Services at the Employer’s Head Office, to prepare a LMR calculation. Mr. Kanji e-mailed an estimate of possible costs to her on August 12, 2003 (Exhibit #74). This estimate was shared with Mr. Wagner on that same day and was subsequently forwarded to Mr. Thibodeau on November 11, 2003 (Exhibit #75). It is apparent from a reading of Mr. Kanji’s response that the cost of a LMR plan to the Employer could be substantial. I note at this point that the LCBO is a Schedule 2 Employer and that it is responsible to cover the cost of all payments and benefits provided to an injured employee by the WSIB, plus a sizeable administrative surcharge. Mr. Wagner testified that he could foresee in August, 2003 that a LMR plan could be a viable option. In his mind, it was then becoming increasingly apparent that the LCBO was becoming incapable of providing duties the grievor could perform that were both of value and would not lead to recurrent lost time. It is clear, however, that no steps were actually taken at that time to further investigate or pursue the LMR option. The Employer did not communicate with either the Union or the grievor concerning the possibility of such a course of action.

Mr. Thibodeau advised that by the Fall of 2003, he too was becoming concerned about the grievor’s inability to perform all of the duties of her CSR position. He noted that she was very limited in terms of the CSR functions, as she could not do cash, stock or work of a repetitive nature. His concern was heightened after the receipt of Dr. Dzongowski’s report of October 28, 2003, which has been reproduced above. Simply put, Mr. Thibodeau was forming the opinion that the grievor could no longer perform the essential duties of the CSR position.

The grievor, in conjunction with Mr. Robbins, prepared a list of tasks which she was physically capable of performing in Store #593. This list, which was filed in this proceeding as Exhibit #9, included the following tasks:

• E-tracking

• Breakers

• Fill gift items

• Price changes-rip tags

• Pricer cards

• Price tags-new items/changes

• Customer service

• Check licensee orders/already boxed up

• Keep log book up to date

• Video program

• Order supplies

• Check stock outs

• Check VA program

• Check payroll

• Train new cashiers

• Deleting delisted brands

• Fill and order year around accessories

• Close store

• Set up cashiers

• Take deposits

• Cash off employees

• Safe balancing

• Fill seasonal gifts

• Occasionally do carry out-bags only

• Make up beer buckets, etc.

• Phone Vintage customers when order in

• File Vintage tags

• Product searches for customers

• Petty cash

• Take off air miles/LTO cards when no stock

• Receive IST’s from other stores

• Key in customer complaints

• Store opening

• Store balancing

• Cashier advances

• Gift certificates

• Take customer complaints

• Returns

• Securcor banking/pickups

• Divert the warehouse

• Inventory counts-gondolas only

• Check inventory counts

• Q-C circulars

• Fill 6 pack carriers

• Fill singles

• Order image program

• File office work

• Upload scanner guns-X reference

• Shift leader

• Return empty baskets and carts to front

• Empty garbage

• Answer phone

• Assist cashiers when they buzz

• Replace or make missing tags

• Handle new product-tags-make space

• Get customer orders ready-bottles

• IST’s to other stores

• Accept load/do add ons/transmit

• Walk store to check for add ons

• Process SOPS

• Take licensee orders

The grievor gave the above list to Mr. Thibodeau on November 19, 2003. Mr. Thibodeau documented their conversation on that day by way of handwritten notes filed as Exhibit #82. These notes read, in part:

“Karen provided D.M. with a list of duties (attached) which she feels she is able to perform without injury to her arm.

She stated to D.M. that the list does not include any cashiering or stock duties and therefore Employer should have no problem letting her try this out since she cannot handle only doing customer service for her entire shift especially when there are no customers. She said she feels unproductive and bored and it hurts her back to always be on her feet.

Karen admitted that she does jump on someone else’s cash if necessary for customer service. D.M. said she should not be since this is not within her restrictions and also is against policy. She said “its reality”.

D.M. made it clear that some of the duties on her list include keyboard work and could be repetitive. She said she’s been doing some and she’s fine.

D.M. also stated that there is no expectation or requirement to take tasks from Manager or Assistant simply so that she can do other duties aside from only customer service. Karen is prepared to participate in the 10 week restoration program. She said at least then I’ll know what I can or can’t do.”

Mr. Thibodeau informed the grievor on November 19, 2003 that he would have to speak to Ms. Meek, Mr. Wagner and Mr. Jim Turner, the Regional Director, about the list of duties. He also asked her to provide a brief explanation of the steps involved in each of the identified tasks. The grievor supplied this elaboration to Mr. Thibodeau in mid-December, 2003. This document was filed as Exhibit #10. At or about the same time, Mr. Thibodeau received a further medical report from Dr. Dzongowski dated December 8, 2003 (Exhibit #69). The report states:

“Karen, as you know, has significant limitations secondary to injuries as outlined in my last correspondence. She desperately wants to work and brought in a two page list of jobs she feels she is capable of doing. She finds it difficult to simply stand around and greet customers. I have reviewed her list and it would appear that this would fit her restrictions. I am not sure if these jobs correspond to actual positions available.”

Mr. Thibodeau subsequently viewed the list of tasks described on Exhibit #10. He prepared a two (2) page handwritten assessment relating to these tasks (Exhibit #83) in which he noted that many of the tasks involved keyboarding or repetitive work, were infrequently performed, or were attached to other positions. Mr. Thibodeau also met with Mr. Wagner and Ms. Meek in mid-December, 2003 to discuss the listed duties. A decision was reached at the meeting to permit the grievor to perform the duties as required and to monitor the time spent on same following the Christmas season. Mr. Robbins was thereafter told that he could assign the listed duties to the grievor, as required. He was further informed by Mr. Thibodeau that she was not to perform any cashiering function.

For the sake of completeness, I note that the grievor was off work due to an injury between December 6 and 9, 2003. This absence followed her attendance at a WSIB assessment held on December 5th to determine her suitability for a hand and arm clinic of ten (10) weeks duration.

As stated above, the Employer decided to track which of the duties listed on Exhibits #9 and #10 were actually performed by the grievor and the amount of time spent on same. Ms. Meek forwarded a series of Manager’s Assessment Forms to Mr. Robbins to be completed by he and the grievor on a daily basis for this purpose. More specifically, they were required to list the task performed and the time spent in performing the duty. Manager’s Assessment Forms for the period January 19 to February 7, 2004 were filed as Exhibit #11. Mr. Wagner testified that the Employer elected to defer the assessment until after the busy Christmas season. It was his belief that a review of the work performed in that period would not accurately reflect the average volume of work in the Store at a given time. Mr. Robbins, in his evidence, expressed the opinion that the month of January was a slow period for the Byron Store. A review of Exhibit #11 shows the following total time spent on the listed tasks on a daily basis; 4 ½ hours, 3 hours, 1 ½ hours, 2 hours, 1 ½ hours, 2 ½ hours, 5 ¼ hours, 5 hours and 10 minutes, 4 ¾ hours, 5 hours, 4 hours and 25 minutes and 30 minutes. Mr. Robbins advised that he did not record what other employees were doing in the Store over the period the grievor was monitored. It was his evidence that other employees would have performed some of the listed duties in that period. Mr. Robbins was also not involved in any assessment of the work at other Stores to determine the time spent by staff on the same corp of duties.

Mr. Robbins testified that the duties listed in Exhibits #9 and #10 are all tasks that could be delegated to a CSR if the need arose. Mr. Robbins advised that the grievor did not perform all of the identified tasks on a daily basis. He stated that some of the tasks are required to be performed daily, while others are only required on a weekly or monthly basis. Mr. Robbins observed that the daily tasks are insufficient to keep one (1) person busy for the entire day. He also indicated that no single CSR at Store #593 was permanently assigned to perform all of the listed duties. Mr. Robbins stated that while he assigned some of this work to the grievor, her primary responsibility under the modified work plan, was to provide customer service on the sales floor. On this point, he expressed the opinion that there was no real need to have a CSR just perform customer service on the floor for the entire day, with the possible exception of during the Christmas season or some other peak holiday period. After forwarding the Manager’s Assessment Forms to the Human Resources Department, Mr. Robbins had no involvement in the decision making process which ultimately resulted in the grievor’s departure from Store #593.

Ms. Meek testified that she was not responsible for determining whether a job could be found for the grievor out of the tasks listed in Exhibits #9 and #10. In her view, however, there was no single position that corresponded with the tasks. Ms. Meek confirmed that Mr. Robbins was not asked to gather information about how many of the tasks were being performed by other employees at Store #593 and the time devoted to same. Similarly, she advised that, to the best of her knowledge, other Store Managers were not canvassed on this issue in respect of the work performed in their Stores. Lastly, Ms. Meek acknowledged that, during the period the grievor was not doing cash or stock, she never asked the grievor’s doctor if it was possible to modify these functions to better meet the grievor’s physical restrictions. In a similar vein, no other physician was invited to the Store for purposes of determining whether the cash and/or stock functions could be modified.

Ms. Meek, as indicated, was the person primarily responsible for gathering information and communicating with others about the grievor’s file. It was her evidence, however, that she was not involved in the initial decision to not have the grievor work on Sundays or the later decision to end her employment at Store #593 and to resort, instead, to a LMR placement. Ms. Meek also advised that she was not involved in considering the grievor for other positions within the LCBO.

Ms. Meek, Mr. Thibodeau and Mr. Wagner met at some undetermined point between February 7 and February 11, 2004 for purposes of reviewing the Manager’s Assessment Forms described above. Mr. Thibodeau’s conclusions from this review may be summarized as follows:

i) the tasks the grievor was performing did not equate with the classification of CSR and were not functions that could be sustained or identified as a position. In his words, the tasks identified in Exhibits #9 and #10 “did not make up what we view as a position of CSR”;

ii) the functions recorded on the Manager’s Assessment Forms “did not constitute a full eight hour day in terms of one job”. In his judgment, putting the various tasks together would not amount to an eight (8) hour day “in comparison to a CSR doing their functions”;

iii) some of the functions were done infrequently, others took five (5) minutes or less to complete, and some would normally be performed by employees in a higher classification. In Mr. Thibodeau’s view, there should not have been an expectation on the grievor’s part that she would be assigned supervisory, or other routine, functions of the Manager or Assistant Manager position. Mr. Thibodeau acknowledged that there was nothing listed in Exhibit #9 that the Manager could not assign to the grievor or some other CSR; and

iv) some of the functions the grievor performed did not add value to the operation of the Store. Indeed, it was Mr. Thibodeau’s evidence that the functions recorded on the Manager’s Assessment Forms were of “minimal value” and did not represent “meaningful work”. In his view, the Employer did not require someone in the Store doing customer service work without also performing the cash and stock functions.

Mr. Thibodeau agreed that it was ultimately determined that the tasks recorded on the Manager’s Assessment Forms did not constitute a full job and that this decision was mainly influenced by the amount of time spent by the grievor in the performance of the identified tasks. Mr. Thibodeau stressed, however, that he did not make the ultimate decision in this case. He acknowledged that no assessment was done as to who else in Store #593 was performing the tasks in question or as to the actual time spent by them in respect of such duties. Additionally, he agreed that no assessment was performed at the other twenty-nine (29) Stores under his direction.

In cross-examination, Mr. Thibodeau was asked whether the practice or policy in his District is that an employee cannot be accommodated if he/she is unable to perform the cash and stock functions of the CSR position. He answered that this was his understanding of how to manage this issue based on discussions with peers, his Human Resources Advisor, and Mr. Turner. Mr. Thibodeau was also asked if the assessment as to whether an employee can be accommodated ends if the employee cannot do both cash and stock. I recorded his response as “Yes, that is my understanding”. Mr. Thibodeau was unaware of the existence of any written memo to this effect.

A section of the Employer’s Administration Manual relating to “Modified Work Program” was filed as Exhibit #80. The fourth page of the Exhibit references the establishment of a Modified Work Committee comprised of three (3) management representatives, three (3) Union representatives and a chairperson. The document outlines the function of the Committee as follows:

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

Ms. Meek advised that she was not familiar with the Modified Work Committee and, as a consequence, did not ask it to consider the grievor’s case. She later indicated that the policy is not followed in the Western Region. She was unsure about other Regions. Mr. Thibodeau testified that he was unfamiliar with the Committee.

Mr. Wagner’s review of the Manager’s Assessment Forms led him to conclude that there was insufficient work of value available for the grievor to perform. From his evidence, it is apparent that this conclusion was premised on the actual time spent on the duties recorded on the above-mentioned forms. He observed that for a number of days the work performed totaled two (2) or four (4) hours. From Mr. Wagner’s perspective, this number of hours was not even “in the ball park” in respect of whether the work performed amounted to a viable position. He observed that the “minor administrative tasks” engaged in by the grievor constituted “a relatively small portion of the work shift”. Mr. Wagner noted that the balance of the grievor’s workday was spent on the sales floor providing assistance to customers.

After reaching the above stated conclusion, Mr. Wagner met with Mr. Turner, the Regional Director. Mr. Wagner stated his opinion that there was insufficient work of value for the grievor to perform and recommended that a LMR plan was the best option to pursue. Mr. Wagner testified that Mr. Turner agreed with both his assessment of the situation and his recommendation. He advised that, on the basis of his recommendation, Mr. Turner made the decision that the grievor could no longer continue working at Store #593 and that, instead, the LMR option would be pursued. Mr. Turner was not called to testify in this proceeding.

Following his discussion with the Regional Director, Mr. Wagner met with the grievor and her Union representative on February 11, 2004. Mr. Thibodeau and Ms. Meek were also in attendance at the meeting. The grievor was advised that the LCBO could no longer accommodate her and that the WSIB would be so informed and would be asked to implement a LMR plan. It is clear, from all of the evidence, that this was the first time that any Employer representative advised either the grievor or the Union that the LCBO could no longer accommodate her disabilities and would, instead, resort to the LMR option. To be clear, neither the grievor nor the Union were told at any time prior to February 11, 2004 that the Employer was even considering an LMR for Ms. Sanfilippo.

It is unnecessary to get into the details of a LMR plan. It is sufficient to note that it is the WSIB that determines whether to implement such a plan and the content of same. Simply put, a LMR plan is premised on an inability on the part of the Employer to accommodate the needs of the disabled employee through suitable modified work. Such a plan is designed to provide training and/or education to prepare the individual for other employment more consistent with her or his physical restrictions. I was told that the program is designed to meet the statutory objective of restoring earnings to the level of eighty-five percent (85%) of pre-injury earnings and that the Employer is responsible for any required “top-up”. In this instance, as a Schedule 2 Employer, the LCBO bears all of the costs associated with the LMR. I was further informed that the Employer is entitled to appeal any decision reached as to the content of a LMR plan. Counsel for the Union acknowledged that the grievor is now taking training at Fanshawe College in London, Ontario, under the auspices of a LMR, in the area of human resources.

Ms. Meek, as previously noted, was not involved prior to February 11, 2004 in assessing or considering the grievor for other positions within the LCBO. She testified that she did discuss the positions of Manager, Assistant Manager and Product Consultant with Mr. Thibodeau and Mr. Wagner but only “in passing” and in very general terms. Ms. Meek did not engage in an in-depth analysis of these positions. She noted that all of these positions would have represented a promotion for the grievor and that the position of Manager could have removed her from the bargaining unit depending on the category of Store. Ms. Meek acknowledged that postings for other positions were processed by her office in 2003. She agreed that the vacancies were not assessed in terms of whether they would better meet the grievor’s restrictions. Ms. Meek advised that in that period, she was not considering other jobs for the grievor.

Mr. Thibodeau recalled that there was some discussion about the Product Consultant position. It appeared to be his view that the grievor would have to obtain this higher classification through success in a competition. Mr. Thibodeau stated that he was not involved in any discussions surrounding the Manager or Assistant Manager positions, or any other positions either within or outside of the Retail Division. It is apparent that Mr. Thibodeau did not assess the grievor’s skill, ability and restrictions against any other positions and that he did not participate in any discussions about approaching the Union for assistance in accommodating the grievor.

Job postings dated February 11, 2004 were filed relating to the positions of Clerk/Receptionist and Duty Free Clerk (Exhibits #78 and #79). Both positions were in the London Retail Service Centre which is part of the Employer’s Logistics Division. Mr. Wagner testified that these positions were considered for the grievor but were rejected, in part, because they both required repetitive and sustained computer work. He agreed that in making this assessment as to suitability, he did not have a doctor or an ergonomist review the positions. Mr. Wagner also noted that the LCBO does not practice cross-divisional accommodation. The Clerk/Receptionist position would have represented a demotion for the grievor, while the Duty Free Clerk position would have been a promotion.

Mr. Wagner testified that he has a general knowledge of positions in the Retail Division and that he gave some thought to alternate jobs for the grievor. He acknowledged that he did not do a formal evaluation of the grievor’s skills, abilities and restrictions against any jobs in the Retail Division. It was his further evidence that before meeting with the grievor and the Union on February 11, 2004, he surveyed available positions within the City of London, including those in the Regional Office, the District Office and in the Stores. Mr. Wagner determined from his survey that there were no available vacancies. Lastly, Mr. Wagner acknowledged that prior to February 11, 2004, he did not approach the Union to discuss the accommodation of the grievor, including the possibility of either placing her in a position without the need for a posting or transferring her across divisions.

The relevant provisions of the collective agreement read:

ARTICLE 2 – Relationships

2.1(b) There shall be no discrimination or harassment practiced by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in the Ontario Human Rights Code.

LETTER OF AGREEMENT

Sunday Openings

The LCBO and the Union agree that work resulting from the opening of LCBO’s stores on Sunday shall be voluntary for Permanent Full-Time (PFT) and Permanent Part-Time (PPT) employees.

Sunday Work shall also be voluntary for Casual employees for whom such Sunday work would result in overtime.

Sunday work shall be offered in the following manner and sequence.

a) First, to PFT employees on a voluntary basis in order of seniority.

b) Should fewer than the required number of PFT employees volunteer, such Sunday work shall then be offered to PPT employees, in order of seniority.

c) Should fewer than the required number of PPT employees volunteer, such Sunday work shall then be offered to Casual employees in order of seniority.

d) Should fewer than the required number of casual employees volunteer, such Sunday work may be assigned to casual employees who have worked less than forty (40) hours during that week.

The applicable statutory provisions are as follows:

LABOUR RELATIONS ACT, 1995

48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,

(j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.

HUMAN RIGHTS CODE

5(1) - Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or disability.

10(1) - In Part 1 and in this Part,

“disability” means

a. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

b. a condition of mental impairment or a developmental disability,

c. a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

d. a mental disorder, or

e. an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

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

(2) - The Commission, the Tribunal 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.

41(1) - Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices;

b) and direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in willfully or recklessly, monetary compensation may include an award, not exceeding $10,000 for mental anguish.

Ontario Workplace Safety And Insurance Act, 1997

41(6) - The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

42(1) - The Board shall provide a worker with a labour market re-entry assessment if any of the following circumstances exist:

2. If the worker’s employer has been unable to arrange work for the worker that is consistent with the worker’s functional abilities and that restores the worker’s pre-injury earnings.

(2) - Based on the results of the assessment, the Board shall decide if a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury.

(4) - The Board shall arrange for a plan to be prepared for a worker if the Board determines that the worker requires a labour market re-entry plan.

(8) - The Board shall pay such expenses related to the plan as the Board considers appropriate to enable the worker to re-enter the labour market.

90(1) - Every Schedule 2 employer is individually liable to pay the benefits under the insurance plan respecting workers employed by the employer on the date of the accident.

(2) - The employer shall reimburse the Board for any payments made by the Board on behalf of the employer under the insurance plan. The amount to be reimbursed is an amount owing to the Board.

The parties agree that this Vice-Chair has the authority to interpret and apply human rights legislation. They further agree that the grievor suffers from a disability and has the right to be free from discrimination under both the collective agreement and the Human Rights Code. By way of overview, it is the Union’s position that the Employer has failed to accommodate the grievor and her disability by refusing to schedule her to work on Sundays and other premium shifts, and by removing her from work in the Store system from and after February 11, 2004. From the perspective of the Union, these actions constitute unlawful discrimination as, in its view, the Employer has failed to establish that it accommodated the grievor to the point of undue hardship, as required by law. The Union asserts that the Employer has failed to give proper attention to the full extent of its legal obligation to accommodate the grievor. Rather, the LCBO improperly adopted the position that it did not have to accommodate Ms. Sanfilippo if she could not “multi-task” or perform both the cashiering and stock handling functions.

Counsel for the Union filed a Brief setting out the law on the following aspects of its case: (i) the authority of an arbitrator to interpret and apply human rights legislation; (ii) the right of the grievor, as a disabled employee, to be free from discrimination; (iii) the onus on the Employer of establishing the undue hardship defence; (iv) the extent of the duty to accommodate; (v) the elements which must be established to prove undue hardship; (vi) the LMR plan and its relationship to the duty to accommodate; and (vii) the presumptive nature of damages under the Human Rights Code. It is unnecessary to here reproduce all of the argument contained in the Brief on the aforementioned issues. Rather, I have appended the Union’s Brief to this award.

Counsel for the Union noted that on some of the Sundays and premium days in issue, junior employees were scheduled to work despite the fact the grievor was willing and able to work the shifts. Mr. Robbins scheduled in this manner on the basis of the direction given to him by Mr. Thibodeau. Counsel argued that such scheduling was contrary to the Letter Of Agreement on Sunday Openings, as the grievor had a right, as a permanent full-time employee, to work on Sunday in order of her seniority. He further argued that the failure to schedule the grievor amounted to a breach of the Human Rights Code, as the Employer’s decision was premised on her disability. Counsel referenced Mr. Thibodeau’s evidence that the Employer schedules a minimum number of staff on Sundays and that, accordingly, there is a need for all employees to be able to “multi-task”. He suggested that this equates to a blanket rule that only able bodied employees can work on Sundays or on other premium shifts. Counsel submitted that such an approach to scheduling could be challenged on a number of grounds. His arguments on this aspect of the case may be summarized as follows:

i) the Employer’s scheduling practice in respect of Sundays and other premium days disregarded the duty to accommodate and the need to ensure the existence of dignity and diversity in the workplace;

ii) little, if any, evidence was presented to justify the rule. The Employer’s only evidence was that it costs more to staff the Store on Sundays and other premium days. Counsel observed that no evidence was presented about the extent of the cost or, more specifically, about the increased cost of scheduling more employees on these days. Indeed, on his assessment, no evidence was led to indicate that the Employer even considered or weighed the actual costs;

iii) no evidence was presented by the Employer to establish that accommodating the grievor on Sundays and other premium days would have resulted in undue hardship;

iv) the adoption of the blanket rule applied in this instance was discriminatory and fails to satisfy the legal test articulated by the Supreme Court of Canada in the Meiorin case in British Columbia (Public Service Employee Relations Commission v. British Columbia Government and Services Employees’ Union, (1999) S.C.R.3. More specifically, it was submitted that the Employer did not establish the following: that the rule was adopted for a purpose or goal that was rationally connected to the function being performed; that the rule was adopted in good faith and in the belief that it was necessary for the fulfillment of the purpose or goal; and that it was impossible to otherwise accommodate the grievor without undue hardship;

v) the Employer failed to consider an individualized accommodation for the grievor in respect of Sundays or premium days. Counsel for the Union noted, by way of example, that the Employer did not assess whether the required tasks could be assigned or bundled in a different way.

For all of these reasons, it is the Union’s position that the Employer failed, in both a procedural and substantive sense, to accommodate the grievor to the point of undue hardship.

The further position of the Union is that the Employer breached both the collective agreement and the Human Rights Code through its decision of February 11, 2004 to discontinue the grievor’s accommodation. Counsel for the Union focused on three (3) basic concerns. First, he submitted that problems exist with respect to the evidence surrounding the decision making process. Second, counsel argued that the procedure used to assess the grievor’s ability and the availability of work was flawed and did not satisfy the legal obligation imposed on the Employer in a case such as this. Lastly, it was submitted that the Employer failed to establish on the evidence that it could not accommodate the grievor without experiencing undue hardship.

Counsel for the Union noted that Mr. Robbins, Ms. Meek, Mr. Thibodeau and Mr. Wagner all testified that they did not make the decision being challenged in this proceeding. On his analysis, the evidence indicating Mr. Turner made the decision is purely hearsay, as Mr. Turner was not called as a witness to explain why he decided as he did and on what considerations his decision was based. Counsel suggested that this Vice-Chair is being asked to “impute” the basis for the decision from the evidence of the other witnesses for the LCBO. In this regard, he claimed that there is a lack of firm evidence to show that Mr. Turner “rubber-stamped” Mr. Wagner’s recommendation. Counsel asserted that Mr. Turner’s decision could be equally consistent with an effort to simply get rid of disabled employees. He also noted that there is a resulting gap in the evidence as to why the Employer adopted the rule that an employee can no longer be accommodated if unable to perform both cash and stock. Counsel argued that there was a real obligation on the Employer to call Mr. Turner as a witness to explain why this standard was adopted and applied to the grievor, and to expose him to cross-examination on these vital questions.

Counsel for the Union stressed that the grievor was on modified duties between March, 2003 and February, 2004. In this period, the grievor did not perform the cash and stock functions. Counsel questioned why the Employer decided that it could no longer maintain, the status quo. He observed that there was no worsening of the grievor’s condition nor any reorganization in the Store that would explain the change in approach. Indeed, counsel suggested that the only thing that changed was the Employer’s “attitude” and that it simply no longer wanted to accommodate the grievor. He argued that there is no evidence to indicate that the continuation of the status quo would have created a situation of undue hardship. Counsel referenced the complete lack of any evidence relating to cost, outside sources of funding and health and safety concerns.

It is the position of the Union that an onus exists on the Employer to establish that the grievor could not perform the job of CSR and that such job could not be modified so as to accommodate her disability. In counsel’s view, a CSR does not have a “specific job”. Rather, the role of an employee in such position is to assist with cash and stock, customer service and other functions related to the operation of the Store, in accordance with directions given by the Store Manager or Shift Leader. Counsel described the job of a CSR as being comprised of “a bundle of tasks” and suggested that how these tasks are divided between CSRs working at any given time is within the discretion of the Employer. He re-iterated that this bundle includes the customer service role. On his analysis, when the grievor was assigned to customer service, other CSRs were able to perform the other tasks in the bundle, such as cash or stock. It is the thrust of counsel’s argument that the Employer failed to give proper weight to the customer service component of the job when it decided the grievor could no longer be accommodated. Counsel asserted that this error was compounded by the Employer’s failure to recognize that the grievor could have performed customer service as well as all of the duties listed in Exhibits #9 and #10. He referenced Mr. Robbin’s acknowledgement that all of the latter functions could be assigned to a CSR and are performed at all retail Stores. He further referenced Mr. Robbin’s statement that the grievor was engaged in work of value for forty (40) hours a week. In the final analysis, counsel submitted that the tasks performed by the grievor represented real and meaningful work which she could have continued to perform had the Employer not opted to end her employment on February 11, 2004. He observed that this work continued to be done by other CSRs after the grievor left Store #593.

On a related point, counsel for the Union submitted that the Employer was deficient in its evaluation of the tasks listed in Exhibits #9 and #10. His submissions on this aspect of the case may be summarized as follows:

i) the evaluation was performed in the months of January and February, these being the slowest months in terms of volume of business. Counsel suggested that the evaluation would likely have been different, and more favourable, if done at a different time of the year;

ii) the evaluation was premised on a period of just two (2) weeks. In counsel’s judgment, this constituted an insufficient period of assessment;

iii) no effort was made by the Employer to gather information as to how many of the tasks listed on Exhibit #9 and #10 were performed by other employees in Store #593 and the time they devoted to same. Counsel submitted that, as a consequence, the Employer did not accurately assess how much of this work was actually available for the grievor to perform;

iv) no thought was given by the Employer to evaluating other Stores in London or elsewhere in the Region for purposes of determining how much of this work was available at other locations. Counsel suggested that the grievor could have been assigned to do the listed tasks at more than one (1) location. He noted that there are a number of ‘A’ Stores in the Region which are larger, and have a greater volume of business, than Store #593. In the Union’s view, the Employer failed to consider an alternate form of accommodation on the basis of its misplaced belief that an employee did not have to be accommodated if unable to do both cash and stock; and,

v) the Employer did not assess whether it would be more or less efficient to have one (1) person perform customer service and the listed tasks and whether to have done so would have resulted in undue hardship.

It is the further position of the Union that, even if the Exhibit #9 and #10 tasks did not provide sufficient, proper or meaningful work, the Employer was still obliged to determine if the grievor’s job could be modified. Counsel argued that, despite all of the medical reports and tests received, there was no consideration by the Employer if it could change the way cash and stock functions were performed so as to permit the grievor to do such work. From the perspective of the Union, it was incumbent on the LCBO to canvass the possibility of modifying the cash and stock functions.

Counsel for the Union also maintained that the Employer had an obligation to look at the availability of other jobs within the LCBO. He noted, in this regard, that the bargaining unit is Provincial wide. Counsel suggested that the evidence relating to the consideration of other jobs is “spotty at best”. He referenced Mr. Thibodeau’s statement that the inquiry ends if an employee cannot do cash and stock. Counsel noted that the Employer did not evaluate jobs posted in the period prior to February 11, 2004 and that the LCBO did not approach the Union about possibly circumventing the posting requirements of the collective agreement in order to achieve or facilitate an accommodation. I was also asked to find that Mr. Wagner’s analysis of other jobs was insufficient to satisfy the Employer’s obligation. More particularly, counsel claimed that there was no real or meaningful weighing of other jobs against the greivor’s skill, ability and restrictions.

Counsel for the Union argued that the Employer’s rule that an employee cannot be accommodated if they are unable to perform cash and stock, has to be assessed pursuant to the Meiorin test. More specifically, he argued that I have to assess the following questions: was the purpose or goal of the rule rationally connected to the job being performed; was the rule adopted in good faith in the belief it was necessary for the fulfillment of the purpose or goal; was it reasonably necessary to accomplish this purpose or goal; and was it impossible to otherwise accommodate the grievor without undue hardship. Counsel asked me to find against the Employer on all of these questions. He emphasized that, in his view, there is no evidence either that the Employer adequately turned its mind to an individual assessment of the grievor’s circumstances and the need for an accommodation or to whether it was possible to accommodate her to the point of undue hardship.

In summary, counsel for the Union submitted that the Employer, in order to fully comply with its legal obligation to accommodate, ought to have evaluated the following options: maintaining the status quo; changing or modifying the cash/or stock functions; bundling or reconfiguring the CSR duties; assigning the grievor to two (2) or more locations in order to continue the work she was performing prior to February 11, 2004; and assessing the suitability of other jobs within the LCBO. Counsel stressed that these assessments were not undertaken and that, as a consequence, the Employer has failed to establish a defence of undue hardship under the Human Rights Code.

It is the position of the Union that it has established a breach of both the collective agreement and the Human Rights Code given that the grievor was treated differently than other employees, and discriminated against, on the grounds of her disability. I was asked to award the following remedies:

1. A declaration that the Employer, in its treatment of the grievor, breached the requirements of the collective agreement and the Human Rights Code;

2. Damages under the collective agreement to make the grievor whole in respect of matters including lost wages, benefits, vacation and sick days flowing from the Employer’s decision not to employ the grievor after February 11, 2004;

3. Damages under the Human Rights Code for the grievor’s loss of the right to be free from discrimination and her experience of victimization;

4. An order that the Employer return the grievor to work and complete a full and proper assessment as to how she can best be accommodated and that a reasonable timeline be set for the completion of the assessment;

5. That it be initially left to the parties to calculate the amount owing to the grievor as a consequence of the Employer’s failure to schedule her on Sundays and on other premium days; and

6. That this Vice-Chair remain seized with respect to implementation of the Award.

The Union relies on the following authorities in support of its case: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees’ Union, previously cited; Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), 2 S.C.R. 970; Ontario (Human Rights Commission) v. Simpson Sears Ltd., 1985 CanLII 18 (SCC), 2 S.C.R. 536; Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services), (1996) O.J. No. 608 (Ont. Div. Ct.); Canadian Union of Public Employees v. Toronto District School Board (2003), unreported (Howe); Proboard Ltd. and C.E.P., Local 49-0 (2002), 2002 CanLII 79158 (ON LA), 112 L.A.C. (4th) 371 (Kaplan); Unilever HPC NA and Teamsters, Chemical Energy and Allied Workers, Local 132 (2002), 2002 CanLII 78985 (ON LA), 106 L.A.C. (4th) 360 (Springate); Air Canada and C.A.W. – Canada, Local 2213 (2001), 2001 CanLII 62103 (CA LA), 101 L.A.C. (4th) 311 (Dissanayake); Bakery Workers v. Canada Bread (1965), 1965 CanLII 1029 (ON LA), 16 L.A.C. 202 (Reville); City of Victoria v. C.U.P.E., Local 50 (1982), 1982 CanLII 4960 (BC LA), 2 L.A.C. (3d) 368 (Brown); British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”), 1999 CanLII 646 (SCC), 3 S.C.R. 868; Quebec v. Boisbriand (“Mercier”) (2000), 2000 SCC 27, 185 D.L.R. (4th) 385 (S.C.C.); Entrop v. Imperial Oil (2000), 2000 CanLII 16800 (ON CA), 189 D.L.R. (4th) 14 (Ont. C.A.); Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC), O.J. No. 297 (Ont. Div. Ct.); Jeppesen v. Ancaster (Town), (2001) O.H.R.B. I.D. No. 1; Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324 (2003), 2003 SCC 42, 230 D.L.R. (4th) 257 (S.C.C.); Better Beef Ltd. v. U.F.C.W., Local 175 (2003), 2003 CanLII 89539 (ON LA), 119 L.A.C. (4th) 361 (Dissanayake); Ahkwesahnsne Police Association v. Mohawk Council of Akwesasne (2003), 2003 CanLII 89493 (CA LA), 122 L.A.C. (4th) 161 (Chapman); TTC v. A.T.U., Local 113 (Langille), (2003) O.L.A.A. No. 520 (Chapman); Parisien v. Ottawa Carleton Regional Transit, (2003) C.H.R.D. No. 6; Re York County Hospital And Ontario Nurses’ Association (1992), 1992 CanLII 14494 (ON LA), 26 L.A.C. (4th) 384 (Watters); Re Mount Sinai Hospital And Ontario Nurses’ Association (1996), 1996 CanLII 20325 (ON LA), 54 L.A.C. (4th) 261 (Brown); Re Greater Niagara General Hospital And Ontario Nurses’ Association (1995), 1995 CanLII 18313 (ON LA), 50 L.A.C. (4th) 34 (Brown).

Counsel for the Employer noted that in early 2003, the grievor was performing modified duties in respect of the cashiering and stock handling functions. More specifically, she was then performing cash for thirty (30) minutes at a time and was permitted to stock the shelves one (1) bottle at a time. Counsel further noted that the grievor’s condition deteriorated to the extent she could not perform either cash or stock from March, 2003 onward. Counsel described the aforementioned duties as the essential, or core, functions of the CSR position. Counsel submitted that the Employer in February, 2004 properly concluded that the grievor would not be able to perform these duties, in their original form, in the future. She added that the Employer also had no reason to then believe it was possible to further modify the cash or stock functions. On counsel’s analysis, no amount of accommodation would have enabled the grievor to perform the essential duties of the CSR position. In her judgment, an Employer, generally, is not legally obligated to accommodate an employee who is incapable of performing or fulfilling the essential functions of the job for which she or he was hired. Simply stated, it was her submission in this case that such an obligation, if imposed, would take the instant Employer beyond the point of undue hardship. I was, ultimately, asked to conclude that there was no contractual or statutory obligation to retain the grievor in the CSR position when it was apparent she could no longer perform the essential or core functions of the job and, particularly so, when there was no foreseeable prospect of improvement in her condition.

It is the further position of the Employer that, in the circumstances of this case, it was not required to create a new job for the grievor entirely foreign to the one for which she was hired or to bundle together a number of duties unrelated to the essential functions of the CSR position. More specifically, with respect to the latter point, counsel argued that the Employer was not obligated to bundle together a series of customer service functions unrelated to cashiering or stock handling, as to do so would be tantamount to the creation of a new position. In response to a question from this Vice-Chair, counsel maintained that customer service is not a “stand-alone” or independent function. Rather, it is intrinsically related to, and forms part of, the cash and stock functions. Counsel argued, in the alternative, that a requirement to bundle a group of duties together must result in a productive role in the Employer’s organization, otherwise the situation would be one of undue hardship.

Notwithstanding the Employer’s primary position on bundling of duties, counsel noted that duties were actually bundled or cobbled together for the grievor in this instance. This bundle of duties was comprised of the tasks listed in Exhibits #9 and #10. Counsel re-iterated that the Employer evaluated these duties and the time spent on same through a review of the Manager’s Assessment Forms. From her perspective, the evaluation determined that the various tasks performed did not represent a bundle of essential, necessary or productive duties, and that such duties when taken together would not constitute a position under the collective agreement. It was counsel’s submission that the grievor in February, 2004 was not performing productive work for the LCBO and that retaining her at Store #593 to do non-essential and unproductive work on a full-time basis would have amounted, in substance, to an inappropriate wage subsidy. She argued, in effect, that the Employer was not obliged to keep the grievor in an unproductive job as an accommodation. Counsel acknowledged that the Employer may have had the financial resources to maintain the grievor’s employment. She urged, however, that I not decide this case on that basis. Rather, she asserted that I should consider whether the grievor could perform the essential functions of the CSR job with some accommodation or, in the alternative, whether she could perform work of value in some other way.

Counsel for the Employer argued that Mr. Wagner did consider other positions for the grievor. She referenced his efforts with respect to the two (2) positions in the Logistics Division. Counsel noted that Mr. Wagner concluded that the grievor would be unable to satisfy the job requirements, as both involved repetitive computer work. She further observed that, in the absence of evidence from the grievor, it would be difficult for me to determine whether the grievor could perform the work of either the Clerk/Receptionist or the Duty Free Clerk. Counsel repeated that the former position would have amounted to a demotion for the grievor, while the latter would have represented a promotion. She also suggested that to require the Employer to transfer across divisions, against its normal practice, would result in the grievor getting better treatment than other non-disabled employees and could lead to an undesired precedent in the sense that disabled employees in the warehouse might seek transfers into the retail system. Counsel similarly argued that the Employer was not obligated to put the grievor into a Manager, Assistant Manager or Product Consultant position, as all of these positions would have represented a promotion and, in the case of the Manager position, would have removed her from the bargaining unit. Finally, it was the submission of counsel that the duty to accommodate the grievor did not require the Employer to displace some other employee from her or his position.

Counsel argued that, unlike the situation in Meiorin and Grismer, the Employer did not act pursuant to a blanket policy. The Employer did not, for example, require that the grievor be able to lift stock of a prescribed weight or complete cash transactions within a predetermined time. On counsel’s assessment, the Employment instead engaged in a thoughtful and lengthy process of gathering and reviewing medical information from a variety of sources in order to determine how the grievor could be accommodated in the Store system. She stressed that the grievor’s work in respect of both cash and stock was initially modified and that she was subsequently allowed to perform other duties when it became clear that she could no longer perform any cash or stock function. Counsel emphasized that the Employer accommodated the grievor’s inability to perform cash and stock for approximately one (1) year. She maintained that the sequence of events in that period, as described in the evidence, shows that the Employer did attempt to adopt an individualized approach vis à vis the grievor’s disability and continued to do so until it became apparent there would likely be no improvement in the foreseeable future. Counsel acknowledged that the Employer should perhaps have involved the Union in the search for an effective accommodation prior to February 11, 2004. She suggested, however, that there is no evidence to indicate that anything different could have been done to accommodate the grievor in her employment.

Counsel for the Employer noted that the WSIB determined that the LCBO could no longer accommodate the grievor and, on that basis, moved forward with a LMR plan. She suggested that the placement of the grievor on a LMR plan confirms the correctness of the Employer’s assessment. Additionally, she argued that such placement should be viewed as an accommodation effort on the part of the Employer, presumably because it was involved in discussions with the WSIB about the advisability of moving in that direction and because of its ultimate responsibility for the costs of the plan as a Schedule 2 Employer. In the alternative, counsel submitted that the Employer’s role in the implementation of the LMR plan was a relevant consideration in respect of both the adequacy of the accommodation efforts and for purposes of remedy. Counsel acknowledged that, quite apart from any consideration as to the impact of the Workplace Safety and Insurance Act, 1997, this Vice-Chair possesses the authority to assess whether Ms. Sanfilippo has been properly accommodated under the collective agreement and the Human Rights Code.

Counsel argued that it was unnecessary to call Mr. Turner as a witness in respect of this aspect of the dispute. She referenced Mr. Wagner’s evidence that he provided a recommendation to Mr. Turner and that Mr. Turner, in his presence, accepted it. She also noted that the Union in its opening argument did not allege bad faith against the LCBO or any of its representatives. Counsel suggested that the Union was, in effect, attempting to change its case through closing argument.

It is the position of the Employer that it was entitled to restrict the grievor’s work on Sunday and other premium days to those periods in which there was a need, because of customer demand, to have a CSR on the sales floor. In this regard, counsel stressed that employees scheduled on Sundays, described as “put-through days”, had to be able to perform both cash and stock because of the minimal staffing. In her submission, the Employer was not obliged to provide a wage subsidy in the period in question to an employee who was unable to perform the functions required and deemed essential. Counsel considered it material that the Employer did accommodate the grievor for at least forty (40) hours of work each week in the period April, 2003 to February, 2004. It was the gist of her submission that the Employer, in the circumstances, was not obliged to go further.

For all of the above reasons, it is the position of the Employer that it accommodated the grievor’s disability on both issues to the point of undue hardship and that, as a consequence, it was entitled to cease its efforts to accommodate her as of February 11, 2004. Counsel submitted that, as a consequence, the Union should not be awarded the relief claimed on behalf of the grievor. She further asked that I not remit this matter back to the Employer. On her analysis, there is nothing to suggest that further attempts to accommodate would yield a different result. In the alternative, counsel argued that the grievor should not be awarded any relief in respect of the period following February 11, 2004. This argument is premised on the agreement of counsel, reached during the course of the hearing, to treat February 11th as “a cut-off date” for purposes of the presentation of evidence. More specifically, both counsel agreed that the issue before this Vice-Chair is whether the Employer reached a situation of undue hardship as of that date and, therefore, had no continuing obligation to accommodate thereafter. As a further alternative, counsel for the Employer maintained that any damages awarded had to reflect the grievor’s continuing receipt of LMR benefits, all of which are ultimately paid for by the Employer.

The Employer relies on the following authorities: Re Ontario English Catholic Teachers’ Association and Office and Professional Employees’ International Union (1997), 1998 CanLII 30057 (ON LA), 61 L.A.C. (4th) 109 (Burkett); Bonner v. Minister of Health (Ont.) (1992), 92 CLLC 16. 161 (Ontario Human Rights Tribunal); Re Maple Leaf Foods Inc. and United Food and Commercial Workers, Local 175/633 (1996), 1996 CanLII 20332 (ON LA), 60 L.A.C. (4th) 146 (Kirkwood); Bowater Canadian Forest Products Inc. v. Industrial Wood and Allied Workers of Canada, Local 2693 (Giardino Grievance), (2003) O.L.A.A. No. 597 (Surdykowski); Re Canada Post Corp. and Canadian Union of Postal Workers (Godbout) (1993), 1993 CanLII 16715 (CA LA), 32 L.A.C. (4th) 289 (Jolliffe); Re Hamilton Civic Hospitals and Canadian Union of Public Employees, Local 794 (1995), 1994 CanLII 18646 (ON LA), 44 L.A.C. (4th) 31 (Kennedy); Re Calgary Herald and Calgary Printing Trades Union, Local 1 (1995), 1995 CanLII 18387 (AB GAA), 52 L.A.C. (4th) 393 (Tettensor); Re Better Beef Ltd. and United Food and Commercial Workers International Union, Region 18 (1994), 1994 CanLII 18761 (ON LA), 42 L.A.C. (4th) 244 (Welling); Great Atlantic and Pacific Co. of Canada v. United Food and Commercial Workers International Union, Local 175 (Konefal Grievance), (2004) O.L.A.A. No. 85 (Brent); Re National Steel Car Ltd. and United Steelworkers of America, Local 7135 (1997), 1997 CanLII 25025 (ON LA), 64 L.A.C. (4th) 242 (Rose); Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1998), 1999 CanLII 3687 (ON CA), 169 D.L.R. (4th) 489 (Ont. C.A.); United Food and Commercial Workers Union, Local 1000A v. Kretschmar Inc. (MacEachern Grievance), (2004) O.L.A.A. No. 373 (Herman); Communications, Energy and Paperworkers’ Union, Local 212 v. Domtar Fine Papers Inc., (2000) O.J. No. 2018 (Ont. Div. Ct.); Re Community Nursing Home-Port Hope and United Food and Commercial Workers International Union, Local 175 and 633 (1996), 1996 CanLII 20405 (ON LA), 60 L.A.C. (4th) 35 (Gorsky); KIK (Toronto) Inc. v. United Steelworkers of America (Barnes Grievance), (2003) O.L.A.A. No. 667 (Starkman); Winpack Portion Packaging Ltd. v. United Steelworkers of America (Bai Grievance), (2003) O.L.A.A. No. 416 (Picher); Biltrite Rubber (1984) Inc. v. United Steelworkers of America, Local 526 (Beazley Grievance), (2002) O.L.A.A. No. 666 (Newman).

The Union’s reply included the following arguments:

i) this Vice-Chair is the person who must decide if the work the grievor performed was of value and constituted essential tasks for the CSR position. The issue cannot be determined on the basis of the self-serving statements of the Employer’s witnesses. The onus rests on the Employer to prove, and not merely to say, that cashiering and stock handling are essential functions of a CSR;

ii) if the Employer is correct and there are only two (2) essential duties of the CSR position, namely cash and stock, then each has a customer service component which the grievor is capable of performing. Alternatively, the grievor is able to perform the customer service and other tasks listed in Exhibits #9 and #10. Counsel noted Mr. Robbins’ evidence that a Manager could assign all of the listed tasks to a CSR, notwithstanding that some of them are attached to higher rated positions in the Store. He argued that the Employer has to accommodate to the point of undue hardship before a finding can be made that an employee cannot exercise an essential function or requirement of the job. In any event, counsel suggested that the real test is whether the disabled employee can perform work of value;

iii) an onus exists on the Employer to show that it considered all possible modifications to the cash and stock functions in an effort to accommodate the grievor. Counsel for the Union emphasized that the Employer did not invite any doctors, or other experts, to the workplace to assess the work and the grievor’s ability to perform it;

iv) the Employer’s duty to accommodate is not satisfied by a narrow or limited assessment of the grievor’s ability to perform just some of the tasks which may be delegated to a CSR. Rather an obligation exists, especially when there is a pool of work within the classification, to consider whether tasks can be bundled together in a meaningful way so as to create a productive position. Additionally, the Employer is required to assess whether the grievor could perform the duties of other positions in their original, or in modified, form. Counsel for the Union argued that this responsibility required the Employer, inter alia, to look at available postings even if the positions would have resulted in a promotion for the grievor;

v) Mr. Wagner testified that the Employer, as a matter of practice, does not transfer across divisions. Counsel for the Union stressed that Mr. Wagner failed to advance reasons to support this approach or to explain why such transfers would occasion undue hardship to the LCBO. He further suggested that Mr. Wagner leaped to the conclusion that the grievor would be unable to perform the work of the two (2) positions in the Logistics Division without reviewing the actual job requirements against her restrictions;

vi) the Letter of Agreement relating to Sunday Openings does not expressly except disabled employees. The Employer’s obligation in respect of such work is to accommodate to the point of undue hardship. From the Union’s perspective, loss of some efficiency is the type of hardship that must be tolerated in order to give meaning to the right to be free from discrimination;

vii) the Employer in this case applied two (2) blanket standards. First, the grievor was not given Sunday or premium work because she could not multi-task, as required on a “push through” day. Second, the grievor could no longer be accommodated following February 11, 2004 as she could no longer perform both the cash and stock functions. Counsel for the Union submitted that both standards failed to meet the Meiorin test, as the Employer has not shown undue hardship would result from accommodating the grievor’s needs;

viii) Counsel for the Union submitted that the grievor is entitled to a remedy post February 11, 2004. He argued that, as in an unjust dismissal case, damages may be awarded to compensate for the consequences flowing from the Employer’s decision. On his analysis, it does not matter that I did not hear evidence of what occurred after February 11th. Counsel agreed that in fashioning an appropriate remedy, some consideration would have to be given to the fact the grievor has been on a LMR plan.

As previously mentioned, the parties agree that the grievor is disabled and is entitled to the protections of the Human Rights Code. They also agree that this Vice-Chair has the authority to interpret and apply human rights and other employment-related statutes. In view of the manner in which this case was presented, it would seem the parties further agree that the fundamental question in this case is whether the Employer accommodated the grievor’s disability to the point of undue hardship in respect of both the Sunday and premium day work issue and the Employer’s ultimate decision to stop accommodating the grievor as of February 11, 2004.

As is clear from a reading of the authorities, the Employer is obligated under section 17 of the Human Rights Code to accommodate a disabled employee, such as the grievor, to the point of undue hardship. An onus exists in a proceeding of this nature for the Employer to show that it has met this statutory threshold. Both the grievor and the Union are responsible to cooperate with, and not impede, the Employer’s efforts to accommodate. In the instant case, the grievor has satisfied this responsibility by securing a significant amount of medical opinion for the LCBO’s review and by agreeing to participate in numerous medical tests and assessments. She also, for the most part, complied with the Modified Work Plans established by the Employer. The Union, in this case, was not involved in an in-depth way in the accommodation process. This lack of involvement occurred because of the approach the Employer adopted to the grievor’s accommodation. More specifically, the Employer did not ask for the Union’s input on how to best accommodate the grievor and, most importantly, did not inform the Union of its intent to cease its accommodation efforts until after the decision was made. The Union, like the grievor, first heard about the Employer’s plan to pursue LMR on February 11, 2004. In retrospect, I think that the Employer should have engaged in an earlier, and more comprehensive, consultation with the Union about the range of issues relating to the grievor’s accommodation.

The state of the law concerning the duty to accommodate is complex. This results, in large measure, from the fact that the law is evolving to meet changing perceptions and beliefs about the rights of disabled employees in the workplace. It also reflects the reality that the nature and extent of the duty varies with the actual circumstances of individual cases. Lastly, it is apparent that contractual and statutory duties relating to the duty to accommodate have been supplemented by way of a series of decisions of the Supreme Court of Canada. These decisions serve to instruct parties involved in the accommodation process about how they should generally approach the issue so as to avoid any unlawful discrimination of the employee.

Professor Michael Lynk provides an overview of the duty to accommodate in his article ‘Disability and the Duty to Accommodate, An Arbitrator’s Perspective’, found in the Labour Arbitration Year Book 2001-2002, Volume 1, Lancaster House. He writes:

“The duty to accommodate is a fundamental legal obligation. It flows from two sources, the applicable human rights legislation, and rulings of the Supreme Court of Canada. In a series of important decisions dating back to 1985, the Supreme Court has held:

(1) Human rights legislation has a quasi-constitutional place in Canadian law, and all other statutes, policies and practices, whether public or private, must normally be consistent with it.

(2) Discrimination may be unintentional, yet it will be in violation of human rights legislation if a person covered by a protected ground is subjected to adverse differential treatment without justification.

(3) Accommodation is a significant obligation, and is required to be a central feature of the Canadian workplace.

(4) The duty rests on employers, unions and the employee seeking accommodation, all of whom are required to assume responsibility for ensuring the success of an accommodation arrangement.

(5) The primary responsibility rests with the employer, because it has ultimate control over the workplace. Once it receives a request, it must initiate the search for appropriate accommodation.

(6) The union must cooperate, and not unreasonably block a viable accommodation option.

(7) The employee is expected to participate in the accommodation process, and cannot refuse a reasonable offer of accommodation.

(8) Collective agreement provisions are to be respected, but they may have to be waived if they unreasonably block a viable accommodation option, or if they treat individuals who are protected by human rights legislation differently, without a compelling justification.

In three recent decisions, the Supreme Court of Canada has clarified and broadened the extent of the duty, ruling:

(1) Accommodation measures must be taken unless it is impossible to do so without undue hardship.

(2) The threshold of undue hardship is high.

(3) Employers and unions must be sensitive to the various ways in which individual capabilities can be accommodated.

(4) Workplace standards, such as lifting requirements or work schedules, that unintentionally distinguish among employees on a protected ground are subject to being struck down or modified. Employers must build liberal conceptions of equality into workplace practices.

(5) Courts, labour arbitrators and human rights tribunals are to take a strict approach to exemptions from the duty to accommodate. Exemptions are to be permitted only where they are reasonably necessary to the achievement of legitimate business-related objectives.”

(pages 59-60)

I am satisfied that Professor Lynk’s summary provides a solid starting point for an examination of the issues raised in this case. I will first address the Employer’s decision to cease its accommodation efforts as of February 11, 2004 and will then turn to the issue of whether it improperly denied the grievor access to shifts on Sundays and on other premium workdays.

The Employer’s primary position on the larger issue is that it may cease accommodating a CSR if the employee is unable to perform both the cashiering and stock handling functions. As noted above, counsel for the Employer described these as the essential functions of the position. On the Employer’s analysis, undue hardship would result from an obligation to accommodate an employee physically incapable of performing the essential functions of the CSR job.

In support of its submission that an employee must be able to perform the essential duties of the job, the Employer references and relies on the following:

(i) the Ontario Human Rights Commission’s ‘Policy And Guidelines On Disability And The Duty to Accommodate’. The following statement is found at page 19 of the document:

“The Code guarantees equal treatment to all persons capable of performing the essential duties or requirements of the job or service. No one can be judged incapable of performing those duties until efforts have been made to accommodate the individual up to the point of undue hardship. The first step is to separate the essential from the non-essential duties of the job. Where possible, non-essential tasks can be reassigned to another person. The person with the disability should then be assessed in terms of his or her ability to perform the essential duties and, on that basis, accommodation should be considered.”

(ii) the award in Re Ontario English Catholic Teachers’ Association and Office and Professional Employees’ International Union. In this award, Arbitrator Burkett commented, as follows:

“....., it is clear that the object of accommodation under the Human Rights Code is to enable the handicapped person to perform the essential duties of a position. The recent jurisprudence, therefore, confirms that it is the disabled employee who must be assisted to perform the essential duties of his/her position (page 121) or of some available position rather than the position being modified to meet the requirements of the employee. If a disabled employee is unable to perform the essential or core duties of his/her position or an available position, regardless of whatever attempts might be made at accommodation, that is the end of the matter.”

(page 11)

It is apparent from a reading of the above passage that Arbitrator Burkett focused on the essential duties of the position, which in that case were those of a mailroom/printing clerk position. It is noteworthy, however, that he also spoke of a duty to consider the disabled employee for another “available position”, if he or she is unable to perform the essential duties of the regular position. Clearly, Arbitrator Burkett did not think that the inquiry ends after an assessment of the employee’s ability to perform the essential duties of the pre-injury job;

(iii) the award in Re Maple Leaf Foods Inc. In this award, Arbitrator Kirkwood concluded that section 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 ….” (page 15). Like Arbitrator Burkett, however, she suggested that this is not the extent of the Employer’s obligation. On this point, the award reads:

“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.”

(page 15)

(iv) the award in Re Bowater Canadian Forest Products Inc. In this award, Arbitrator Surdykowski also made reference to the essential functions of the position. However, he recognized that an Employer “is not entitled to require or expect a disabled employee to perform all of the normal functions of the regular job” (page 13). On this point, he observed that:

“................Indeed, if necessary, and if it is possible to do so without undue hardship, a disabled employee must even be excused from an essential function of a job. (Obviously, the extent to which an employee must be excused from essential functions will depend on the exigencies of the particular situation).”

(page 13)

Arbitrator Surdykowski added that:

“...............If the disabled employee cannot be accommodated in his/her regular job, the employer must then consider whether the employee can be accommodated in a job in another location or department, again typically in consultation with the union.”

(page 13)

It is clear that Arbitrator Surdykowski contemplated a broader duty to accommodate than the one advanced by the Employer in this case.

(v) the award in Re Community Nursing Home-Port Hope. In this award, Arbitrator Gorsky upheld the Employer’s decision not to recall the grievor back to work from a medical leave of absence until such time as she was physically capable of performing the essential work of a Health Care Aide. He further agreed with the Employer’s assessment that no amount of accommodation would have enabled the grievor to perform the essential duties and requirements of the Health Care Aide position and that its duty to accommodate did not require the creation of a new position. I note that Arbitrator Gorsky did not contemplate that an employee be able to perform one hundred percent (100%) of his or her former duties. He commented as follows on this point:

“I do not regard the requirement that an employee be able, with accommodation, to perform the essential duties and requirements of his/her position as requiring performance of 100% of them. At some point, however, the elimination of essential duties and requirements will result in the creation of a fundamentally different position.”

(page 16)

(vi) the award in Re KIK (Toronto) Inc. In this award, Arbitrator Starkman accepted the Employer’s assessment that the grievor was incapable of performing the essential duties of his janitorial position as a consequence of his medical restrictions. He found that the Employer correctly concluded that there were no positions which met the grievor’s restrictions and that, in all of the circumstances, the Employer’s failure to provide the grievor with alternate work was not a violation of the Human Rights Code because to do so would have created undue hardship. In reaching this conclusion, Arbitrator Starkman stated:

“...............Neither is there an obligation for the Employer to employ the grievor in a position when he is unable to perform the essential, or core functions, of the position and particularly when there is no foreseeable prospect of improvement.”

(page 14)

At this juncture, I note that Arbitrator Starkman observed that there was “no suggestion that there were a bundle of tasks that could have been aggregated from other employees to form a job that the grievor could do” (page 14). I infer from this observation that he would have considered requiring the Employer to bundle tasks together, if there had been some evidence relating to that option.

As stated earlier, the Employer questions whether it is obligated to bundle tasks together in order to create a job for the grievor. It relies on the awards in Re Bowater Canadian Forest Products Inc. and Re Winpack Portion Packaging Ltd. In the former award, Arbitrator Surdykowski did not accept “the general proposition that an employer is necessarily obliged to cobble together or otherwise create a new job in order to continue the employment of a handicapped employee” (page 13). In the latter award, Arbitrator P.C. Picher concluded that the company under its duty to accommodate to the point of undue hardship was not required to carve out lighter duties from the Selector-Packer position in order to form a separate and modified job to accommodate the grievor’s work restrictions. She found that a requirement to do so would have resulted in undue hardship, as it would “fundamentally disrupt the health and safety balance that has been created in the rotation of the various job duties performed by the Selector-Packers and would place the Selector-Packers at an unacceptable level of health and safety risk” (page 7). The Employer in the case now before me did not attempt to justify its decisions on grounds of health and safety.

The Employer in this proceeding also disputes that it is obligated to create a new job for the grievor under the duty to accommodate. It relies on the following authorities:

(i) the award in Re Calgary Herald. In this award, Arbitrator Tettensor accepted the proposition that the duty to accommodate does not require an Employer to create a new job or one that is not productive or one that has the core duties removed;

(ii) the Ontario Divisional Court decision in Re Domtar Fine Papers Inc. In this decision, the Court held that the arbitrator correctly determined that the Employer, in the circumstances of that case, was not obligated to create a job even though the wages would be paid by the WSIB;

(iii) the award in Re Better Beef Ltd. In this award, Arbitrator Welling expressed the opinion that the duty to accommodate did not require the company to redesign the workforce or to create a new position for the grievor;

(iv) the award in Re KIK (Toronto) Inc. In this award, Arbitrator Starkman found that the Employer was not required under the Human Rights Code to create an entirely new position to accommodate the grievor’s restrictions, and,

(v) the award in Re Community Nursing Home-Port Hope. In this award, Arbitrator Gorsky found that the Employer was not required to create what was, in essence, a different job for the grievor to perform.

After due consideration, I must conclude that the Employer is advancing an excessively narrow view of the duty it has to accommodate the grievor’s disability. I am satisfied that the Employer must go well beyond simply looking at the grievor’s ability to perform what it considers to be the essential functions of her former CSR position in order to reach the point of undue hardship. I have considered the following in reaching this conclusion:

(i) The Human Rights Commission in its Policy and Guidelines has contemplated the fact that an Employer may be required to accommodate a disabled employee in a job other than the pre-disability job. The following excerpts from the document are illustrative:

“Although accommodation in the pre-disability job is always preferable, it may not always be possible. The issue of whether an employee is entitled to have access to a job other than the pre-disability job is a matter of some debate. Nothing in the Code or in section 17 specifically restricts the requirement to accommodate a worker with disability to the pre-disability position. Conversely, nothing in section 17 expressly authorizes it either. Nevertheless, in light of the broad and purposive interpretation that should be afforded to human rights legislation, it is the Commission’s view that accommodation in a job other than the pre-disability job may be appropriate in some circumstances. Section 17 may therefore include access to alternative work. Some of the following considerations may assist employers in determining whether such accommodation is available under section 17(2).

The following questions should be considered:

• Is alternative work possible and available, at present or in the near future?

• If it is not available, can a new position be created without causing undue hardship?

• Does it require additional training and does the training impose undue hardship?

• Do the tasks performed match the job description, or is there flexibility in the workplace with regard to an employee’s responsibilities?

• Does the alternative work policy contravene a collective agreement?

• What are the terms of the collective agreement or individual contract of employment?

• What are the past practices of the workplace? How interchangeable are workers? Do employees frequently change positions either permanently or temporarily for reasons other than disability accommodation?

Depending on how the previous questions are answered, accommodation may therefore include job restructuring, reassignment to open positions, retraining for alternative positions or job bundling if that would not constitute undue hardship for the employer. This will depend on the circumstances of the employment and the labour environment at a given workplace. In the final analysis, the employee must be able to perform a useful and productive job for the employer.

An employer-initiated alternative work arrangement must consider the circumstances of the individual’s return to work. When an employee asks to be reinstated in a previous position, the employer may make the appropriate inquiries to assess whether the employee is fully able to carry out the essential functions of the job. Whenever possible, the returning employee should be given an opportunity to prove his or her ability to perform the pre-disability job.

Where the employee can no longer perform his or her current job and if alternative work is appropriate based on the analysis described above, the Commission is of the view that the employer should consider permanent alternative work. This is consistent with a line of labour arbitration cases that have found that the duty to accommodate may include significant workplace reorganization as well as with the obligation to provide suitable work in order to satisfy the duty to re-employ injured workers.”

(pages 20-22)

(ii) Professor Lynk, in the article referenced above, also wrote that an Employer must do more than simply look at the regular position in deciding if, and how, a disabled employee should be accommodated. The following excerpt from his article is instructive as to the extent of the Employer’s obligation:

“While the general rule is easy to state, the outer boundaries of accommodation are much harder to identify. But this much is clear: the duty requires more from the employer than simply investigating whether any existing job might be suitable for the disabled employee. Rather, the law obliges an employer to determine whether existing positions can be adjusted, adapted or modified, and whether there are other positions in the workplace that might be appropriate. This responsibility entails an assessment of all reasonable alternatives. To prove that its accommodation efforts were serious and conscientious, an employer is required to engage in a four-step process, which involves (1) determining if the employee can perform his or her existing job as it is; (2) if not, determining if he or she can perform his or her existing job in a modified or “re-bundled” form; (3) if not, determining if he or she can perform another job in its existing form; and (4) if not, determining if he or she can perform another job in a modified or re-bundled form.”

(page 58)

(iii) the authors of Canadian Labour Arbitration, Third Edition, Brown and Beatty, also comment on the breadth of the obligation of the duty to accommodate. The section of their text relating to this subject includes the following passages:

“In general terms, arbitrators have said that an assessment should first be made of the extent of the employee’s disability in his or her actual work situation. Consideration should be given to whether any aspect of the job, including the hours of work, can be modified so that the employee can still perform it. Where it is not possible for an employee to continue in his or her former position, arbitrators have ruled that other jobs, in other locations and departments and even, in appropriate circumstances in other bargaining units, ought to be canvassed in order to determine whether there is any other work which the employee could perform. In determining whether disabled workers have a legitimate claim to some position other than their own, arbitrators commonly direct employers to make modifications to jobs and even to provide the employee with training or a trial period, where it would not be an excessive burden to do so.

All arbitrators agree than even though employers cannot expect disabled employees to be able to do every aspect of a job, they have a right to insist that all employees be able to perform, on a regular basis, the essential, core functions of their positions. Workplaces do not have to be totally reorganized, and while it is not uncommon for employers to be told they must sometimes collect a bundle of tasks that a disabled employee is capable of performing, some arbitrators have shied away from imposing such an obligation where it entails creating a whole new position, and none will do so where the job is just make work. The test applied by most arbitrators is whether the job that a disabled employee claims the right to perform is useful and productive for the employer.”

(section 7:6120)

The authorities, in my judgment, establish that the duty to accommodate goes well beyond an assessment as to whether a disabled employee can perform the essential duties and requirements of his or her regular position. While this may represent an appropriate starting point, such an evaluation cannot end the required inquiry. I accept that an Employer, especially a large one like the LCBO, must engage in a more comprehensive process, such as that described by Professor Lynk. In the context of this case, I am satisfied that the Employer had a duty to consider a bundling or restructuring of the CSR tasks, as well as to determine if the grievor could have performed another job in its existing, or in some modified, form. This latter obligation is not restricted to an examination of existing vacancies. The consideration of these options would naturally require an assessment by the Employer as to whether their implementation would occasion undue hardship.

Section 17(2) of the Human Rights Code lists three (3) factors to be considered in any evaluation of undue hardship; cost, outside sources of funding and health and safety requirements. In this regard, I note the following comments of Arbitrator Surdykowski in Re Bowater Canadian Forest Products Inc. relating to whether these factors are the only matters to be assessed on the question of undue hardship:

“It has been suggested that the only factors that can be considered when assessing whether the hardship associated with an accommodation is undue are the three specified in subsection 17(2) of the Code; namely, cost, outside sources of funding, and health and safety requirements. In that respect, the Ontario Human Rights Commission’s policy appears to be that collective agreement considerations and employee morale are irrelevant to the issue of undue hardship. With respect, I am not bound by the policies or pronouncements of the Commission. The primary source of my jurisdiction as a labour relations arbitrator is the collective agreement. Not only can I not ignore the primary source of my jurisdiction, I am obliged to give effect to it to the extent that the collective agreement does not conflict with the Code or other applicable legislation that the parties cannot contract out of. Indeed, the Supreme Court of Canada has said that “costs” relevant to the consideration of the issue of undue hardship can include the disruption of a collective agreement and morale problems as well as pure financial costs (see, Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 1990 CanLII 76 (SCC), 2 S.C.R. 489, per Wilson J). A collective agreement cannot be used to justify discrimination that is prohibited by the Code, but surely it is appropriate to consider the impact of a required accommodation on the rights of other employees under the collective agreement to ensure that they do not suffer a form of adverse effect discrimination as a result of the accommodation. For example, it is not appropriate for a non-handicapped employee (or perhaps another handicapped employee) to lose his job as a direct result of the accommodation of a

fellow employee. This is not a question of contracting out of the Code, but of considering and balancing the legitimate interests of all concerned.”

(paragraph 42)

While it is unnecessary to decide the issue for purposes of this case, I am inclined to the view that it may be appropriate in certain cases to consider other matters, such as collective agreement considerations, in addition to the factors set out in section 17(2) when called upon to assess whether an Employer has accommodated a disabled employee to the point of undue hardship.

I note at this juncture that the Employer produced virtually no evidence relating to the applicability of the factors listed in section 17(2) of the Human Rights Code to the circumstances of this dispute. Mr. Thibodeau did indicate that cost considerations may have played a part in the decision around Sunday scheduling. There was no direct suggestion, however, that these factors influenced the decision to cease accommodating the grievor as of February 11, 2004.

I accept the Employer’s submission that it does not have to create, or maintain a disabled employee in, an unproductive job. An Employer is not required to create a make-work position of little or no value pursuant to its duty to accommodate. The following awards are all supportive of this principle: Re Bowater Canadian Forest Products Inc.; Re Maple Leaf Foods Inc.; Re Calgary Herald; Re Canada Post Corp. (Godbout); and Re Great Atlantic and Pacific Co. of Canada (Konefal). The thrust of the jurisprudence is succinctly captured by the following observation of Arbitrator Kennedy in Re Hamilton Civic Hospitals:

“... at the end of the day and with whatever reasonable accommodation can be achieved without undue hardship to the employer, the employee must none the less still be able to perform a useful and productive job for the employer.”

(page 12)

I also accept the Employer’s submission that it was not required to bump, displace or dismiss an incumbent in order to accommodate Ms. Sanfilippo. The court decision in Re Domtar Fine Papers Inc. and the arbitration awards in Re Better Beef Ltd. and Re National Steel Car Ltd. support this limitation on the duty to accommodate. The premise articulated in the latter two (2) awards is that “a disabled employee is entitled to equal treatment despite the disability, not better treatment because of it”. This reasoning would also seem applicable to a claimed accommodation that would result in a promotion. In this regard, I note the following statement found at page 22 of the Ontario Human Rights Commission’s Policy and Guidelines: “The vacant position must be vacant within a reasonable amount of time, but the employer is not required to promote the employee”. I would, generally, subscribe to this view. I recognize, however, that there may be exceptional cases in which the circumstances would at least require an Employer to consider the possibility of a promotion in order to satisfy a duty to accommodate.

It is apparent from all of the evidence that the grievor was not physically able to engage in the cashiering and stock handling functions of the CSR position as of February, 2004. She had not performed these functions since early 2003, and then only in a significantly modified way. To repeat, the grievor could then only work on cash for thirty (30) minutes at a time and was limited to stocking shelves one (1) bottle at a time. There is no real indication in the evidence that her condition was improving such that she could resume the cash and stock functions on even a modified basis as before. In fact, Dr. Dzongowski’s report of October 28, 2003 (Exhibit #67) suggests this potential was not present. He expressed the opinion therein that the grievor’s prognosis was poor and that he did not think she would be able to return to cashiering.

I also find, from a review of all of the medical evidence, that there was nothing to suggest the grievor could return to either cash or stock if further modifications were attempted. Clearly, the stock handling function required lifting of product. If the grievor was physically unable to perform this task one (1) bottle at a time, it is difficult to imagine how the function could be modified so as to permit her to perform the work productively and without aggravating her physical condition. Additionally, as stated above, Dr. Dzongowski indicated in his report of October 28, 2003, that he thought the grievor would be unable to return to cashiering. Earlier in his report, he stated that her severe left lateral epicondylitis (repetitive strain injury) prevented her from performing repetitive tasks such as cashiering duties. Given this negative assessment, and in view of all of the other medical evidence filed, I think that the Employer could reasonably conclude in February, 2004 that a further modification of the cash and stock duties would not materially advance the grievor’s accommodation.

The list of duties compiled in Exhibits #9 and #10 are all duties that were required to be performed in Store #593 and, in fact, at most other retail outlets. As stated by Mr. Robbins, all of the listed duties could be assigned to a CSR notwithstanding that some of the tasks were more closely allied with other higher rated positions. These tasks continued to be performed by others after the grievor left Store #593. Mr. Robbins, in his evidence, appeared to consider the listed tasks as constituting work of some value. This view was not shared by Mr. Thibodeau or Mr. Wagner. Ultimately, I have been persuaded that the tasks listed in the above-mentioned exhibits did constitute productive work. Simply put, it was work that had to be performed in the Store by CSRs and others. The real question, in my mind, is whether there was a sufficient amount of this work available.

Mr. Robbins, Mr. Thibodeau and Mr. Wagner all questioned the sufficiency of the amount of available work based on the tracking done through the Manager’s Assessment Forms. I note that the time spent on the tasks on a daily basis in the period January 19 to February 7, 2004 varied between thirty (30) minutes and five (5) hours and fifteen (15) minutes. I can appreciate why the Employer might believe that this amount of work did not represent a full-time position. I am, however, inclined to accept the Union’s assessment that this evaluation of approximately two (2) weeks duration was somewhat short. I also accept that the figures as to the time devoted to the tasks might have been higher if the evaluation had been done at another point in time. I can understand that an evaluation undertaken over the Christmas period might have resulted in an inflated and distorted impression of the volume of available work. There is no indication, however, that the actual period the Employer selected to monitor the work represented an average period in terms of business volume. Indeed, the only evidence available on the point suggests the contrary.

As indicated, there are a relatively large number of duties listed in Exhibits #9 and #10. The evidence suggests that duties from the list would be assigned to the grievor on an as-needed or required basis. It further suggests that such duties would also be assigned to other CSRs working at Store #593. In my judgment, given the significant number of listed tasks and the fact they could be augmented with customer service work on the sales floor, it was incumbent on the Employer to assess whether the work routine of employees in Store #593 could have been restructured so as to give more of this work to the grievor. I have also been persuaded that the Employer should have engaged in efforts to determine whether it was possible for the grievor to perform the listed duties, together with customer service, at other Stores within the surrounding area. Had this latter inquiry been made, the Employer might have been able to bundle together tasks at two (2) or more Stores in order to create productive work for the grievor. I do not think that the above two (2) options would necessarily have resulted in the creation of an entirely new and distinct position, as was the situation in certain of the awards relied on by the Employer. Instead the work, be it at Store #593 or at a group of Stores, would have been comprised of tasks which, in the normal course, could all be assigned to CSRs. As the Employer did not evaluate these options, it did not turn its corporate mind as to whether undue hardship would result from their implementation.

I accept that the duty to accommodate to the point of undue hardship requires an Employer to assess the suitability of other positions. In this instance, I am not satisfied that the LCBO gave sufficient attention to the possibility of placing the grievor in another position, or if any other position could be modified so as to accommodate her restrictions. Prior to February 11, 2004, Ms. Meek did not consider postings for other positions that were processed through her office. Similarly, I think that Mr. Thibodeau, in this period, only considered the Product Consultant job in a very general or cursory way. This, perhaps, is not surprising as the Employer was itself uncertain as to how it should address the grievor’s disability until after the Manager’s Assessment Forms were evaluated. It is clear to this Vice-Chair, however, that in the brief period between the end of the assessment on February 7 and the meeting with the grievor on February 11, 2004, the Employer did not look at the suitability of other positions in a comprehensive or meaningful way. Mr. Wagner assumed that the positions in the Logistics Division would be unsuitable because they involved repetitive work on the computer. I am not satisfied that the grievor’s ability to perform clerical work of this nature was properly assessed by the Employer. I note that Mr. Thibodeau removed the grievor from office work in October, 2003, against her wishes, in order to err on the side of caution. Mr. Wagner reached his conclusions with respect to the February 11th postings without the benefit of a specific medical assessment. After assessing all of the evidence, it is unclear to me as to whether the grievor, at the time, could engage in clerical type work without experiencing significant problems or whether such work would be overly repetitive given her physical restrictions. This is an issue which may require further assessment. I also consider it material that the Employer relied on its practice of not making inter-divisional transfers in evaluating its accommodation options. Insufficient evidence was presented as to why the Employer has adopted this approach. Similarly, I was not told why an inter-divisional transfer would result in undue hardship for the Employer. In the absence of an explanation, I am inclined to conclude that the LCBO applied an overly restrictive approach to the pool of positions it was prepared to review for purposes of accommodating Ms. Sanfilippo.

I cannot accept the Employer’s submission that its decision to seek out a LMR plan for the grievor should be treated as part of its effort to accommodate her. On my reading of section 42 of the Workplace Safety and Insurance Act, 1997, placement of an employee on a LMR plan is premised on a decision of the WSIB that she or he requires such a plan in order to re-enter the labour market and to reduce or eliminate the loss of earnings resulting from the injury. As part of its assessment, the WSIB has to determine whether the Employer has been unable to arrange suitable work for the employee that is consistent with her or his functional abilities. It is the WSIB, and not the Employer, that decides whether a LMR plan should be established for an employee. Its decision follows a conclusion being reached by the Employer that it is unable, or no longer able, to provide appropriate accommodation. Simply stated, I consider that the placement of an employee, such as the grievor, on a LMR plan is a consequence of action directly taken by the WSIB rather than by the Employer. I have, therefore, not been persuaded that the LCBO’s cooperation in the creation of such a plan should be considered as forming part of its duty to accommodate to the point of undue hardship. I am satisfied, though, that the placement of the grievor on a LMR plan following February 11, 2004 is a factor which must be considered in fashioning an appropriate remedy. The grievor has been receiving benefits under the plan, all of which are ultimately paid for by the Employer. Benefits received have to be taken into account in order to avoid excessive or duplicate compensation.

I remain unconvinced that anything turns on the Employer’s decision not to call Mr. Turner as a witness. On my view of the evidence, the Employer’s decision to cease the accommodation of the grievor and to pursue a LMR plan flowed directly from Mr. Turner’s acceptance of Mr. Wagner’s recommendation. Mr. Wagner, in his testimony, explained the foundation for the recommendation and stated that the Regional Director accepted his assessment of the situation and the suggested course of action. What was done thereafter is entirely consistent with Mr. Wagner’s recommendation. Ultimately, I am satisfied that Mr. Turner gave the go-ahead to pursue a LMR plan based upon what he was told by Mr. Wagner. There is nothing to indicate the presence of bad faith or improper motive on the part of Mr. Turner. While he could have been called as a witness to complete the evidence, or to close the loop, the failure to do so, in and of itself, does not fatally undermine the Employer’s case vis a vis the reasons underlying the decision communicated on February 11, 2004.

Turning to the issue of work on Sundays and other premium days, it is clear that Mr. Thibodeau directed Mr. Robbins not to schedule the grievor for shifts on these days for three (3) reasons. First, Mr. Thibodeau asserted that the reduced level of staffing required all scheduled employees to multi-task and, more importantly, to do both cash and stock functions. Second, the work required was more focused on cash and stock on these “put-through” days and there was less office or clerical work available as a consequence. Third, there was a cost factor as these days are premium days for purposes of the payment of wages.

It is readily apparent that the Employer’s approach to scheduling the grievor on the days in issue conflicts with the Letter of Agreement on Sunday Openings. Pursuant to that Letter, the grievor was entitled to be offered the work ahead of more junior full-time, part-time and casual employees. Instead, the Employer elected not to offer the grievor available work, to which she was contractually entitled, on the basis of her disability. This decision was prima facie discriminatory and contrary to both the collective agreement and the Human Rights Code. I am not entirely unsympathetic to the Employer’s situation in respect of this issue. As stated previously, I accept that an Employer does not have to support or create unproductive work pursuant to its duty to accommodate a disabled employee. In this instance, however, I was not given any real insight as to the hardship the Employer would have experienced if the grievor had been brought in on Sundays and other premium days to perform tasks similar to those she engaged in for the other forty (40) hours of her workweek. I am left with the impression that while there may have been such work to be done, the Employer simply decided it should be performed on other days. The Employer also did not present evidence as to the full extent of the financial hardship it would have incurred by scheduling the grievor on the days in question. Cost, as noted, is one (1) factor listed in section 17(2) of the Human Rights Code. This Vice-Chair does not subscribe to the theory that cost is an irrelevant consideration simply because the LCBO is a large employer with the resources necessary to subsidize unproductive work. In the final analysis, however, insufficient evidence was presented to persuade me that it was not possible to accommodate the grievor, in an individualized way, in respect of this premium work without the Employer experiencing undue hardship.

It is unnecessary to address the Union’s arguments with respect to the Employer’s alleged application of a blanket policy. Even if I assume that the policies relating to the need to multi-task on Sundays, and to perform either cash or stock on other days, were rationally connected to the functions to be performed and were adopted in good faith and in the belief they were necessary to fulfill a valid business purpose or goal, the Employer under Meiorin would still be required to demonstrate that it was otherwise impossible to accommodate the grievor without undue hardship. For the reasons expressed above, I have determined, on the basis of the evidence before me, that the Employer did not satisfy this latter requirement.

I find and declare that the Employer violated both the collective agreement and the Human Rights Code by not offering the grievor work on Sundays and other premium days, and by its decision to no longer retain the grievor at work following February 11, 2004. I leave it to the parties, as agreed, to attempt to determine the amount of damages to which the grievor is entitled as a consequence of the Employer’s decision not to offer the grievor work on Sundays and on other premium days.

I order the Employer to reinstate the grievor forthwith to her former position in Store #593. I further order that the Employer conduct an assessment within sixty (60) days of the receipt of this award as to the following: (i) whether the duties listed in Exhibits #9 and #10 can be bundled in such a way as to create productive work in Store #593; (ii) whether the duties listed in these same exhibits can be bundled between two (2) or more Stores in the surrounding area without creating undue hardship; and (iii) whether there are any other positions available that the grievor could perform in their present, or in some modified, form. I leave it to the parties, initially, to decide on the appropriate area of search.

The grievor is to be made whole for any loss under the collective agreement resulting from the Employer’s decision to no longer retain her at work after February 11, 2004. As stated, the extent of damages is to reflect the fact that the grievor was placed on a LMR plan. I also leave it to the parties, at first instance, to determine and quantify the grievor’s entitlement.

I have not been persuaded that this is an appropriate case in which to award damages against the Employer under the Human Rights Code. In reaching this conclusion, I have considered the following, inter alia: (i) the Employer did accommodate the grievor over a considerable period of time from the onset of her disability up until February 11, 2004; (ii) the Employer in the period March, 2003 to February, 2004 made numerous good faith efforts, at considerable expense, to determine how the grievor could be best accommodated; (iii) there is no evidence of bad faith or any improper conduct on the part of the Employer in the period material to this case; and (iv) the grievor has been in receipt of LMR benefits following the decision of February 11, 2004.

I will remain seized in the event the parties experience any difficulty in implementing this Award.

For the reasons expressed above, I have elected to remit this matter back to the Employer to determine if it can accommodate the grievor’s disability through the assessment ordered in this award. In the final analysis, I have concluded that such action should have been taken by the Employer prior to February 11, 2004. The result of this exercise may be that the Employer is able to find work of value for the grievor to perform. It may, however, determine that suitable work cannot be secured without the experience of undue hardship. In view of the uncertainty inherent in this process, the parties may wish to seriously consider how they address the status of the LMR plan. Any discontinuation or disruption of the plan may not prove to be in the grievor’s long-term best interests.

Dated at Toronto, Ontario this 23rd day of February, 2005.

List of Exhibits

Exhibit #1 - the collective agreement

Exhibit #2 - grievance of August 28, 2003

Exhibit #3 - grievance of June 24, 2003

Exhibit #4 - grievance of June 25, 2003

Exhibit #5 - grievance of July 17, 2003

Exhibit #6 - grievance of August 21, 2003

Exhibit #7 - grievance of February 13, 2004

Exhibit #8 - list of premium shifts missed and premium shifts worked

Exhibit #9 - list of jobs grievor performed during the day

Exhibit #10(a)(b)(c) - description of tasks listed on Exhibit #9 and coversheet

Exhibit #11 Manager Assessment Forms (for Modified Work Program) re: January 19 to February 7, 2004

Exhibit #12 - Employee schedules Re: Store #593 for period April 27, 2003 to February 7, 2004

Exhibit #13 - Sunday Availability Reports

Exhibit #14 - Performance Appraisal of Karen Sanfilippo dated June 16, 2003

Exhibit #15 - Health Care Provider’s Report dated February 22, 2002

Exhibit #16 - Modified Work Plan dated March 7, 2002

Exhibit #17 - WSIB correspondence dated May 22, 2002

Exhibit #18 - Health Care Provider’s Report dated May 30, 2002

Exhibit #19 - Letter of June 7, 2002 to Karen Sanfilippo from Don Thibodeau

Exhibit #20 - Form 7 dated June 5, 2002

Exhibit #21 - Note of Dr. P. Dzongowski dated June 6, 2002

Exhibit #22 - WSIB correspondence dated June 10, 2002

Exhibit #23 - Heath Care Provider’s Report dated June 12, 2002

Exhibit #24 - Form 6 dated June 13, 2002

Exhibit #25 - Employer’s Subsequent Statement dated June 17, 2002

Exhibit #26 - WSIB correspondence dated June 17, 2002

Exhibit #27 - Health Care Provider’s Report dated June 12, 2002 with additional comments

Exhibit #28 - LCBO correspondence dated July 2, 2002 to WSIB

Exhibit #29 - Note prepared by Karen Sanfilippo

Exhibit #30 - E-mail of July 2, 2002

Exhibit #31 - Note of Dr. P. Dzongowski dated July 5, 2002

Exhibit #32 - Employer’s Subsequent Statement dated July 8, 2002

Exhibit #33 - WSIB correspondence dated July 10, 2002

Exhibit #34 - Employer’s Subsequent Statement dated July 15, 2002

Exhibit #35(a)(b) - Health Care Provider’s Report dated July 19, 2002

Exhibit #36 - Employer’s Subsequent Statement dated July 24, 2002

Exhibit #37 - Employer’s Subsequent Statement dated July 29, 2002

Exhibit #38 - LCBO correspondence dated August 2, 2002 to Dr. P. Dzongowski

Exhibit #39 - WSIB correspondence dated September 27, 2002

Exhibit #40 - Modified Work Plan dated July 2, 2002

Exhibit #41 - Health Care Provider’s Report dated August 22, 2002

Exhibit #42 - LCBO correspondence dated November 12, 2002 to Dr. P. Dzongowski

Exhibit #43 - Health Care Provider’s Report dated November 18, 2002

Exhibit #44 - Medical report of Dr. P. Dzongowski dated November 20, 2002

Exhibit #45 - Health Care Provider’s Report dated December 4, 2002 and invoice

Exhibit #46 - WSIB correspondence dated January 16, 2003

Exhibit #47 - WSIB correspondence dated March 3, 2003 and Ergonomist Report dated February 28, 2003

Exhibit #48 - Health Care Provider’s Report dated March 3, 2003 and Clinic Note dated January 28, 2003 of Dr. D. Dittmer

Exhibit #49 - Receipt of Dr. D. Dittmer dated March 5, 2003

Exhibit #50 - Modified Work Plan dated March 12, 2003

Exhibit #51 - LCBO correspondence dated April 3, 2003 to Sibley and Associates

Exhibit #52 - Medical report of Dr. L. Mascarenhas dated April 4, 2003 (unsigned)

Exhibit #53 - Invoice

Exhibit #54 - Confirmation of Assignment dated April 3, 2003

Exhibit #55 - Medical report of Dr. L. Mascarenhas dated April 2, 2003 (signed)

Exhibit #56 - Note of Dr. P. Dzongowski dated April __, 2003

Exhibit #57 - LCBO correspondence dated April 15, 2003 toKaren Sanfilippo

Exhibit #58 - Functional Abilities Evaluation Waiver datedApril 24, 2003

Exhibit #59 - Functional Abilities Evaluation dated April 24, 2003

Exhibit #60 - Invoice dated May 7, 2003

Exhibit #61 - Note of Dr. P. Dzongowski dated July 7, 2003

Exhibit #62 - Note of Dr. C. Bruckschwaiger dated August 8, 2003 and Note of Dr. P. Dzongowski dated August 11, 2003

Exhibit #63 - Note of Dr. P. Dzongowski of September, 2003

Exhibit #64 - Letter of September 30, 2003 from D. Thibodeau to Dr. P. Dzongowski

Exhibit #65 - WSIB correspondence dated October 2, 2003

Exhibit #66 - LCBO correspondence dated October 24, 2003

Exhibit #67 - Medical Report of Dr. P. Dzongowski dated October 28, 2003 and invoice

Exhibit #68 - Invoice dated December 8, 2003

Exhibit #69 - Medical Report of Dr. P. Dzongowski dated December 8, 2003 and invoice

Exhibit #70 - Note of Dr. P. Dzongowski dated December 10, 2003 and receipt

Exhibit #71 - LCBO correspondence dated December 18, 2003

Exhibit #72 - WSIB correspondence dated February 12, 2004

Exhibit #73 - Note of October 24, 2003 concerning Jan Meek’s discussion with Karen Sanfilippo

Exhibit #74 - E-mail of August 12, 2003 from Alkarim Kanji to Jan Meek

Exhibit #75 - E-mail of November 11, 2003 from Jan Meek to Don Thibodeau

Exhibit #76 - E-mail of July 31, 2003 from Alkarim Kanji to Jan Meek

Exhibit #77 - Letter of February 16, 2004 from Jan Meek to WSIB

Exhibit #78 - Job Posting of February 11, 2004 re: Clerk/Receptionist position

Exhibit #79 - Job Posting of February 11, 2004 re: Duty Free Clerk position

Exhibit #80 - Policy re: Modified Work Program

Exhibit #81 - Note of Don Thibodeau dated October 6, 2003

Exhibit #82 - Handwritten notes of Don Thibodeau

Exhibit #83 - Description of tasks listed on Exhibit #9 and Don Thibodeau’s handwritten assessment

Exhibit #84 - Handwritten note of Don Thibodeau dated December 19, 2003

Exhibit #85 - Recap of Accommodations

Exhibit #86 - Handwritten notes of Don Thibodeau

Union Brief

The union brief mentioned on pages 37-38 of body of the decision is not available at present [Wednesday, 23 February 2005]. At the direction of the Vice-Chair, this decision is being released to the parties in the interim without it

The union brief will be appended to an amended copy of this decision and released to the parties when it becomes available.