GSB#2015-0857

UNION#2015-0377-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Butka)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Adrienne Couto Liquor Control Board of Ontario Counsel

HEARING

January 9, February 6, 19, 2020 and (March 27, 2020 via teleconference)

Decision

1This decision relates to a grievance dated April 10, 2015 filed by Mr. Paul Butka (“grievor”) alleging that the employer violated the collective agreement and the Ontario Human Rights Code, by screening him out from a job competition for a job posting for the position of “B” Store Assistant Manager (“ASM”).

2There is little dispute relating to the facts. The grievor commenced his career with the employer in 1981 as a casual Customer Service Representative (“CSR”). In 1988 he was promoted as a permanent full-time CSR and in 1995 became a permanent full-time Product Consultant. (“PC”). He retired in March 2019.

3“B” store ASM positions are included in the bargaining unit. In February 2015, the employer posted a number of ASM vacancies, including one at Store 695 in Whitby. The grievor applied for the Store 695 position. The job posting set out hours of work for the position as “40 hours per week (Day and Afternoon Shifts and Weekends)”. It described the job as follows:

Under the general supervision of the Store Manager, the successful candidate will assist the Store Manager by supporting and also assuming responsibility and accountability for the key store functions of Customer Service, Social Responsibility, Business Management, Human Resource Management, Inventory Management and Sales & Marketing. This will involve your enthusiasm and commitment to the delivery, implementation, and reinforcement of LCBO business strategies as well as policies and procedures.

4At the relevant time the Store 695 staffing complement was the Store Manager (“SM”) Ms. Diane Moreau who was managerial/excluded, and bargaining unit employees, the ASM and 6 CSRs (5 casual and 1 full-time). The SM worked 5 days a week 9:00 a.m. to 8:00 p.m. The collective agreement required rotating shifts for full-time bargaining unit employees. The ASM and the full-time CSR were scheduled 40 hours a week, on a rotation of 2 weeks of day shifts and 1 week of afternoon shifts, 5 days a week. There were 3 -day shifts, 8:00 a.m.-5:00 p.m., 8:30 a.m.-5:30 p.m., and 9:00 a.m-8:00 p.m., with a 1 -hour unpaid lunch break. There were 4 afternoon shifts, 12:00 noon to 8:30 p.m., 1:00 p.m.-9:30 p.m., 2:00 p.m.-10:30 p.m. and 3:00 p.m.-11:30 p.m., with a ½ hour unpaid break.

5The collective agreement provision governing promotions at the time read:

21.10(c) Where an employee is being considered for transfer, promotion or demotion to a posted vacancy, seniority will be the determining factor, provided the employee is qualified to perform the work.

Accordingly, applicants were assessed in order by seniority. The grievor was the most senior applicant, and was assessed first to determine whether he was qualified. The Human Resources Department, used a standard “Applicant Verification Form”, which had information on a number of factors including performance, knowledge, discipline record, as well as “the applicant’s work accommodation program, if any.” The assessment revealed that from July 2014, the grievor had been accommodated in his PC position for the permanent restrictions, “day shifts only”, and a driving/bus ride limit of 15 minutes. Human Resources forwarded the grievor’s form to Mr. Mike Thornington, District Manager. The grievor was found to meet all of the qualifications, except for the issue of his accommodation.

6By email dated February 21, 2015, at 2:18 p.m., to Mr. Mark Mason, Regional Director, Mr. Thornington advised Mr. Mason about the grievor’s current accommodation, that he is unable to do afternoon shifts as required by the posting due to a permanent medical restriction, and that travelling from his home to store 695 takes 16 minutes as per Google Maps, which exceeds the 15 minute travel restriction. He asked Mr. Mason, “Should he be excluded from this competition?” Mr. Mason responded by email the same day at 4:15 p.m. as follows: “The days only restriction excludes the candidate. You will have to move on to the next candidate”.

7By letter dated February 23, 2015, signed by Mr. Mason, the grievor was informed as follows:

This is further to your application for consideration in the above noted competition.

In reviewing your file, it has come to our attention that you have medical restrictions which prevent you from performing a number of duties with or without accommodation. Those limitations include and not limited to, the inability drive, limited bus ride of 15 minutes and daytime hours only

As a ‘B’ Store Assistant Manager of a double shift store you would be required to work afternoon and evening shifts. Furthermore, there are no ‘B’ Store Assistant vacancies available within a 15 minutes bus ride of your residence.

Based on the information currently available to us, your application to the above noted competition will not be considered further as you are unable to perform the essential duties of the position and therefore unable to perform in the capacity required.

8The employer agrees that while the shift rotation for full-time staff at Store 695 was two weeks of day shifts followed by one week of afternoon shifts, another “B” store in the same area, Store 653 in Courtice, Ontario, had a shift rotation of three weeks of day shifts, followed by one week of afternoon shifts, and that the ASM at that store was on that rotation.

9It is also agreed that two other ASMs had been accommodated on day shifts only. Mr. DS was employed as ASM of a “A” store in the Oshawa area from November 2000 until his retirement in December 2013. In January 2004, Mr. DS ceased working the rotation of afternoon shifts due to a medical condition, and was accommodated on day shifts only until his retirement. Ms. KD was the ASM of a “A” store in the Oshawa area from November 2002 until her retirement in May 2016. In May 2011, following a workplace injury, she ceased working the rotation of afternoon shifts. The LCBO has no records indicating that this was a permanent medical restriction and her Work Accommodation Program did not reflect any restriction in respect of her hours of work. Ms. KD sustained another work-related injury in or around April 2013 and a non-work -related injury in March 2016, for which she was accommodated again on days only until her retirement.

10At arbitration, the employer stipulated that it screened out the grievor solely for the reason that he was unable to work afternoons, and that it does not rely on the travel restriction. Also, there is no dispute that the grievor had a legitimate permanent medical restriction that does not allow him to work afternoon shifts, and that accordingly since 2014 he had been accommodated on day shifts only. The employer’s position is that while it was able to provide that accommodation to him in the PC position, working afternoon shifts in accordance with the Store 695 shift rotation schedule is a bona fide occupational requirement (BFOR) for the ASM.

11The union advised that if the grievance is allowed, it would only be seeking monetary compensation for losses from the date the position was filled to the date of his retirement, and damages. It was agreed that if the grievance is upheld, the Board will remain seized, and allow the parties to attempt to agree on remedy.

EMPOYER EVIDENCE

12The employer proceeded first with its evidence. Mr. Mark Mason has been the Eastern Region Director Retail since 2013, and took responsibility for the decision to exclude the grievor from the competition. The Eastern Region had 175 LCBO stores. Six District Managers reported to Mr. Mason. The store managers reported to a District Manager. Mr. Mike Thornington, was the District Manager responsible for store 695.

13Mr. Mason confirmed that the job posting for the “B” ASM vacancy in question, the job description for that position, and the job description for the “B” Store Manager (“SM”) position filed as exhibits, were accurate. Asked to describe the role of the ASM, Mr. Mason replied that essentially it is to support the SM in the operation of the store as “second in command”, to act as the supervisor of the staff in the absence of the SM, to help fill out performance appraisals, and to ensure marketing initiatives are completed. He said that the ASM liaises with staff, and when the SM is not there, the ASM has to ensure that the CSRs complete all their duties and responsibilities.

14Mr. Mason testified that he approved the job posting, and that it states that the ASM is required to do both day and afternoon shifts. He said that he would not have approved the posting if it limited the ASM to day shifts. He reviewed the SM job description which states that the SM works 9:00 a.m. to 6:00 p.m. Asked whether SMs ever do afternoon shifts, he replied, that they do only two afternoon shifts in a four week period, and that it is important that they do that. Asked why it is important that the SM do day shifts, other than two afternoon shifts, Mr. Mason replied that the SM is responsible for the store and needs to be in contact with internal as well as external people who also mostly do day shifts. The SM has to interact internally with the Human Resources Manager and HR Advisors on payroll or discipline issues. When preparing profit/loss statements, if there are mistakes, the SM has to consult Retail Accounting. There is interaction with District Managers, who predominantly do day shifts. He said that hearings and grievance meetings are typically scheduled during days, and the SM must be available. With regard to external contacts, Mr. Mason said that trade representatives frequently attend the stores to get listings, or to discuss sales promotions and back orders etc. If any issues come up, they want to talk to the SM. Mr. Mason said that in his experience trade representatives work 9:00 to 5:00 shifts.

15Mr. Mason also explained that “ASMs are hired to support the SM in all aspects, specially in the absence of the SM. They take care of the business, train employees and resolve issues. They are typically more knowledgeable and experienced. After 6:00 p.m. there are more casual CSRs, who are typically younger. So it is critical to have the ASM’s leadership, by providing feedback on performance for appraisal purposes. ASM’s are there to do more than just close the store. They drive the business, by finding ways to increase sales. When we assess ASM’s work performance, we look at the sales numbers. In some stores deliveries are received on afternoons. Then the ASM has to ensure it is done properly. The ASM pay rate reflects those high expectations”.

16Employer counsel asked Mr. Mason to review the ASM job description and point out any duties and responsibilities set that must be performed during afternoon shifts. Mr. Mason pointed out that the “Purpose of Position” refers to the ASM as a leader. So he is expected to provide leadership. The job description sets out numerous duties under 5key areas, and states that the ASM “leads by example” in those. Under “Engaging Customer Service,” it states that the ASM provides leadership and direction to ensure delivery of engaging customer service. Under the “Corporate Social Responsibility”, the ASM ensures compliance with policies like not selling to under -age persons and “challenge and refuse” sales to person’s intoxicated. He said that all employees are required to comply with the duties listed under “Safety and Security”, but an ASM’s greater experience enables him to identify hazards and advise younger CSRs. Mr. Mason testified that in terms of “Human Resources Management and Development” the ASM conducts “staff huddles” and provides feedback to the SM on staff performance. The ASM can change the schedule if needed. Moreover, having the ASM on afternoons “provides consistency in leadership from store opening to closing every day”. He said that depending on the store, the busiest time is typically 3:00 p.m. to 7:00 p.m. or 4:00 p.m. to 8:00 p.m. During those periods both the SM and the ASM must be available. Therefore, having the ASM do afternoons in “paramount and critical”.

17Employer counsel pointed out that ASMs presently do a rotation of two weeks of day shifts and one week of afternoon shifts. Ms. Mason testified that it is because of the collective agreement which requires rotation if there are multiple shifts. As a result ASM’s must be scheduled on some day shifts, and SMs are required to work some afternoon shifts when the ASM is not at work.

18Employer counsel referred to the work schedule of the last ASM at store 695 and pointed out that the ASM worked only day shifts in some weeks, and that Ms. Diane Moreau, the SM, also worked days. She asked who was in charge in the afternoons when both the SM and ASM were not working. Mr. Mason testified that the SM in those circumstances appoints the most senior CSR on duty to be shift leader.

19Mr. Mason testified that there is a significant difference between the work an ASM would do on afternoon shifts, and what a shift leader does. The shift leader maintains the shift and ensures that staff does what they are supposed to do and secures and closes the store as the ASM does. He may also be asked by the SM to assist and coach CSRs. However, the difference is, “the ASM works in tandem with the SM to drive the business by reducing costs and increasing sales, and ensures all policies are followed”. That is not part of the shift leader’s responsibility. The shift leader may inform the SM that a particular employee did something wrong, but has no responsibility to correct wrong behaviour. The ASM provides feed back on staff work performance which assists the SM to complete employee performance appraisals. If an employee complains that his shift schedule is contrary to the collective agreement, the shift leader is not able to resolve the dispute by changing the schedule the way the ASM can.

20Employer counsel asked Mr. Mason why he advised Mr. Thornington that the grievor’s “days only” restriction excludes him from the competition. He said that he had to consider “if we can accommodate him and how. At the time I decided that there is no way to accommodate him in the ASM position”. Asked why, he said, “We require the ASM’s leadership on afternoon shifts.” Counsel asked whether Mr. Mason considered rotating the SM through afternoon shifts as a way to accommodate the grievor. He replied, “No. As I said we need the SM on days to be able to contact those various people”. He said that having a shift leader on afternoons when the ASM is not working was not an option “because we need the ASM’s leadership to provide support to the SM”.

21In cross-examination, union counsel pointed out that although Mr. Mason had testified that having leadership coverage all day is important, it happens at store 695 only once every three weeks according to the normal schedule. He agreed. It was put to Mr. Mason that the ASM functions which he said were important, such as providing performance feedback to the SM, and supporting the SM on marketing initiatives, could be done by the ASM during the day. Mr. Mason agreed but added that the SM does not have enough opportunity to observe staff during the day. So the ASM must be there. Counsel put to Mr. Mason that due to the shift rotation, for two out of three weeks, the store only has a shift leader on afternoons. He agreed, but added that the calibre of work of a shift leader is not the same.

22Mr. Mason was asked whether “the business will be harmed” if the SM works two or three additional afternoon shifts. He replied, “I can’t say”. When counsel suggested that at least some of these contacts are pre-scheduled, Mr. Mason replied he does not know. When asked whether there is anything preventing prescheduling meetings and appointments with internal/external contacts, Mr. Mason replied, “I suppose you can if you are well organized. But no one day is the same as another. A maintenance issue can arise at any time”. Counsel agreed that ad hoc issues can arise, that a trade representative can walk-in, but pointed out that already that happens one week out of 3, and that accommodating the grievor would only mean that no SM or ASM will be at work for 15 additional afternoon hours. Mr. Mason replied that “by math” that is correct.

23Counsel put to Mr. Mason that if the SM works one or two more afternoon shifts, there is work, other than contacts, the SM can do after 4:30 p.m. such as preparing schedules and accounts. He agreed, and added, “but the SM is expected to be there out in the store at that time”. Counsel read the duties listed under “Customer Service” in the SM job description, and suggested that many of those can be done by the SM between 1:00 p.m. and closing. Mr. Mason pointed out that as per the preamble, the SM’s duty is to ensure those are done by overseeing and supervising employees, and he agreed that the oversight and supervision can be done between 1:00 p.m. and closing. Counsel pointed out to Mr. Mason that he had agreed that many of the SM duties can be done in the afternoons, and also that the status quo is the ASM works afternoons only one out of three weeks. He asked whether it is still his position that the additional 15 hours result in undue hardship. Mr. Mason replied, “I can’t say”. Counsel asked whether Mr. Mason’s position is that “a line has to be drawn somewhere”. He replied, “I won’t say that”. Union counsel pointed out that if a CSR is designated as shift leader on afternoon shifts in order to accommodate the grievor, the shift leader is entitled to a $18 shift premium, and asked whether that was a consideration in his decision. He replied, “probably”.

24Counsel pointed out that the evidence is that typically senior CSRs are awarded ASM postings, and asked Mr. Mason whether those appointed as ASM receive any additional training before assuming duties. He replied, “Not to my knowledge”. He agreed with counsel that it is “a title change”. Counsel asked, if so, how the ASM is better able to provide leadership and handle issues than a senior CSR designated to be shift leader. Mr. Mason replied that the ASM appointment is made primarily on the basis of seniority, but not solely by seniority. The candidates are also vetted for qualifications. He testified that he is aware of two cases where the store could not close because there was no ASM. Counsel asked what harm, if any, resulted to the store. Mr. Mason replied he does not know. Counsel asked Mr. Mason whether he is aware that ASMs in other stores, in the same area have been accommodated on day shifts only due to medical restrictions. He said that he is unable to speak about that because that was before he became Director. Counsel asked whether his testimony that an ASM is better able to provide leadership and handle situations is based on any statistics or studies. He said that it was based on his experience.

25Counsel pointed out that according to the schedules put into evidence, no manager is scheduled on Sundays, and that the grievor has no restriction preventing working Sunday day shifts. He asked whether Mr. Mason considered whether the grievor could be put on a Sunday day shift instead of an afternoon shift. Mr. Mason responded, “I think he will have to be paid 1½ times overtime on Sunday.” Counsel asked, “So that excludes the accommodation?” He replied, “Yes, I’d say so. It would be an additional expense.”

26In re-direct, employer counsel reviewed the store schedules with Mr. Mason. He clarified that if the ASM works days only, the additional hours on afternoons with no SM or ASM will be 17 and not 15. He testified that if the job posting for store 695 had been sent for his approval with the ASM working days only, he would not have approved it because there is no point having the SM and the ASM working side by side on the same shift. Counsel asked whether the SM would be able to fit in all contacts between 1:00 p.m. and 4:30 p.m., if the SM is put on the 1:00 p.m. to 9:30 afternoon shift, given that most contacts are not available after 4:30 p.m. Mr. Mason replied, “In the larger scheme of things it will be next to impossible. On a specific day, may be. But not generally.”

27Counsel asked Mr. Mason why he testified that it is not acceptable for the SM to be doing schedules or the paperwork in the office during afternoons. He explained that is the busiest time in the store. He said, “We want everyone on the floor at that time. We do not expect managers to be in the office doing schedules or talking to contacts at that time. The afternoon shift lunch break is at 4:30 p.m. Shift change is 6:30 p.m. So it is very busy. There can be a lot happening. Its not ideal. They shouldn’t be doing that”. Mr. Mason testified that SMs are not allowed to do any bargaining unit work. If the ASM is at work on afternoons he can do bargaining unit work like running cash, stocking shelves. If the SM works afternoons instead of the ASM, she cannot do that, and an extra shift will have to be added.

28Counsel asked whether a candidate found lacking leadership skills when qualifications are vetted during a job competition would still be awarded an ASM position because he is the most senior applicant. Mr. Mason replied that “He could potentially be excluded as not qualified”. Mr. Mason testified that at the time he decided to exclude the grievor he was not aware that other ASMs had been accommodated on “days only” in other stores. He also reiterated that there is no scheduled 8 hours shift on Sundays, and if the ASM works on Sunday it will be on overtime.

29Ms. Diane Moreau was the SM at store 695 from June 2014 to April 2015. She said that except for three 1:00 p.m.-9:30 p.m. afternoon shifts, in a 4 -week period, she scheduled herself on the 9:00 a.m. to 6:30 p.m. shift. Asked why, she responded that as SM she had to oversee all aspects of the store operation, from planning the day, making orders from the LCBO warehouse and the Beer Store, and communicate with contacts she had to deal with at head office and trades representatives who only work days.

30She testified that at head office, from time to time she had to deal with the District Manager and with staff in Payroll, Facilities, Resource Protection, Marketing, Human Resources and Retail Accounting. She said that she does not know the exact work hours of these departments, but after 4:30 p.m. it is generally difficult to communicate with them. The District Manager’s normal hours are 8:30 a.m. to 6:00 p.m. although he can be reached after hours for emergencies.

31She said that she had to go on computer to review sales records and have orders to the warehouse and Beer Store done by 10:00 a.m. to ensure that the orders are received on the next scheduled delivery date. If a delivery is missed, shelves may not be properly stocked with product, and the next delivery will be exceptionally large and may require additional staff to put product on shelves. Ms. Moreau testified that it was her practice to have a huddle with store staff before the store opens, to update staff on any health and safety issues, and about the operational plan for the day, including who will do what tasks and when they will take breaks.

32Employer counsel asked Ms. Moreau whether there were any tasks she had to get done by 1:00 p.m. She replied, “Morning is an opportunity for me to do schedules and HR tasks like performance appraisals, because it is quieter. The store starts to get busier from about 3:00 p.m.” She testified that she does this work in the store office, which is used by everyone.

33Counsel asked Ms. Moreau why she scheduled herself for three afternoon shifts. She replied that SMs are required to work some afternoon shifts every four -week period. Asked whether she could do her role as SM if she has to work a full week of afternoon shifts. She replied, “No. It will be difficult. I am responsible to oversee the operational needs of the store. It will be difficult to do my responsibility for ordering, scheduling, and dealing with the District Manager and the head office. I’ll be limited in reaching out to them. Anyway, I am expected to be on the sales floor in the afternoons until dinner break”.

34Counsel asked Ms. Moreau to describe the role of the store 695 ASM. She replied, “She worked alongside me. She was in the union. So she could do things I am not allowed to. She had oversight over the team doing receiving, scanning, putting stock out. She participates in cashiering, assists with training by coaching in the moment and ensured that everyone follows health and safety procedures. Basically she fills the gaps – she is an extension of myself, like my business partner. She keeps me advised of anything involving the team. We work together”. Asked what “coaching in the moment” is, she said, “If we see someone not lifting properly or needs assistance, or is not sure of the procedure, we coach at that moment.”

35Counsel asked whether it is possible to delegate the tasks she did before 1:00 p.m. to some else, so that she could do more afternoon shifts. Ms. Moreau responded that she could not delegate scheduling, planning or budgets because those impact the store. Making those decisions are her responsibility as SM. She said that HR matters are confidential and cannot be delegated. Sometimes the District Manager schedules conference calls on issues related to HR, health and safety, sales, or upcoming programs, - topics relevant only to SM’s. She said that she was expected to participate in those calls, which like scheduled managers’ meetings, are done during the day.

36Ms. Moreau testified that if the ASM is on duty between 5:30 p.m. to 9:30 p.m., the staff consists of the ASM and four CSRs. If she works instead of the ASM an additional CSR will have to be scheduled because unlike the ASM, the SM is not allowed to do bargaining unit work. Counsel pointed out that the store 695 ASM at the time did a rotation of two weeks on day shifts and a week on afternoons, asked how important it was that the ASM did that afternoon shift. Ms. Moreau replied, “It was important. She was an extension of myself. As part of the shift rotation she’d fill the gaps for me and keep me apprised of any issues on the afternoon shift. She’ll be coaching and overseeing the operation of the store.” She testified that 4:30 p.m. to 9:30 p.m. are typical hours for fixed term CSRs. Having just a shift leader at that time is not enough. She said, “I need the ASM to be there because she is an extension of myself, and carries more responsibility than a shift leader. ASMs carry more experience and training to do coaching”. Counsel asked whether it will be useful or productive if the ASM can only do day shifts. She replied, “No, as I said she is an extension of myself. She is more experienced in training and coaching, and able to liaise with me more than a shift leader”.

37In cross-examination, Ms. Moreau testified that when trade representatives visit the store, if the SM is not in they would speak to whoever is overseeing the store, or to an ambassador. She agreed that trade representatives speak to the SM by telephone also if it was about a narrow question. If it is about a broader issue, they want to pre-schedule a visit to talk to the SM. Ms. Moreau testified that trade representatives sometimes visit unannounced. Union counsel asked Ms. Moreau whether she is aware of any instance the store suffered harm because the SM was not on duty when a trade representative dropped in. She replied, “I can’t think of any harm. But it is understood that at the end of the day my approval is required for listing or de-listing a product”. She agreed that for larger issues like a big promotional sale or a sale on all brands of a company, meetings with the SM are pre-scheduled at a time when the SM is scheduled to be at work.

38Ms. Moreau testified that her practice at store 695 was to prepare and adjust schedules herself unless she is away. Asked how many days a week she had to get orders done before 10:00 a.m., she said that store 695 received shipments from the warehouse on Mondays, Wednesdays, and Fridays, and from the Beer Store on Tuesdays. So she had to prepare four orders every week. She said that the time needed to prepare an order varies and that at most it would take ½ hour. She agreed that besides the SM, anyone well versed with what is required and trained is able to prepare orders. She said that the ASM or the shift leader running the store did orders during periods she was away.

39Counsel pointed out that already the SM works three afternoon shifts every four -week period, and that she testified that it is not acceptable for the SM to work afternoons for a full week. He asked, “What about the SM doing four afternoon shifts instead of three in every four -week period.” She responded that if she works the 1:00 p.m. to 9:30 p.m. shift she would have to come in much earlier than 1:00 p.m. to ensure that she has time to answer emails and follow up with any District Manager requests, because by about 3:00 p.m. she is expected to be out on the sales floor. Counsel put to Ms. Moreau that if the ASM is not working on an afternoon shift, still shipments are received, product gets scanned and stocked. Ms. Moreau agreed, but added, “the difference is that if the ASM was there she also can do those tasks. I cannot.”

40Ms. Moreau agreed that conference calls with the District Manager are pre-planned unless it is regarding an urgent matter. She said that for the majority of the calls it has to be the SM who participates because of the topics discussed. She agreed that if the SM is not at work when those urgent calls take place, there is nothing preventing the SM from participating from another location.

41Union counsel pointed out that Ms. Moreau’s ASM worked only one week out of every three weeks on afternoons, and asked whether she is saying that two out of the ASM’s three day shifts were not productive or useful. Ms. Moreau testified that she is not saying that. What she is saying is that due to the ASM’s training she is more productive than a shift leader. She repeated the duties which in her view, the ASM can do better than a shift leader because of the additional training. Asked what additional training the ASM has, she replied that no additional training is provided to the ASM, but the ASM has more years of experience, and therefore, more knowledge. She agreed that if an incident occurred during a shift run by a shift leader, the shift leader would also liaise with the SM like the ASM.

42In re-direct, Ms. Moreau was asked how she felt about regularly delegating duties she was responsible for to someone else, except when she is on vacation. She said that there are others who can do those duties, but they can make errors. She said that recently an order was released on the wrong day. When that happens, the SM is held responsible, and the error becomes part of the SM’s performance appraisal.

43Ms. Moreau testified that often issues come up that cannot be planned in advance. For example, the schedule for the day is prepared by her, but it may have to be changed. Counsel pointed out that Ms. Moreau had agreed that it is possible for her to participate in the District Manager’s conference calls from any location, if she is not at work at the time, and asked how she feels about being available “24/7” to do that during her off days. Ms. Moreau said, “I want to see work get done, but I’d prefer not to have to do that”.

44Ms. Moreau testified that the shift leader designated to run a shift when there is no SM or ASM could be the full-time CSR or one of the two casual CSRs. She said that shift leaders are not privy to HR matters. Asked whether HR issues arise during afternoon shifts, she stated that she cannot be specific, but there is the potential. She testified that reporting incidents is part of the ASM’s job. Asked whether shift leaders always report to her about incidents, she said “no”.

Union Evidence

45The grievor started at the LCBO in 1981 as a CSR, and became full-time permanent in 1988. Prior to retiring in March 2019, he had held the position of Product Consultant (“PC”) since 1995. In 1994 he had a workplace injury and had been accommodated on day shifts only until his retirement. He testified that other than not working afternoons, he did all duties of his job, and ran shifts when designated as shift leader. The grievor testified that when he received Mr. Mason’s letter advising that he had been screened out of the competition because of the “day shifts only” restriction, he was embarrassed and in disbelief, because since 1994 he had been accommodated on day shifts only.

46The grievor testified that there have been long periods when there was no ASM on afternoons to close the store. He said that in the absence of the ASM, whoever ran the shift closed the store. He said that anyone, including a casual, can do that. He had not noticed any difference whether the ASM or anyone else closed the store. Asked whether he gave advice to other staff when in charge as shift leader, he said that he did that whether he was shift leader or not. Asked whether he has consulted the SM or ASM for issues that arose during a shift he was in charge of, he said that it was very rare that he could not handle issues himself. On those occasions, he consulted a SM on duty at another store, rather than call his SM at home.

47In cross-examination, employer counsel asked what the value of an ASM is, if there is no difference whether or not an ASM was working on a shift. The grievor replied that all he can say is that the shifts run smoothly regardless of who is running it. He agreed that although he may not have noticed, it is possible that some work may be left undone because the ASM was not there. He also agreed that it is not proper for the SM or the ASM to tell him about any HR issues which are confidential, but if it was an issue like someone not locking a door the previous night, he will be made aware. So it depends on the issue.

48Counsel asked the grievor, whether he reported to the SM after handling an issue himself as shift leader. He said that if it was a serious issue like an injury or shop lifting, he would do an Occurrence Report, which goes to the SM and the District Manager. In more serious cases he may even call the police or call the SM at home. Asked whether he agrees that the various store employees who may be designated as shift leaders have varying levels of experience and skills, he said that he could not comment, because he does not know employees’ training, experience or skills. Counsel put to the grievor that, when he applied for the ASM posting he was aware that it set out that the ASM to work had a rotation of shifts which required working both day and afternoon shifts. He agreed and said that the Product Consultant posting he won also said the same thing, but he was accommodated on days only.

Submissions

Employer Submissions

49Counsel reiterated that the only grounds the employer relies on to justify the decision to screen the grievor out of the competition is the restriction which prevented him from working afternoon shifts. There is no dispute that the job posting required the ASM to do a shift rotation which included afternoon shifts, and that the requirement was made for legitimate business reasons. She submitted that therefore, this was a classic case of adverse effect discrimination due to the grievor’s disability. The employer does not dispute that under the Ontario Human Rights Code and the collective agreement, he is entitled to be free from discrimination and has a right to be accommodated. Therefore, the narrow issue for the Board is to determine whether the ability to do afternoon shifts is BFOR for the ASM position the grievor had applied for, and whether in the circumstances, accommodating him would result in undue hardship.

50Counsel referred to the three-step test in B.C. v B.C. Service Employees Union 1999 CanLII 652 (SCC), [1999] 3S.C.R. 3, commonly known as the Meiorin Case. At paragraph 54, McLachlin J wrote:

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 fulfillment 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.

51She noted that the union has not disputed that first two steps of the test are met. The dispute is about step three. Counsel agreed that the employer must establish that it is reasonably necessary for the ASM to be able to do the shift rotation including afternoon shifts, and that the grievor cannot be exempted from that requirement without the employer suffering undue hardship.

52Employer counsel submitted that although the Supreme Court of Canada in Meiorin wrote that the third step of the test requires the employer to demonstrate that it is “impossible” to accommodate short of undue hardship, subsequently in Hydro-Quebec 2008 SCC 43, [2008] 2 S.C.R. 561, it clarified that the standard the employer has to meet is not “impossibility”, but undue hardship considering all of the considerations and circumstances of each case. Thus at para. 12 Deschamps J. wrote: “What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances”. Counsel also noted that in Hydro-Quebec, the Court held that there is no duty on the employer to completely alter the essence of the employment contract in order to accommodate an employee. Numerous authorities were cited to support the proposition that the employer is not required to create work, or unduly deny other employees’ rights in order to accommodate an employee.

53Employer counsel reviewed the evidence and submitted that it meets the test of undue hardship. The ASM job description and the job posting show that the ASM carries significant responsibility. Mr. Mason said that the ASM is the “second in command”. Ms. Moreau referred to the ASM as an “extension” of the SM, and “like a business partner”. Mr. Mason testified that “leadership” is required from store opening to closing. She submitted that the evidence establishes that providing leadership on afternoon shifts when the SM is not working is a core duty of the ASM job. Removing the requirement to work afternoon shifts would fundamentally change the ASM job.

54Counsel submitted that the alternatives proposed by the union, that is to have shift leaders run afternoon shifts, and/or have the SM work more afternoon shifts, are not reasonable. She submitted that the case law recognizes that loss of productivity, financial cost, the relative interchangeability of the workforce and substantial interference with rights of other employees, are factors relevant in deciding whether there is undue hardship, and when these factors are considered in this case, exempting the ASM from the requirement of working afternoon shifts results in undue hardship to the employer.

55Counsel submitted that the ASM job description, the job posting and the evidence of Mr. Mason and Ms. Moreau, establishes that an ASM in charge of an afternoon shift is very different from a shift leader running a shift. She said that the ASM “is a position of significant authority and responsibility” compared to a shift leader.

56Counsel submitted that requiring the SM to do more afternoon shifts would also result in undue hardship. She reviewed the evidence about what duties the SM did during the day and why those cannot be done after 4:30 p.m., particularly communicating with internal and external contacts. She submitted that if a CSR seeks accommodation on days only, that can be done without undue hardship by scheduling another CSR to do afternoons. However, there is only one ASM. So he would have to be replaced by a lower ranked employee. Counsel pointed out that appointment of ASMs is not based on seniority alone. The evidence is that the application of the most senior applicant is vetted to ensure that the required qualifications are met. Counsel relied on Re Varta Batteries Ltd. 1990 CanLII 12748 (ON LA), [1990] 10 L.A.C. (4th) 161 (H.D. Brown) as similar to the instant case, in that the grievor was in a single incumbent position.

57Employer counsel submitted that it may be possible for the SM to occasionally delegate some of her duties, like preparing schedules and placing orders, to the ASM working days. However, Ms. Moreau testified that she was not comfortable doing that regularly because she felt it was her responsibility to do the SM’s job duties. Similarly both Mr. Mason and Ms. Moreau testified that pre-scheduling tasks and meetings with contacts, on a regular basis, even to the extent it is possible, would cause undue hardship.

Union Submissions

58Union counsel submitted that the narrow issue is whether accommodating the grievors disability preventing him from working afternoon shifts would result in undue hardship to the employer. The employer has the onus of proving that it does. Citing Central Okanagan School District No. 23 v. Renaud, (“Renaud”) 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (S.C.C.), he submitted that while the employer does not have to show “impossibility” to discharge that onus, mere inconvenience is not sufficient either.

59Counsel submitted that there is no evidence in any of the documents filed or the testimony of the decision-maker Mr. Mason, that he seriously considered whether the grievor could be accommodated short of undue hardship. To the contrary, the evidence shows that he did not do so. The District Manager’s email asking for his decision was sent at 2:18 p.m., Mr. Mason responded at 4:15 p.m. There is no evidence about what he considered or who was consulted in the two hours before he made up his mind that the grievor should be excluded from the competition. There were 175 LCBO stores with over 1900 employees in the Eastern Region under Mr. Mason. Yet, he did not talk to anyone. He testified that he made the decision from his experience. Counsel submitted that the evidence establishes that by failing to consider information on possible alternatives the grievor’s procedural rights were breached.

60Counsel submitted that the evidence is clear that, but for his disability, the grievor would have been awarded the posted ASM position. Thus, there is no dispute that there was prima facie discrimination based on disability. The evidence shows that the grievor could have been accommodated short of undue hardship. As a result, his substantive right to be free from discrimination was also breached.

61Counsel submitted that the employer’s position that having the ASM at work on afternoon regularly shifts is a BFOR must be viewed in light of the agreed facts on how staff at store 965 rotated shifts. The SM normally worked days and finished at 6:00. However, the store is open to the public until 9:00 p.m. and the person in charge of the last shift locks up and leaves at 9:30 p.m. The ASM’s rotation was two weeks of day shifts followed by one week of afternoon shifts. Thus according to the regular schedule, for 3 or 3 ¼ hours between 6:00 p.m. to 9:00 or 9:15 p.m. during five out of every 20 shifts, the store operates with no SM or ASM. He estimated that in order to accommodate the grievor, the employer is required to make the same adjustments it already does, for an extra 10 percent of work in a week. Counsel pointed out that the agreed facts show that in another “B” store in the area the ASM’s shift rotation is three weeks of days, followed by one week of afternoons. So there, the employer is making the same adjustment the grievor seeks even for a longer period than at store 965.

62Counsel stated that although the employer’s position is that the ASM has responsibility to assist with performance management, promote marketing, find efficiencies, and liaise between staff and the SM, there is no explanation why those duties and responsibilities could not be done by the ASM during days. The ASM job description does not differentiate between duties to be performed during day shifts and afternoons. It is very clear from Mr. Mason’s testimony that it was nothing more than his preference. Union counsel submitted that although the employer says that the ASM must be there to coach and correct staff until closing time, the ASM has no training or qualifications that other staff do not. In any event, there is significant overlap when the ASM works with the staff, and there is opportunity to coach and correct them. It is only for a 10 percent of the time that he would not be available to do that.

63Counsel argued that despite the employer’s position that working afternoon shifts is a core function of the ASM, the evidence shows that is not so. When the SM is on vacation, for two or three weeks the store operates for many hours each week with no SM or ASM. Due to the shift rotation, even as it is there is no ASM on afternoon shifts on two weeks out of three at “B” stores. Mr. Mason’s only explanation was that this happens only because the collective agreement requires shift rotation, and that if he had his way he would have ASMs work straight afternoon shifts. However Mr. Mason’s preference is irrelevant. If he is unhappy about the shift rotation requirement in the collective agreement that is a matter for bargaining.

64Counsel submitted that if the SM is scheduled on the 1:00 p.m. to 9:30 p.m. afternoon shift for at most two days a week, that would enable accommodation of the grievor. Then the SM would have time from 1:00 p.m. to 4:30 p.m. to deal with internal and external contacts on those days. While that may not be “ideal” for Mr. Mason, it is not undue hardship.

65Counsel submitted that despite the agreed fact that the store operates with no ASM on a regular basis, there is no evidence that those shifts are unproductive. The union is not seeking to change the ASM job in any fundamental way. It is only about a 10% change in when the ASM duties are performed. It only requires that the employer do what it is already doing for an extra 10% of time.

66Counsel submitted that the financial cost of accommodating the grievor is not undue hardship to a large employer like the LCBO. For five additional shifts a month, the employer has to designate another full-time employee as shift leader, and pay a premium of $18 a shift. The cost is approximately $100 a month.

67With regard to inter-changeability of the workforce, counsel pointed out that employer witnesses agreed that many of the ASM duties can be delegated to others, but not all the time. The need is for that to be done for 10% of the time. He submitted that the grievor is not seeking delegation of any duties all the time. Then the ASM can take over more of the duties of the SM like preparing schedules and placing orders during day shifts. That would in fact fit well with Ms. Moreau’s notion that the ASM is an extension of the SM. Thus there is interchangeability of the workforce. Counsel pointed out that what the union seeks has happened for fifteen years and continues to happen. All the union seeks that the amount of time it happens be increased by 10% to enable the grievor’s accommodation. Counsel submitted that while employer counsel raised that factor, no evidence whatsoever was adduced to establish that the rights of any other employees were infringed or of any complaints by employees about having to act as shift leader on afternoons the ASM is not scheduled to work.

68Union counsel submitted that in most accommodation cases where undue hardship is at issue, arbitrators have to resort to hypothetical facts and draw inferences. Here the Board has actual undisputed facts that LCBO “B” stores generally, and store 695 specifically, already operate for significant periods of time with no ASM on duty on afternoon shifts. Despite that, there is no evidence that there were any significant issues resulting from a shift leader running a shift instead of the ASM.

69Counsel also relied on the evidence that an ASM at another store was accommodated on days only due to a medical condition from 2004 until his retirement in 2013. Another ASM was similarly accommodated due to a work -related injury from 2011 until 2016. Again there is no evidence that those accommodations caused any hardship to the employer. There is no explanation, why store 965 cannot do what those stores did.

70In reply, employer counsel submitted that the grievor’s procedural rights were not breached. Citing Re Ottawa Carleton District School Board, [2007] O.L.A.A. No. 137 (Albertyn) at para 30, she submitted that Mr. Mason was experienced and knew how stores operate. He was aware of what the ASM job entailed and about the grievor’s permanent restriction. He therefore had no obligation to speak to any managers or employees who worked in stores in his area before making his decision.

71Employer counsel disagreed that the accommodation sought requires only a change of 10 percent of time. She said that by her calculation it was closer to 16 percent. Counsel submitted that while it is agreed that ASMs were accommodated on days only at two other stores, that does not mean that the grievor could also have been accommodated at store 695. Whether an accommodation is possible short of undue hardship must be assessed in light of the factual circumstances of each case. There is no evidence whether the restrictions in those cases were temporary or permanent, or whether the ASMs were close to retirement. Besides, that, Mr. Mason testified that he was not aware of either accommodation at the time he made the decision.

DECISION

72The narrow issue here in whether the ability to do the regular shift rotation including day and afternoon shifts was a BFOR for the ASM position at store 965, and if so, whether the grievor could have been accommodated by the employer from his disability to work afternoon shifts without suffering undue hardship.

73Both parties cited numerous decisions, some finding undue hardship and others holding that undue hardship is not established. I have read, but will not review all of them because each decision was based on the particular factual findings. My task is to apply the legal principles established by courts, and arbitration decisions to the facts I find based on the evidence before me. I find that the fact that since 2004 the grievor had been continuously accorded the very same accommodation in the position of Produce Consultant, a different classification with different duties and responsibilities, is of no assistance to the union. Whether BFOR and undue hardship is established must be determined on the basis of the factual context of the ASM position.

74I start with some basic principles. While the employer, union, and the employee seeking accommodation, all have responsibilities to ensure that accommodation is accomplished, because the employer has ultimate control of the workplace it has the primary responsibility. Upon receipt of a request for accommodation, the employer must investigate and search for an accommodation. The employer has accepted that the grievor has a disability that entitles him to accommodation. Therefore, the burden shifts to it to prove that it made efforts to accommodate the grievor’s disability to the standard required by law.

75The threshold for accommodation is high. The Supreme Court of Canada in Renaud, (supra), observed;

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… Minor interference or inconvenience is the price to be paid for religious freedom in a multicultural society.

That observation equally applies to the right to be free from discrimination on the basis of all grounds protected by human rights legislation. In describing the threshold to be met to prove undue hardship, it has been held that employers must demonstrate that due efforts to accommodate were “serious” (Krznaric v. Timmins Police Services Board (1997), 98 C.L.L.C. 230-004 (Ont. Div. Ct) and “conscientious” (CUPW v. Canada Post (1997) 6 Lancaster Equity and Accommodation Reporter 5, (May/June) (Ponak)).

76The union has not disputed that the employer has met the first two steps of the Meiorin test. The dispute is only about the third step. To meet the third step the onus is on the employer to establish that the requirement it imposed, - that the ASM at store 965 must be able to do the regular day/afternoon shift rotation - is reasonably necessary, and that exempting the grievor from that requirement would result in undue hardship.

77It is trite that supervision is required for all shifts at LCBO stores. Store 965 is a double shift store which includes regular afternoon shifts. Therefore, the requirement in the collective agreement for shift rotation for full time employees is, on its face, a legitimate and reasonable neutral requirement. However, s. 11(1) of the Ontario Human Rights Code recognizes that a requirement which is not discriminatory on its face may operate to constructively discriminate on the basis of a prohibited ground. Here the employer has acknowledged that this is such a case of adverse effect discrimination.

78However, s. 11 at ss (a) also sets out an exception to the effect that there is no unlawful discrimination where the requirement “is reasonable and bona fide in the circumstances”. The concept of BFOR is founded on this exception. A finding of a BFOR, however, is not dispositive. Section 17 of the Code provides as follows:

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

(2) Accommodation.—The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

79It follows that the employer must still establish that not having the ASM to provide that supervision on afternoon shifts would result in undue hardship since it has the onus to prove undue hardship on a balance of probabilities. The employer’s position is that the “leadership” provided by a ASM is of a higher calibre, and that provision of that leadership is a core function of the ASM job. It was also submitted that the ASM is responsible to support the SM with regard to marketing initiatives, finding efficiencies and performance management. Those may well be set out in the ASM job description and/or the job posting. It may have been the intention of the employer that the ASM, and not someone else, would provide that leadership. However, there is no evidence as to what the ASM actually did during afternoon shifts in regard to any of those “core functions”, which someone else such as a shift leader running a shift could not or did not provide. Given the high threshold that has to be met, clichés like “the ASM is an extension of the SM” is not enough. Nor is impressionistic evidence. There has to be evidence that the ASM performed actual duties during afternoon shifts which were critical to the operation of the business, and that those duties would not be done to the same standard by another employee replacing the ASM such as a shift leader. The employer cannot discharge its onus by relying on duties as set out in job descriptions or postings. One must not lose sight of the basic fact that the search for accommodation is not about whether the employee is able to do the job as set out in a job description, or as done by other employees with no restrictions. Employers are obligated to do a serious and conscientious search for alternative options, which are not discriminatory, or at least less discriminatory, which would allow a disabled employee to work. That search must include a meaningful assessment whether the normal duties of a job can be altered to enable accommodation. If such options are available, it must be implemented provided it does not result in undue hardship.

80The uncontradicted evidence is that ASM postings are typically awarded to CSRs primarily on the basis of seniority, and that upon appointment as ASM no additional training is provided. The employer asserted that duties and reswponsibities the ASM provides during afternoon shifts would not get done if the ASM is not at work. This assertion is not supported, and in fact is contradicted, by the evidence. As set out above, when the SM is away due to vacation or other reasons, for significant periods the store operates with no SM or ASM during afternoon shifts. Even more significant, due to the regular shift rotation, the ASM works afternoon shifts only one week out of every three weeks. As a result, for years the norm has been that the senior full-time employee at the store is designated as shift leader to run afternoon shifts that have no SM or ASM scheduled to work. The evidence is that this happens routinely in all stores in the Eastern Region with double shifts. Given that the shift rotation is mandated by the collective agreement, that likely is the norm at LCBO stores province wide.

81Despite this, there is no evidence that there have been any significant problems or issues during afternoon shifts when a shift leader was in charge instead of an ASM. Despite the fact that shift leaders have run afternoon shifts for some 15 years in a large number of stores, the only evidence adduced was very vague and insignificant. Mr. Mason testified that he was aware that in two cases a store was not closed at the end of an afternoon shift and Ms. Moreau testified that recently there had been two instances of orders placed on the incorrect day. No details were provided regarding any of these three instances that would indicate that the problems would likely have not arisen if the ASM was in charge of the shifts in question, instead of a shift leader. There was no evidence of any investigation as to how the errors happened, of any employer action in response, or any particular harm caused. The inference to be drawn is that the employer itself did not consider the errors to be serious or significant.

82Employer witnesses, particularly Ms. Moreau, repeatedly emphasized the additional experience and training of an ASM, and attributed that additional experience and training to the higher quality of leadership of an ASM than that of a shift leader. However, no evidence was led as to what that additional experience or training of an ASM is. The evidence is clear that ASMs get no additional training, despite Ms. Moreau’s claim.

83In light of the foregoing evidence I conclude that the ability to do the regular shift rotation was not a core function of the ASM. Exempting the grievor from that requirement in order to accommodate him would not amount to a fundamental change of the ASM job. That simply is not a reasonable conclusion, given that the accommodation sought requires only in doing what is routinely done already, for an additional 15 to 17 hours a week.

84S. 17(2) of the Ontario Human Rights Code (supra) sets out three factors to consider in assessing undue hardship. In Central Alberta Dairy Pool (1990), 1990 CanLII 76 (SCC), 72 D.L.R. (4th) 417, (S.C.C.) at p. 439, the court set out an expanded, but a non-exhaustive list of factors. It included financial cost, impact on the collective agreement, employee morale, interchangeability of the workforce and facilities, size of the employer and safety. Employer counsel submitted that the application of the factors of interchangeability of the work force, financial cost, interference with rights of other employees and loss of productivity to the evidence supports its position that accommodating the grievor would result in undue hardship.

85I disagree. The interchangeability of the workforce is strongly evidenced by the fact that the store has operated, and continues to operate with no ASM on afternoon shifts on a regular basis. There is no evidence of any significant difficulties or problems during those shifts. No credible explanation was offered as to how an increase in the time without an ASM on afternoon shifts by 15 to 17 hours would cause undue hardship.

86Similarly there is no evidence that the store is any less productive during afternoon shifts with no ASM. Employer witnesses did testify that accommodating the grievor would mean that the ASM’s “leadership” would be lost for those shifts. However, as I have noted, impressionistic evidence or evidence based on surmise is not sufficient to establish undue hardship. The uncontradicted evidence is that the ASM gets no additional training. There was general evidence that besides seniority, applicants for ASM positions are vetted for “qualifications”. However, there is no evidence of what “leadership” experience is required of someone to be qualified, or how it was assessed during a job competition.

87This, unlike most cases, is one where the financial cost of the accommodation is predictable. The union pointed out that the additional cost for shift premiums for the shift leader would be approximately $100 a month. This calculation was not disputed by the employer. Although financial cost is often relied upon by employers to support a claim of undue hardship, it is given weight only when the cost is substantial. Whether a cost is substantial must be assessed having regard to the size and financial viability of the business. In Grismer v. B.C. Superintendent of Motor Vehicles, [1997] 3 S.C.R. 868 at para. 41, the Supreme Court of Canada cautioned against applying a low standard as follows:

“ … one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment”.

88Employer witnesses testified that designating a shift leader for afternoon shifts the grievor is unable to work requires payment of a shift premium, and that scheduling the grievor on Sunday day shifts may trigger overtime pay. While they testified that those will be “additional expenses”, there was no explanation as to how those amounts would impact the financial viability of the store or the LCBO overall. Considering the size of the employer’s business, and in the absence of evidence, or even a suggestion that the employer’s profitability or budget would substantially be adversely impacted, the mere fact that additional expenses would result does not support a finding of undue hardship.

89Similarly, there is not an iota of evidence that designating a shift leader for additional afternoon shifts, or scheduling the grievor on some Sunday day shifts would in any way infringe any rights of other employees or adversely impact on their morale. While employer counsel submitted that it would not be “fair” to the other employees to be assigned to run shifts which is the ASMs responsibility, there is no evidence that being designated as shift leader is seen by any employee as an unwelcome burden. To the contrary, one of the authorities submitted by the employer, Re Pizzolato, 1425/98 (Gray) dealt with a grievance by an employee with greater seniority claiming a right to be designated as shift leader in the absence of the SM or ASM.

90In Renaud (supra) at para. 20 the Supreme Court of Canada observed;

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.

In the total absence of any evidence of even minor interference or inconvenience, I find no reasonable basis for the employer’s reliance on interference with employee rights.

91I have no doubt that the employer honestly believes that the presence of the ASM is of benefit to its business. The employer witnesses testified honestly. There is no hint of bad faith or intention to discriminate against the grievor. However, intentions or motives are irrelevant. The flaw with the employer’s reasoning is its failure to understand or accept that the duty to accommodate is not consistent with carrying on “business as usual”. Thus, it was repeatedly stated that working afternoon shifts is part of the ASM job, that the job posting explicitly said so, and that the grievor knew that when he applied. It was said that management was “not comfortable” with the changes required to the normal way of doing things or that the changes are “not ideal”. The SM took the position that she could not be doing administrative work in the office in the afternoon, because she was “expected” to be in the sales floor after 3:00 p.m. The Regional Director testified that the SM “shouldn’t be” in the office during afternoons. That evidence illustrates a failure to appreciate that accommodation, by its very nature, is about making changes to the “business as usual” in order to make it possible for a disabled employee to work, provided it could be done short of undue hardship.

92The decision maker, Mr. Mason, was not even aware that stores within his jurisdiction had accommodated disabled ASMs on day shifts only. This was offered as a fact that supports the employer’s position. However, it only goes to show that there was no serious meaningful search for a way to accommodate the grievor. Employer counsel correctly pointed out that Mr. Mason had no specific legal obligation to consult anyone. He was familiar with the ASM job duties, and the grievor’s permanent restriction. However, knowledge about the job and the employee’s restriction is not enough. What Mr. Mason failed to do was search for possible ways to accommodate the grievor. That requires gathering of information on possible alternatives. Had that been done, Mr. Mason would have become aware of the previous accommodations, and would have been able to, as he should have, consider whether the grievor also could be similarly accommodated. The onus is on the employer to show that such a search was done, and that the circumstances at store 695 did not permit a similar accommodation short of undue hardship.

93I conclude that the employer discriminated against the grievor by failing to accommodate his disability. On the basis of the evidence, I also conclude that but for the discrimination, the grievor would not have been screened out of the competition. He was the senior applicant and the employer did not assert that he lacked any other qualification for the posted ASM position. Therefore, he would have been the successful applicant.

94I also find that while the Ontario Human Rights Code and the collective agreement were contravened, there was no bad faith or intent to hurt the grievor, on the part of the management. The grievance is upheld. The issue of remedy is remitted bock to the parties. In the event they are unable to agree upon the remedy based on the findings herein, the Board remains seized.