HomeMy WebLinkAboutPeters 14-04-30
IN THE MATTER OF AN ARBITRATION
BETWEEN:
OPSEU LOCAL 731
-and-
CONFEDERATION COLLEGE
Regarding the Grievance of Larry Peters
OPSEU #2007-0731-0002
BEFORE : Kathleen G. O’Neil, Single Arbitrator
For the Union: Leslie Gilchrist
For the College: William Le May
Hearing dates in Thunder Bay, Ontario:
December 12, 2012, July 9 and 10, 2013, March 4 and 5, 2014
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A W A R D
This decision deals with a grievance dated March 26, 2012 claiming that the employer has fallen
short in its duty to accommodate the grievor, Larry Peters, who works in the computer services
department. The dispute concerns whether the employer ought to continue the grievor’s
accommodation of a compressed work week from May through August, as it does through the rest of
the year. It is the employer’s position that there is insufficient productive work to do so.
I note that the parties were able to settle a number of other issues on the first day of hearing, such
that only this one issue remains. There was some discussion of settlement proposals during the
hearing and argument, but I have not referred to them in this decision, as I do not find them germane
to the outstanding issue.
The Facts
The parties were able to come to an agreed statement of facts, which they supplemented with oral
evidence. In addition to the parties’ agreement that I have the jurisdiction to determine this grievance,
the following are the most salient points from the agreed statement of facts:
1. The grievance concerns, inter alia, the accommodation provided to the Grievor, Mr. Larry
Peters, during the summer of 2012 and 2013. Determining the appropriate accommodation
for these summers will also assist the parties in establishing appropriate accommodation for
future summers.
2. The grievor, Mr. Larry Peters, has been an employee of Confederation College since 2001.
He has worked at the Information Technology Help Desk for the entirety of his career.
3. Mr. Peters required some accommodation as a result of a medical condition in 2004.
Specifically, he was accommodated with an unpaid lunch of an hour and a half daily so that
he could get some exercise as a stress reliever. He was otherwise able to function in his job
duties until September of 2011.
4. Mr. Peters required a period of absence from work starting in November of 2011. He
returned to work for a brief period in February of 2012, and was absent again until early April
of 2012.
5. Since his return to work in April of 2012, Mr. Peter has been accommodated through a variety
of strategies, which have included:
(a) A compressed work week. Mr. Peters works four days a week and has since his
return to work. In the fall and winter semesters, he works the same number of hours as other
people in his position.
(b) Modifications to his job duties. These were temporary and have since ceased.
(c) Modifications to the workspace in which he works insofar as Mr. Peters wears a noise
reduction headset currently.
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(d) An extended unpaid lunch so that he can exercise. Mr. Peters requires an hour and
a half for lunch, while individuals in his position are given an hour for lunch.
6. An Independent Medical Examination (IME) was completed in March of 2013 which found
that Mr. Peters would require accommodation in that he could only work for four consecutive
days in a week. The parties accept the IME conclusion and acknowledge that this restriction
will be indefinite, but would be revisited in a year’s time.
7. The parties agreed that the accommodations offered by the College to date are appropriate
with one exception. The union takes issue with the College’s position that they are not going
to provide him with work after 5:00 pm in the summer months. The result of the College’s
decision is that Mr. Peters works from 8:00 to 5:00 Monday to Thursday, with an hour and a
half for lunch. As a result, Mr. Peters only works 30 hours in the summer months, being
between May 1 and August 31.
8. The normal hours of work for someone occupying the grievor’s position are 7 hours per day,
five days a week, for a total of 35 hours per week.
Other undisputed facts include that during the summer months, the number of registered students is
much reduced, such that in the fiscal year 2012/2013 there were over 2600 students in the fall and
winter terms, and 119 in the summer term. Further, two students work 35 hours each under the
auspices of the Computer Services Help Desk between May and August, for a total of 70 hours per
week. They do a variety of duties which include cleaning up e-waste, cleaning computer labs,
preventative maintenance of electronic classrooms, unpacking new computers and preparing them
for installation prior to the fall semester, and assisting on trips to the College’s regional campuses in
Wawa, Marathon, Kenora, Fort Frances and Red Lake, where regular Help Desk employees renew
the computers. The evidence is clear that, with the exception of cleaning the computer labs, and
perhaps the preventative maintenance on the e-classrooms, this work would be done by regular Help
Desk staff if the students were not there.
As well, it is undisputed that the employer has a policy of offering leaves, referred to as VLLV leaves,
where an employee may take off five days, and be paid for one. Such leaves have been refused in
computer services in recent summers, on the basis that there was too much work to allow it.
It was the union’s evidence, given by the grievor and his colleague Rodney Dyce, a senior Help Desk
employee, that there was sufficient work in the summer months to allow Mr. Peters to work
productively from 5:00 to 6:15 p.m., four days a week, despite the fact that the Help Desk is not open
after 5:00 p.m. in the summer months. This work can be summarized as working on the backlog of
requests for assistance that could not be finished immediately by Help Desk staff during the day,
participating in the work done by the summer students, and working on projects such as the regional
road trips or making videos and writing documentation or instructions for users on various computer
topics.
It was the employer’s evidence, given by Lee Johnson, Manager, IT Customer Services, in summary,
that although the grievor could do some of the above work after 5:00 p.m. in the summer, it would be
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inefficient and unproductive to assign it to him. Examples of this included work involving ordering
equipment or supplies, which would take as much time to assign to the grievor as to do, and work
unpacking new computers or cleaning up e-waste which would require access to secured areas
where staff other than security are not available after hours. Further, separating out inventory work
from that of unpacking and deploying computers would make it take much longer than if it was done
at the time the machines were unpacked. As well, it was Mr. Johnson’s evidence that one could not
always predict in advance what work would be available in the summer.
More details about the factual basis for this decision will be discussed below.
Collective Agreement Provisions
Article 2.3 Ontario Human Rights
The parties agree that in accordance with the provisions of the Ontario Human Rights Code
there shall be no discrimination against any employee by the Union or the College because of
race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation,
age, record of offences, marital status, family status or disability.
Accommodation, if it is requested by the employee and it is determined to be required, is the
duty of the College, the Union and the employee.
APPENDIX G
Summer Student Workers
1. The terms of this Appendix apply to students employed temporarily for more than twenty-
four (24) hours per week during the period of mid-April to the last Friday before Labour Day.
2. No bargaining unit employee shall be laid off or have his/her normal hours or weeks of
work reduced as a direct result of the hiring of these students.
…
Cases Cited by the Parties
- by the employer:
1. Bowater Canadian Forest Products Inc. v. IWA-Canada, Local 2693, 2003 Carswell Ont 5084
2. Byers Transport Ltd. And Teamsters, Local 213 (Re), 68 C.L.A.S. 316
3. McGill University Health Centre (Montreal General Hospital) v. c. Syndicat des employés de
l’HGM, [2007] 1 S.C.R. 161.
4. Essex Police Services Board v. Essex Police Assn. 2002 Carswell Ont 3455
5. Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau
d’Hydro-Québec, section local 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561, 2008 SCC 43
6. Maersk Distribution Canada Inc. v. Retail Wholesale Union, Local 517, 2010 CanLII 34272
(BC LA)
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- by the union:
1. Biltrite Rubber (1984) Inc. v. United Steelworks of America, Local 526 (Beazley Grievance)
(M.R. Newman) [2002] O.L.A.A. No. 34
2. Essex Police Services Board v. Essex Police Assn. (Horoky Grievance) [2002] O.L.A.A. No.
944 (Goodfellow).
3. Johnstone v. Canada (Border Services) [2013] P.C.J. No. 92
4. Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Di Caro
Grievance) [2005] OG.S.B.A. No. 60 Ontario Grievance Settlement Board (N.V.
(Dissanayake)
5. Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) Sanfilippo
(Grievance) [2005] OG.S.B.A. No. 36, Ontario Grievance Settlement Board (M.V. (Watters)
6. Roberts v. Slocan Forest Products [2005] B.C.H.R.T.D. No. 206 (B.J. Junker (Member))
7. Zettel Manufacturing Ltd. v. National Automobile, Aerospace, Transportation and General
Workers Union of Canada (CAW-Canada), Local 1524 (Hauss Grievance) [2006] 140 L.A.C.
(4TH) 377 (Reilly)
Submissions and Conclusions
This is a case in which the union claims that the employer has failed to accommodate the grievor to
the point of undue hardship. The union acknowledges that there has been considerable
accommodation, but there is the remaining narrow issue of whether the employer is required to allow
Mr. Peters to work a compressed work week in the summer as he does in the rest of the year to
achieve his full regular hours of work.
The union argues that the employer can and should provide the grievor with a compressed work
week during the summer, so that he does not lose five hours a week due to his disability. He currently
covers these hours by using sick leave, which does not remunerate him at the same rate that he
would be earning if he did not require accommodation, and it uses up sick leave credits that he may
need for times when he is unable to work.
The union relies on the provisions of the collective agreement providing for non-discrimination and on
the Human Rights Code of Ontario. Counsel for the union made it clear that it she was not arguing
bad faith or lack of a legitimate business purpose, but only that there would be no undue hardship in
assigning the grievor five hours of work between 5:00 and 6:15 p.m. throughout the summer period.
Further, the union accepts that there is no obligation to assign make-work or non-productive work.
They argue nonetheless that there is work available that needs to be done which is of value to the
employer and falls within the grievor’s job description, including work being done by students in the
summer. The union also notes that another employee was assigned to work after 5:00 p.m., for fifteen
minutes a day in the summer, to accommodate his family responsibilities.
Referring to case law which holds that there is both a procedural and a substantive duty to
accommodate, the union maintains that the employer’s blanket refusal to assign any work to the
grievor after 5:00 p.m. in the summer is a procedural breach of its duty to accommodate. Although the
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union’s primary position is that there are five hours of work available each week, the alternative
argument is any amount that would bring the grievor closer to five hours should have been offered to
him. The union relies on the evidence of the grievor and that of his colleague Mr. Dyce to the effect
that there might be fewer walk-up requests for help in the summer, but that this is offset by attempts
to clear out the backlog and that there is never a lack of work in the summer. The employer agreed
that there is an attempt to reduce the backlog during the summer as well.
Although the union acknowledges that the physical location of the Help Desk is closed after 5:00 p.m.
in the summer, counsel argues that a significant portion of the grievor's duties do not involve that
location. Even during the hours when the Help Desk is open, when there is more than one person on
duty, there is a designated point person who does the work that is not associated with staffing the
Help Desk and fielding phone calls for assistance. These are duties that do not have to be done in the
normal hours of operation in the union's submission. They point to tasks such as imaging, creating
documentation, dealing with spyware, setting up and taking down computers and other activities,
such as the creation of videos, which are not linked to fielding of calls at the help desk itself. Further,
there are issues from the help desk itself that cannot be resolved immediately, which from the sample
in evidence, could take from five hours to over seven months to resolve. Acknowledging that the older
ones are likely more complicated and not apt to be resolved between 5:00 and 6:15 p.m., the union
argues that others could be. Addressing the employer's concern about access to employees’ offices
and computers in their absence, union counsel submitted that this can be dealt with by making
arrangements with staff in advance. The union relies on evidence that the number of outstanding or
uncompleted requests for assistance from the Help Desk, referred to as tickets, has never been
below 10 to 15. Further, it is common ground that there is an effort to reduce the number of
outstanding tickets at times when walk-up and call volumes are lower, such as in the summer. As
well, the union submits that there is nothing unusual about handing off tickets between employees
when they are going on vacation or otherwise unable to finish something. The union maintains that,
for pressing computer problems, such as those that would prevent someone from working, and which
arise later in the day, the grievor’s availability after 5:00 p.m. might mean the problem could be fixed
more quickly, and would not have to wait until the following day.
As to the 70 hours of work per week work done by the students, all of which the grievor could do, the
union states that it strains credulity to accept the employer’s argument that the grievor could not be
engaged in some of that productive work so that he could work his full hours of work. After finding 70
hours of information technology work each week for students, it seems implausible that the employer
could not assign five per week to Mr. Peters, in the union’s view. Union counsel underlines that the
hiring of students under Appendix G is not supposed to result in the reduction of hours of work of
bargaining unit employees.
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As well, the union argues that this should all be seen in the context of the employer’s blanket refusal
to offer leaves in the summer because the summers have gotten so busy. This is completely
consistent with the evidence of the grievor and Mr. Dyce about the amount of summer work available,
in the union’s submission. In regards to the employer's accommodation of another employee for child
care reasons for 15 minutes every day, the union agrees that there is a difference between 15
minutes and 75 minutes a day but underlines that the employer never offered the grievor even 15
minutes per day, which would be 20% of what he is requesting.
The union also referred to the evidence that the employer was working out an arrangement to
contract out calls between 9 p.m. and 8 a.m. Although the employer has not decided to make this a
permanent feature, the union sees it as further support for the idea that there is Help Desk work to be
done after 5 p.m.
The union underlines that the facts of this case are very different from most of the case law where the
grievors were not available during normal work hours, or could not do the normal duties of the job.
The grievor contracted for 35 hours a week, and is only looking for his full work week, of duties within
his job description, rather than anything extra. There is a significant disadvantage to the grievor to
have to use sick leave credits and there is no real dispute that the disadvantage is connected to his
disability, in the union’s view. Therefore, the only issue is whether it is undue hardship to assign five
hours a week to make up his regular work week, and whether there is productive useful work
available at that time. The union stresses that optimal efficiency is not the issue, in that some
inefficiency is acceptable in order to provide accommodation according to Canadian human rights
law. The union maintains that where the employer has not engaged in a regular review of whether
there was work after 5:00 p.m., as it was seen as more efficient to put down a blanket rule, the point
of undue hardship has not been reached. In the circumstances, it is the union’s position that there has
been both a procedural and substantive breach of the duty to accommodate.
Turning to the jurisprudence on the subject, the union argues that it is very fact specific. The question
is: is the work there? Nonetheless, there are principles of interpretation of the Code, accurately
summarized, in the union’s submission, in the document entitled “Policy and guidelines on disability
and the duty to accommodate” issued by the Ontario Human Rights Commission. The union cites
section 4.1.1 of that document, which states that accommodation must be provided in a manner that
most respects the dignity of the person, short of undue hardship, and that dignity includes
consideration of how the accommodation is provided and the individual’s own participation in the
process. The union stresses that there was no real dialogue with the grievor about what could be
done after 5 p.m. when he asked for his accommodation to be continued in the summer. The union
also refers to section 4.3 of the same document which speaks of the provision of the most appropriate
accommodation short of undue hardship, which includes the concept of the measure which best
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promotes integration and full participation. In the union’s view, this should be taken to mean a full
work week wherever possible.
Referring to the case of Johnstone v. Canada (Border Services), cited above, union counsel notes
that that decision found that the grievor in that case should not be obliged to choose between being
disadvantaged at work or being a parent. Union counsel argues by analogy that Mr. Peters should
not be obliged to choose between being disadvantaged at work and taking care of his health. As well,
the union relies on the aspect of that decision which found the employer’s reliance on an unwritten
blanket policy, with no attempt to arrange a solution, to fall short of the full obligation to
accommodate.
Turning to the Essex Police Services case, cited above, union counsel notes that Arbitrator
Goodfellow refers, at paragraph 106, to the employer’s argument that reassignment of the work
sought by the grievor in that case would create a duplication of effort, or the creation of new effort in
order to effect an adequate hand-off. These concerns were not found to be substantial enough to
constitute an undue hardship to the employer. Counsel for the union notes that the union was asking
for the reallocation of 50% of the duties of the grievor in that case, while the request by Mr. Peters is
more modest. The question asked and answered in that case is: does the work exist and where
would it come from? In Mr. Peters’ case, the evidence is clear that the summer student work
constitutes at least 70 hours of work which the employer requires to be done, the vast majority of
which are duties within the grievor’s job description. Counsel underlines that this is not a case where
the grievor is asking the employer to cobble together work from others’ jobs.
The union also refers to the Biltrite Rubber case, cited above, which deals with the concept of useful
work, finding that the work the grievor was doing constituted work that needed to be done, and was
not “make-work”, even though it was not all the same duties as he had done prior to his injury. The
union stresses that, in this case, Mr. Peters just wants to perform his own duties between 5:00 and
6:15 p.m. for four days of the week. Referring to the two cases concerning the LCBO, cited above,
counsel argues that these cases make it clear that, if the pre-existing job is not within the grievor’s
limitations, there is a requirement to broaden the search for work in order to fulfill the duty to
accommodate. Here, the employer stopped short of providing the grievor with his own job duties, and
did not look to other work which the grievor could have done, such as audio-visual work, which should
have been looked at, in the union’s submissions. As well, the employer could have granted some
leaves to those who asked for them, making more work available for the grievor.
At the heart of the problem here, in the union’s view, the employer basically concluded that it was
more efficient that the students do the work in question, which is not enough for undue hardship.
In the Roberts case, cited above, the British Columbia Human Rights Tribunal found that the
employer was required to turn its mind to how it could provide alternate work that the grievor could
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perform, and that in not doing so, breached its duty to accommodate. For instance, the Tribunal
found that the employer had not considered if there was actual work that might have been available
for the grievor within his limitations, either through a trade or otherwise, and that it would not have
amounted to undue hardship to have done so. Counsel submits that, by comparison to the alternate
work being sought in that case, the accommodation being requested by Mr. Peters is very modest.
The union relies on the general proposition that efficiency cannot be the overriding concern when
deciding if an employer has met the standard of undue hardship. For example, it is the union’s
position that to keep the computers in the shipping and receiving area for a longer period of time, or
make arrangements to access staff computers in their absence, or rollout computers more slowly or
start imaging computers earlier in the day in order to allow the grievor to finish them by 6:15, are
things that could have been done to allow the assignment of such work to the grievor, well short of
undue hardship. In support of this argument, union counsel refers to the Zettel decision, cited above,
which dealt with a grievor with a mental disability which prevented the grievor from achieving
productivity standards. The mediator/arbitrator in that case made clear that there might have been
some loss in productivity but it was not enough to make out undue hardship, which includes the
concept that some hardship is required.
As a remedy for the breach of the duty to accommodate, the union seeks a declaration and order that
the grievor be allocated work according to his restrictions until such time as the medical practitioners
say it is not necessary and reimbursement for sick credits used.
For its part, the employer stresses that this is not a typical accommodation case. The grievor is not at
home, out of a job or being asked to do a different or lower paying job. The issue, in the employer’s
view, concerns options for managing five hours of work per week
Employer counsel argues that the union's basic argument that there is 70 hours of work assigned to
students that could be moved around is a flawed argument because it takes no account of how the
work arises and how it should be done. For example, the employer argues that it would be very
inefficient to arrange for access to shipping and receiving after hours so that the grievor could remove
computers from there to ready them for deployment. In the employer’s submission, this would require
briefing security guards as to the grievor’s situation and oblige them to somehow fit in an additional
duty into their already busy schedule. Counsel notes that the two security guards do rounds of
several buildings, one of which is at some distance. Further, as the employer’s witness stated, the
grievor might have to wait 20 to 30 minutes for the security guards to arrive as they have many other
duties. The employer maintains that there is a point at which inefficiency becomes undue hardship. It
is the employer's basic position that they are at that point. Further, counsel for the College submits
that the employer's evidence shows that the grievor’s supervisor has turned his mind to the issue of
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what work might be available and found that there was insufficient productive work to assign after
5:00 p.m.
As to the suggestion that the grievor could unpack computers a few at a time, employer counsel
submits that there is a connection between all the pieces of the work, the timing of which is important.
There are regional trips around an area bigger than southern Ontario that have to be scheduled
around everyone's vacation while keeping the Help Desk staffed and making sure everyone gets their
vacation. In essence it would be a logistical nightmare or the result would be that the work was done
in such a piecemeal fashion that the regional trips could not be done early in the summer as is
currently the practice, in counsel’s submission.
Looking at the Hydro Quebec case, cited above, the employer argues that there is an interaction
between the duty to accommodate and the ability of the employee to do his or her work. The point is
that a balancing of interests is required in which everyone has to participate. The employer may have
to tolerate some inefficiency but the employee does not get the perfect accommodation either.
Turning to the McGill case, cited above, employer counsel notes that the Supreme Court of Canada
found, at page 173, that in assessing the duty to accommodate it is necessary to assess the
characteristics of each enterprise, the needs of the grievor and the specific circumstances in which
the decision concerning accommodation needs to be made. Further, it is incumbent on the employee
to facilitate the implementation of reasonable employer proposals of accommodation. The employer
references the agreed facts to the effect that the employer has already engaged in considerable
accommodation. As well, recalls employer counsel, the employer allowed the grievor to top up his
loss with sick pay so that it is a small loss, consisting of the difference between sick pay coverage
and full pay, for five hours a week.
Responding to the union's comments about the Johnstone case, cited above, employer counsel
distinguishes the case on a factual basis, emphasizing that the employer in that case was denying
accommodation such as flexible hours, measures which have been offered and implemented in Mr.
Peters’ situation. Nonetheless, counsel accepts the legal propositions set out in that decision,
including the balancing of interests, the requirement of the three parties - employer, employee and
union - to participate, and that there is no obligation to create unproductive work, in which the
employer includes waiting for a security guard.
Turning to the Byers case, cited above, the employer looks at the discussion of the range of
approaches to the breadth of the duty to accommodate, set out at paragraphs 31 to 33. These three
arbitral approaches range from requiring the employer to do what it can to accommodate the
employee to be able to perform the essential duties of his or her own position, to requiring a review of
other available position in the organization in the second approach, and at its broadest, requiring the
unbundling and bundling of tasks that are within the ability of the disabled employee, all subject to the
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limit of undue hardship. Overall, the recommended approach is to consider the factual situation rather
than to create hard and fast rules or definitions of limitations.
Addressing the Bowater decision, cited above, employer counsel submits that it comes down to the
balancing of whether the work at issue is unproductive, inviting the conclusion that in the case before
me, the evidence establishes that the work is unproductive, not just inefficient.
As to the allegation that there has been a procedural breach, the employer argues that the supervisor
had clearly considered alternatives and turned his mind to each of the solutions the union had
proposed as evidenced in his testimony. For example, one of the items of work mentioned by the
union involved approximately an hour of work installing scanners, something which does not come up
very often, and is unpredictable as to when it would come up. As well, the employer maintains that
the union has not been specific about what work they are looking for, basically leaving it to the
employer to figure it out. It is the employer’s position that the supervisor’s evidence concerning the
details of how the work is done, shows that it is not feasible to grant the grievor’s request.
Turning to the list of work done by the students, employer counsel stresses that the analysis has to
be more specific than just pointing to the number of hours of work done by the students. For
example, the union suggested starting the reimaging of labs earlier in the day, so that it could be
finished by 6:15 p.m. The employer notes that the helpdesk work still has to be done, and that with
reduced staff in the summer, due to road trips and vacation, it is not practical to have the grievor off
doing re-imaging rather than dealing with the Help Desk itself. Counsel submits that the union is
trying to restructure the work in the department with potential negative consequences on the rest of
the department. The grievor’s desire to work has to be balanced with the needs for the work to be
done, in the employer’s view.
Noting that labs have to be booked off in order to allow the students or the grievor to work on the
computers there, counsel observes that the grievor is not there on Friday, and so the work has to be
distributed over four days, which the employer sees as unproductive. Turning to the example of
installing new computers at 24 stations in one of the labs, counsel submits that it would not be
efficient to hive off the inventory or labelling function until the grievor got there, as was suggested.
One can reasonably assume it is more effective to do the inventory as soon as possible so the
equipment does not wander off, in counsel’s submission. When integrated with the other work, this
function only takes a little extra time, which would not be the case if it were separated out. In the
employer’s view, this is just one of many illustrations of the problem with the union’s case, which is
that what they want is not productive.
As to the reference to the contracting out of calls between 9 p.m. and 8 a.m., the employer says there
is a difference between having an external company take calls from many colleges and having the
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grievor standing by to field one or two calls. Employer counsel submits that the latter is definitely
unproductive.
Employer counsel then addressed the role of the Help Desk after hours more generally. The
employer draws the conclusion that there is simply insufficient work after 5:00 p.m., even considering
that there are employees in the satellite campuses in a different time zone, one hour earlier than
Thunder Bay. Counsel stresses the reality that in the summer there are generally many fewer
employees present, given vacations and reduced numbers of courses and students. Further, there is
no evidence that the employees in the other time zone generate enough calls to keep the Help Desk
open another hour in the summer. As to work on faculty computers, counsel submits that even if
arrangements were made to access them in their absence, such work is mostly not available in the
summer after 5:00 p.m. as many are not on campus, others take their laptops with them, and those
that are there mostly do not stay at the College into the evening in the summer.
Reviewing the evidence about the backlog of tickets, employer counsel suggests that there is not a lot
of work in that area in the summer either. The documentary evidence indicates there were under 30
tickets in the queue at the start of the summer of 2013. In counsel’s submission, some of these could
not be cleared by the grievor at all, and certainly not after hours, because they involved other people.
If one removes those relating to purchasing, which the evidence indicates would take as much time to
re-assign as to complete, there are only 16 or 17 tickets to clear over the entire summer, when the
call volumes are agreed to be lower, so that there would be likely to be time to do those before 5:00
p.m. over the summer, in the employer’s view. As to the other employee whose family obligations
were accommodated for 15 minutes in the evening, employer counsel observes that the
uncontradicted evidence is that the job of that employee involves planning work that could be done
productively after closing time.
As to project work, employer counsel notes there are two types: video work and regional trips. The
evidence was that there was one video assignment in each of the last two years, with no ability to
predict when any future need for videos or documentation will arise. Such work is unpredictable and
assigned to gaps in the regular work, so there is no difficulty getting such work done before 5:00 p.m..
Dealing with the work involved in regional trips, counsel stresses that this was the bulk of the project
work which resulted in the refusal to authorize VLLV leaves, as it is difficult to schedule the trips
around staff vacations. Employer counsel maintained that, in any event, other than the videos, there
was no evidence from the grievor of specific project work he could have done.
As to the work of other staff members, such as the audio-visual technician, counsel characterizes the
union’s evidence as amorphous. There is evidence that students are doing preventative
maintenance, and will make a note of problems, which will be addressed by the A/V technician. The
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grievor could check on these after 5:00 p.m., and he might be able to fix some, but he might have to
get the A/V technician to do it anyway, which would make it redundant, in the employer’s view.
In conclusion, employer counsel summarized the evidence as indicating that there is not much in the
way of work available between 5:00 and 6:15 p.m., and what there is often unpredictable as to when
it will be available. Moving work around requires significant planning, and work that takes a few
minutes here and there involves more time in arranging than to do the work so that it becomes
unproductive. Counsel stresses that the employer had shown no unwillingness to accommodate the
grievor, and argues that it is simply not reasonable to ask the employer to look further than it has
already done to accommodate the grievor. Overall, employer counsel described the union’s case as
based on a belief that there must be some work the grievor could do, but invited the conclusion that
the employer had quite reasonably looked at the available work, and accommodated the grievor as
far as possible.
In reply, union counsel maintained that the employer’s argument about balancing of interests should
not be accepted, as it resulted in an unacceptable reduction in the grievor’s hours of work. Union
counsel stresses that the grievor is not looking for a perfect accommodation. Nonetheless, the fact
that his loss of hours, occurring as it does in only part of the year, can be characterized as a modest
disadvantage does not change the fact that it is a disadvantage based on his disability. Union counsel
argues that “not too awful”, or only a “little discrimination” is not the test. The test is whether the
grievor can be accommodated short of undue hardship. Union counsel addressed the example of
access to shipping and receiving after hours, stressing the union’s view that the difficulties
emphasized by employer counsel were surmountable in a number of ways short of undue hardship.
As to employer counsel’s suggestion that the union had not sufficiently identified work the grievor
could do, union counsel argues that the work done by the students constitutes very specific tasks
identified in evidence as work Mr. Peters could have done, and to suggest that the union should have
put together a more specific workload is expecting a bit much. Counsel submits that, in any event,
arbitrators usually order compliance with the collective agreement and Human Rights Code
obligations in regards to accommodation rather than ordering a specific workload, leaving the
employer to run the workplace.
* * *
What is remarkable about this case is what is not in dispute. It is common ground that the grievor
suffers from a disability giving rise to a duty to accommodate and that the grievor has been
accommodated to a substantial extent by the employer to date. We are beyond the threshold issues,
so that the focus is on whether further accommodation would cause undue hardship to the employer.
As the case law makes clear, in many different decisions of courts, tribunals and arbitrators, involving
diverse disabilities and employment situations, this is more a factual issue than a legal one. That is
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particularly true of the outstanding issue between the parties. This case turns on the factual call as to
whether the work identified by the union is make-work or non-productive, such that the employer is at
the point of undue hardship, as argued by the employer, or work that is productive, and at worst of
potentially diminished efficiency, but far short of the limit of undue hardship, as argued by the union.
Having carefully considered all the evidence and argument, I am of the view that the grievance must
succeed, as I am not persuaded that the employer had reached the point of undue hardship in its
attempts to accommodate the grievor. I accept that the employer has been willing to accommodate
the grievor, and that the employer’s witness was straightforward in his description of the problems he
saw with further accommodation in the summer period. As well, I accept that there are parts of the
work described by the union, such as the purchasing work, that it does not appear would be
productive to hand off to the grievor. However, that is not the case for the bulk of the other work
identified. In particular, although it may be easier, as well as somewhat less expensive, to have
students do all of the 70 hours of work per week assigned to them in past summers, I am not
persuaded that the amount of arrangement necessary to allow the grievor to participate in that work
would amount to undue hardship. For instance, there was no evidence which persuades me that, if
the employer planned the summer work in advance with the idea that there was an hour and a
quarter of time available, on each of four days a week from the grievor, it would be onerous to include
the grievor in accomplishing that work. I do not find that such planning amounts to undue hardship,
and none of the cases referred to in argument suggested that it would be.
One of the concerns of the employer was to have computers ready for deployment to the satellite
campuses as early as possible in the season. The evidence overall did not persuade me that it would
be a liability to have an experienced Help Desk technician contributing to that work; rather it appears
that with minimal planning, it could enhance the ability of the employer to meet that goal. There were
a number of potential problems raised in the evidence, such as difficulties accessing security after
hours. However, I am not persuaded that the employer’s concerns about access to shipping and
receiving after hours are insurmountable short of undue hardship. For instance, even if there is some
reason that it would be too difficult to arrange to allow the grievor to go to shipping and receiving,
while another employee covered the Help Desk before shipping and receiving closed, or to arrange
for a security guard to meet the grievor at 5:00 p.m. or later when the help Desk was closed, there is
nothing in the evidence which suggests that arrangements could not have been made to have
sufficient quantities of computers moved from shipping and receiving by the students and left for the
grievor to unpack and work on between 5:00 and 6:15 p.m.. Although, I accept that hiving off
inventory from unpacking computers might be unduly inefficient, I do not find that dividing up the work
of unpacking and doing inventory among three people rather than two, in some other way, must be
so. Similarly, there is no evidence that it would have been particularly onerous to have the grievor
participate in tasks related to e-waste clean-up, including cleaning hard drives.
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I have dealt with a few examples just above, but in general, the evidence gives me confidence that it
is more likely than not that practical arrangements can be made to assign the grievor an hour and a
quarter of productive work which falls within his job description in the summer months. This includes
the work regularly available at the Help Desk, such as the work assigned to students in recent years,
as well as projects such as regional trips. As well, there may be other work which arises, as it has in
other years, such as videos and documentation which could be assigned to the grievor. Further,
there is reason to believe that if it were necessary, the employer could assign other productive work
to the grievor that is currently done by other technical staff at the College. This area was not explored
fully in the evidence before me, as the focus was understandably on the Help Desk work.
Nonetheless, in light of the jurisprudence such as the LCBO cases, cited above, dealing with the
obligation to go beyond the grievor’s own job duties where necessary to accommodate a disabled
employee, this is an area that can be further explored, if necessary in the future.
Further, the collective agreement specifically provides that the hiring of students in the summer will
not result in the reduction of hours of bargaining unit staff. The undisputed evidence is that, if the
students were not there, all of the work they do, with the exception of cleaning the labs and perhaps
the preventative maintenance of some audio-visual equipment, would be done by the Help Desk staff.
In such circumstances, it is difficult to avoid the conclusion that the grievor’s loss of five hours of work
in the past two summers is related to the fact that a much larger quantity of Help Desk work is being
done on a regular basis by summer students.
To some extent the employer’s argument implied that the jurisprudence on the subject of the
necessity for an employee to cooperate with efforts at accommodation meant that the grievor should
have been flexible in accepting some loss of his regular hours of work, or some loss in compensation,
such as the difference between his sick pay level of remuneration and his regular wage. This is not
my understanding of the references in the jurisprudence to the idea that a disabled employee is not
entitled to the perfect accommodation. Rather, I find the authorities at the highest level, such as the
Hydro-Québec decision of the Supreme Court of Canada, to stand for the proposition that, so long as
it is possible to do so without undue hardship, the employer has the duty to arrange the employee’s
workplace duties to enable a disabled employee to do his or her work as fully as possible. As the
court said in Central Alberta Dairy Pool, [1990] Can LII 76 (SCC), [1990] 2 S.C.R. 489, quoted in the
Hydro-Québec decision, if a reasonable alternative exists to burdening members of a group protected
by human rights legislation with a given rule that adversely affects them, that rule will not be a bona
fide occupational qualification. Here, I do not find that the rule that no work is to be assigned to the
grievor between 5:00 and 6:15 p.m. in the summer to be a bona fide occupational qualification, as
there is, on the evidence, the reasonable alternative of planning to have the grievor participate in the
work already identified by the employer as necessary to its computer services, but assigned to
summer students in recent years.
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I have taken into account the factors identified by the Supreme Court as relevant to the consideration
of whether undue hardship exists, such as the financial cost of the accommodation, the relative
interchangeability of the workforce and facilities and the prospect of substantial interference with the
rights of other employees. I do not find that the evidence establishes that any of these categories are
engaged to the point of undue hardship. The cost of the accommodation in the summer appears to
be the difference in the wage rate of the grievor and that of the summer students who would
otherwise do much of the work in question, and some planning time by supervisors. Even apart from
the provisions of Appendix G, I do not find that this amounts to undue hardship. The evidence also
indicates that there is sufficient interchangeability between the grievor and others who would do the
work sought by the union to allow it to be assigned to him without undue hardship, and there was no
suggestion that accommodating the grievor for a further five hours a week in the summer would
create any interference with the rights of other employees, much less any which would qualify as
undue hardship.
In sum, I accept the union’s submission that its request is a modest extension of the employer’s
practice of accommodating the grievor with a compressed work week, which falls well short of undue
hardship. I am satisfied that there is sufficient productive Help Desk work available to fill five hours of
work a week in the summer months, so that the grievor does not suffer the disadvantage of the loss
of his regular hours of work, which would be directly related to his disability. I find that the employer
did not accommodate the grievor to the point of undue hardship, as it is required to do by the
collective agreement and the Human Rights Code, when it failed to offer him his full regular hours of
work in the summer months.
As remedy, the grievor is to be made whole in regards to his monetary loss, and the reinstatement of
sick pay credits he used to mitigate the effect of the loss of five hours a week, as well as any other
pension or benefit credits. The employer is to accommodate the grievor in the future, in his regular
hours of work up to the point of undue hardship, unless the grievor’s medical situation changes so
that the current restrictions are no longer necessary, or are in need of change. I will remain seized to
resolve any difficulties in the implementation of this decision that the parties are unable to resolve
themselves.
In the result, for the reasons set out above, the grievance succeeds.
Dated at Toronto this 30th day of April, 2014
Kathleen G. O’Neil
_____________________________________
Kathleen G. O’Neil, Single Arbitrator