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HomeMy WebLinkAbout1991-1582.Martin.93-05-03 · ,,~ ~ "<,%,, ~,( ' . · _ .',; .. .,, ,~ ~,, .,y. CROWN EMPLL~ES DE. L'ONTA,qIO BOARD DES GRIEFS DUr,IOA S ST'REEF WEST', SL// TE 2 ~0, 70RONTO, ONTARIO, ..%.f.5. G LZg T6'?.~/P.,MS'N~- /7 ~/..~.. pt.¢O~E. (,~ f,J.I ~26- ; Y8 8 RuE DUtqDA$ OUEST, BU,qEAU 2~00, TORONTO (ONT,~$O). MSG 128 FACSIMIILE/TEL~'C©PtE : (416) 326-~395 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEEB COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSF. U (Martin) Gr£evor " The Crown in Right of Ontario (Ministry of Health) EmploYer BEFORE~ N. Dtssanayake. Vice-Chairperson J. White Member D.. Clark Member FOR TN~ R. Davis UNION Counsel Koskie & Minsky Barristers & Sol'icitors FOR THE D. Jarvis EM .PLOYER Counsel ' Winkler, Filion & Wakely Barristers & Solicitors HEARIN~ July 29, 1992 DECISION This is a grievance filed~by'Mr. Ken Martin, alleging that the employer contravened article A-i' of .the collective agreement by. denying him a position of General-Cleaner in the Housekseping Dept. of the Mental Health Centre ("the MHC"). Penetanguishene, Ontarfo. He seeks a declarationLto.that effect and a direction that he be awarded a General Cleaner'pOsition effective the date the positions were actually filled, The two aPplicants'who were successful in the competition, Ms. Angela Forget and Mr. 'John Steele were.present at the hea~ing as observers but 'elected to not participate actively. The'facts material to this grievance were.presented to the BOard on agreement. No viva voce evidence was adduced by either party. 'Th~'grievor, at the relevant time, was. employed at the MHC in its Housekeeping .Dept. as a part~tSme cleaner in the unclassified service. 'On'July 9, 1991, the employer posted two vacancies for General Cleaner positions, classified as _Cleaner 2. The, competition was restricted to per~ons employed in the Housekeeping Dept. of the MHC. Including the grievor, there were 16 applicants, all part-time Unclassified employees~ The selection process consiste~ of a review of'the applications and resumes and interviews, at which each applicant was assigned marks based on expe{ience, references, 3 and the answers to the interview questions. In addition, each applicant's a{tendance record in the.immediately preceding one year period, i.e. July 1990 to July 1991,'was reviewed. The applicants' marks based on interview answers, experience and references, ranged from a high of 60 out of.70 to a low of 54.5 out of 70. The grievor scored 58 marks and was ranked llth out of the 16 applicants. ~Mr. Steele and Ms. Forget each scored 57 and were ranked 13th and 14th respectively. The selection panel concluded that the marks of the 16 applicants were so close that they were relatively equal. Therefore, i% was decided to apply seniority in the bargaining unit as_the determining factor. Out of the 16 applicants, the grievor had the greatest seniority in the bargaining unit. Ms. Forget and Mr. Steele were next. It is the employer's position that even though the grievor had the greatest seniority, the two incumbents were awarded the two vacancies because the panel concluded that the grievor did not demonstrate the minimum qualifications and ability to perform the General Cleaner duties, or at least that his qualifications .and. ability were inferior to those of Ms. Forget and Mr. Steele. It is common ground that this conclusion as to the grievor's qualifications and ability was based solely on a review of his attendance record. In the immediately preceding year, July 1990 to July 1991, the grievor was absent on 19 days, 17 days as a result o~ a compensable work injury (hereinafter referred to as "WCB"), and 2 days due to illness. In addition, the employer P~esented information relating to'the grievor's attendance record, dating back to ~1987. While it is not clear whether the selection panel took into. account the grievor;s attendance record beyond the immediately preceding one year peffdd, the employerpresented to the~Board ~he grievor's complete attendance record, which is as follows: YEAR SICK DAYS W.C.'B. OTHER TOTAL DAYS 1987 20 ''Nil .5 20.50 i988 19.38 Nil 3.5 22.88 1989 7.25 Nil 1.5 8.50 1990 4 17 1 22.50 1991 0 14 1 15.00 Most of the 'g~ievor's sick days in 1987 and 1988 wer~ a. 'result of snow~obiie .accidents. In July 1988, the ~mployer met with the grievor and discussed its concern about the level Of his absences. He was put on notice that unless there was a ~oticeable improvement his contractmay not be renewed. In March 1991 the employer reassigned the grievor to different work in an attempt-to assist him recover from his recurring knee ailments and.improve his attendance. In April 1991 after the grievor had returned from his last WC~ absence, the employer met with him again to review his attendance record and he ,was. put on notice again that unless his attendance improved, his contract may not.be renewed. Union counsel concedes that in 1987/89 the grievor's attendance was poor. However, he points out that the grievor has fully recovered from the injuries he suffered in the snowmobile accidents and that there were no lingering effects that could possibly affect his regular attendance. He submits that if the WCB absences are excluded, the grievor's attendance record from 19~9 represents "a success story" indicating an excellent response to the concerns exDressed by the employer. Thus ~e points out that excluding WCB absences, in 1989 he had only 7-1/2 sick days, in 1990 only 4 sick days and that since his return to work in ADril 1991 from the last WCB absence, uD to the date of hearing (July 29, 1992) he has had only one sick day. Counsel submits that if the .WCB absences are excluded the employer has absolutely no ba~i~ to conclude that the grievor's attendance is unacceptable to such a level that he could be said to lack the qualifications and ability to perform the General Cleaner job. The employer did not advance the position that its decision Was justified Dy the grievor's non-WCB absences alone. Thus the crux of this grievance is whether the denial of the position on the basis of a consideration of the grievor's WCB absences, constitutes'a violation of Article A- l, which reads as follows: Article 1 - No Discrimination/Employment Equity A.1 There shall be no discrimination practised by reason of race, ancestry, place of 'origin, colour, ethnic origin, citi~enshiD, creed, sex, sexual orientation, age, maritaI status, family status, or handicap, as defined fn section 991) of the Ontario Human Rights Code (O~RC). The parties agree that this article has the effect of incorporating' by reference, the relevant provisions of the Ontario Human Rights Code ("The code"). It is the un~on's Dosition that by considering the grievor's WCB absences in evaluating his qualifications, and ability,' the employer discriminated against the grievor by reason of. handicap as defined in the Code. The provisions 6f the CQde relevant to this dispute are as follows: 5.-(1)~ Every Derson has a right to'equal'treatment with respect to employment without discriminatio~ because of race, ancestry, place of origin, colour, ethnic'origin,- citizenship, creed, sex sexual orientation, age, record Of .offence, marital status, family status or handicap. 10-(i) In Part I and in this part, "because of handicap" means for the reason that the person has or has had, or is believed to have or have had, (a) any. degree of physical disability, ~infirmity, malformation.or disfigurement that" is Caused.by bodily injury, birth defect or illness and, without limiting. 'the generality of the foregoing, including diabetes .mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or hearing impediment, muteness or speech impediment, or physical reliance on a guide god or on a wheelchair or other remedial appliance or device, (b) a condition of mental retardation or impairment, 7 (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act; ll-(1) A right of a person under Part I is infringed, where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, tha~ to discriminate because of such ground is not an infringement of a right. (2) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. (3) the Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. 8 The~ employer's position is that the denial 9f the positi6n to ~he qrievor was solely because of the level of absences per se and that the reasons for the absences were not considered. As employer' counsel put it,~ "the selection panel did not care whether absences were culpable, or whether they were due to illness, WCB injuries or whatever". Counsel for the employer filed copies of the MHC policy relating to attendance which is set out in its Administrat,ive Manual, as well as the po%icy adopted by the MHC'H0usekeeping Dept itself. Both stipulate inter alia that regular attendance 'is important and that attendance'willbe considered in evaluating employee performance. Those policies do not distinguish between WC~'absences and other absences. The employer takes the position that in considering'the grievor,s absences in the course of the job competition, the selection p~nel acted in accordance with these attendance policies. .S~bmissions Counsel for the union agrees that as a general matter, the employer is entitled to consider an employee's ab~enteeis~ record during a job competition. However, c6unsel submits Ghat where an employer lumps~'together WCB absences and other absences and relies on the WCB absences, in whole or in part, to conclude that the employee .lacks the necessary qualifications and ability, that constitutes a direct discrimination "by reason of handicap" within the meaning of section 10(1)(e) o~ the Code. In addition, counsel takes the position that while a policy of considering all absences without regard to the reasons for the absences, may be neutral on its face, in its application .there is adverse impact discrimination against a group of persons identified by a prohibited ground of discrimination, namely, handicap. This according to counsel, results in a contravention of section 11(1) of the Code. Counsel submits that under section 11(2) an obligation arises to accommodate the grievor to the point of undue hardship and that this has not been done at all. Counsel urges the Board to conclude that the employer in effect penalized the grievor by resson of his handicap, i.e. his past WCB absences. Since the grievor has had an acceptable level of absences apart.from the WCB' absences and since there is no suggestion that at the time of the competition the grievor had any injuries or illnesses that would prevent him from attending work regularly, it is counsel's position that by denying him a position based on past WCB absences, the employer contravened article A.1 of the collective agreement. The employer's primary position is that the facts before the Board do not bring the grievor within the definition of "handicap" in the_Code. It is submitted that the prohibition in the Co~e against discrimination by reason of handicap was not intended to extend to persons suffering injuries, or illnesses of short duration. -Counsel submits that to be handicapped a person must suffer a chronic condition which has resulted in ~ continuing disability. Reliance is placed on Ouimette v. Lily CUPs Limited et a%, (1990). 12 C.H.R.R. D/19,. where a Board of Inquiry (Ontario) chaired by Dr. D. Baum found that the flu (gastr0enteritis) was not a handicap within the meaning of the Code. Counsel also c~ted to the Board 9ueenswa¥ - Carleton Hospital, (1990} 17. L.A.C. (4th 23 (Thorne); and Nielson v. Sandman'Four Ltd.., (1986) 7 C.H.R.R. D/3329 (B.C.). In addition'he relied on a document prepared by the Ontario Human Rights Commission titled "Guidelines for interpretation of Because of Handicap". Secondly, Employer counsel submits that if the Board concludes that the grlevor came within the definition of handicap, the union has not ~met its Onus 9f establishing that there has been either direct or constructive discrimination by reason of that hand'iccp. With .regard to direct discrimination, counsel points out that the reason for the grievor's absences or the fact that he had received WCB benefits had nothing to do with the. employer's decision. The decision was based on his level of absenteeism Der se, regardless of what caused the absences. Relying on Re Gaines Pet Foods and Bell.Gerber, Unreported decision dated April 28, 1992, Board .of Inquiry chaired by Prof. G.H. McKechnie, counsel argues that for a violation of the Code to occur, the prohibited grounds must have been a "proximate cause" for the employer's decision. It is his position that the proximate cause for the decision had nothing to do with WCB. Rather, the proximate cause was the grievor.'s level of absenteeism. With regard to constructive discrimination or adverse impact discrimination employer counsel submits that for section 11(1) of the Code to apply, the Board must be satisfied that the employer's attendance policy i~pacts upon a protected group, in this case ':the handicapped. While counsel concedes that the policy affects employees absent due to WCB injuries, it is his position that that by itself does not result in constructive discrimination within the meaning of section 11. Where th~ group or class affected is too broad section 11 does not apply, he submits. He draws an analogy between the facts in.Rs Lily ~ups and the facts here. There it was held that since everyone can. catch the flu,' the class was too broad for section 11 to apply. Likewise, anyone working can suffer a WCB injury. The protected group is the entire workforce in Ontario covered by WCB legislation. Counsel goes on to submit that if there had been constructive discrimination against the grieuor, these facts come within the exception in section ll(1)(a). Arbitrators have consistently recognized that attendance is a legitimate requirement to be considered in job competitions. Ability to · regularly att~end work is a fundamental term of any ~mployment contract. Therefore it is submitted that regular attendance ~s a reasonable'and bona fide requirement within the meaning of section 11(1) (a). .. Finally, employer counsel submits that the attendance policy must be found, to be a reasonable and bona fide requirement because the employer had afforded reasonable accommodation t6 the grievor to the point of undue.hardship. He points to the meetings'with the.grievor, where the employer expressed-its'concerns about his attendance and warned him that it was 'not acceptable. He ~as provided assistance to overcome his injuries. He submits that if the employer did Not acc°~mO~ate the grievor, he would have lost his job in 1988 or 1989. Counsel argues that under section 11(2) the duty to'accommodate t° the point of undue .hardship entails a rearranging of the workplace or the work process, so that the employee will be able to function despite his 'handicap. However, if ~h~ employee cannot report to work, there is no accommodation possible. The grievor"s handicap is not being able to come to work. That is a handicap that cannot be accommodated.' As counsel puts it "the employer has to accommodate the handicap - not the inability to do one's job." THE DECISION Definition of "Because of handicap" The only~ basis upon which the grievor seeks protection under article A.! and khe Code is that he was discriminated because of handicap. Therefore he must being himself within the protected group as defined in ~he Code. Section 10(1) of the Cod~ (suDra, pp.6-7) defines "Because of handicap". There are five categories described in that definition, which are said to come within the phrase. These are set out under paragraphs (a) to (e) inclusive. On any reasonable reading of the definition there can be no doubt whatsoever that the paragraphs are set out disjunctively. This is very clear from the use of the word "or" at the end of paragraph (d). Therefore the proper way to read the definition is to read the preamble of the definition with each of the paragraphs. The proper reading of paragraph (e) is: "Because of handicap" means for the reason that the person has or has had or is believed to have or have had, (e) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act. As long as a person comes within the above language, he comes within the definition of "handicap" under paragraph (e). The point is that, to be considered handicapped for purposes 14 of the Code, a person 'need only come within any one of the paragraphs listed under (a)~to (e). In our view, when the Code is''read in this manner, the employer's position that the griever is not handicapped. because he has no continuing or permanent disability must fail. Counsel relies on Re Lily Cups ~'(s~pra) and the .Guidelines. of ,the Human .Rights COmmiSsion in ~upport of his position. We will deal with each. In our view, ~ L$1y Cups has no relevance to this proceeding in that there the Board of Inquiry was dealing with section 9(b)(i),~ Which is now section 10(1) (a). That paragraph deals with: any degree'of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or ~llness and, without limiting the generality of foregoing, including diabetes, mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co- ordination, 'blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a dog guide or on a wheelchair or 'other~ remedial appliance or device. At paragraph 67 the Board of InqUiry found as follows: "In my view, it would be wrong to attempt stretch the meaning'of illness under s,.9(b) (i) of the Code to include the flu. It would be wrong to do so, in part, bedause of the effect of such a construction on the high.purpose otherwise achieved by.the interpretation provision inprotecting those who are actually of perceived to be materially impaired through illness.. Where theCode calls for defining qroups to be protected, the Commission would include li~erally everyone suffering from a few days illness. I cannot accept .that the intent of S. 9 (b) (i) is to embrace such kinds of discrimination." It is clear that the Board there is attempting to define the meaning of the term "illness" in section 10(1) (a). The Board points out that the high purpose of section 10(1)(a) is "in protecting those who are actually or perceived to be materially impaired through illness". Thus, quite correctly in our view, it was held that a temporary illness for a few days does not come within the purpose of section 10(1)(a). That interpretation of section 10(1)(a), in our view has no relevance to the interpretation of section 10(1)(e), which specifically deals with WCB injuries. As already noted section 10(1)(e) must be read disjunctively from ali of the preceding paragraphs (a) to (d). Counsel's interpretation requires that if a person is to come Within section 10(1) (e) he must not only meet the conditions set out in paragraph (e), i.e. that he has or has had an injury or disability for which benefits were claimed or received under the Workers ~ompensation Act, but also meet the.'requirements of paragraph 10(1) (a). This interpretation is not possible given the disjunctive structure of the~ whole definition provision. Besides, such an interpretation would render paragraph (e) redundant. The effect would be to read it out of the Code. This is so because, if a person can satisfy the terms of any of the preceding paragraphs (a) to (d), he would already be within the definition of "handicapped" for the purpose ~f the Cq_de and his' Circumstances relating .,to any~ WCB inj.ury or disability would be irrelevant. This leads us to "the Guidelines for 'Interpretation of "Because of Handicap"," which we Were advised by counsel, is a document prepared by the Ontario Human.Rights commission for internal~ use of its staff. It is .apparen% that these guidelines were issued .in response to~.the ~e Li~¥' Cu~s decision (supra). Thus the document.begins with the following two paragraphs: Following the.decision of the Board of Enquiry in' Ouimette v Lily Cups, these guidelines have been developed to apply a purposive interpretation ~o the'definition of "because of handi6ap".contained~ in section 9(b) of our Code. They define the direction and approach to be taken in- advising potential complainants' about the Commission's jurisdiction, as well as in preparing recommendations~ for Commission de~isions~under's. 33 (1) (c) . ~. The document then contains a discussion, about the conditions of disadvantage which were intended ~o'be addressed by the prohibition against discrimination because of handicaP. The balance of the document consists of discussions under three different titles "Physical disabilities", "Mental / Disabilities.ii and "~CB claims". The discussion under "WCB claims" reads: Subsection (v): WCB Claims 10. An 'applicant or employee cannot be rejected, terminated or otherwise adversely affected because he or she made a WCB claim or received WCB benefits. 11. If an injury or other medical condition does not fall within the definition of. handicap in accordance with the criteria set out above, the mere fact that a WCB claim has been made or WCB benefits received does not convert such injury or condition into a handicap within the meaning of the Code. However, where WCB claims or benefits are involved, the Officer should ascertain whether the WCB claim or benefit itself was a reason for the adverse decision or .action taken against the complainant. "The criteria set out above" in paragraph 11 above refers to the discussions under physical'and mental disabilities, dealt with in the Code in sections 10(1) (a), (b) and Employer counsel interprets this paragraph 11 as a statement by the Human Rights Commission that, to be "handicapped" within the meaning of section 10(1)(e) a person must not only meet the criteria set out therein, but also the criteria relating to physical or mental disability. Therefore, the argument goes, where a person relies on a physical WCB injury it must be established that the: criteria set out .under "Physical Disabilities" must be satisfied. These according to the document include: (i) The condition or perceived condition is permanent, ongoing or of some persistence; and (ii) The condition or perceived ·condition is not commonplace or widely shared; (iii) The condition or perceived condition is a substantial or material limit on an individual in carrying out some of life's important functions. This Board' does- give serious, consideration to an interpretation or'the Code by the Commission. Nevertheless, we 'are not bound by Such interpretation, particularly if we are convince~ ~that that interpretation is incorrect. This Board's mandate is'to'interpret article A-1 and the provisions· of the Code objectively and-in ace6rdance with the accepted cannons of interpretat£ono In our view, the Guideline at-item 10 states the law correctly. However, then the paragraph under item ll qualifies that statement. In our respectful opinion if paragraph ll means that a claimant must satisfy the definition of handicap in sections 10(1)(a)' to (d), in order to be considered handicapped for Purposes of section 10(1)(e), that is not supportable by any reasonable interpretation. As already noted, given the disjunctive languag~ used in section 10(1), each paragraph set out under'(a).to (e) is a separate means of coming within the de~finition' If ~.person has to satisfy the criteria in (a) to-(~d) in order-~0 qualify under (e), paragraph (e) is meaningless superfluage. Such an interpretation runs afoul of a fundamental cannon of interpretation of statutes. In our view, section 10(1) (e) has a distinct Durpose of protecting persons who have suffered compensable injuries. It is a recognition by the legislature that there are inherent risks in the course of employment and that persons who are unfortunate enough to suffer work related injury or disability ought not to be adversely affected by that reason. Counsel suggested that it is absurd to consider a person who cuts his finger at work and is absent for one .day on compensation to be "handicapped". While that may sound absurd in the .abstract, when considering the purpose of section 10(1)(e), it is not. The prohibi'tion a~ainst discrimination because of handicap is the vehicle the legislature has chosen to afford Droteotion to employees who suffer WCB injuries or disabilities. For eg. if a r~instatement agreement authorizes automatic discharge where an employee has 12 or more absences in a 12 month Deriod, and if employee X has 11 non-compensable absences and one WCB absence, the result of section lO(1)(e) is that employee X will not be subject to automatic dischargeo Such employee, because he meets the test in section is not considered "handicapped" for all purposes. All it means is that his suffering of the WCB injury or his claiming or receipt of benefits should not be. used,, in whole or in part, as a basis for a decision adversely affecting him. In our view,,pnlY such an interpretation would explain why the legislature found it necessary to address WCB injuries and di~abii~ities in a separate paragraph, when it had already dealt with i'njuries and~ disabilities . generally in four preceding paragraphs. The legislative purpose' was to ensure that the prohlbited 'grounds 'in section' 10(1)(.e), namely ~.he suffering of an injury of~ disabii~ity for which compensation is received under the Workers Compensation Act, will not be the proximate cause of any dacision'adversely .affecting such emp 1 oyee. Authority. for this pOsition is found in Re Gaines Pet Foods (supra). There the complainant had a lengthy absence from work due to cancer, which all parties agreed. was 'a handicap within the meaning of the Code. Following surgery, she returned to work with no apparent affects Of'the surgery or her cancer.. However, subsequently she had a number of absences which were not related to any handicap. She was dismissed for excessive absenteeism. She all~ged that she had been discriminated because of handicap" contrary t° the Code. The Board 9f Inquiry dismissed her complaint. .In doing so, at p. 34, it observed: Firstly, if the employer is to be held to a strict accounting of the absence related to cancer, as suggested by the Commission, the Respondents could never discharge Ms. Black because one of the absences would always be the absence due to cancer. That absence cannot be expunged because it in fact happened, it is well encapsulated and it forms part of a long history of a~sences of various reasons. ~econdlv. if that absence ,were in and of itself. the proximate cause or the direct cause of discharge, a violation of the Code could be found; however, the facts point in the opposite direction. The termination of Ms. Black's employment followed an absence of approximately forty days because of a neck and ~houlder injury. Given the past record of absences, for a variety of reasons, only one of which was related to cancer, one could easily find that this ComDlainant was unable to present evidence that would give anyone assurance that she could be an attendant employee in the future. (Emphasis added) Later in its award at p. 34, the Board observed that, "Once %he absence due to cancer was finalized, the employer had the right to expect an attendant employee. That did not occur", and again "... however, a review of Ms. Black's full absenteeism record, even with the cancer absence removed, would indicate that the employer was justified in its decision". While the Board dismissed the complaint and held that the employer, had not discriminated on the basis of handicap, it was not because the Board was of the opinion that the employer was entitled to make the decision on the basis of. the employee's absences due to handicap. The complaint was dismissed only because the Board concluded on the basis of the evidence that even . if the "protected absences'' were· discounted, the rest.of the .employee's absenteeism ~ecord' justifi~d the decision to dismiss her. In other words, th~ protected .absences were not a proximate cause .of the employer's decision. While the Board held that the ~mployer was not required to remove the cancer related absehces 'from the overall consideration of her absenteeism record, ,~it was expressly held that~ "if the cancer related absence had been the cause~of the ~ermination, or a proximate cause of the termination, the Respondents could have violated the Code." (pp. 34-35) ." The facts before'us are glearly.distinguishable. The employer does not suggest that if the protected absences were ~,- discounted, there Was any justification for 'den~i~g the grievor theposition. Indeed it is clear that ~uch a position '" is not supportable because in 1990 and 1991 the grievor had only 5.5 days and one day. of non WCB absences .respectively. Therefore, in this das~ the employer cannot justify .its decision on the basis of the.grievor's non wCB absences. In other words, unlike in Re Gaines Pet Foods, here the handicap related absences were a proximate cause, if not the primary ". cause, for the employer's decision. We have observed that the decisions relied upon by employer counsel including Re ~ilv Cups (supra) do not address the meaning of "handicap" as it relates to WCB injuries under section 10(1)(e). However, there are a number of arbitration awards that do. In Re Glengarry Xnaustties, (9189) 3 L.A.C. (4th) 326 (Hinnegan), the Board dealt with the predecessor section to section 10(1)(e). There the grievor had been absent from work for over six months due' to a compensable injury. She was terminated on the basis of an "automatic termination" clause in the collective agreement, which provided that "employment shall be terminated ... if the employee is absent due to sickness or accident for a period of six (6) consecutive months". After concluding that it was entitled to interpret the collective agreement taking into account all relevant legislation including the ~uman Rights .. Code, the Board at pp. 330-32 observed: Here, there is no issue of just cause for discharge pursuant to the management's rights clause in that that was not the basis for the gri~vor's termination. Rather, she was terminated by the employer pursuant to the express provisions of art. 9.07(f), a quite separate and distinct provision of the collective agreement from that of just cause for discharge pursuant ko the management's rights clause, .and the narrow issue before me is whether the provisions of' the Human Rights Code, 1981 referred to above, preclude the application of that collective agreement provision to an employee absent due to a compensable injury. At the outset, it can be stated that the provisions of the Code referred to do not invalidate or nullify s-s. (f) of art. 9.07 for all purposes. It applies generally to any employee absent for a period of six months due to any sickness'or accident, while the Code addresses only t~ose in~uries or disabili~ties compensable under the Workers' CompensatiQn Act. Accordingly, the COde has, no applica~ion~to other employees found within that provision and cannot, therefore, nullify it for all purposes. The .only question is whether the provisions of, the Code render an employee on Workers' compensation an exception to that provision. . ~ in interpreting .art. 9.07 in the context of the Human Rights Code, 1981 .it must~ be noted,- ,- firstlY', that the provisions of the Code referred to do not expressly prohibit the ter~inati'on of an. emDloyee absent due to a compensable injury; rather, it dictates that an employee has a right to equal treatment with. respect to her employment and may not be treated differently from other employees .. because of her compensable injury.,, now included as a handicap under the Code. Thus, the question for' determination here is whether the grievor was, in fact, treated differently or unequally because of her handicap. There is no question that the grievor was treated no differently from other employees absent for six' months due. t©. sickness or accident. Similarly, there is~ ~ittie' question that she was treated differently~, from- the majority 'of 'the ..employees in'the .bargaining unit and' that that difference in treatment -was'due to 'her. absence which,.'ln turn, was. due to her compensable injury. Those other emDloyees are"ent,itled to the.benefit -'of the standard of."'proDer cause" for termination, Which. entitles,an employee to test the employer's aDplication' of that.__standard at arbitration, bringing to bear all of the established arbitral .principles and policies applicable--to innocent absenteeism in general. ' The grievor,'on the other hand, was subject to ~automatic.termination due to. her innocent absence as a result of her compensable injury. Accordingly, under the automatic termination provision, she does .not have the same right as other employees to challenge her termination within .the standard of proper, cause. In my view, that must be deemed unequal or dif'ferent treatment.from that of the majority of the bargaining unit employees with respect to her employment. In the result, ~it must be concluded that the Human Rights Code; 1981 precludes the application of art. 9.07(f) to an employee on workers' compensation benefits. In Re Clarke Transport (1990) 16 L.A.C. (4th) 160 (Gray), the grievor was subject to ~ reinstatement agreement which among other things made him liable to discharge if he failed to maintain an attendance record which was at least equal to the plant average. The grievor was discharged on the basis that he failed to fulfil this, as well as other conditions of · the reinstatement agreement. The "human rights" issue before the Board was set out at p. 165 as follows: " The employer felt it was, entitled to terminate the grievor because of the length of time he had been absent from work, even if there was no disciplinable conduct on the grievor's part. His attendance record was clearly worse than the Toronto terminal average, but only if his absences due to work place injury are taken into account. The employer's reliance on those absences raises an issue under the Human Rights Code, 1981, S.O. 198i, c.53 ("the Code"), because the injuries which led to those, absences were injuries for which benefits were received under the Workers' Compensation Act, R.$,0, 1980, C, 539 Section 4(1) [amended ~986, c. 64, s. 18(5)] of the Code provides that "Every person has a right to equal treatment with respect to employment without discrimination because of ... handicap." Infringement of this right is prohibited by the Code. Section 9(1) (b) [amended 1984, c. 58, s. 39] defines "because of handicap" to mean "for the reason that the person has or has had, or is believed to have had" among other things "an injury or disability for which benefits were claimed or received under the Workers' Compensation Act". The · union ~argues that para. 3 of the minutes of settlement cannot be -applied so as to justify termination on the basis only of the grievor's absence due tO compensable injury.. . While the Board ~pheld the grievor's discharge on the qrounds that he h~d' breached other conditions of ~his reinstatement agreement, it was held that the' discharge was not justified on the basis of his level of absenteeism, which exceeded the plant average, only if his WCB absences were taken into account.. After citing Re Glengarry. Industries~(sup~a) and Re ~ortB Ba~.C~i¢ ~osp~al January 24,~. 1990 (H.D. Brown) unreported, arbitrator Gray at p. 167 states: I agree with and adopt the analysis in those decisions. -In so. far as para. 3 of the minutes of settlement here purport to authorize termination of the grievor if his ~rate of non-disciplinable absenteeism exceeds the terminal average, ~t~e C~d9 precludes i~s application i~ these circumstances because the g=ievor's absences excee~ the termlnal. average only as..a result oE~ absences due to injuries for which the gr~evor, received worke=s' compensation benefits. The fact that the grievor and the unionagreed'to the ter~s of the.minutes of settlement does not preclude'them from i~Voking.the Code in this way: .Ontario Human Rights Com'n v. Borough of Etobicoke (1982} 132 D.L.R. (3d) 14 (1982) i s.c.~. 202, 82 C.L.L.C. The facts before us are analogous. The attendance policy of the employer did not~ distinguish between WCB absences and other absences. It therefore had the effect of adversely· impacting upon employees who have suffered compensable injuries or disabilities. In the present case the employer's decision could not be justified on ~he basis of the grievor's absenteeism r~cord without the WCB absences. Thus, those absences were a proximate cause for the adverse consequencas that befell the grievor. This is a direct discrimination on the basis of handicap as defined by section 10(1) (e) of the Code to the extent that it does not distinguish between WCB and other absences. The effect of section 10(1) (e) is to require that such a distinction be made. Therefore it also follows that it is in contravention of article collective agreement. Constructive Discrimination The employer's policy on at%endance could ba said to be neutral on its face in that it does' not take into account the reason for absence. Its concern is the absence per se. However, in its application it is not neutral because it has an adverse impact on a group protected by the code,.i.e, those who suffer compensable injuries or disabilities. The result of the rule is that such persons are denied rights, which they would have otherwise enjoyed. We cannot agree with employer cOUnSel that the Glass is too broad because, as he put it,. just as much as anyone can catch the' flu (Re Lily Cups, sppra), anyone can get injured at work. In section 10(1)(e) the protected class is precisely defined by the statute itself. That class consists of persons who have or have had injuries or disabilities for which benefits were or are received. 'We find tha.t~-there is constructive discrimination under section ll(1)-~ih the application~ of. the~attendanCe policy. Therefore under section 11(2), 'a duty to accommodate the handicap to the point of undue hardship arose. The evidence 'is Uncontradicted.that in the most recent two years preceding the competition, the grievor's attendance has been satisfactory, except fOr his WCB absences, similarly there was agreement that the grievor had fully recovered from all his'injuries and'illnesses, compensable and.non-compensable, so that there was no present .impediment' to his regular attefdance. Indeed the evidence was that ~in~ returning to work from his last WCB absence in April 1991 until the date of the hearing on July 1992, the grievor, has had no WCB absences and only one 'dan absent due to illness. If the employer'was tO'accommodate the grievor's h~ndicap to any degree, the most it had t° do'was to disregard the past WCB. absences in th~se circumstances. In so doing, in our view the employer did not have to take any. significant risk, because the grievor, has had no lingering effects from his Past Problems. His. present ability to~ttend~work regularly is supp0~ted by the agreed fact that in'the fifteen months preceding the hearing date the grievor ha~ had just one day of absence i~ total. 'Therefore, we conclude that in the circumstances, the employer did not accommodate the griovor's handicaD at all. In summary, it is the finding of the Board that the denial of a position of General Cleaner resulted in direct discrimination against the grievor because of handicap as defined in section 10(1) (e) of the Code; that the application of the employer's attendance policy, without excluding WCB absences, resulted in constructive discrimination as described in section ~1(1) of the Code; and that the employer did not accommodate the grievor's handicap to the po'iht of undue hardship as required by section~ ~1(2) of the Code. By contravening those provisions of the Code, the employer i_~ factq contravened article A-1 of the collective agreement. ~EMEDY By way of remedy, the union seeks a declaration that the employer contravened article A-1 of the collective agreement. In addition to this remedy, it seeks a direction that the grievor be appointed to one of the Dosted positions of General Cleaner, retroactive to the date St was filled. Counsel for the employer takes the position that the latter remedy is inappropriate for two reasons. First, it is pointed out the grievor was employed in the unclassified service at the time of the job posting. As such, article 4 of the collective agreement~relating to job postings and filling of vacancies did no~ apply to him. Therefore, he could not have grie~ed·th~.result of the job competition~under article 4. c6unsel submits that by over-turning the.dgcision of the selection panei and appointing the grievor to one o~ the 'vacancieS, the Board would in effect be.applying article 4 to an unclassified employee. He.submits 'that the Board has no jurisdiction to do so. Secondly, counsel for the employer points to the evidence that the two· incumbents, Ms. Forget and Mr. Steele, have identical Senio~i'ty~dates. He submits that in that situation the Board has' no rational basis upon which to decide which of the two incumbents should vaCat~ the position to make way for the grievor. He ~ontends that any choice made by the Board will necessarily be arbitrary. The Board concludes that the gr~evor should be appointed to one of 'the General Cleaner positions· and that it has jurisdiction to make such.a direction. In our view, such a direction has nothing whatsoever to' do With article 4. The Board has found a violation, of the~collective agreement. In the circumstances the Board derivas its remedial authority from section 19(1) of the ·Crown Employees Collective Barqalnin~.Act. under the provision, where the Board finds a violation, it has a broad authority, and indeed an obligation, to remedy that wrong. ~in this iregard see generally, the decision of the Divisional Court in Re OPSEU. (Carol Berry et al) and the ~i~istr¥ of Community 'land Bocial Ser_vice~]. The objective in fashioning a remedy must be to attempt as best as we can, to put the grievor in the same position he would have been in, if not for the employer's breach. Here, a number of facts become pertinent. The employer agreed that all of the applicants were more or less equal on the basis of the results of the interview process. Therefore the employer decided to award the positions solely on the.basis of seniority. It is also agreed that the grievor was the most senior out of the 16 applicants. Thus the grievor would have been made the first job offer. That did not happen'o_J~ because of the employer's consideration of the grievor's absenteeism record. The employer considered his absenteeism record to be so poor that it concluded that the grievor lacked the qualifications and ahility to perform the duties of the posted position. It is clear that this conclusion in turn was justified only because the employer considered the grievor's WCB related absences in breach of the Cod~ and the collective agreement. The employer, even at arbitration, did not take the position that it would have been justified in reaching the same conclusion based on the grievor's non-WCB 'absences alone. Indeed, considering that in the two years immediately preceding the competition the grievor had so few non-WCB related absences, such a conclusion could not reasonably have beenmade. Since the Board has decided ·that the employer was not entitled to take into a~cOunt'WCS absences in i~ts decision making process, there can 'be little doubt that if not~ for that ~breach, the grievor's attendance record would not have been considered to be·poor, and as the most senior applicant, he woul~ have been offered a vacancy first. We do not consider the employer's second submission to be a valid reason to not award a ~emedy,·which is otherwise warranted and appropriate. The Board's finding~is that, based on his seniority,· the grievor'would have been the first to~be appointed to one of the two vacancies. That would have left one other~position vacant. It Would have been then, and it is now, up to 'the employer to determine which of the two incumbents should be preferred, if the employer is·not in a position to distinguish between the two· on the basis of seniority, it will have to do so by a consideration of other legitimate criteria. This is no different from what any employer would have to do where two employees with a common seniority date apply for a singlevacancy. In the result, this grievance is allowed. The Board declares that the employer contravened article A-1 of the collective agreement when it denied the grievor a position of General Cleaner. The Board further directs that the grievor be appointed to a position of General Cleaner, effective the 33 date the first of the two vacancies was in fact filled. The grievor is entitled to be compensated for all losses that resulted from the employer's breach, including interest. The Board remains seized in the event the parties have difficulty in quantifying the compensation owing or in implementing the~terms of this decision in any other respect. Dated this 3rd day of May 1993 at Hamilton, Ontario. N. Dissanaya}~e Vice-Chairpersom Member D. Clark Member