GSB# 2020-1882

UNION# 2020-0542-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

The Crown in Right of Ontario (Ministry of the Government and Consumer Services)

Employer

BEFORE

Diane L. Gee

Arbitrator

FOR THE UNION

Emily Cumbaa Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 25, October 12 and October 19, 2021

DECISION

1This matter is a grievance in which it is alleged that the Employer has violated its duty to accommodate as required by the terms of the Collective Agreement and the Ontario Human Rights Code RSO 1990, c H.19 (“Code”.) The parties are agreed the grievor will not be named in this decision.

The Facts

2The parties entered an Agreed Statement of Fact and adduced viva voce evidence. Portions of the Agreed Statement of Fact and viva voce evidence are immaterial given my factual findings and accordingly are not set out herein. Similarly, none of the evidence or submissions concerning the process by which the grievor’s WDHP complaint was handled are set out herein as the Board does not have jurisdiction over the WDHP process (see: Ontario Public Service Employees Union (Grievor) and The Crown in Right of Ontario (MCSCS), Mary Lou Tims, August 4, 2017.) The facts, except where noted, are undisputed. They are as follows.

3The grievor has been employed in the Ontario Public Service for eight years. Except for the 14 months during which he was temporarily assigned to a position as Cartage Delivery Driver (“CDD”) in the Ministry of Government and Consumer Services (“MGCS”), he worked as a part-time Court Clerk in Ministry of the Attorney General (“MAG”.) While on temporary assignment to MGCS the Court Clerk position in MAG remained his home position.

4On July 31, 2019, a temporary assignment as CDD, of up to 12 months, with the possibility of extension, was posted. The Grievor applied to this posting and was the successful applicant. On August 8, 2019, the Grievor was offered a temporary assignment from August 26, 2019 to January 27, 2020. On or around October 21, 2019, the Grievor was the successful candidate in a competition for a 12-month temporary assignment in the CDD position beginning that day.

5There is no dispute that the position of CDD is physically demanding. The primary job of a CDD is to pick up, sort and deliver file boxes that weigh anywhere from 30 – 50 pounds. In the morning, a CDD has in their vehicle boxes picked up from archives the previous day. The CDD deliver these boxes to, and pick up boxes from, various locations along the route. They move the boxes around in the vehicle to arrange the boxes for the necessary pickups and deliveries. At the end of the route, the CDD goes to archives and picks up boxes to be delivered the next day. The CDD then returns to the hub to sort the boxes picked up. There is a lot of bending, twisting, pushing, pulling, extending, reaching, stretching, and lifting required to do the duties of a CDD. The job is full-time, 7.75 hours a day.

6On November 4, 2019, the grievor was in a motor vehicle accident while on duty and suffered injuries to his mid-back, lower-back, right leg and his neck. The grievor was off work until January 20, 2020. There is no dispute that the grievor’s injuries were such that his restrictions and limitations made it impossible for him to return to his duties as a CDD.

7There is a dispute between the parties as to what Mr. Lekhram, the grievor’s supervisor, said to the grievor on or about January 17, 2020, in advance of the grievor’s return to work. I do not find the discrepancy to be material to the outcome of this case and accordingly, for the purposes of this decision, I assume Mr. Lekhram said what is alleged by the grievor. Having regard to a note of the conversation made by the grievor at the time of the conversation, an email the grievor sent describing the conversation, as well as the grievor’s testimony, I find that, prior to the grievor’s return to work, Mr. Lekhram advised the grievor: “he is unable to accommodate me due to the nature of my job and if I was determined to come back on modified duties he would have to return me to my home position.”

8The grievor returned to work at MGCS on January 20, 2020, on modified duties and on a graduated return to work plan. He was to work two hours a day for two weeks and then increase his work time, every two weeks, by an additional hour. The grievor was assigned to sorting mail.

9The work of mail sorting was part of the job of Mail Delivery Drivers (“MDD”); individuals who pick up and deliver only mail. MDD attend at the hub in the morning, sort their mail, and then go out on the route to pick up and deliver mail. The grievor attended work in the mornings and did whatever mail sorting was available for him to do. The MDD could not leave on their route until the mail was sorted, hence the activity was necessarily time sensitive and of a limited duration. The mail sorting activity took no more than an hour and the rest of the time the grievor spent at work was unproductive. The grievor was the only person whose sole job duties were mail sorting. The grievor was doing work that otherwise would have been done by the MDD. Mr. Lekhram canvassed all areas of the operations and there was no other work available the grievor was able to do given his limitations and the hours he was working. On or around March 2, 2020, the Grievor’s hours of work reached 5 hours a day. Then covid struck. The grievor went off on paid compassionate leave for two months and, when he returned to work in May 2020, he worked 4 hours per day.

10The shutdown of medical facilities due to covid impacted the grievor’s recovery. From March 2020 to the end of his temporary assignment in October 2020, he was not able to get consistent treatment. By September 2020, there was no improvement in his condition since his return to work in January 2020. His restrictions and limitations remained.

11Covid also had an impact on mail volumes. With people working from home, there was less mail being picked up and hence less mail to be sorted. The volume of mail sorting to be done decreased.

12In September 2020 a decision was made not to extend the grievor’s temporary assignment. At about the same time, a posting went up for a temporary CDD assignment of up to 12 months with the possibility of extension. There was a conversation between the grievor and Mr. Lekhram on September 14, 2020. Again, there is a dispute between the parties as to what was said during this conversation. I do not find the dispute to be material to my determination. I assume the discussion to have been as described by the grievor. I find the grievor asked Mr. Lekhram why his temporary assignment could not be extended and raised the fact that there were positions, including the CDD position, posted in the plant. Mr. Lekhram advised the grievor he was unable to extend his contract due to the grievor’s limitations and the employer’s responsibilities are only to the end of his contract period. Mr. Lekhram advised that he was having difficulty finding the grievor work due to his medical limitations set out by medical professionals. The grievor said he was being discriminated against because of his medical conditions and his limitations.

13At the time the decision was made not to extend the grievor’s assignment, there was not more than an hour a day of mail sorting work to be done. Mr. Lekhram looked throughout the operation for available duties the grievor could do but could not find anything that would fill the time the grievor was able to work. The CDD position was posted and filled. The position has since been made permanent. The permanent position is held by the person who was the successful candidate for the temporary position.

14There is no dispute that, at the time Mr. Lekhram declined to extend the grievor’s assignment, the grievor could not do the essential duties of the CDD job. The grievor testified as to several positions he felt he could perform within MGCS. In the case of the MDD position, which the grievor thought he could do because it involved lighter packages, by his own admission the job requires bending, turning, extending, pushing, pulling, and twisting that the grievor cannot do. Other positions the grievor testified he could do are not vacant or available. Tasks the grievor testified he could do are, like the mail sorting he was doing, part of someone else’s job or could not be bundled in a fashion to make up a full job for the grievor.

15At the expiry of the grievor’s temporary assignment, on October 20, 2020, he returned to his home position as Court Clerk in MAG. A couple of months later, his injury was found to be permanent such that he continues to have restrictions on bending, turning, lifting, prolonged sitting or standing, twisting, and extending.

16The grievor is earning less in his Court Clerk position at MAG than he was making working 4 hours a day at MGCS. As a Court Clerk the grievor earns a higher hourly wage but works only 5.75 hours a day and receives no WSIB benefits. At MGCS, the grievor earned a lower hourly wage for the four to five hours he worked but WSIB topped him up to 7.75 hours.

Submissions

The Employer

17The Employer submits there is no dispute that, because of the workplace injury suffered by the grievor in November 2019, his restrictions prevented him from doing the essential duties of his job as CDD. The grievor’s restrictions also precluded him, at the time of the expiry of his temporary assignment, from doing the job of MDD. It is now known that those restrictions are permanent. Upon his return to work following the accident the grievor was accommodated in the only work he could do that was available in MGCS during the time the grievor could work, namely: mail sorting. Mail sorting is one of many duties performed by employees in the classification of MDD.

18The Employer disputes the Union’s suggestion that, because the grievor was on a fixed term contract at the time of the accident, the Employer is obligated to renew the contract and accommodate him in the Ministry of the fixed term contract. The Employer argues, if such is the case, an employee who is on a temporary assignment acquires the right, that he would otherwise not have had, to be maintained in that position permanently and accommodated from there.

19The Employer submits that the test to be applied is whether the Employer accommodated the grievor reasonably. The fact that the Employer returned the grievor to his home position where he can work all the hours and perform all his duties is a reasonable accommodation plan. In fact, it is a better outcome than having the grievor doing a bundle of menial tasks with no productivity outcome for the Employer. What happened, the Employer submits, is that, in the fullness of time, it became impossible to continue to accommodate the grievor in this fashion. Mail volumes dropped due to covid. The fact that the grievor was working only morning hours meant similar sorting duties that arose in the afternoon could not be assigned to him. The Employer did look throughout MGCS for a full bundle of duties the grievor could perform during the hours he was able to work; a productive job was not found. Further there were no open positions.

20Relying on Ontario Public Service Employees Union (Hart-Day) and The Crown in Right of Ontario (MCSCS), Dissanayake, July 26, 2011, paragraph 44, the Employer argues there is no procedural duty to consult the grievor before deciding on accommodation:

As long as the accommodation it comes up with is found to be reasonable, the absence of discussion of options with the employee by itself does not result in a breach of the duty to accommodate. In other words, there is no independent procedural duty to meet.

21The Employer further points to paragraph 45 where Vice-Chair Dissanayake rejects the Union’s argument that an earlier decision of his stood for the proposition the Employer was obligated to first attempt to accommodate the grievor in their own position to the point of undue hardship before turning to a consideration of alternate accommodations. At paragraph 45, Vice Chair Dissanayake states:

45… Re Di Caro (supra) does not stand for that proposition…. The thrust of that decision is that the employer may start the search with the employee’s own job, but if no accommodation is found there short of undue hardship the employer cannot stop the search. It has to continue to search outside of the employee’s own job, gradually broadening the search. The decision does not stand for the proposition that the employer is legally obligated to accommodate the employee in his own job to the point of undue hardship before searching for alternatives.

46 In Re Kerna (supra), the Board does state that the employer is “required to” undertake a four-step process with respect to accommodation efforts, and that the first step is to attempt to accommodate the employee in his own job. In that case the Board dismissed the grievances, but observed at p. 33 that its findings “might well be different if the Employer did not first accommodate the grievor in her own position” with modifications. However, those comments were made in a situation where the employee’s own job was Investigation Officer, and was accommodated in the position of Intake Officer, which was a lower rated position with a wage rate $10,000 per annum less, and also involved completely different skills and duties. While the employee’s salary was maintained as part of the accommodation, the Board notes that “a person’s employment is integral to one’s sense of self-worth and emotional well-being. Work provides us not only with a necessary income but with a feeling of having actively participated as productive members of society. It is for these reasons that the conditions of work are very important facts contributing to a person’s dignity and self-respect”. The Board notes that despite the wage maintenance, the employee viewed the move as a demotion. In this context, the Board was of the opinion that the employer had an obligation to first attempt to accommodate the employee in his own job of Investigation Officer to the point of undue hardship, before accommodating him in a lower rated position. The Board at p. 36 (reproduced at para. 33 supra) recognizes that appropriate accommodation can be determined without consideration of undue hardship, but that in the particular circumstances before her “consideration must be given to whether Ms. Kerna could perform the essential duties of her own potion to the point of undue hardship”. The particular circumstances that caused the Board to consider undue hardship there was the evidence that the grievor was accommodated in a different job which was lower ranked and had completely different duties. The comments of the Board go to the issue of the reasonableness of the offer of an accommodation at a lower rated position, not to a mandatory process that must be followed. That decision stands for the proposition that where the employer is able to accommodate an employee in his or her own job short of undue hardship, an accommodation in a lower rated position which involves completely different duties and skills, may not constitute a reasonable accommodation. Of course, whether that is so would depend on all of the facts of a particular case.

22The Employer submits, the Union is asking the Board to read permanence into a temporary assignment and the Board should be very cautious about such a result. It is argued that the accommodation offered by the Employer in this case was reasonable. The grievor cannot insist on being accommodated in MGCS.

23The grievor was working 4 hours a day at the time his temporary assignment was coming to an end. He is now working 5.75 hours a day in his home position where he is fully accommodated and doing all of his job duties. He is paid more per hour and is working more hours per day. To find that the Employer breached its duty would be to find his home position is not a reasonable accommodation. The only loss the grievor has suffered is the WSIB top up he was receiving while working at MGCS.

24The grievor could not do the core duties of his CDD position. He could be fully accommodated in his home position. The Employer did not immediately return the grievor to his home position he had almost 10 months following the accident at MGCS with no improvement in his condition.

The Union

25The Union submits the Employer failed to accommodate the grievor when it refused to renew the grievor’s temporary assignment due to the physical injury he suffered in the workplace. The Union relies on articles 2, 3 and 9 of the Collective Agreement and the Code.

26The Union submits that there was work available within MGCS yet the grievor’s temporary assignment as a CDD was not renewed. The Union relies on the evidence of Mr. Lekhram that there was still a need for the CDD position and in fact a further position had been posted and filled. The Union submits that the evidence establishes that the reduced activities and reduced hours the grievor could work were factors Mr. Lekhram considered when deciding not to renew his assignment. The Union states the Employer failed to request updated medical information from the grievor and failed to look for other positions.

27The Union points to the fact that the grievor is making less money as a part-time clerk at MAG than he was earning at MGCS with his wages supplemented by WSIB.

28The Union relies on the Ontario Human Rights Commission Policy and guidelines on disability and the duty to accommodate in support of its position there are steps and employer must take and when faced with a request for accommodations. The case of Hart-Day, supra, is distinguished on the basis that, in the present case, not only did the Employer not speak to the grievor or request updated medical, it did also not consider alternative accommodated positions within MGCS. The Union argues that, when an employee cannot perform 100% of the duties, the position can be modified.

29The Union relies on Waste Management Canada Corporation v Teamsters Local Union No 419, 2013 CanLII 76888 in which the grievor, a driver/loader, lost his driver’s license for driving while intoxicated. The grievor asked to be permitted to perform only loading duties while waiting for his license to be reinstated. The arbitrator found that there was work performing only loading duties to be done and the employer had an obligation to allow the grievor to perform that work instead of putting the grievor on an unpaid leave of absence. The Union argues that the employer is required to consider the employee’s capacities not only the job functions.

30Relying on Peel (Regional Municipality) and OPSEU, Local 277 (Reed), Re 2019 CarswellOnt 4115, the Union argues that, while there may be no procedural duty, employers must assess the situation at every turn regardless of whether they have a right to end the employment relationship. In Regional Municipality of Peel, the grievor had been off work for two and a half years when he was terminated. There was a provision in the collective agreement that allowed for termination after two years’ absence and yet it was found the employer did not undertake its own analysis of whether the employee could return to work and whether there were accommodations available. Because the employer did not cavass with employee whether they could return to work in foreseeable future, the employer was in breach of the duty to accommodate.

31In the present case, the Employer did not make enquiries as to whether the grievor’s condition had improved or would be expected to improve and instead relied solely on the fact that his assignment was coming to an end.

32In considering this grievance, the Union argues the Employer’s duty to accommodate exists because of the employment relationship. The Employer had a need for someone to fill the CDD position. The Employer’s initial explanation for not renewing the grievor’s assignment was that there had been a decrease in mail sorting work. Later it became clear that his physical limits were a factor in the decision not to renew.

33The Union argues the cases presented establish that an Employer’s duty to accommodate is more than just notional; an employer has to make real efforts and must fully explore the options. The Employer in this case ought to have determined, by way of reviewing the medical information, if the grievor was permanently incapable of performing the essential duties of the job. The grievor’s injuries had not been determined to be permanent at the time the decision not to renew his assignment was made.

34In this case, aside from initial return to work meeting held in January 2020, the Employer presented no evidence that it pursued accommodation options for the grievor. There was no updated medical from the WSIB, and the Employer did not turn its mind to whether the grievor might improve. The Employer made its decision without considering, and over the grievor’s objections, that he wished to remain at MGCS.

35The Employer chose not to renew an employee who was injured and while he was on a graduated return to work plan. The result is that the grievor’s hopes for a job in MGCS were taken away because of a workplace injury, the resulting limitations and the employer’s perception that he would not be able to do those duties on a go forward basis. While the issue has been bifurcated such that it will only be dealt with if the Union is successful, the Union advised that it seeks to have the grievor returned to MGCS and damages in the form of compensation for the violation of his human rights.

Decision

36The Union asserts the Employer was required to renew the grievor’s temporary assignment in the CDD position and, had it done so, given the position was subsequently made a permanent position, the grievor would now have a permanent CDD position. The Union asserts the Employer was then required to accommodate the grievor by giving him duties within MGCS that were within his restrictions and hours of work. The Union did not advance an alternative position that the grievor should have been accommodated in another position in another Ministry.

37The Board finds no merit to the Union’s submission the Employer violated its duty to accommodate because it did not seek updated medical information from the grievor. As indicated above in the findings of fact, the grievor agrees, at the time his temporary assignment was due to expire, his limitations were such that he could not do the essential duties of the CDD position and, it was based on that understanding, that he was being accommodated by being assigned to mail sorting. If there was updated medical that would support the grievor doing a wider range of duties, it was incumbent on him to advise the Employer.

38The cases the Union relies on, Waste Management Canada, supra, and Regional Municipality of Peel, supra, are not analogous. Waste Management Canada concerned an individual who sought to be assigned to available duties for a defined period of time for reasons that were not Code related. Regional Municipality of Peel concerned an employee who was to be terminated not accommodated. The grievor in this case was not discharged, he was returned to his home position where he could do productive work, and his disability at the time in question was not of a known duration. The reasons for seeking the accommodation were Code related and there were no available duties within his limitations for him to perform in MGCS. The propositions expressed in Waste Management Canada and Regional Municipality of Peel are not applicable to the present matter.

39The Union asserts that the Employer did not consider the fact that the grievor wished to remain at MGCS. As stated in Hart-Day, supra, relied upon by the Employer, the grievor is not entitled the be accommodated in the way he prefers; he is entitled to be accommodated in a reasonable manner.

40I turn to the Union’s argument that the Employer’s decision not to extend the grievor’s temporary assignment in the CDD position because he was disabled amounted to discrimination. Section 17 of the Code provides:

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.

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.

Determining if undue hardship

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

41To paraphrase section 17 within the context of this matter, if there is no accommodation the Employer could provide that would enable a person with a disability to perform the essential duties of the job, the Employer’s decision not to give them the job due to their disability is not a violation of the Code. The grievor in this case suffered a disability that prevented him from doing the essential duties of his job in November 2019. There was no accommodation that would have enabled the grievor to do the CDD job. Ten months later, when the Employer had to decide whether to renew his temporary assignment, his condition had not improved, and there was no suggestion, or reason to believe, improvement would occur. Having regard to section 17 of the Code, the Employer’s decision not to extend his temporary assignment because there were no accommodation measures that would enable the grievor to perform the essential duties of his job was not a violation of the Code or the Collective Agreement. The fact that Mr. Lekhram stated the grievor’s temporary assignment would not be extended because his disability prevented him from doing the essential duties of the job was similarly not a violation of the Code or the Collective Agreement.

42The grievor was only in MGCS because of a temporary assignment. The fact that the grievor suffered an injury resulting in a disability while in a temporary assignment does not obligate the Employer to accommodate him, perhaps permanently, in that Ministry. In any event, the evidence establishes there was no available work within MGCS the grievor could perform that would productively fill the hours he was available to work.

43The grievor had a home position he was entitled to return to in which he could perform all of his duties for all of his hours of work.

44The Board finds the return of the grievor to his home position was reasonable in all of the circumstances and did not violate the Collective Agreement or the Ontario Human Rights Code.

45The grievance is hereby dismissed.