GSB#2008-2134

UNION#2008-0376-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Eveleigh)

Union

• and -

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

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Laurie Kent Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

February 17, 2009.

Decision

1In April 28, 2008 the employer (sometimes hereafter referred to as "the LCBO") "converted" Doug Eveleigh's employee status from full-time to part-time, because it had been determined that he was permanently incapable of working full-time hours. That led to this grievance that he had been "reclassified (demoted)" contrary to the collective agreement and the Ontario Human Rights Code¹ ("the Code").

Facts

2The parties agreed on a detailed statement of facts. What follows is a summary of those agreed facts.

3The grievor began working for the LCBO in 1979 as a casual Customer Service Representative ("CSR") in its retail store system. He became a full-time CSR in 1987.

4In January 1998 the grievor's right ankle was injured at work. The Workplace Safety and Insurance Board ("WSIB") approved his claim for benefits under the Workplace Safety and Insurance Act² ("WSIA"). The grievor was absent from work until late May 1999, when he returned for reduced hours of work on a graduated return to work program. By early September 1999 he was again working full-time hours on modified duties. That continued until May 2002, when he had an exacerbation of his ankle injury. His doctor reported that the grievor could only work a maximum of six hours per shift on modified/light duties, and that he had been referred for further treatment. He continued to work, with those restrictions.

5A claim was made to the WSIB with respect to the recurrence. In January 2003 the grievor's doctor again told the employer that the grievor could not work more than six hours per shift at modified/light duties, and that he had been referred for further treatment. The employer continued to accept the grievor's being absent for the last two hours of every work day.

6In November 2005, the LCBO wrote to the WSIB asking that it deal with the grievor's outstanding claim. Thereafter the WSIB denied the claim, and requested further information from the grievor. The employer also sought further information in the hope of developing, with the assistance of third party consultants, a work accommodation program for the grievor that ensured that his duties were within his functional abilities and facilitated his returning to a full-time schedule of eight hours per shift. At that point the opinion of the grievor's doctor was still that the grievor could only work six hours a day. The WSIB persisted in its view that there was no objective medical basis for that restriction. The grievor was referred to a chronic pain assessment program. The outcome did not resolve the debate between the WSIB and the grievor about his restrictions. The grievor has been pursuing his claim for WSIA benefits, with the union's assistance, through review and appeal processes within the WSIB. Those processes have not yet come to a conclusion. If that conclusion is not favourable to the grievor, there may then be an appeal to the Workplace Safety and Insurance Appeals Tribunal.

7In mid February 2008, the employer asked the grievor to have his doctor answer a series of questions about his restrictions, including whether there was anything the LCBO could do to facilitate the grievor's working eight hour shifts and, if not, whether the inability to work more than six hours per shift was temporary or permanent. In late March 2008 the grievor's doctor answered that "Mr. Eveleigh is unable to increase his hours of work beyond his current restriction of six hours per shift," that "[t]here is nothing the LCBO can do facilitate [sic] Mr. Eveleigh's working an eight hour shift" and that "[t]his is a permanent restriction."

8A meeting was scheduled for April 15, 2008 to discuss the grievor's restrictions. Following that meeting, the LCBO wrote the following in a letter to the grievor of April 28, 2008:

As we discussed in our meeting, since you are permanently unable to work more than 6 hours per shift, thus a maximum of 30 hours per week, this is less than what a full time employee is required to work. Accordingly, you will be converted from your status as a full time employee to a permanent part time employee. This will mean that you will be reclassified to a permanent part time position and treated as such as depicted by the attached chart. Please note your seniority dote would be unchanged from that currently reflected in your Permanent Full Time (PFT) Customer Service Representative capacity. You will be reclassified effective May 12, 2008.

This is the chart to which the letter referred:

PFT TO PPT RECLASSIFICATION ENTITLEMENT COMPARISON

PFT (8 hrs/shift)

PPT (6 hrs/shift)

Seniority

April 9, 1986

April 9, 1986

Attendance/Vacation Credits

Sick/Vac credits based on 40 hrs/wk

Sick/Vac credits prorated (based on 30 hrs/wk)

• if additional hours are worked, sick/vac credits are calculated on all hours worked (excluding overtime)

Statutory Holidays

Paid 8 hrs for Stat. Work on Stat. offered to PFT's first

Paid for 6 hrs for Stat. Work on Stat. offered as per PFT seniority May not be 6 hour shift available on Stat.

WSIB Salary Advances

Based on 40 hours/week

Based on average hours in 4 weeks prior (i.e. 30 hour/wk)

Health/Vision/Dental Benefits

Premiums 100% paid by LCBO

Premiums paid jointly by LCBO and employee based on core hours worked (coverage optional) - LCBO pays 80% of premiums for 30 core hours (based on formula)

Basic Life Insurance

Premium 100% paid by LCBO Coverage of I times PFT salary

Premium 100% paid by LCBO Coverage of 1 times PPT salary (core hrs)

Optional Life Insurance

Optional —paid by employee

Same as for PFT

Accident Insurance

Optional — paid by employee

Same as for PFT

LTIP

Premium 100% paid by LCBO

Premium 100% paid by LCBO Coverage of 66-2/3% of PPT salary (core hrs)

Pension Entitlement

Contributions deducted based on 40 hrs/week Pension credit based on 40 hrs/week

Contributions deducted based on hours worked (30 hrs/week) - will be deducted on additional hours worked up to max. 40 hrs/week (excluding overtime) Pension credit based on hours worked (30 hrs/wk) or up to 40 hrs/wk (excluding overtime) Early retirement eligibility dates will be affected

Termination Payments

Based on weekly salary (40 hours per week)

Based on weekly salary (30 hours per week)

The Collective Agreement

9The parties' current collective agreement provides for four categories of employee: Permanent Full-time, Permanent Part-time, Seasonal, Casual. The "regular hours of work" for Permanent Full-time positions depend on the job's classification: for jobs in retail stores, the regular hours of work are 40 per week. Article 35 of the collective agreement defines a Permanent Part-time position as one for which the regular hours of work are less than those of a Permanent Full-time position in the classification to which the position in question is assigned:

35.1 The regularly scheduled hours of work for a permanent part-time position shall be as determined by the Employer, provided they are:

(a) less than thirty-six and one quarter (36 1/4), thirty-seven and one half (37 1/2) or forty (40) hours per week, as applicable to the classification to which the permanent part-time position is assigned, but not less than fifteen (15) hours per week; or

(b) less than twenty (20) full days over a period of four (4) consecutive weeks, but not less than nine (9) full days of seven and one quarter (7 1/4), seven and one half (7 1/2) or eight (8) hours, as applicable to the classification to which the permanent part-time position is assigned.

35.2 The "basic hourly rate" of pay for permanent part-time employees is the basic hourly rate for the class.

35.6 Except by mutual agreement between the parties permanent part-time weekly hours of work of a position shall be limited to a maximum of five (5) days per calendar week.

10Articles 33 through 48 apply to Permanent Part-time employees. Article 34 identifies the provisions of the collective agreement (other than articles 33 through 48) that also apply to Permanent Part-time employees. As illustrated in the chart reproduced in paragraph [8] above, Permanent Part-time employees have a fixed seniority date, as Permanent Full-time employees do, so both accrue seniority at the same rate regardless of differences in the number of regular hours of work. Hourly wage rates are the same for Permanent Part-time employees as for Permanent Full-time employees. The coverage of some benefits for a Permanent Part-time employee varies from that of the corresponding benefits for Permanent Full-time employees roughly in proportion to the ratio of the employee's part-time hours of work to the regular full-time hours of work for the same job classification.

11The collective agreement includes a Letter of Agreement on "Permanent Vacancy Review" that first came into effect in 2002. It provided that Permanent Part-time employees who had then worked more than 1600 hours in the previous calendar year, or who thereafter met that qualification on an annual review, would be offered (but not required to accept) Permanent Full-time employment. Those who do not accept (or do not receive) such offers continue as Permanent Part-time employees on the collective agreement terms applicable to such employees. The Letter of Agreement includes the following provision:

It is understood that those positions vacated by Permanent Part-time employees accepting Permanent Full-time employment shall not be posted. Further, the terms and conditions pertaining to Permanent Part-time employees will cease to exist when the remaining Permanent Part-time employees exit the organization.

The union takes the position that this Letter of Agreement precludes creating a new Permanent Part-time position, as it says the employer did here.

12The collective agreement provides in Article 1.1(c) that

1.1 (c) The Union acknowledges that it is the exclusive function of management to:

• hire, dismiss, transfer, classify, assign, appoint, promote, demote, layoff, recall, suspend or otherwise discipline employees subject to the right to grieve as provided for in this Agreement;

The Employer agrees that these functions will be exercised in a manner consistent with the provisions of this Agreement.

Article 26.4 provides that the employer shall not discipline or dismiss an employee without just cause. Article 2.1(b) prohibits discrimination "practiced by reason of … disability, as defined in the Ontario Human Rights Code."

13The union's argument focuses particularly on the relative entitlements of Permanent Full-time and Permanent Part-time employees to receive and use attendance credits and vacation credits. The pertinent provisions for vacation credits for a Permanent Full-time with this grievor's years of service are these:

Article 8 Vacation and Vacation Credits

8.5 An employee will be credited with his/her vacation for a calendar year at the beginning of each calendar year.

8.6 (a) Vacation credits shall be accumulated pro rata for each month of service as follows:

(iii) two and one-twelfth (2 1/12) days per month after sixteen (16) years of service;

8.7 Except as provided under Article 8.8 below, an employee is entitled to vacation credits under Article 8.6 in respect of a calendar month in which he/she is at work or on leave of absence with pay for at least one (1) full day.

The Attendance Credit and Sickness and Injury Leave provisions for Permanent Full-time employees are set out in Articles 9 and 12:

Article 9 Attendance Credits

9.1 In this Article "attendance year" means the period from the 1st day of January in a year to and including the 31st day of December in the same year.

9.2 An employee is entitled to an attendance credit of fifteen (15) days in respect of each attendance year at the commencement of each attendance year and such attendance credits will be added to those accumulated by the employee.

9.4 An employee is entitled to attendance credits under Article 9.2 in respect of a calendar month in which he/she is at work or on leave of absence with pay for at least one (1) full day.

9.5 Notwithstanding the provisions of Article 9.4, an employee is not entitled to attendance credits under Article 9.2 in respect of a month in which the employee is absent from work:

(a) without leave;

(b) by removal from employment for cause; or

(c) without pay for the whole calendar month.

Article 12 Sickness and Injury Leave

12.1 Except as herein provided no employee shall receive pay for absence caused by sickness or injury in excess of his/her accumulated credits.

12.2 Where, after having served one (1) year, an employee is absent by reason of sickness or injury for a period in excess of his/her accumulated credits, the employee has the option to use accumulated credits for overtime and for vacation leave of absence to reduce the employee's deficit of attendance credits.

12.3 An employee may be granted pay for not more than thirty (30) days of excess absence and any payments in excess of credits shall be charged against the future credits to which the employee becomes entitled, and any unpaid balance shall be deducted from the amount paid the employee or the employee's personal representative under Article 24.

12.5 Where an employee is absent from work by reason of a condition for which the Workplace Safety and Insurance Board assumes liability, the employee shall be eligible for Compensation Leave for a period not exceeding three (3) months or a total of sixty-five (65) working days where such absences are intermittent for each unrelated claim. During such leave the employee shall receive full salary with no reduction of accrued credits but vacation and attendance credits shall continue to accumulate during the period.

12.6 Where an award is made under the Workplace Safety and Insurance Act to an employee that is less than the regular salary of the employee and the award applies for longer than the period set out in Article 12.5 and the employee has accumulated credits, the regular salary may be paid to the employee and the difference between the regular salary paid and the compensation awarded shall be converted to its equivalent time and deducted from the employee's accumulated credits.

14The corresponding provisions for Permanent Part-time employees are these:

Article 39 Vacation and Vacation Credits

39.6 (a) An employee shall earn a pro-rated portion of the vacation credits shown below based on his/her weekly average which is the ratio that his/her weekly hours of work and the additional hours worked during the previous attendance year bear to the normal hours of work (weekly) for the classification as prescribed by the Salary and Classification Schedule. The weekly hours of work and the additional hours worked during the previous attendance year shall be divided by fifty-two (52) to determine a weekly average.

Vacation credits shall accumulate pro-rata for each month of service as follows:

(iii) two and one-twelfth (2 1/12) days per month after sixteen (16) years of service;

39.7 An employee is entitled to vacation credits under Article 39.6 in respect of a calendar month in which he/she is at work or on leave of absence with pay for at least one (1) work day.

Article 40 Attendance Credits

40.1 In this Article "attendance year" means the period from the 1st day of January in a year to and including the 31st day of December in the same year.

40.2 An employee is entitled to an attendance credit of that portion of fifteen (15) days as his/her weekly average which is the ratio that his/her weekly hours of work and the additional hours worked during the previous attendance year bear to the normal hours of work (weekly) for the classification as prescribed by the Salary and Classification Schedule in respect of each attendance year at the commencement of each attendance year and such credits will be added to those accumulated by the employee. The weekly hours of work and the additional hours worked during the previous attendance year shall be divided by fifty-two (52) to determine a weekly average.

40.3 An employee is entitled to attendance credits under Article 40.2 in respect of a calendar month in which he/she is at work or on leave of absence with pay for at least one (1) work day.

40.5 Notwithstanding the provisions of Article 40.3 an employee is not entitled to attendance credits under Article 40.2 in respect of a month in which the employee is absent from work:

(a) without leave;

(b) by removal from employment for cause; or

(c) without pay for the whole calendar month.

40.6 (a) An employee may use attendance credits against scheduled hours of work.

(b) If the usage of attendance credits results in the employee receiving greater than forty (40) hours of compensation in a week, then only the credits required to attain forty (40) hours of compensation will be usable, and the balance will be returned to the employee.

Article 42 Sickness and Injury Leave

42.1 Except as herein provided no employee shall receive pay for absence caused by sickness or injury in excess of his/her accumulated credits.

42.2 Where, after having served one (1) year, an employee is absent by reason of sickness or injury for a period in excess of his/her accumulated credits, the employee has the option to use any credits accumulated for overtime and for vacation leave of absence to reduce the employee's deficit of attendance credits.

42.3 An employee may be granted pay for not more than fifteen (15) scheduled work days of excess absence and any payments in excess of credits shall be charged against the future credits to which the employee becomes entitled, and any unpaid balance shall be deducted from the amount paid the employee or the employee's personal representative under Article 41, Termination Payments.

42.5 Where an employee is absent from work by reason of a condition for which the Workplace Safety and Insurance Board assumes liability the employee shall be eligible for Compensation Leave for a period not exceeding three (3) months or a total of sixty-five (65) scheduled work days where such absences are intermittent for each unrelated claim. During such leave the employee shall receive weekly salary with no reduction of accrued credits, but vacation and attendance credits shall continue to accumulate during the period.

15The collective agreement provides for Long Term Income Protection benefits for a Permanent Full-time employee (Article 20.5) or Permanent Part-time employee (Article 48.5) who becomes "totally disabled" after an elimination period of "six (6) months, or the expiration of accumulated attendance credits, whichever is the later."

The Ontario Human Rights Code

16It is unnecessary to quote the definition of "disability" in the Code, as there is no dispute that the grievor's condition falls within that definition. There is no challenge to the claim that his six hours per shift limitation is a result of that disability.

17Part I of the Code provides that every person has a "right to equal treatment with respect to employment without discrimination because of … disability" (section 5) and that "[no] person shall infringe or do, directly or indirectly, anything that infringes a right under this Part" (section 9). Sections 11 and 17 of the Code are also pertinent:

Constructive Discrimination

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

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. R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32, s. 27 (5).

Accommodation

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

The Parties' Arguments

18The union acknowledges that it is not discriminatory for the employer to pay the grievor wages only for hours that he actually works. It argues, however, that changing the grievor's employee status from Permanent Full-time to Permanent Part-time deprived the grievor of monetary benefits to which he was entitled by virtue of his full-time status, entitlements that did not depend on whether he worked full-time hours. This reduced his income, and thence his pension entitlement, from what they would otherwise have been had he remained entitled to have his benefit entitlement assessed on the same basis as Permanent Full-time employees.

19In particular, the union says that while the grievor was classified as a Permanent Full-time employee he was entitled to 15 full days' attendance credits and 25 full days' vacation credits, without any reduction based on the number of hours he actually worked in the previous year. As a Permanent Part-time, however, he gets fewer attendance and vacation credits because they are pro-rated according to the number of hours he actually works. Furthermore, as a Permanent Full-time employee he was able to use his attendance credits and his vacation credits to cover the two hours per work day that he was unable to work due to his disability, so that he received full-time earnings for each work day as long as his attendance and vacation credits lasted. As a Permanent Part-time employee he cannot use his attendance credits to obtain compensation for the difference between the six hours he is scheduled to work and a full-time eight hour day, because attendance credits can only be used to cover lost income for "scheduled hours" missed due to sickness.

20In short, the change in status affected not only the magnitude of his attendance and vacations credits but also access to the attendance credits as a source of income replacement for the hours that he would have worked as a full-time employee had his disability not made him incapable of doing so. The consequent reduction in income in turn affects his pension. The union submits that the change of status was a reaction to the grievor's disability, and therefore amounted to discrimination prohibited by both the collective agreement and Code.

21Union counsel argued that the employer had not demonstrated that it could not accommodate the grievor's remaining a full-time employee without undue hardship, observing that the employer had only asked whether the grievor could work eight hours per shift and had not considered other ways of accommodating the grievor's six hour per shift limitation. When asked about a work schedule that would have the grievor working a six hour shift six days per week plus four hours on the seventh day, however, union counsel said the union did not contend for such an accommodation. Union counsel did not identify any alteration of work duties or work schedule acceptable to the grievor that could or might result in the grievor's being able to work a total of 40 hours per week while subject to the six hour per shift limitation.

22After referring to the Supreme Court's explanation of discrimination and accommodation in Meiorin³ and Hydro-Québec,⁴ union counsel submitted that Peel Board of Education⁵ is "on all fours" with this case – that is, that the facts and legal issues in both cases are similar in all material respects. There, as here, the grievor's hours of work had been reduced from full-time to part-time because of a disability that prevented the grievor from working full time hours, the employer changed the employee's status from full-time to part-time, and the change prevented the grievor from using the attendance credits to cover the portion of full-time hours that his disability precluded him from working. Union counsel argued that I should find, as Arbitrator Albertyn did in that case, that the forced change in status amounted to discrimination on the basis of disability because it took away from the disabled employee what other ill full-time employees are permitted – access to attendance credits.

23Union counsel also cited Riverdale Hospital,⁶ in which a transfer from full-time to part-time status was found to be improper discrimination on the basis of disability. Victoria Order of Nurses⁷ was cited for the proposition that in assessing whether the grievor's treatment is discriminatory it is inappropriate to compare the grievor's treatment with the treatment of Permanent Part-time employees under the collective agreement because those employees work part-time hours by choice, while the grievor does so because he is unable by reason of his disability to work full-time hours. A City of Toronto⁸ award was cited in support of the proposition that full-time employees are the appropriate comparator group when assessing the differential treatment of an employee whose disability limits him or her to working part-time hours.

24Union counsel referred to the Letter of Agreement on "Permanent Vacancy Review," suggesting that its terms precluded the employer from putting the grievor in the Permanent Part-time category.

25Union counsel acknowledged the decision of the Ontario Court of Appeal in Orillia Soldiers Memorial Hospital,⁹ which she sought to distinguish on the basis that the court there noted it was not dealing addressing those receiving WSIB or LTD benefits, whereas here the grievor has a claim for WSIB benefits, albeit one that has been denied and is the subject of an appeal. Anticipating an argument about the distinction between matters of participation and compensation, she cited arbitrator Surdykowski's criticism of that distinction in Pano Cap.¹⁰ Her argument also made reference to the Supreme Court's decision in Brooks¹¹ and to a 1980 St. Lawrence Cement¹² award.

26Employer counsel noted that the grievor's status had been changed from full-time to part-time only after it was determined that there was no prospect of his being able to work full-time hours. She observed that this change had had no effect on the grievor's seniority rights, which would continue to be assessed by reference to the same seniority date that he had had as a full-time employee.

27Employer counsel submitted that the employer had the right under the management rights provision of the collective agreement to change the grievor's status from full-time to part-time when the grievor was permanently unable to work full-time, and that doing so was not inconsistent with any provision of the collective agreement. She argued that the respects in which the grievor is treated differently from full-time employees as a result of the change are all matters of compensation. She submitted that it is not discriminatory to compensate a disabled employee who can only work part-time on the same basis as other part-time employees are compensated, when there is no reasonable accommodation by which the employee could be enabled to work full-time hours, citing the decision of the Court of Appeal in Orillia Soldiers Memorial Hospital.¹³

28Employer counsel noted that Orillia Soldiers Memorial Hospital has been followed on this point in decisions of arbitrators and courts on judicial review, that on its authority other part-time employees have treated as the appropriate comparator when assessing the treatment of employees whose disabilities leave them incapable of working full-time and that in those circumstances employers have been found entitled to change the status of such employees from full-time to part-time.¹⁴ She observed that this Board (differently constituted) has recently said¹⁵ that authority of Orillia Soldiers Memorial Hospital is not diminished by the Supreme Court's subsequent decision in Meiorin.

29Employer counsel noted that in an earlier case between this employer and this union's predecessor, this Board (differently constituted) found that entitlements to attendance credits of the sort in issue here are matters of compensation that are earned by attendance in the workplace, and that the collective agreement does not offend the Code by providing that attendance credits do not accrue for an employee who has exhausted her attendance credits and does not work for a period of time by reason of disability.¹⁶

30Employer counsel submitted that it is not appropriate to compare continuous absence and use of attendance credits by the grievor with occasional absences and use of attendance credits by full-time employees. She also argued that after attendance and vacation credits are exhausted by using them as the union suggests, the grievor would thereafter be on unpaid leave for the unworked two hours of every shift. Being then unable to work a "full day," he would thereafter be precluded by articles 8.7 and 9.4 from ever accruing any attendance or vacation credits at all. She noted that in Dupuis¹⁷ this Board (differently constituted) found that the employer breached the Code in its treatment of a full-time employee who became unable to work a full five days per week by continuing to apply to her the benefits provisions applicable to full-time employees, under which she could not work sufficient consecutive work days to ever earn sick credits. The Board there found that the employee's de facto part-time status should govern, that she should be compared with regular part-time employees who are afforded sick-leave in proportion to the amount of work they perform and that she was entitled to "no more, and no less, than the entitlement enjoyed by part-time employees."

31Employer counsel argued that many of the awards relied on by the union were distinguishable. She observed that Peel Board of Education¹⁸ preceded the decision of the Ontario Court of Appeal in Orillia Soldiers Memorial Hospital,¹⁹ as did Riverdale Hospital,²⁰ Pano Cap²¹ and St. Lawrence Cement.²² The facts in Riverdale Hospital were different: what the employer did there took the grievor out of the bargaining unit, the full-time collective agreement applied to anyone working more than 24 hours per week and the board was not satisfied that the grievor was unable to work more than 24 hours per week. The Victorian Order of Nurses²³ award was concerned with accrual of seniority and service, matters to which the "compensation" approach does not apply. The City of Toronto²⁴ award concerned the denial to disabled workers working part-time hours of work opportunities they were capable of performing.

32As for the Letter of Agreement on "Permanent Vacancy Review," employer counsel noted that the employer did not post or otherwise fill a "vacancy." The employer still had Permanent Part-time employees, so the terms and conditions applicable to them had not ceased to exist. The employer had been trying to accommodate an employee whose full-time employment it could have terminated because he could not meet the requirement of working 40 hours per week. The Supreme Court said in Hydro-Québec that when a disabled employee cannot return to work despite accommodation, the employer's obligation to accommodate is at an end and does not require that the employment continue despite the employee's inability to perform work. Here, the grievor was unable to ever return to full-time employment, and the employer was entitled to terminate his full-time employment status. If the Letter of Agreement precluded continuing his employment as a part-time employee on collective agreement terms applicable to Permanent Part-time employees, as the union seemed to argue, then that was an impediment to accommodation that the union arguably had an obligation to help remove, having regard to the observations of the Supreme Court in Renaud.²⁵ Otherwise, the only available employee status compatible with the grievor's restrictions would be the less beneficial status of Casual employee.

33In reply, union counsel reiterated that the employer had not demonstrated that maintaining the grievor's full-time status caused it any hardship. She disputed employer counsel's argument that continued full-time status would result in the grievor's being unable to earn any attendance or vacation credits. She observed that the grievor need only be "at work or on leave of absence with pay" for one day in a month in order to earn attendance and vacation credits for that month. She submitted that this requirement can be satisfied by combining six hours' work and two hours' leave with pay on a single day, as she said the grievor had done before his status was altered. The submission seemed to be that attendance and vacation credits need not be used continuously to top up pay for every six hour day worked, but could be applied as the grievor chose, and the grievor could simply choose to apply them in such a way as to always have at least one work day a month topped up to eight hours, so as to be entitled attendance and vacation credits for that month.

34Union counsel reiterated that nothing in the collective agreement required that an employee work 40 hours per week in order to maintain full-time status, and that full-time employees can be away from work for various reasons without losing that status. She argued that the Saskatchewan court cases cited by employer counsel were inconsistent with Orillia Soldiers Memorial Hospital in their reliance on the participation/compensation distinction, and that although the Peel Board of Education award preceded the decision in Orillia Soldiers Memorial Hospital, the Divisional Court would have been aware of that decision when it subsequently "upheld" that award.

Analysis and Reasons for Decision

35I begin with some observations about the facts.

36One of those facts is that the WSIB has determined that the grievor is not entitled to benefits under the WSIA with respect to the grievor's inability to work more than six hours per shift, notwithstanding his claim that it results from recurrence of a workplace injury. There is an ongoing dispute between the grievor and the WSIB about that determination. It is not my function to determine whether the grievor is entitled to those WSIA benefits. I have to decide the issues before me on the basis that he is not.

37The core issue here is whether changing the grievor's status from full-time to part-time amounted to prohibited discrimination on the basis of disability. The union says that by so doing the employer deprived the grievor of benefits enjoyed by other full-time employees who are absent due to illness, benefits to which full-time employees are entitled by virtue of their having that status and without regard to the number of hours they work. In this connection, the parties are in dispute about the effect of Articles 8.7 and 9.4 of the collective agreement. Those articles provide that vacation and attendance credits may only be earned for months in which the employee is "at work or on leave of absence with pay for at least one (1) full day." The employer says that the credits of someone in the grievor's position would eventually be exhausted, and that once the credits were exhausted the grievor could not thereafter have any month in which he could satisfy the "full day" prerequisite to any further accrual of such credits, leaving him in a worse position than if he were treated as a Permanent Part-time employee. The union says this is not so, that the requirement can be met by topping up one six hour work day with two hours of paid leave from attendance or vacation credits, and that with careful management of the credits there will always be enough to top up at least one six hour work day that way each month.

38The agreed facts do not include the number of credits the grievor had accumulated when he began working only six hours per shift in 2002, nor the numbers of credits earned and consumed in the roughly six years between then and the effective date of his change in status. I do not know whether any occasion arose on which the grievor would have had to hold back a credit for use in a subsequent month in order to preserve his full entitlement to credits. Accordingly, I do not know whether the employer's actual treatment of the grievor has ever been inconsistent with either the union's position or its own on this point. I do not think it matters to the outcome of this grievance, however, which of the parties is right on this point. For the purposes of the analysis that follows I have assumed, without deciding, that the union is right, that as long as he retains that status a Permanent Full-time employee who works less than full-time hours can make choices about whether and when he uses attendance and vacation credits, in such a way as to ensure that he always have enough unused credits left each month to preserve his future entitlement to full credits.

39The union argues that Permanent Full-time employees can be absent due to illness without losing their full-time status, and that the grievor has been treated differently due to his disability. The employer argues that the absences of Permanent Full-time employees that are tolerated in that way are occasional and not analogous to the grievor's constant absence for two hours every work day. I address these arguments later, but at this point note that they were made in the abstract, without reference to any particular facts other than the provisions of the collective agreement and the grievor's limitations. There is nothing in the agreed facts about the actual absenteeism of other Permanent Full-time employees, tolerated or otherwise. There is also nothing in the agreed facts about the grievor's actual absenteeism, beyond what may be inferred from the agreed fact that after May 2002 he never worked more than six hours per shift. It is not apparent how often the grievor was absent from work due to illnesses other than his disability. There is no reason to suppose that he was absent for such other causes any more or less often than other full-time employees would have been.

40The union contends that while the grievor's full-time status continued he was treated as having been absent for two hours due to illness on every day when he worked a six hour shift, and was thus able to draw on his attendance credits to top up his pay for those two hour periods. While not included in the agreed facts, this factual premise of the union's argument was not challenged by employer counsel in argument, and I assume that it is true for purposes of my analysis.

41The thing that distinguishes Permanent Full-time status and Permanent Part-time status under the parties' collective agreement is the number of regular hours per week that the employee is expected to work, when not absent on sickness or other leave. Under this collective agreement the line is drawn at 40 hours per week. Permanent Part-time positions are those for which the regular hours of work per week are fewer than 40. Permanent Part-time employees have the same seniority rights and are paid the same hourly rate as Permanent Full-time employees, but receive benefits that are, roughly speaking, pro-rated in accordance with the ratio of their actual hours worked to the regular hours of work a Permanent Full-time employee.

42The central, unchallenged factual foundation of the dispute before me is that the grievor cannot work more than six hours per shift, and that no further modification of his duties could enable him to work a longer shift. Apparently there is no drug or other therapy the grievor could take or is willing to take that might at this point reduce the pain his condition causes him, or increase his endurance of it, so as to enable him to work a longer shift.

43In a case like this one is naturally inclined to wonder whether there is some way of scheduling 40 hours of work per week for the grievor in a manner consistent with his six hour per shift limitation.²⁶ As I have noted, however, union counsel did not suggest that there was any work schedule acceptable to the grievor that could or might result in the grievor's being able to work 40 hours per week while subject to the six hour per shift limitation. In these circumstances, one of the factual premises on which my decision must be based is that there is no accommodation that the employer could provide that would enable the grievor to actually work 40 hours per week. When the union argues baldly that the employer has failed to accommodate the grievor's disability or failed to consider other ways of accommodating his retaining full-time status, I can only understand this as an argument that the accommodation sought is ongoing tolerance of the grievor's working only 30 hours per week while continuing to accrue and consume attendance and vacation credits as though his "regular hours of work" were 40 per week.

44Turning to the legal issues, the collective agreement prohibits discrimination "by reason of … disability, as defined in the Ontario Human Rights Code." Again, the dispute before me is about whether the employer breached that prohibition, and the Code, by unilaterally changing the grievor's status from Permanent Full-time to Permanent Part-time. It may also be in issue whether the collective agreement precluded the employer from, in effect, creating a new Permanent Part-time position for the grievor and, if so, what effect that has on the parties' obligations to the grievor in the circumstances. It is common ground that the grievor's inability to work full-time hours is the result of a "disability" as that term is defined in subsection 10(1) of the Code.

45The decision of the Ontario Court of appeal in Orillia Soldiers Memorial Hospital²⁷ is an important landmark in the development of the law in this area. The collective agreement in issue in that case provided active employees would accrue seniority and service credits and the employer would pay the cost of their benefits, but that both seniority and service credits would stop accruing for non-active employees receiving long terms disability benefits after they had been receiving such benefits for a defined length of time. It also provided that after an inactive employee had been receiving such benefits a further period, the employer would no longer have to pay or contribute to the cost of that employee's benefits. The union argued there that these provisions discriminated on the basis of disability contrary to the Code.

46The Court of Appeal agreed with the majority conclusion at arbitration that, having regard to the nature and purpose of seniority under that collective agreement, denying seniority accrual to employees absent from active work due to disability amounted to discrimination contrary to the Code. As for service accrual and payment for benefits, however, the court agreed with the majority conclusion at arbitration that these were compensation for performing work. The Court held that it is not prohibited discrimination to distinguish for purposes of compensation between employees who are performing work and those who are not. It said that in that connection it was not appropriate to distinguish between wages and other forms of compensation. It observed that the employer's obligation to accommodate disability required that the employer do what it could, short of undue hardship, to enable a disabled employee to actually perform work, but did not require an employer to "top up" the compensation of a disabled employee who is incapable, even with such accommodation, of performing the requisite work:

Disabled nurses do not receive compensation because they are not providing services to their employer. It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services and those who are not. ...

In the case presently before the court, the purpose of the employer contributions to benefit plans is to provide an additional form of compensation in exchange for work. Having chosen to provide this form of compensation, the employer could not discriminate on a prohibited basis. However, the employer could distinguish based on the reason for providing the compensation: work. On its face, discrimination would exist if the employer provided different levels of compensation for work because of handicap. Likewise, it would constitute discrimination if the employer provided different levels of compensation for not working because of handicap. But, in this context: it makes no sense to compare working employees with those not working. ...

I also do not find it helpful to attempt to isolate different elements of the compensation package such as employer contributions to premiums, vacation pay, and wages and ascribe different purposes to each so as to create a discrimination argument. They are all part of the compensation package negotiated by the parties in exchange for work by the employees. When the employee is not working, different considerations and different forms of payment may apply. For instance, employees may receive workers' compensation or long-term disability payments. ...

In my view, it is possible to find that a neutral rule in this case has a discriminatory effect within the meaning of s. 11(1). To repeat, the neutral rule may be stated as follows: the employer contributes toward premium coverage of participating eligible nurses in the active employ of the hospital. This rule has the effect of requiring the group of employees identified by the prohibited ground of discrimination to assume the burden of paying the entire contributions for these benefits if they wish to maintain coverage. Admittedly, these employees are treated no differently than other employees on unpaid leave of absence, the difference is that these employees are adversely affected by the rule because of their disability. The issue then is whether the employers are entitled to the BFOQ justification in s. 11(1)(b) [sic]. In my view, they are. I reach this conclusion not because of the distinction drawn in Versa Services between compensation and participation, but rather by having regard to the nature of the accommodation required for this kind of constructive discrimination.

An example may assist in understanding the problem. Assume that an employer changes from paying its employees wages based on hours worked to paying on the basis of the number of pieces produced. Assume further that the disabled employees are simply unable to produce as many pieces as able-bodied employees and as a result their wages are reduced. Arguably, this constitutes constructive discrimination. The facially neutral standard of paying by the number of pieces produced results in a restriction on the ability of the disabled employees to earn the same wages as able-bodied employees. In accordance with s. 11(1)(a), the employer could justify the different result by showing that this standard was reasonable and bona fide in the circumstances. However, in accordance with s. 11(2), the board of inquiry or a court is only entitled to find that the standard is reasonable and bona fide if it is satisfied the needs of the group cannot be accommodated without undue hardship considering the "cost, outside sources of funding, if any, and health and safety requirements, if any." Nevertheless, I do not read s. 11(2) as imposing upon the employer the burden of simply topping up the wages of the disabled employees. That, in my view, is not the type of accommodation contemplated by s. 11(2) and is in fact inimical to the principles underlying the Code ...

Simply topping up the wages of the disabled employees and paying them as if they are not disabled is nothing more than reverse stereotyping ... Rather, it would seem to me that the employer in this hypothetical must attempt to accommodate the group. For example, the employer may provide devices and instruments that would allow the disabled employees to perform at the same level as the able bodied employees. The duty is on the employer to take all steps short of undue hardship to accommodate the need of the person discriminated against so that they can compete equally with the other employees. It is by attempting to accommodate their actual characteristics so as to bring them within the workplace environment that the employer complies with the Code. ...

It may be that this goal cannot be fully accomplished and that short of undue hardship the employer, for example, can provide technical aids that will only partly bring the disabled employees to the same level as the able-bodied employees. However, in my view, that is all the Code requires the employer to do. The employer is not required to abandon the standard (assuming it to be a BFOQ) and pay the disabled employees according to some different standard. Obviously, it may do so voluntarily, but this is not what the Code requires.

The appellant in this case does not seek any reasonable accommodation or modification of the rule for the actual characteristics of its disabled members. ...

Assuming the rule respecting employer contributions to benefit plans constitutes constructive discrimination, I am satisfied that the justification in s. 11(1)(b) [sic] applies. Requiring work in exchange for compensation is a reasonable and bona fide requirement. (pages 512 and 515)

47The language in which discrimination issues are assessed has changed somewhat since the decision in Orillia Soldiers Memorial Hospital. "Handicap" is now "disability." "BFOQ" (bona fide occupational qualification) is now "BFOR" (bona fide occupational requirement). In Meiorin,²⁸ the Supreme Court of Canada said that an approach that distinguishes between "direct" and constructive or "adverse effect" discrimination when determining "whether a prima facie discriminatory standard is a BFOR" should be replaced with a unified approach in which an employer may justify an impugned standard by showing²⁹

(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-related 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.

48The third branch of this test was clarified in Hydro-Québec.³⁰ That case concerned an employee who had been dismissed after a long period of excessive absenteeism due to disability, when her treating physician had reported that she could no longer work on a regular and continuous basis without continuing to have an absenteeism problem. An arbitrator upheld the discharge because the employer had shown that at the time of the discharge the grievor was unable for the reasonably foreseeable future to work steadily and regularly. The arbitrator further found that providing an accommodation of the sort that her union said would enable her to provide regular attendance would constitute undue hardship for the employer. In that context the Court made the following observations:

14. … the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

15. However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration. …

16. The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.

17. Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties - or even authorize staff transfers - to ensure that the employee can do his or her work, it must do so to accommodate the employee. Thus, in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4, the employer had authorized absences that were not provided for in the collective agreement. Likewise, in the case at bar, Hydro Québec tried for a number of years to adjust the complainant's working conditions: modification of her workstation, part-time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

18 Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal, Québec (Procureur général) v. Syndicat des professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311: [TRANSLATION] "[in such cases,] it is less the employee's handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship" (para. 76).

19 The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees' fundamental rights and the rule that employees must do their work. The employer's duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

49The approach of the Supreme Court in Meiorin, as explained in Hydro-Québec, is not inconsistent with the conclusion of the Ontario Court of Appeal in Orillia Soldiers Memorial Hospital that the obligation to accommodate disability does not extend to replacing wages or benefits that the employee would have received for doing work that the employee could have done "but for" her disability, when there is no accommodation by which the employer could enable the employee to do that work.

50Several of the decisions and awards relied on by the employer address the question whether someone who was once a full-time employee but as a result of a disability can only work part-time hours remains entitled to benefits calculated as though the employee was still a full-time employee. Generally speaking, those decisions take the view that benefits of the sort in issue here are part of the compensation provided for working full-time hours. They adopt, explicitly or implicitly, the approach of the Ontario Court of Appeal in Orillia Soldiers Memorial Hospital to compensation of employees totally unable to work and apply it to compensation of employees able to work part-time but not full-time hours, and determine that it does not amount to discrimination on the basis of disability to compensate a disabled employee working part-time hours in the same way as other part-time employees would be compensated.

51Those cases may be said to turn on their facts and the arguments made in them. Here, the union's argument focuses on the change in status, and treats the change in compensation as the adverse effect of the change of status, adopting the analysis of the majority award in Peel Board of Education as its argument why the change in status is discriminatory. I have reviewed the decisions cited by the employer. Without implying any criticism of them, or suggesting that it casts doubt on their correctness or even that it is necessarily a basis for distinguishing them, I have not set out an analysis of them in these reasons because they do not seem to me to address the reasoning in Peel Board of Education award quite as directly I consider necessary here.

52The grievor in Peel Board of Education³¹ was a full-time employee whose multiple sclerosis eventually prevented him from working more than two-thirds of a full-time day. The employer gave him a work schedule consistent with that limitation. For a time it continued to deal with him as though he were a full-time employee, treating the difference between his scheduled hours and full-time hours as time that he was absent due to sickness, and allowing him to use his accumulated sick leave credits in order to provide income for the hours he could not work. There came a time, though, when the employer took the position that his part-time work schedule could only continue if his contract was changed to a part-time contract. The effect of this was that he could no longer use his accumulated sick credits to get income for the difference between his scheduled work hours and full-time work hours.

53The grievor in that case was covered by a "Fraternal Society Benefit" disability plan established by his union and paid for by deductions from his earnings. The plan was referred to in the collective agreement in a manner that the majority award treated as significant. The plan apparently would have indemnified the grievor for the ongoing income loss caused by his permanent partial disability, if only he could pass the waiting period defined by that plan. It seems to have been accepted that he could not pass the requisite waiting period without first actually using up all the sick credits that he already had. It was also accepted that because he could no longer apply his accumulated sick credits to the difference between his actual scheduled hours and full-time hours, he could not use those credits up faster than the reduced rate at which he continued to earn them as a part-time employee. Thus, he could never use the credits up and could never get access to the partial disability benefits for which he had paid. The issue, as the parties there had defined it in an agreed statement of fact, was whether the grievor could "utilize his sick leave credits on a .33 basis, or as otherwise required, until they are exhausted, at which point he would be able to rely upon the Fraternal Society Benefit Payments on the basis of .33 or as otherwise required."³²

54During argument of that issue employer counsel was apparently asked, hypothetically, whether a full-time employee who had to take off two days a month on a perpetual basis to receive treatment for a permanent, partial disability would be able to use sick credits to cover the two days' lost income each month, and whether in those circumstances the employer would insist on replacing the employee's full-time contract with a part-time one. Counsel evidently responded that the use of sick credits would be permitted in that case and that the employer would not change the employee's contract to a part-time one. Counsel conceded that the grievor's case was only different in degree from the hypothetical, but submitted that the difference in degree was significant.³³

55The majority of the board disagreed, finding that "[t]o say that an employee can miss work for 2 days each month on account of a permanent partial disability, but the grievor, who needs 7 days off per month cannot, is to draw a distinction without a clear foundation."³⁴ It also found that the employer would not have precluded a permanently totally disabled employee from using up sick leave credits so as to gain access to long-term disability benefits. It reasoned that the grievor's disability should be treated no differently than any other disability, and that since some disabilities would not result in a change from full-time to part-time status, the grievor's disability should not have had that consequence. It determined that by changing the grievor's status, and thereby preventing him from using up his sick credits and get access to long-term disability benefits, the employer had breached both the collective agreement and the Code. With respect to the effect of the Code, the award said:³⁵

Working full-time hours every day is not an essential requirement of the position occupied by the grievor because several kinds of absences are tolerated. Full-time, permanent employees who take sickness absences are entitled to retain their status as full-time employees and they cannot be deprived of that status without their consent or without just cause. The loss of capacity to perform a full day's work is not, in our view, sufficient to deprive the grievor of his status as a full-time employee. That is the kind of accommodation of disability which is contemplated under the Human Rights Code.

The award went on to say that the monetary entitlements in issue stemmed from the grievor's full-time status rather than actual performance of work, and were thus more akin to seniority accrual than wages. It referred to the treatment of seniority in the arbitration award in Orillia Soldiers Memorial Hospital, but not to that award's analysis with respect to compensation matters. It concluded that by not treating the grievor as a full-time employee for purposes of the benefits in issue, the employer had breached the Code's prohibition of discrimination on the basis of handicap (as disability was then described in the Code), because "[h]e is being treated less favourably than other employees in an equivalent or a like situation and the reason for that treatment is his handicap."

56On an application for judicial review of that award, the Divisional Court found³⁶ that the award was based on an interpretation of the particular collective agreement before the board, that the interpretation was not patently unreasonable and that "[h]aving so determined it is unnecessary for us to deal with the question of the human rights legislation … ." Whether or not the Divisional Court was consciously aware of the Court of Appeal's decision in Orillia Soldiers Memorial Hospital when it did so, its having dismissed the application for judicial review on this basis does not constitute judicial approval of the award's analysis and application of the Code.

57Some facts that were treated as important in Peel Board of Education are not present here. Here there is no suggestion that if only the grievor could exhaust his sick credits he could access insurance that would cover the loss of income caused by his permanent partial disability. Indeed, the union here contends for a right to not exhaust credits, at least not so thoroughly as to thereby lose the ability to qualify for more. There is also no suggestion here, and no evidence, that the employer has treated the grievor differently from the way it has treated or would treat any other full-time employee incapable of working full-time hours because of a permanent partial disability. There are also differences in the way the cases were argued. There was no disavowal by the employer here, as there was there, of an undue hardship argument. Having regard to the analysis of the Supreme Court of Canada in Hydro-Québec,³⁷ such an argument is implicit in the employer's argument that it had cause to terminate the grievor's full-time status by reason of his permanent inability to work full-time hours.

58The award in Peel Board of Education did not take into account the decision of the Court of Appeal in Orillia Soldiers Memorial Hospital with respect to matters of compensation. The analysis rests on the assertion that "permanent employees who take sickness absences are entitled to retain their status as full-time employees and they cannot be deprived of that status without their consent or without just cause," but seems not to have considered whether the grievor's failure to provide full-time attendance provided just cause for termination of his full-time status when there was clearly no prognosis that attendance would improve.

59The collective agreement here gives the employer the right to discharge for cause. It is well settled that, subject to the Code and any provision of the agreement to the contrary, an employee's innocent, non-culpable absenteeism may be cause for discharge when it can be established that the employee's record of past absences is excessive and that there is no reasonable expectation that attendance will improve in the future.³⁸

60As the Supreme Court of Canada noted in McGill University Health Centre,³⁹ there is a substantial body of arbitral jurisprudence in Ontario concerning collective agreement provisions that deem employment terminated when the employee has been absent for a specified period of time. The thrust of that jurisprudence is that the mechanical application of such provisions to employees whose absences are due to disability is discriminatory when it deprives them of any favourable consideration to which their individual circumstances would otherwise be entitled under the just cause standard. The implication of that jurisprudence is that if termination for absenteeism caused by disability is justified on the just cause standard it would not amount to unequal treatment, and if regular attendance could not be enabled by accommodation short of undue hardship, termination would not be contrary to the Code. That view appears to be consistent with what the Supreme Court has since said in McGill University Health Centre⁴⁰ and Hydro-Québec.⁴¹

61The majority in Peel Board of Education seems to have reasoned, in effect, that if a full-time employee can be absent due to illness to some degree without thereby losing full-time status, then the grievor's absence due to illness can not justify depriving him of full-time status. However tenable that reasoning may have been on the facts before that board, I cannot agree with the union that such reasoning applies here. Nor can I accept that because some degree of innocent absenteeism is tolerated, full-time attendance cannot be considered an essential requirement for full-time employment for purposes of assessing, as in McGill University Health Centre and Hydro-Québec, the point at which tolerance of the disabled employee's innocent failure to discharge his obligations amounts to undue hardship.

62The City of Toronto award cited by the union dealt with quite a different problem: denial to disabled employees of the opportunity to perform additional work that they were capable of performing. The issue in St. Lawrence Cement was whether the employer could reduce the pay rate of disabled employees without also reclassifying their positions in accordance with the collective agreement. The analyses of the Code in Riverdale Hospital, Pano Cap and Victorian Order of Nurses also predated the Court of Appeal decision in Orillia Soldiers Memorial Hospital.

63Of those awards, only Riverdale Hospital dealt with an involuntary change from full-time to part-time status as a result of disability. The employer in that case took the view that the grievor could not do useful, available work for more than the 20 hours per week it had assigned her. By its terms, the collective agreement did not apply to employees who worked 24 hours or less per week, so the employer began to treat the grievor as employed outside the collective agreement. That treatment was grieved. The applicable collective agreement expressly prohibited transferring an employee out of the bargaining unit without their consent. The majority of the board was not persuaded the grievor could not, with appropriate accommodation, work for 25 hours per week as she had at one point been doing, which would have kept her within the scope of that collective agreement. In that respect the facts there are clearly distinguishable. If that failure to continue accommodating the grievor were the sole basis of the decision the result would be unexceptional, and the analysis inapplicable to this case. I recognize that the majority decision also said, however, that its conclusion that the employer could not treat the grievor as outside the bargaining unit did not depend on whether or not she could work more than 24 hours per week. I have difficulty reconciling that obiter dicta with Orillia Soldiers Memorial Hospital and Hydro-Québec. In short, I do not find the reasoning in the awards cited by union counsel helpful in deciding the grievance before me.

64Whatever his status, the grievor could only resort to attendance credits for additional income in respect of the periods during which he was absent from work due to sickness or injury. If for that purpose the grievor was considered absent from work due to illness for one quarter of each and every work day, then those absences from work were also relevant, in conjunction with the prognosis for improvement, to an assessment whether the employer had cause to discharge him from his full-time position for innocent absenteeism.

65When the employer made the decision to alter his status, the grievor had been absent from full-time employment at least one hour for every three hours he actually worked for a period of nearly six years. In my view, that level of absenteeism was clearly "excessive" for purposes of the just cause test. At that point it had become clear, from the categorical opinion of the grievor's own doctor, that there was no prospect of improvement, that he would continue to be absent from full-time hours of work to at least that degree. Applying the just cause standard applicable to all full-time employees, there was then cause to terminate the grievor's full-time employment. Since there was no accommodation that would enable the grievor to provide improved attendance, it was not a breach of the grievor's right to equal treatment under the Code to remove him from full-time employment. In the words of the Supreme Court in Hydro-Québec, the employer's obligation to accommodate the grievor with notionally full-time employment ended when the grievor was "no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future."

66Of course, cause for removing an employee from a particular job is not necessarily cause for termination of employment altogether. Apart from the accommodation requirements of the Code, arbitrators have taken the view that⁴²

… upon a determination that an employee is unfit to do his job an employer must first consider if there is alternative employment the affected employee is capable of doing and which can be given to him under the terms of the collective agreement; only after this procedure has failed to provide alternative employment is the employer entitled to lay-off or retire the employee.

The obligation to accommodate disability likewise requires that other jobs be considered when it is not possible to accommodate the employee so as to enable him to perform his existing job.

67Leaving aside the implications of the Letter of Agreement on Permanent Vacancy Review, it seems entirely reasonable, both from a cause for termination perspective and from an accommodation of disability perspective, for the employer to have offered the grievor part-time work that he could perform, on terms roughly proportionate to those of the full-time work that he could no longer perform. Those terms of employment were not contrived for his case. They were the result of collective bargaining in which the union owed the same duty of representation to Permanent Part-time employees as it did to Permanent Full-time (and other) employees. There is no reason to suppose that the terms negotiated reflect a belief that part-time employees acquire that status only as a matter of choice, in any sense that supposes they had equal access to full-time status when they became a part-time employee. In any event, if it was proper to characterize the grievor as a Permanent Part-time employee then, having regard to Orillia Soldiers Memorial Hospital and the many decisions cited by employer counsel, the employer's applying the Permanent Part-time provisions of the collective agreement to the grievor's part-time employment did not amount to discrimination on the basis of disability contrary to the Code or Article 2.1(b) of the collective agreement.

68What, then, is the significance of the Letter of Agreement on Permanent Vacancy Review? The union says that it precludes creation of new Permanent Part-time positions, and that what the employer did here amounts to creating a new Permanent Part-time position. If that is true it has no impact on the propriety of the employer's having terminated the grievor's full-time status. It only affects the propriety of its having thereafter employed him on Permanent Part-time terms. If that was not an available option, then employment as a Casual or Seasonal employee was the only alternative to outright termination. Such employment would be less advantageous to the grievor than employment on the terms applicable to Permanent Part-time employees.

69If the union opposes the employer's having employed or continuing to employ the grievor on Permanent Part-time terms after, as I have found, he was no longer entitled to Permanent Full-time status, there would then be a question whether union's opposition is inconsistent with its own obligation to assist in accommodation of the grievor's disability. Since it is not clear that the union does take that position in that context, I do not propose to determine in this decision the significance of the Letter of Agreement. I will make that determination after a further hearing, in light of my conclusion that the employer was entitled to end the grievor's full-time status, if within one month of this decision, or such further time as the parties agree in writing, the union asks that I do so. In the absence of such a request, the union will be taken to have agreed to the employer's treating the grievor as a Permanent Part-time employee in order to accommodate his inability to work full-time hours.

70I remain seised with the issue identified in the previous paragraph. Otherwise, this grievance is dismissed.

Footnotes

1. 1R.S.O. 1990, c. H.19 as amended.
2. 2S. O. 1997, c. 16, Sched. A
3. 3British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Services Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 S.C.R 3.
4. 4Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] SCC 43.
5. 5Re Peel Board of Education and O.S.S.T.F., District 10 (Lambert) (1998), 1998 CanLII 30105 (ON LA), 73 L.A.C. (4th) 183 (Albertyn), jud. rev. denied (1999), 86 A.C.W.S (3d) 889 (Ont. Div. Ct.).
6. 6Re Riverdale Hospital (Board of Governors) and C.U.P.E., Loc 79 (1994), 1994 CanLII 18582 (ON LA), 41 L.A.C. (4th) 24 (Knopf).
7. 7Re Victoria Order of Nurses (Algoma Branch) and O.N.A. (1996), 1996 CanLII 20457 (ON LA), 56 L.A.C. (4th) 235 (Low).
8. 8Re Toronto (City) and C.U.P.E., Loc. 79 (Berg) (2006), 2006 CanLII 93285 (ON LA), 149 L.A.C. (4th) 353 (Nairn).
9. 9Ontario Nurses' Assn. v. Orillia Soldiers Memorial Hospital et al. (1999), 1999 CanLII 3687 (ON CA), 42 O.R. (3d) 692, 169 D.L.R. (4th) 489 (Ont. C.A.), leave to appeal denied December 9, 1999 (S.C.C.).
10. 10Re Pano Cap (Canada) Ltd. and U.F.C.W. Local 1977 (Renick) (1997), 67 L.A.C. (4th) 24.
11. 11Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219.
12. 12Re St. Lawrence Cement Co. and United Cement, Lime and Gypsum Workers, Local 366 (1980), 1980 CanLII 4037 (ON LA), 27 L.A.C. (2d) 83 (Palmer).
13. 13supra, fn. 9.
14. 14Each of the following was cited for one or more of these three propositions: Royal Alexandra Hospital and United Nurses of Alberta, Local 33 (Smith Grievance), [1999] A.G.A.A. No. 44 (Christian), Re Cambridge Memorial Hospital and Ontario Nurses' Assn. (Butts Grievance) (1999), 1999 CanLII 20275 (ON LA), 79 L.A.C. (4th) 392 (Barrett), Real Canadian Superstore v. United Food and Commercial Workers, Local 1400 (1999), 1999 SKQB 196, 182 D.L.R. (4th) 223 (Sask. Q.B.); aff'd (2000), 2000 SKCA 64, 187 D.L.R. (4th) 759 (Sask. C.A.), application for leave to appeal dismissed [2000] S.C.C.A. No. 378 (S.C.C.), Capital Health Authority v. United Nurses of Alberta, Local 33 (Mathew), [2000] A.G.A.A. No. 42 (Ponak) (Alberta), Re Canada Safeway Ltd. and United Food and Commercial Workers, Local 401 (2000), 2000 CanLII 50260 (AB GAA), 86 L.A.C. (4th) 200 (Smith), OPSEU v. Ontario (Ministry of Transportation) (Donoghue Grievance), [2002] O.G.S.B.A. No. 71 (Brown), Crossroads Regional Health Authority v. Alberta Union of Provincial Employees (Heritage Grievance) (2002), 2002 CanLII 79149 (AB GAA), 105 L.A.C. (4th) 78 (Tettensor), Ontario Public Service Employees Union v. Ontario (Ministry of Transportation) (McNally Grievance), [2003] O.G.S.B.A. No. 111 (Brown), Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, [2004] S.J. No. 153 (Sask. Q.B.), aff'd [2005] S.J. No. 119 (Sask. C.A.), application for leave to appeal dismissed [2005] S.C.C.A. No. 173 (S.C.C.).
15. 15Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Lucan Grievance), [2007] O.G.S.B.A. No. 1 (Abramsky).
16. 16OLBEU (Pound) v. LCBO, GSB #3278/92 (Briggs).
17. 17Ontario Public Service Employees Union v. Ontario (Ministry of Northern Development and Mines) (Dupuis Grievance), [2001] O.G.S.B.A. No. 13 (Dissanayake).
18. 18supra, fn. 5.
19. 19supra, fn. 9.
20. 20supra, fn. 6.
21. 21supra, fn. 10.
22. 22supra, fn. 12.
23. 23supra, fn. 7.
24. 24supra, fn. 8.
25. 25Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970.
26. 26By using split shifts, for example, to take advantage of his recovery of capacity within a work day rather than just between work days, or a combination of split shifts and a six day schedule.
27. 27supra, fn. 9.
28. 28supra, fn. 3.
29. 29id., at ¶54.
30. 30supra, fn. 4.
31. 31supra, fn. 5.
32. 32id., p. 196-7.
33. 33id., p. 214.
34. 34id., p. 215.
35. 35id., pp. 219-20.
36. 36(1999), 86 A.C.W.S. (3d) 889.
37. 37supra, fn. 4.
38. 38Brown and Beatty, Canadian Labour Arbitration (4th edition), at ¶7:6100; and see Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (Norris Grievance), [2008] O.G.S.B.A. No. 65, 2008 CanLII 19774.
39. 39McGill University Health Centre v. Syndicat des Employes de l'Hôpital Général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, (2007) 159 L.A.C. (4th) 1 (S.C.C.) at para 24.
40. 40The majority's closing observation is noteworthy in that regard: "If in Ms. Brady's view the accommodation provided for in the collective agreement in the instant case was insufficient, and if she felt that she would be able to return to work within a reasonable period of time, she had to provide the arbitrator with evidence on the basis of which he could find in her favour."
41. 41supra, fn. 4.
42. 42Palmer, Collective Agreement Arbitration in Canada, 3d ed. (1991) at p. 409; and see Brown and Beatty, Canadian Labour Arbitration (4th edition), at ¶7:3510.