GSB# 2003-3162
UNION# OLB540/03
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union (Di Caro)
Union
- and -
The Crown in Right of Ontario (Liquor Control Board of Ontario)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Larry Steinberg Koskie Minsky LLP Barristers and Solicitors
FOR THE EMPLOYER
Gordon Fitzgerald Counsel Liquor Control Board of Ontario
HEARING
July 8, September 14 & 15, 2004; January 25, February 8, March 18, 2005.
Decision
This is a grievance alleging failure to accommodate. The parties agreed to the following facts with regard to the grievor’s employment and medical information.
AGREED STATEMENT OF FACT
This concerns the grievance of Joseph Di Caro (“the grievor”) that was filed on October 30, 2003 alleging that the Employer violated Article 2.1 of the collective agreement and the Human Rights Code by failing to accommodate him in accordance with his medical restrictions. The grievance is attached as Exhibit 1.
The grievor was, at all material times, employed as a full time customer service representative (“CSR”). His seniority date is May 28, 1984.
The grievor has a history of back problems. For example, he is in receipt of an 11% permanent disability award for non-economic loss arising from a low back injury sustained on August 28, 1995.
As early as February, 1994 the grievor was experiencing back problems which periodically caused him to be absent from work, returning to work on a work hardening program with reduced hours or working regular hours but on modified duties. As of May, 1998 the grievor was working reduced hours and performing modified duties that required him to alternate between sitting, standing and walking with no lifting, no climbing of stairs or ladders, no above shoulder work and no repetitive bending or twisting. The modified duties performed by the grievor included customer service (consultation and advice to customers on product selection), light housekeeping duties (i.e. dusting bottles and shelves, cleaning counters and shelves, facing up bottles (self paced and only as tolerated and only the bottles at waist level), administrative and clerical functions if available and floor surveillance. The document entitled “Modified Work Plan” to be effective May 11, 1998 was signed by the grievor and his manager on May 12, 1998 and is attached as Exhibit 2.
By August 12, 1998 the grievor had resumed full time hours but was still under restrictions regarding the nature and type of work he could perform. The restrictions included alternating between positions when required, no lifting floor to waist or waist to head, no carrying beyond 10 lbs., no pushing and pulling climbing of ladders and no bending and twisting. The work provided to the grievor was the same as set out in the Modified Work Plan effective May 11, 1998 with the exception that he was also assigned work “stocking shelves (to be performed in a self-paced capacity and only at waist level and above)”. This modified work plan was to be in effect for an “indefinite” period of time as indicated in the document entitled “Modified Work Plan” that was effective August 19, 1998 and signed by the grievor and his manager on August 21, 1998 and attached as Exhibit 3.
Since May 1998, as a result of his physical condition, the grievor has not done any cashiering duties and his shelving duties have been restricted as outlined above. The nature of the duties performed by the grievor is captured in a series of forms entitled “Manager’s Assessment Form (for Modified Work”) dated January 1999 (attached as Exhibit 4), May 23, 2001 (Exhibit 5) November 15, 2002 (days) (attached as Exhibit 6) and November 15, 2002 (nights) (attached as Exhibit 7).
On April 19, 2003, while putting files away in a cabinet at work the grievor felt a pain in his lower back that radiated down his leg. He went off work at that time and, as of the hearing date, has not returned.
Since he has been absent from work, the grievor has provided the Employer with a series of reports from his physicians. These include notes and Health Care Provider’s Reports from Dr. Besik, the grievor’s family physician, dated July 30, August 13 and 27, 2003, September 10, and 24, October 7, 15, 22 (all in 2003) and June 1, 2004. The grievor also provided the Employer with reports from his Physiotherapist dated September 17, 2003 and December 1, 2003. All of these are collectively attached and numbered consecutively as Exhibit 8.
On May 22, 2003, Dr. Racanelli, the grievor’s then family physician, sent a Health Care Provider’s Report to the Employer (attached as Exhibit 9). The report set out the grievor’s limitations and indicated that he could return to his previous modified duties 4 hours per day on days starting on May 26th and that he could return to 8 hours per day on June 9, 2003.
The Employer then referred the grievor for a Functional Abilities Evaluation (“FAE”) that was conducted by Sibley & Associates on June 9, 2003. A report was produced (and is attached as Exhibit 10) and concluded that the grievor had sufficient “abilities to return to his position as a cashier at LCBO”.
On July 23, 2003 the Employer wrote to the grievor and enclosed the results of the FAE (attached as Exhibit 11). Prior to sending the grievor for the FAE, the Employer, in reference to the limitations outlined in Exhibit 9 and in reference to its view of the essential duties of a CSR, had determined that it could not accommodate the grievor’s limitations with “necessary, productive and meaningful work.” Based on the results of the FAE the Employer offered the grievor accommodated work at Store #1 (2625D Weston Road, North York) with the following duties, namely: Customer Service (greeting/assisting customers in the retail floor area of the store), cashiering (with provision of anti-fatigue matting and ergonomic stool), facing shelves, stocking shelves (single bottle stocking, stock already prepared on cart), light housekeeping (dusting bottles, shelves) and clerical duties as available (price changes, SOP’s RTS, shelf talkers/signage). The Employer also offered the grievor the assistance of an occupational therapist to attend onsite and act as a job coach for the grievor.
The grievor’s physician wrote to the Employer on six (6) occasions subsequent to July 23, 2003 indicating that he was not fit to return to work. (See Exhibit 8). Finally, on October 15, 2003 the grievor’s physician forwarded a note to the Employer along with a physiotherapist’s report (attached as Exhibit 12) stating that the grievor could start work on October 20th with a graduated return to work (two (2) hours per day on alternate days for two (2) weeks increasing to two (2) hours daily for two (2) weeks and then increasing the hours after a further two (2) week period). The physiotherapist’s report stated that the grievor could lift one pound repeatedly but could not keep his arms elevated for more than one minute.
In response, the Employer wrote to the grievor on October 21, 2003 (attached as Exhibit 13). After referring to the restrictions contained in Exhibit 12 and his physician’s note of October 15th, the Employer indicated that the grievor could not successfully meet the requirements of the return to work offer made by the Employer in Exhibit 11. The Employer noted that the grievor was unable to keep his arms elevated for more than one minute but could lift one pound repeatedly. The Employer also noted that single 750 ml bottles weigh more than one pound with items such as six packs of beer, one-litre and 40 ounce bottles weighing more. In addition the Employer stated that it could only offer a graduated return to work program with a minimum work tolerance of four hours per day progressing to full time hours for operational and scheduling purposes. The Employer indicated that it did not have “physically suitable, meaningful and productive work” within the grievor’s capabilities. The Employer stated that it was encouraged that the grievor’s physiotherapist indicated that he was working at specific exercises and requested that the grievor provide medical documentation to support his progress “when your work hardening program progresses to the point in which you are able to perform at the level required by the above noted return to work program”. The Employer indicated that at that time the ability of the Employer to accommodate the grievor with “physically suitable, productive, meaningful work within the scope of the essential duties of your Customer Service Representative position” would be reviewed.
Additional medical information was sent to the Employer as follows. A copy of an MRI scan performed on October 31, 2003 indicating L4/5 lateral disc herniation with left L4 nerve root impingement and central disc herniation at the C6/7 level (attached as Exhibit 14). The report of Dr. E.G. Duncan, neurological surgeon, dated February 25, 2004 who did not recommend any surgical intervention (attached as Exhibit 15) but did encourage the grievor to gradually increase his activity and engage in a regular exercise program. Further, Dr. Jacqueline C. Stewart, rheumatologist, prepared a report dated November 12, 2003 which concluded that “I do not feel that he is able to return to work at this time and in fact, it is questionable whether he will be able to do physical work that was required in his previous job.” (Attached as Exhibit 16). This report was not seen by the Employer prior to July 7, 2004.
The two most recent “Health Care Provider’s Reports” from Dr. Besik are dated January 21, 2004 (attached as Exhibit 17) and May 18, 2004 (Exhibit 18). In the first report, the grievor’s limitations were set out in detail with the following added by way of general comments, namely: “Permanent disability. Permanent modified work. Not able to do cashiering duties (i.e.) Repetitive (sic) lifting of even 1 lb. Bottle and cannot also stalk (sic) shelves as repetitive (sic) movement involved.”
In the report dated May 18, 2004 (Exhibit 18) the general comments are as follows: “Permanent disability. Can do permanent modified work (i.e.) Desk Work (i.e.) Not able to do cashier duties due to restrictions on repetitive (sic) lifting & motions & cannot stalk (sic) shelves again due to no repetitive movement”.
In response to Exhibit 18 the Employer wrote to the grievor on May 26, 2004 (attached as Exhibit 19) and indicated that based on that report “it is noted that there have been some changes in your reported capabilities”. As a result, the Employer scheduled a meeting with the grievor and his union representative on May 31, 2004.
At the meeting a “Manager’s Assessment Form (for Modified Work Programs)” (attached as Exhibit 20) was filled out.
On June 1, 2004 the Employer wrote to the grievor’s family physician (attached as Exhibit 21) requesting information whether there was a medical requirement for modified hours and if so the recommended hours and time frame to progress to full time hours. The doctor responded by way of a note faxed to the Employer the same day (see Exhibit 8) indicating that the grievor required permanent modified work as outlined in previous reports and that the grievor should start with four (4) hours per day on alternate days. If tolerated well for one (1) week the grievor could then go to four (4) hours per day. The grievor could then go to one (1) week at eight (8) hours followed by one (1) week at four (4) hours and, after a week, go to eight (8) hours per day.
By letter dated June 24, 2004 (attached as Exhibit 22) the Employer wrote to the grievor and once again offered the modified work it originally offered on July 23, 2003 (Exhibit 11) and then again on October 21, 2002 (Exhibit 13). It stated that the tasks would be assigned on a rotational basis “so that there will be no prolonged posturing involved.” The Employer further stated that “You have indicated that you cannot perform the essential functions of your position, even with modification. While you have indicated that you can talk to customers and perform seated office/clerical tasks, unfortunately these tasks in and of themselves do not constitute meaningful, useful and productive work.”
The Employer has not disputed the medical evidence submitted by the grievor that identifies his physical restrictions and, in fact, has accepted that evidence of the grievor’s physical restrictions as the medical basis for its decision as to whether the grievor is or is not able to perform the modified work program offered by the Employer.
The job description for the CSR position is attached as Exhibit 23.
For purposes of Article 21.4 of the collective agreement, the Employer’s operations are divided into various geographical posting areas. The Employer’s warehouses are each themselves, individual geographical posting areas, as is the Head Office. In the Retail Division, several stores comprise a given geographic posting area. As set out in Article 21.4 of the collective agreement, if a new job classification within the bargaining unit is created or a permanent vacancy occurs in an existing job classification, the Employer posts the job within the specified geographic area.
The parties agree that they can add to or supplement this Agreed Statement of Fact as they determine is necessary to put all of the material evidence before the Board.
The foregoing facts were supplemented by viva voce evidence and a total of 27 documents filed as exhibits. While a substantial volume of evidence was adduced over several days there is little factual dispute. The issues are more of a legal nature as to the scope of the employer’s duty to accommodate an employee who has been medically assessed to be unable to perform, even with any modification, what the employer has determined to be the essential duties of his pre-injury job. The employer’s position is that in those circumstances the employer’s duty to accommodate is at an end. In other words, if the disable employee is unable, even with any modification, to do the essential duties of the job for which he was hired, the employer has no obligation to make further efforts to find any other work for him as an accommodation. The grievor was hired as a CSR. The employer considers “cashiering” and “stocking” as the essential duties of a CSR. Medically it has been determined that even with any available modifications, the grievor is permanently prevented from performing any cashiering or stocking. Therefore, according to the employer, it has no further obligation to attempt to accommodate the grievor.
Ms. Bonnie MacPhail, a Human Resources Advisor, was involved in the employer’s efforts to return the grievor to work, particularly as advisor to the District Manager, Mr. Myron Tymochko. She testified in chief that following his injury in April 2003, the grievor provided a Healthcare Providers Report. When she reviewed it with Mr. Tymochko, it raised “some questions about how his functional restrictions translated into what he will actually be doing at work”. Therefore, it was decided that a job specific Functional Abilities Examination (FAE) be done to get a better understanding of how the grievor’s restrictions impacted on his CSR duties. The FAE report concluded that the grievor will be able to meet the physical requirements of the CSR job with accommodation on lifting and carrying and with job coaching by an occupational therapist or kinesiologist. Based on the FAE report and the CSR duties, on July 23, 2003 the following offer was sent to the grievor, over the signature of Mr. Tymochko.
Please find enclosed the results of the Functional Abilities Evaluation you attended on June 9, 2003.
As you are aware, you are claiming an aggravation of your ongoing low back condition, for which you have an 11% permanent impairment, related to the job duties of cleaning out filing cabinets, which you performed on April 19, 2003. Your physician indicated on May 22, 2003 that you were able to return to previous modified duties, 4 hours per day, commencing May 26, 2003, with the following functional limitations:
Limit walking to short distances
Limit standing to 15 minute durations
Limit sitting to 30 minute durations
No bending/twisting
No lifting from any level
No carrying
No stair or ladder climbing
No pushing/pulling of a trolley
Your doctor advised you would be able to resume eight-hour days, with these restrictions June 9, 2003.
In our review of the essential duties of your position as a Customer Service Representative, it was determined that we were unable to accommodate your stated functional limitations with the provision of necessary, productive and meaningful work. As a result it was requested that you attend an Independent Functional Abilities Evaluation.
Although the results of the evaluation indicate you demonstrated inconsistent, sub maximal effort, your demonstrated functional abilities were assessed to meet the physical demands of the essential duties of cashiering/stock handling for the Customer Service Representative position.
Your functional limitations, relative to the job demands, were demonstrated as follows:
Low level and mid level lifting limited to a maximum of 20 lbs on an occasional basis
Carrying at waist level limited to 15 lbs on an occasional basis
having consideration for the above information, it has been determined that we are able to accommodate your demonstrated functional abilities. We are offering you a return to work program at Store #1, located at 2625D Weston Road, North York, with the following duties effective immediately:
Customer Service (greeting/assisting customers in the retail floor area of the store)
Cashiering (with provision of anti-fatigue matting and ergonomic stool)
facing shelves
Stocking shelves (single bottle stocking, stock already prepared on cart)
Light housekeeping (dusting bottles, shelves)
Clerical duties as available (price changes, SOP’s, RTS, shelf talkers/signage)
We are also prepared to facilitate an occupational therapist attend onsite with you for your return to work to act as a job coach to provide recommendations for proper lifting and carrying techniques as well as ergonomic suggestions as required.
As soon as you are prepared to accept our return to work offer, please contact Bonnie MacPhail, HR Advisor, so that the necessary arrangements can be made.
It is to be noted that this offer of accommodation included cashiering and stocking, albeit with modifications or assistance. The offer was thus contrary to the medical opinions hitherto provided by the grievor’s healthcare providers. The grievor did not accept the offer of accommodation. Instead a series of medical notes followed, indicating that the grievor was not able to return to work pending further assessment. Ms. MacPhail testified that the employer accepted all of the medical notes.
On October 15, 2003, the grievor provided a medical note from his family physician, Dr. F.R. Besik, stating that the grievor can return to work on graduated hours on a work hardening program commencing October 20, 2003. The doctor recommended that he start with 2 hours a day on alternate days and not at peak hours and that after two weeks he could increase to 2 hours daily. Ms. MacPhail testified that along with Mr. Tymochko, the doctor’s recommendation was reviewed along with the restrictions contained in the physiotherapist’s report, and it was concluded that “there was no productive job duties that could be provided” to the grievor. The employer sent a further letter to the grievor, essentially making the same offer of accommodation made earlier. Ms. Macphail testified that in light of the physiotherapist’s report the employer drew the conclusion that the grievor was unable to perform the job duties included in the offer of accommodation. She testified that the grievor did not dispute that conclusion, but grieved.
Ms. MacPhail testified that several further medical notes were received from the grievor’s doctors. The employer decided to find over first hand from the grievor what he felt he could and could not do. On May 31, 2003 a meeting was held with the grievor, his union representative, Mr. Tymochko and Ms. MacPhail in attendance. At this meeting, the grievor was asked whether he felt he was or was not able to perform various duties which were part of the CSR position. His responses and comments on each duty were documented on a form. Ms. MacPhail testified that based on that meeting, the employer concluded that the grievor could do limited customer service, i.e. speaking to customers, but not helping with product, and he could do office work.
The employer then sought clarification from the grievor’s doctor as to the graduated hours he had previously recommended. The doctor responded that the grievor could start with 4 hours on alternate days and increase to 4 hours daily after a week. If the grievor was able to do this, he could do 8 hours on alternate weeks and finally increase to 8 hours weekly.
Ms. MacPhail testified that with this information, Mr. Tymochko concluded that “given the abilities presented, productive and meaningful work could not be offered within the scope of the CSR job and the store system.” Mr. Tymochko sent a letter dated June 24, 2004 to the grievor, for the third time making the same offer of accommodation which included cashiering and stocking duties, which his doctors had held to be outside his medical restrictions.
Ms. MacPhail further testified that as far as she could recall, the grievor nor the union had ever suggested that the grievor be accommodated other than in a store. She stated that generally it was not common for employees to transfer from stores to a warehouse or head office. She further testified that for posting purposes the Province is divided into several regions. The Central region is divided into three geographic areas J, A and G. If a vacancy occurs in area A for instance, it is only posted in area A and only those employed in area A are eligible to apply. Similarly posting is restricted by location for vacancies in warehouses and head office. For example, if a vacancy arises within the Durham warehouse, it is posted only for employees at Durham warehouse. Ms. MacPhail testified that this posting protocol is in compliance with article 21.4 of the collective agreement.
Under cross-examination Ms. MacPhail agreed ultimately that the requirement that an employee seeking accommodation must be able to work at least 4 hours was a general rule which was applied to the grievor. She stated that the rule came from above her and she was not aware who established the rule. She stated that the rule was created for operational and scheduling reasons. When asked to elaborate she stated “My understanding is that an employee reporting to work for less than 4 hours is not sufficient to establish any productivity”. She proceeded to explain that “it is also tied in with what the employee could or could not do. Because it is not like he was coming in from 11:00 a.m. to 1:00 p.m. and work on cash. He is working only non-peak periods”. She agreed that there was no hardship to the employer where an employee can work less than 4 hours as far as costs, health and safety and outside sources of funding were concerned. The only hardship was “its less productivity or no productivity.”
Ms. MacPhail also confirmed that there was a policy that the employer will not look for accommodations outside the Division where the disabled employee was employed, whether it be the retail system (Stores), warehouse or head office, and that consistent with that policy no attempt was made to inquire whether the grievor could be accommodated outside the store system. She stated that the justification for the policy was the constraints in article 24.1 of the collective agreement that posting be done by geographic area. Ms. MacPhail also confirmed that the employer did not at any time request the union to waive the posting constraints in the collective agreement to enable the grievor to be accommodated. Ms. MacPhail was asked whether she would look for office work for the grievor as an accommodation, if his doctors had stated that his restrictions are permanent and will not change. She stated that she would have to explore that issue with her superiors, Mr. Murray Kane (VP/Human Resources) and Mr. Peter Buck (Director/Human Resources). When asked what her recommendation would be, she replied that if there was other suitable work in the organization, within or outside the bargaining unit, the grievor would have to be considered for that work.
Ms. MacPhail agreed that until the grievor went off in April 2003, for a considerable period the grievor had done no cashiering and only 10 percent of stocking shelves at eye level on day shift. He did 90 percent of the office work. The employer provided this work as accommodation for the grievor. When on night shift the grievor performed tasks he was not supposed to do because office work was limited at night. She agreed that in 2003 the grievor was seeking the same accommodated work that he had been previously provided on day shift. When asked why the grievor was denied that same accommodation which he had been previously provided, Ms. MacPhail testified that Mr. Tymochko, who assumed duties as District Manager in October 2003, had become aware that the grievor was not performing productive work. She confirmed, however that all of the duties the grievor had previously done, and was seeking in 2003, including the office work, were part of the regular duties of a CSR. Ms. MacPhail agreed that the offer of accommodation made to the grievor on July 23, 2003 and subsequently repeated, was contrary to the medical information in the employer’s possession, although consistent with the FAE report made by a physiotherapist and a kinesiologist.
Testifying in chief, Mr. Tymochko, reviewed in detail each duty of a CSR as set out in the job description. When asked what the most important duties of a CSR are, he replied “cashiering, stocking, customer service and some house-keeping duties.” When asked whether customer service is separate from the other duties, Mr. Tymochko replied that it was part and parcel of cashiering and stocking. He testified that on an average day 60 to 65 percent of a CSR’s time is spent on cashiering and that the bulk of the balance time is spent on stocking. He testified that unless something unusual occurred, a CSR would spend only 45 minutes on office duties. He went on to explain how the volume of office and clerical work had declined over the years with the advent of electronic technology. Mr. Tymochko testified that in any event it did not make sense to assign all the available office work to one employee because that work is not a job by itself but part of a bigger job. He said that office tasks are done by whoever is available. Some of it is done by the store manager, although he may from time to time assign such work to an assistant manager or a CSR.
Mr. Tymochko testified that around Christmas 2002 on a visit to the grievor’s store, he learned that the grievor was on a modified work plan under which he was unable to do “Cashiering, facing the store or help in stocking”. Following a further conversation with the store manager, Mr. Tymochko concluded that “not a lot of productive or meaningful work was being done” by the grievor. The manager had indicated that because of the grievor’s limitations, at times he had to go in outside work hours to get his management tasks done, because during store hours he had to run the cash. Mr. Tymochko decided to obtain an updated medical report from the grievor’s doctor. That report indicated that the grievor could do even less than before.
Mr. Tymochko testified that in his offer of accommodation dated July 23, 2003, he had the grievor transferring to Store No: 1 because it was a large store, which had a clearance centre. He felt that the modified work plan would be easier to administer there. He testified that upon receiving medical clearance that effective October 20, 2003 the grievor could return to work starting with two hours a day on alternate days during non-peak hours, he concluded that the grievor was unable to do any meaningful or productive work. He could do some of the tasks identified in the offer of accommodation, but not any cashiering, stocking or facing shelves. He stated that allowing the grievor to do only those tasks he could do would not be productive.
Employer counsel pointed out that at the meeting on May 31, 2003 the grievor had indicated that he could perform 10 to 12 of the duties of a CSR listed and asked whether it was not possible to accommodate the grievor with those duties. Mr. Tymochko’s response was; “We could have. But this doesn’t constitute a job. There’s not a job specific here. It’s a lot of clerical work. It’s a very small part of the job”. He stated that in his opinion those duties on their own would not amount to meaningful and productive work.
Mr. Tymochko was asked what positions other than CSR were available in the store system; he listed the positions of manager, assistant manager, product consultant and special events coordinator. When asked whether any of these positions were considered for the grievor, Mr. Tymochko explained that the manager positions are outside the bargaining unit, and that when vacancies are posted, those eligible can apply. He stated that the other positions are posted as per the collective agreement and an employee must apply before he can consider the position for him. He confirmed that the grievor had not expressed to him any interest in any of these positions.
Mr. Tymochko also confirmed that he did not consider any positions outside the store system for the grievor. When asked why not, he replied: “I have no jurisdiction outside the stores. They are in their own silos. The head office, warehouse and stores are all separate entities”. He testified that the grievor or the union had not at any time suggested that he be considered for a non-store position. Mr. Tymochko testified that to be “meaningful and productive”, a CSR must be able to do “some form of cash or stocking”. When asked what he meant by “some form” he replied”:for example facing up, stock from a prepared cart, relief cashiering.”
Under cross-examination Mr. Tymochko described the organization structure of the LCBO. He explained that non-store positions are outside his jurisdiction because they are under different divisions of the LCBO. However, he conceded that the employees in stores, head-office and warehouse are all employees of one employer, the LCBO. He testified that if he had to look for work for the grievor outside the store system, he would have to discuss it with someone in the division or silo in question. He confirmed that he made no inquiry whatsoever whether the grievor could be accommodated in a non-store position, because he had “never seen an employee move from one division to another”. His failure to inquire had nothing to do with considerations of costs, health and safety or outside sources of funding.
Union counsel suggested to Mr. Tymochko that in the building where his office is located, there was a LCBO Call Centre, which came under the stores silo, and was covered by a letter of agreement. Mr. Tymochko agreed. He also confirmed that he did not consider accommodating the grievor at the Call Centre or even inquire whether suitable work was available there. When asked why not, he explained that the Call Centre was in posting area G, while the grievor was employed in posting area A. He agreed, however, that the collective agreement would not have been an impediment if a waiver had been obtained from the union. He added, however, that any request to move from one posting area to another must be initiated by the employee to the Regional V.P. He agreed that the union was not approached to obtain a waiver of the requirement of posting by geographic area.
Union counsel took Mr. Tymochko through the duties listed in the CSR job description, and which of those the grievor was able or not able to do. At the end of the review counsel asked, “Do you therefore agree that while the job description is in general terms, Mr. Di Caro can do, or has the knowledge to do, the majority of the duties in the CSR job description?” Mr. Tymochko agreed.
Union counsel had Mr. Tymochko confirm that the Manager’s Assessment Form filled out at the meeting with the grievor on May 31, 2003, included all duties normally performed by a CSR. Then the following ensued.
Q. These are all real duties - not fictional ones.
A. Yes.
Q. These are all duties that must be performed?
A. Yes.
Q. And expected to be performed - if they don’t they will be in trouble?
A. Yes. In their appraisals.
Q. Each duty therefore contributes to a successful retail operation?
A. Yes. Some more than others. But all of them contribute. Yes.
Q. Based on that, therefore, each is a meaningful task?
A. They all contribute.
Q. Each is a meaningful task?
A. Yes.
Q. Each task contributes to the productivity of the store?
A. To different degrees, but yes.
Under further cross-examination, Mr. Tymochko agreed that the grievor as well as his doctor had made it clear that he could not do any cash or stocking duties and that the restriction was permanent. He was asked, given his position that there is no accommodation possible if the grievor could not do any cashiering or stocking, why he continued to inquire from the doctor how many hours a day the grievor could work. At this point, Mr. Tymochko responded that he had not really accepted that the grievor was incapable of doing any cash or stocking because the FAE report had concluded that he could do some cashiering and stocking duties. He conceded that he accepted the FAE report over the medical reports of the grievor’s doctor and based his offer of accommodation to the grievor on the FAE report. He agreed that despite the apparent inconsistency between the doctor’s reports and the FAE report, he did not consider requiring the grievor to undergo an Independent Medical Examination, as he was entitled to do.
It was pointed out to Mr. Tymochko that he had agreed that each individual duty listed in the Manager’s Assessment Form was meaningful and contributed to the productivity of the store. Counsel suggested that despite this, he did not consider allowing the grievor to do the customer service, office work and other duties he was able to do because Mr. Tymochko had decided, “if he cannot do cash or stock, you won’t accommodate him.” Mr. Tymochko replied, “Yes. Some cash or stock”. Counsel suggested that when Mr. Tymochko was stating that individual duties which are meaningful and productive, are not meaningful and productive when grouped together, what he really means is that “there isn’t a full days work for him?” Mr. Tymochko agreed. When asked whether he was basing that on anything beyond his impression and whether he did a study, Mr. Tymochko replied that no study was done, that it was based on his knowledge of the CSR job.
Mr. Tymochko testified that he would not require any particular minimum number of hours of cashiering or stocking duties as a condition for accommodation. He testified that he needed “some cash or stocking” or “some form of cash or stocking”. When asked whether five minutes a day of cash or stock would satisfy him, Mr. Tymochko responded that “it will be a start” and that he would have then considered accommodating the grievor. Counsel suggested that this indicated that for Mr. Tymochko it was a matter of principle, which had nothing to do with productivity, that he will not accommodate a CSR if he or she could not do any cashiering or stocking. Mr. Tymochko disagreed. He agreed that if the grievor had been able to do the stocking and facing up of the mini and 200ML bottles, that would have given him the “some stocking” he was looking for. However, he agreed that at the meeting on May 31, 2003 he did not ask the grievor whether he could do that. Nor did he make that inquiry from the doctor. Mr. Tymochko agreed that until November 2002 the grievor had been accommodated performing no cashiering duties and only 10 percent stocking and that there was nothing to indicate that the grievor was not doing a full days work.
Mr. Tymochko stated that the requirement that an employee must be able to work at least 4 hours a day in order to be accommodated, was not a rule, but a practice he adopted on advise from Ms. MacPhail. When asked what scheduling problems would be caused if the grievor could only work 2 hours, Mr. Tymochko replied “There are no 2 hour shifts. We can’t replace an employee for half a shift”. When asked what prevents the employer from calling in another CSR on overtime for the other 2 hours, Mr. Tymochko did not respond. He agreed that his concern was that the grievor did not fit into the existing shift schedule.
With regard to operational problems that may be caused as a result of accommodating the grievor for 2 hours a day, Mr. Tymochko stated that he did not think that office and customer service functions can be done in 2 hour blocks, that they are “best utilized in larger blocks”. He agreed that what he means again is that the grievor did not fit within the existing practice. He agreed, however, that altering the existing practice to accommodate the grievor would not “bring the store to its knees”.
Submissions
Employer counsel relied on a principle which he called “The Illusion of the incremental change”. He illustrated with the example of a 50 pound block of ice at -60 degrees which is used to keep food fresh. If the ice is heated gradually, after some time, one will be left with a mass of water at + 100 degrees. The former block of ice is now no longer able to do the job of keeping food fresh. While you do not see much change minute by minute, at the end you are left with boiling water which is very different from a block of ice. He submitted that the situation is the same with an employee who is hired as a CSR. Once the essential duties of a CSR are taken away gradually, you end up at some point with a completely different job.
Counsel submitted that the employer is not obligated to accommodate an employee who was hired as a CSR with other work, when he cannot perform the essential functions of a CSR.
Counsel referred to the following provisions in the Ontario 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.
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
Counsel submitted that the right under S. 5(1) is only to “equal” treatment and not better treatment. He argued that given the language in S. 17(1) once it is determined that an employee is incapable of performing the essential duties of the job he was hired for, the inquiry into accommodation ends. In those circumstances, S. 17(1) makes it legal to discriminate.
Employer counsel’s argument was four fold. His first proposition was that an employer can legally discriminate against an employee such as the grievor, who cannot perform the essential duties of the job he was hired for, even with modifications. Bonner v. Minister of Health (Ont.), (1992) 92 CLLC 16.161 (Ont. HRC); Re Board of Education for the City of Toronto, 1994 CanLII 18695 (ON LA), 39 L.A.C. (4th) 137 (Brent); Re Canada Post Corp., (Godbout grievance) (1993), 1993 CanLII 16715 (CA LA), 32 L.A.C. (4th) 289 (Jolliffe); Re Hamilton Civic Hospitals, (1995), 1994 CanLII 18646 (ON LA), 44 L.A.C. (4th) 31 (Kennedy); Re Community Nursing Home Port Hope, (1996), 1996 CanLII 20405 (ON LA), 60 L.A.C. (4th) 35 (Gorsky); Re Nippising-Parry Sound Catholic District School Board, (2001) O.L.A.A. No. 793 (Marcotte); Re Stelco Inc., (1995) 1995 CanLII 18410 (ON LA), 50 L.A.C. (4th) 301 (Marcotte); Re Stelco Inc., (2001) 2001 CanLII 62128 (ON LA), 99 L.A.C. (4th) 230 (Carrier); Re Ontario English Catholic Teachers’ Association, (1997), 1998 CanLII 30057 (ON LA), 61 L.A.C. (4th) 109 (Burkett); Re Cargill Foods, unreported May 7, 2002 (Hinnegan).
Secondly, he argued that any modified work performed by the accommodated employee must be productive and of value to the employer and the employer does not have to create or bundle together a job. Re Canada Post Corp. (Godbout grievance) (supra); Re Nippissing - Parry Sound Catholic District School Board, (supra); Re Calgary Herald, (1995), 1995 CanLII 18387 (AB GAA), 52 L.A.C. (4th) 393 (Tettensor); Re Better Beef Ltd., (1994), 1994 CanLII 18761 (ON LA), 42 L.A.C. (4th) 244 (Welling); Re Canada post Corp, (Yeo grievance), (1997) C.L.A.D. No. 98 (Ponak); Re Cargill Foods, (supra); Re Community Nursing Home, Port Hope, (supra); Re Bonner v. Ministry of Health(Ont) (supra).
Thirdly, a disabled employee is not entitled to be treated better than if he was not disabled. Re Better Beef Ltd. (Supra).
Fourthly considering the way the LCBO is structured the duty to accommodate does not oblige the employer to look beyond the CSR job. Re Better Beef Ltd. (supra).
Having made those propositions in support of a very limited scope for the duty to accommodate, counsel acknowledged that there are authorities to the effect that the duty to accommodate may require an employer to look beyond the disabled employees pre-injury job. However, he argued that considering the particular workplace, the LCBO’s obligation does not go so far. He gave an illustration as follows. The disabled employee is working in a warehouse which employs workers in different positions. His pre-injury job was as a labourer lifting 80 pound boxes. If the employee’s injury prevents him from lifting 80 pounds, but he can drive a fork lift or perform in another position in the warehouse, the employer will be required to consider accommodating him in those positions. However, in LCBO stores there are no other jobs except CSR. The Manager, Assistant Manager, Product Consultant and Special Event Coordinator positions are all higher rated jobs. There is only one position in the stores, that of a CSR. Counsel submitted that the LCBO is organized into geographic areas. The grievor was employed in area A, and in area A the only operation is stores. The head office and warehouses come under different geographic areas.
Counsel argued that the LCBO is divided into distinct silos. Therefore, at the most, the employer’s search for accommodation extends to the store system within the grievor’s own geographic area. Counsel submitted that the judgement of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), 2 S.C.R. 970 has no application to the facts here. While the court in that case recognized that the duty to accommodate may require minor interference with the collective agreement, the interference with article 21.4 in this case would be substantial in that it will run counter to the seniority rights of LCBO’s warehouse and office employees. Renaud does not stand for a proposition that the duty may substantially interfere with the collective agreement. Counsel argued that nothing in the collective agreement gives a CSR access to any position outside the store system.
In his submissions, counsel for the union submitted that the employer had utterly failed to comply with the duty to accommodate the grievor. He suggested that the failure had five elements. First, it followed a rule that the grievor could not be accommodated unless he was able to work at least 4 hours a day. Second, it took the position that the grievor was not entitled to be considered for accommodation as long as he could not do any cashiering or stocking duties. Third, the employer absolutely refused to consider bundling together a job consisting of CSR duties which were within the grievor’s restrictions. Fourth, the employer enforced a corporate policy of not moving a disabled employee from the retail silo to the warehouse or head office. Finally, the employer did not consider accommodating the grievor in any position outside the bargaining unit.
Counsel referred me to the following authorities: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R.; Entrop v. Imperial Oil Ltd. (2000) 2000 CanLII 16800 (ON CA), 50 O.R. (3d) 18; Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970; Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services) [1996] O.J. No. 608; Ontario Public Service Employees Union v. Ontario (Human Rights Commission) (Kerna Grievance) [2003] O.G.S.B.A. No. 33; Re Mount Sinai Hospital and Ontario Nurses’ Association (1996) 1996 CanLII 20325 (ON LA), 54 L.A.C. (4th) 261; Canadian Union of Public Employees, Local 4400 v. Toronto District School Board (September 12, 2003) (unreported decision of Robert D. Howe); Re Essex Police Services Board and Essex Police Association (2002), 2002 CanLII 79002 (ON LA), 105 L.A.C. (4th) 193; Re Calgary District Hospital Group and United Nurses of Alberta, Local 121-R, (1995), 1994 CanLII 18594 (AB GAA), 41 L.A.C. (4th) 319; Re Greater Niagara General Hospital and Ontario Nurses’ Association (1996) 1995 CanLII 18313 (ON LA), 50 L.A.C. (4th) 34; Re McMaster University and Service Employees International Union, Local 532 (1993), 1993 CanLII 16657 (ON LA), 31 L.A.C. (4th) 257; Re York County Hospital and Ontario Nurses’ Association (1992), 1992 CanLII 14494 (ON LA), 26 L.A.C. (4th) 384; Re Mohawk Council of Akwesasne and Ahkwesahsne Police Association (2004), 2003 CanLII 89493 (CA LA), 122 L.A.C. (4th) 161; Re Hamilton Police Services Board and Hamilton Police Association (2004), 2004 CanLII 94785 (ON LA), 124 L.A.C. (4th) 116. In addition counsel drew my attention to a very recent decision of this Board in Re Sanfilippo 2003-1194 etc. (Watters). He pointed out that that case was between these same parties, the facts and issues raised were identical and the Board dealt with the same arguments the employer made in this case, and rejected every one of them. Counsel submitted that unless I am of the view that Vice-Chair Watters was manifestly wrong, there was really nothing for me to decide, and that I should follow Re Sanfilippo.
In his reply, employer counsel submitted that the issue was not what else the employer could have done, but what it was legally obligated to do. He pointed out that many of the cases relied on by the union make “speculative pronouncements” in the sense of stating that an employer may be required to do this or that. Counsel agreed that the duty to accommodate is an onerous duty on the employer and that each case is fact specific. He submitted that in each case there is a limit to the duty and that limit must be determined on a case by case basis. Counsel submitted that many of the cases relied upon by the union are flawed in that they ignore that the effect of the particular language used in SS. 5 and 17(1) of the Code is to limit a disabled employee’s right to equal treatment and not better treatment. In his view, as for the grievor, that right to equal treatment is a right to a CSR job and nothing else.
During his submissions in reply, employer counsel conceded that in applying a blanket requirement of at least 4 hours of work a day as a condition for accommodation the employer was “wrong”. However, he submitted that that “wrong” was moot in the particular circumstances because in any event the grievor was unable to perform the essential duties of cashiering or stocking to any extent. He contended that despite applying an improper 4 hours requirement, ultimately the employer’s decision was correct.
Counsel urged me to disregard the decision in Re Sanfilippo, because it overlooks many of the arguments the employer has made in this case. Counsel pointed out that in his analysis Vice-Chair Watters relies on three sources, the article by Prof. Link; the Guidelines issued by the Human Rights Commission; and an excerpt from Canadian Labour Arbitration by Brown and Beatty. He pointed out that none of these sources are binding authorities.
With regard to accommodation outside the grievor’s silo of the stores system, employer counsel submitted “the issue is not whether it is undue hardship to go outside the silo. The issue is whether the employee has a right to a job outside his silo. If the employee has no such right, the employer has no obligation to look for accommodation outside the silo”. He submitted that to hold otherwise, as Vice-Chair Watters did, is to ignore that the S. 5 right is limited to equal treatment and not better treatment. That is tantamount to amending the collective agreement as well as the Human Rights Code. He submitted that it was my duty to decide the case before me on the particular evidence adduced. In his view, in the instant case compelling evidence was presented that cash and stocking are the essential duties of a CSR. As he put it “if the grievor cannot do those essential duties even with any modification, that ends the matter”. He urged me to reject the case law that “talk about undue hardship” because that ignores the language in S. 5 and S. 17(1) of the Code.
DECISION
I will not review the many cases referred to me by the parties. The significant case law relied on by counsel has been reviewed and analysed in detail by Vice-Chair Watters. I agree with his analysis, and do not agree with employer counsel that Mr. Watters had read those authorities too broadly. Similarly, Mr. Watters has reviewed and relied upon scholarly publications by Prof. Link and Brown and Beatty. While I agree that those publications by themselves are not binding, they cannot be dismissed as counsel suggests. The authors are not giving their opinions of what the duty of accommodation ought to be. Rather, they have interpreted the case law and extracted principles which in their view represent the state of the law currently. I completely agree, as did Vice-Chair Watters, that the duty to accommodate has evolved and expanded to such an extent that today the law requires an employer to look far beyond the disabled employee’s own position as a means of accommodation. Of course, employer counsel is correct that the duty has its limits. That limit is the point at which the accommodation results in undue hardship to the employer. The employer must incrementally broaden the scope of its search until the point of undue hardship is reached. When that point is reached will of course depend on the facts and circumstances of the particular case.
A comparison of the decision in Re Sanfilippo, with the evidence before me (which for most part is not in dispute) convinces me that the facts before me are remarkably similar to those in Re Sanfilippo. Both grievors had been employed as CSR’s. In both cases, the grievor came within the definition of “disabled” under the Code. In both cases the medical evidence was that the grievor was permanently incapacitated from performing cashiering or stocking duties. In both cases, the issue was how far the employer had to go, in order to comply with the duty to accommodate in those circumstances.
The arguments made by counsel for the LCBO in the two cases are almost an echo of each other. Counsel in Re Sanfilippo, described cashiering and stocking as the essential or core duties of the CSR position and noted that no amount of accommodation would have enabled the grievor to perform those duties. As noted at p. 48, the Board was “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.”
At p. 48-49, it was submitted by counsel in that case, as was done here, as follows:
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 case 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.
If the facts in Re Sanfilippo differed from the facts before me, it is to the effect that the employer went further in that case than here, in searching for an accommodation. Thus, while taking the position that it had no obligation to bundle CSR duties the grievor was able to perform, in that case the employer actually tried out exactly such a bundling of duties, although that trial and the conclusions based on it, were found to be flawed. Here, no trial was done. Instead, the grievor was asked at a meeting what CSR duties he felt he could do. Although he indicated that he could perform many CSR functions outside cashiering and stocking, without any further study, Mr. Tymochko made an impressionistic conclusion that those duties would not provide a full days work.
Also in Re Sanfilippo the evidence was that Mr. Wagner did consider two positions outside the stores silo for the grievor, i.e. two clerical type positions in the Logistics Division, although the Board held that the inquiry was too cursory. In the present case in contrast, the employer lived strictly by its position that it had no obligation to look outside the grievor’s silo of the retail system within his geographical posting area, and did not look beyond that silo. For example, there was evidence that within the retail system itself there was a call centre operation where CSR’s were employed performing substantial office type work. No consideration was given to the possibility of accommodating the grievor in that operation, because it was outside the grievor’s posting area.
On the main issue in contention, I agree with Vice-Chair Watters’ conclusion at p. 67, which he made following a detailed review of the case law presented to him:
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.
At p. 71, Vice-Chair Watters went on:
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.
I too accept the employer’s submission, as Vice-Chair Watters did, “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”. (P.73) However, the evidence is not to the effect that the customer service and other office/clerical duties that the grievor could perform were unproductive make-work tasks. On the contrary, under cross-examination Mr. Tymochko admitted that each of those tasks were part of the regular CSR function which had to done. He agreed that each of those tasks was of value to the employer and contributed to the productivity of the store. Other than Mr. Tymochko stating that those duties, when separated from cashiering and stocking, was not meaningful or productive work, no rational explanation was provided as to why individual duties which are admittedly productive CSR functions, become unproductive when bundled together.
The most recent pronouncement of the scope and nature of the duty to accommodate by the Supreme Court of Canada is its judgement in British Columbia v. British Columbia Government and Service Employees’ Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, commonly referred to as “the Meiorin Case”. When the employer asserts that a disabled employee, to be entitled to accommodation, must be able to perform the essential duties of the job he was hired for, that in effect is an assertion that such ability to perform the essential duties of his position is a bona fide occupational requirement for continued employment. The employer is in effect stating that the discrimination in those circumstances is legal because the ability to perform the essential duties of his job is a bona fide occupational requirement. In Meiorin, the Court stated as follows at p. 32-33:
54 Having considered the various alternatives, I propose the following three-step test for determining whether a prima facie discriminatory standard is a BFOR. An employer may justify the impugned standard by establishing on the balance of probabilities:
(1) that the employer adopted the standard for a purpose rationally connected to the performance of the job;
(2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
(3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related3 purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.
55 This approach is premised on the need to develop standards that accommodate the potential contributions of all employees in so far as this can be done without undue hardship to the employer. Standards may adversely affect members of a particular group, to be sure. But as Wilson J. Noted in Central Alberta Dairy Pool, supra, at p. 518, “[i]f a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be [a BFOR]”. It follows that a rule or standard must accommodate individual differences to the point of undue hardship if it is to be found reasonably necessary. Unless no further accommodation is possible without imposing undue hardship, the standard is not a BFOR in its existing form and the prima facie case of discrimination stands.
Step two of the above test is about the employer’s subjective belief. The LCBO management’s honest and good faith belief is not in issue. However, the reference in Step one to “purpose rationally connected” and in Step three to “reasonably necessary” imposes objective tests which must be met.
Counsel for the employer submitted that the reference to “impossible to accommodate” in step three of the test should be read not literally, but in the context of the particular case. I agree. An employer is not required to accommodate even though it is “possible” if doing so would result in undue hardship to it. The measurement of what is possible or impossible in each case would be the point of undue hardship. In one case the point of “impossibility” or undue hardship may be reached earlier than in other cases.
The court also clearly indicated that accommodation must be considered with individual capabilities in mind. At p. 37 it wrote:
64 Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much a possible. Employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances.
65 Some of the important questions that may be asked in the course of the analysis include:
(a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
(b) If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
(c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
(d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
(e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
(f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992-96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union.
In my view, in answering each of these questions, the limit of the employer’s obligation to accommodate is the point of undue hardship. In other words, each question must be qualified by the limitation “short of undue hardship”.
I agree that the starting point for an employer is to attempt to accommodate the disabled employee by enabling him, with modifications as necessary, to perform his own job. If he cannot do that, the employer is obligated to consider whether the employee can be allowed to perform parts of his job, with or without modification, avoiding those tasks which are beyond his restrictions. If this option is not available, the employer is required to consider other positions, first within the grievor’s own division or silo, and if that is not possible, in other areas within the bargaining unit gradually expanding the area of search. It will be only as a last resort that the employer will be called upon to look for accommodation outside the bargaining unit. This is in accord with what I have called the employer’s duty to incrementally broaden the scope of its search for accommodation.
It is critical to note that in every case employers may not be required to go through the whole process set out above. Depending on a number factors, a particular employer at a particular workplace may reach the point of undue hardship at some point in the search process. In some extreme circumstances, accommodating outside the employee’s own job may result in undue hardship. In other cases, that point may be reached if the employer was to accommodate outside the disabled employee’s silo. In cases at the other extreme, the point of undue hardship may not be reached even if the employee was to be accommodated in a position outside the bargaining unit. An important factor which will influence the extent of the search required will be the size of the employer’s operation and the extent of flexibility it affords.
In the present case it was clear that the employer did not even turn its mind to whether or not undue hardship would result if it were to accommodate the grievor in any position which did not include cashiering and stocking. This is not surprising because the employer’s position , which was maintained even at arbitration, was that it had no duty to accommodate the grievor as long as he was unable to perform cashiering and stocking even with modifications. As counsel put it “that ends the matter” and undue hardship had nothing to do with it. I find that to be wrong in law. The duty to accommodate persists as long as the employer is able to achieve it short of undue hardship. Contrary to the employer’s belief, undue hardship has everything to do with it. The Supreme Court of Canada makes that clear in Meiorin.
The employer’s erroneous understanding of the nature of its duty was reflected in the evidence. It took the position that as long as the grievor was unable to do at least 4 hours of work a day, he could not be accommodated. Similarly, no accommodation was considered if it would involve moving the grievor outside his own silo of posting area A in the retail division. During cross-examination Mr. Tymochko agreed that what he was really saying in both situations, is that the grievor did not fit within the existing practice. That is, normally there were no shifts of less than 4 hours, and usually employees did not transfer across different silos. Since the grievor did not fit within the existing practices, according to the employer, he was not entitled to accommodation. This, in my view is not the law. If the grievor does not fit existing or usual practices and arrangements, the inquiry cannot end there. The employer must proceed to consider whether it is possible, without suffering undue hardship, to amend the practice, or if necessary to excuse the grievor from the practice. Merely stating that existing or usual practices do not allow an accommodation falls far short of the employer’s obligation.
The employer also argued that article 21.4 was an impediment to accommodating the grievor outside his geographical posting area. On the question of whether the duty to accommodate requires interference with collective agreement rights, the oft-cited authority is Central Okanagan School District No. 23 v. Renaud 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (S.C.C.). Sopinka J. writing for the court rejected the de minimis test applied in the U.S., stating that such a test “virtually removes the duty to accommodate and seems particularly inappropriate in the Canadian context.” Then Sopinka J. Wrote:
More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term “undue” infers that some hardship is acceptable; it is only “undue” hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words “reasonable’ and “short of undue hardship”. These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case.
In the very next paragraph he went on:
The concern for the impact on other employees which prompted the court in Hardison to adopt the de minimis test is a factor to be considered in determining whether the interference with the operation of the employer’s business would be undue. However, more than minor inconvenience must be shown before the complainant’s right to accommodation can be defeated. The employer must establish that actual interference with the rights of other employees, which is not trivial but substantial, will result from the adoption of the accommodating measures. Minor interference or inconvenience is the price to be paid for religious freedom in a multicultural society.
Citing the foregoing, employer counsel submitted that interference with article 21.4 would be substantial, not trivial, interference with other employees’ rights and that the employer did not have to go that far. In my view the only way to give meaning to the terms “trivial” as compared to “substantial” in the legal context is by having resort, once again, to the concept of undue hardship. In other words, when the interference reaches the point of undue hardship, it ceases to be trivial, and becomes substantial. The employer, the union and other employees are expected to “pay the price” of interference with their collective agreement rights up to the point of undue hardship.
In the present case, it is unnecessary to determine the point at which the line of undue hardship would be crossed, because the employer did not at any time turn its mind to whether accommodating the grievor outside his geographic posting area would result in undue hardship, and if so, whether steps could be taken to alleviate or reduce that hardship. The uncontradicted evidence is that the employer did not at any time approach the employees’ bargaining agent, to inquire whether it was prepared to either waive any impediment in the collective agreement or to come to a lesser disruptive arrangement which will enable the grievor’s accommodation.
My understanding of the law as pronounced by the highest court is that undue hardship is the determinative factor. When deciding whether the duty to accommodate requires interference with collective agreement rights where accommodation is otherwise not possible short of undue hardship, the employer is certainly entitled to start its search for accommodation with the option which is least disruptive of collective agreement rights. If that does not facilitate accommodation of the disabled employee, the employer must broaden its search to options that are incrementally more disruptive of collective agreement rights. That process of broadening the scope of the search may only end when the interference with collective agreement rights become that substantial that it would amount to undue hardship. It must be noted that in this process, the union also has a duty to facilitate and cooperate with the employer. It cannot block the employer’s efforts by raising technical or minor interference with collective agreement rights. As the Supreme Court of Canada held in Renaud, enduring such interference is a price other employees are expected to pay. In other words, the union and other employees are also expected to sacrifice their rights up to a point of undue hardship. When this point is reached depends on all of the circumstances of a case, including the importance of the collective agreement rights affected.
In this regard, the employer witnesses, as well as counsel during submissions, stated that the union nor the grievor had sought accommodation other than in the CSR position. However, it is to be noted that once the grievor sought to return to work with restrictions, the primary responsibility rested with the employer to engage in a search for accommodation to the extent that the law requires. In the present case the employer chose not to involve the union in that process. When an employer choses not to consult with the union it does so at its peril. While there appeared to be some conflict in the evidence, the employer conceded at least that, the union made a general suggestion (the union witness testified that the suggestion was specific to the grievor’s accommodation) that the employer’s search should extend beyond the CSR job. Even if it was made, and understood, as a general suggestion, there was no explanation why that general suggestion would not also include this grievor’s case.
Although I received detailed testimony and diverse argument from the employer, at the end of the process, I am driven to the conclusion that the employer did not engage in any form of incremental broadening of its search for accommodation as it was required to do by law. On the contrary it stopped at the very first step, as soon as it was determined that the grievor could not perform any cashiering or stocking duties. The employer was under a misapprehension that that was the extent of its legal obligation, and acted upon it.
For all of the foregoing reasons I declare that the employer contravened the collective agreement, as well as the Human Rights Code, by not accommodating the grievor following his request to return to work effective October 20, 2003. I order that the employer reinstate the grievor forthwith on an accommodated basis in accordance with its obligation as described in this decision. As agreed to between the parties, I leave it to the parties to initially attempt to agree upon any additional remedies for the grievor, resulting from the employer’s violation. I remain seized in the event the parties are unable to reach such agreement in the implementation of this decision.
Dated this 7th day of April 2005 at Toronto, Ontario