HomeMy WebLinkAbout2003-1194.Sanfilippo.05-02-23 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2003-1194 2003-1195 2003-1608 2003-2037 2003-2046 2003-3657
UNION# OLB318/03 OLB322/03 OLB356/03 OLB394/03 OLB410/03 OLB082/04
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees' Umon
(SanfilIppo) Union
- and -
The Crown In RIght of Ontano
(LIqUor Control Board of Ontano) Employer
BEFORE Michael V Watters Vice-Chair
FOR THE UNION R. Graham WillIamson
Koskie Minsky LLP
Barnsters and SOlICItorS
FOR THE EMPLOYER AlIson Renton
Counsel
LIqUor Control Board of Ontano
HEARING March 11 June 11 September 24 October
18 November 9 November 10 18 19 30
December 1 2004
2
DeCISIon
ThIS proceedmg anses from SIX (6) gnevances filed by the gnevor, Ms
Karen Sanfihppo FIve (5) of the gnevances stem from the Employer's decIsIOn
not to schedule the gnevor for overtIme on Sundays and on other premmm days m
the approXImate penod Apnl, 2003 to February, 2004 The remammg gnevance
relates to a complamt that the Employer refused to provIde the gnevor wIth
accommodated work after February 11, 2004 The Umon asserts that the
Employer's actIOns constItute a vIOlatIOn of both the collectIve agreement and the
Human RIghts Code
The heanng of thIS matter was both lengthy and complex A substantIal
amount of eVIdence and argument was presented over the course of ten (10) days
of heanngs All of thIS eVIdence and argument has been consIdered m the
fashIOnmg of thIS Award.
The partIes at the outset agreed that the gnevor IS dIsabled and IS entItled to
the protectIOn of the Human RIghts Code They dIffered, however, as to whether
the Employer accommodated the gnevor to the pomt of undue hardshIp GIven the
nature of tlllS Issue, the employer agreed to proceed first wIth the presentatIOn of
eVIdence The Employer's eVIdence was presented by Mr Chuck Robbms, Ms
J an Meek, Mr Mark Wagner and Mr Don Thibodeau Mr Robbms has been
3
employed by the LCBO smce 1980 and has been a Store Manager for
approxImately ten (10) years He became the Manager of Store #593 m Byron,
Ontano m Apnl, 2003 From that date forward, Mr Robbms was the gnevor's
Manager Ms Meek has been employed by the LCBO smce 1988 She IS a
Human Resources AdvIsor and, m that capacIty, IS responsible for the management
of Workplace Safety and Insurance Board (WSIB) claims Ms Meek assumed
carriage of the gnevor's WSIB file m September, 2002 Mr Wagner has been
employed by the LCBO smce 1996 He has been the Human Resources Manager
for the Western RegIOn smce 1999 Mr Wagner was actIvely mvolved m the
gnevor's file from mId-2003 onwards Ms Meek reports dIrectly to Mr Wagner
Mr Thibodeau has been employed by the LCBO smce 1972 He serves as the
DIstnct Manager for DIstnct #5 Mr Thibodeau oversees the operatIOns of thIrty
(30) Stores m London, Ontano and the surroundmg area. Ms Meek, Mr Wagner
and Mr Thibodeau all work out of the RegIOnal Office m London
The Umon elected not to call any eVIdence Counsel for the Umon mdIcated
that he was content to rely on the eVIdence of the Employer's wItnesses and on the
exhibIts filed. A hst of the exhibIts IS appended hereto
The gnevor was lured as a casual Customer ServIce RepresentatIve (CSR) m
November, 1993 She became a permanent full-tIme CSR m June, 2001 At the
tune matenal to tlus case, the gnevor worked at Store #593 m Byron The record
dIscloses that the gnevor suffered a work-related mJury to her left ann m May,
4
1998 and a further work-related Injury to her back In June, 2002 Both InJunes
resulted In a degree of permanent Impairment The gnevor claimed and receIved
WSIB benefits In respect of these InJunes Work restnctIOns were Imposed
folloWIng the InItIal Injury In 1998
Store #593 IS a 'B' Store At the relevant tnne, the Store operated on a
double ShIft baSIS, that IS, there was both a day ShIft and an afternoon ShIft Monday
through Saturday On these days, the Store was open between 9 30 a.m and 10 00
p.m The Store was also open on Sunday between the hours of 12 00 noon and
5 00 p.m The complement of staff at Store #593 was as follows a Manager (Mr
RobbIns), an AssIstant Manager, a Product Consultant, four (4) permanent full-
tIme CSR's, IncludIng the gnevor, and SIX (6) casual employees WIth the
exceptIOn of the Manager, all of these posItIOns fall wIthIn the bargaInIng umt
The posItIOns of AssIstant Manager and Product Consultant are rated hIgher than
the permanent full-tIme CSR posItIOn The casual posItIOns are lower rated
A CSR IS expected to perform cashIenng, stock handhng and customer
servIce functIOns Mr RobbIns hsted the cashIenng dutIes, as follows greet the
customer at the cash regIster; ask the customer a senes of questIOns, enter the
purchases on the cash regIster by eIther scannIng the product or manually entenng
the transactIOn on the keyboard, key In AIr MIles or credIt card numbers, bag or
box purchases, and offer a carry-out, If reqUIred. He snnIlarly hsted the folloWIng
stock handhng dutIes remove pallets of product from the dehvery truck to the
5
warehouse area of the Store, scan the load through the use of a hand held scanner;
remove all cases from the pallets, place cases that are to be put In stock on carts
and remove to the Store floor; put stock on the shelves In the Store, and place
remaInIng stock on the shelves In the warehouse area. Mr RobbIns stated that the
weIght of product In cases vanes accordIng to the SIze of the box and the number
of bottles contaIned thereIn In Ius words, the cases are "fairly heavy" Mr
RobbIns asserted that the customer servIce functIOn IS not an Independent functIOn
as It IS connected to the perfonnance of the casluenng and stock handhng dutIes
He advIsed that CSRs are expected to engage In customer serVIce at all tunes ThIS
VIew was shared by Mr Thibodeau He testIfied that the customer servIce functIOn
IS a component of both cashIenng and stock handlIng Both wItnesses testIfied that
the Store Manager or ShIft Leader may also assIgn a vanety of other tasks to the
CSR. Mr RobbIns maIntaIned that the above-described dutIes were consIstently
performed by CSRs In all of the Stores he has worked In
A substantIal number of documents were filed In thIS proceedIng relatIng to
the gnevor's medIcal condItIon and to her physIcal abIhty to perform the work of a
CSR. Not all of these documents need to be referenced for purposes oftlus Award
It IS necessary, however, to address certaIn of the documents In order to provIde
some context for how tlus dIspute arose
6
When Ms Meek assumed responsibIhty for the gnevor's WSIB file, the
gnevor was workmg under the terms of a ModIfied Work Plan dated July 2, 2002
(ExhIbIt #40) ThIS document outhned the followmg restnctIOns
"
AccommodatIon ReqUIrements
Based on medIcal dated Oct 19/99 and Feb 22/02
RestnctIOns are for left arm A vOId repetItIve pmch/
push/pull wIth non-Dommant left hand, aVOId
repetItIve hftmg wIth left hand, hght/moderate loads
only wIth left hand, carrymg not more than 10 lbs
wIth left hand.
Based on medIcal dated June 12/02 RestnctIOns for
lower back walkmg as tolerated, standmg not more
than 60 mm, no bendmg/twIstmg, hftmg floor to
Waist and Waist to head 30 lbs hmIt repetItIOn, carrymg not
more than 10 lbs , pushmg/pulhng trolley not more
than 6 cases of hquor
Job DutIes to Include
CashIenng not more than 30 mms at one tIme,
facmg up and dustmg Waist level and above,
stockmg shelves Waist level and above wIth
product put on carts by others, hght mamtenance,
customer serVIce, surveIllance, gIft wrappmg, store ambIence,
ALL DUTIES THAT ALL REPETITIVE IN NATURE
MUST BE ROTATED
"
It IS apparent that, at thIS Juncture, the gnevor was performmg the cashIenng and
stock handhng dutIes, as modIfied.
Followmg the receIpt of a Health Care ProvIder's Report dated August 22,
2002 (ExhibIt #41), Ms Meek sought clanficatIOn from Dr Peter DzongowskI, the
gnevor's personal physIcIan Dr DzongowskI responded by way of another
7
Health Care ProvIder's Report dated November 18, 2002 (ExhIbIt #43) and a
medIcal report dated November 20, 2002 (ExhibIt #44) The former mdIcates that
the gnevor was not to hft or engage m repetItIve work wIth her left arm for a
penod of two (2) weeks The latter reads, as follows
"I am replymg to your most recent letter You had a number of
questIOns relatmg to Ms Sanfihppo' s restnctIOns I have filled out
numerous forms on her behalf to try and clanfy tlungs As you know,
her symptoms come and go When she has a flare-up, she IS qUIte
restncted, whereas other tunes when she IS functIOnmg well, she can
do a number of thmgs As far as the details of the restnctIOns, you
can appreciate that wIthout perfonnmg an m-store assessment, It IS
nearly ImpossIble to try to specIfy these Issues m detail For thIS
reason, the patIent IS allowed to pace herself As an example, when
the symptoms are mImmal, the patIent IS able to work cash and
perform some repetItIOn When her arm symptoms flare, she IS no
longer able to do these tasks and may reqUIre sIgmficant lunItatIOns,
such as customer serVIce
Due to the number of Health Care ProvIder Reports requested, It
would appear that tlus contmues to be an area of confusIOn I
revIewed the chart and note that I have provIded eIght Health Care
ProvIder Reports m the past nme months I tlunk the best tlung would
be to obtam an occupatIOnal evaluatIOn and have someone on sIte to
assess the Jobs and specIfy tasks sUItable for the mJury I wIll be
contactmg WS1B to arrange such testmg
"
I note that Dr DzongowskI subsequently extended the restnctIOns set out m
ExhibIt #43 by a further SIX (6) weeks (ExhIbIt #45) and that the WS1B approved
the gnevor's claim for lost tIme and health care benefits from November 16, 2002
(ExhIbIt #46)
8
Mr Paul McNorgan, an ErgonomIst wIth the OperatIOns DIVISIOn of the
WSIB, conducted an on-sIte VISIt at Store #593 on February 13,2003 He met wIth
the gnevor and Kelly HarrIgon, who was then the Store Manager, m an effort to
provIde suggestIOns wIth respect to how the fonner could be effectIvely
accommodated. HIS report, filed as ExhibIt #47, reads m part
"The pnmary dutIes of customer servIce clerk mclude
* CashIer
*Rmgmg m product
*Baggmg purchases
* T endenng cash/cards
* Stockmg shelves, loadmg coolers
*Pulhng up product on shelves
*Loadmg/unloadmg cases m storage area/refngerator area of store
*Completmg scannmg reqUIrements
*Customer servIce
* answenng product mqUInes
*dIrectmg customers to product
* Store mamtenance
* Sweepmg moppmg floor
*Dustmg bottles
The dutIes thIS worker has been able to perform mcludes telephone
calhng of customers, store surveIllance for theft, clencal dutIes
mcludmg computer work and mark down reports, mventory counts
and stock checks
The worker has tned on several occaSIOns to mcrease dutIes by
mcorporatmg more "regular dutIes" but has not been successful many
of these attempts
WhIle there IS accommodatIOn potentIal m thIS store to reduce some
of the case handhng work (portable hft devIces, telescopmg flexible
conveyors, heIght adjustable carts, etc ) The handhng of mdIvIdual
bottles/cans m the major Job functIOns (cashIer, stockmg shelves,
pulhng up product) reqUIres gnppmg and hftmg actIvItIes WIth both
9
hands and arms The repetItIveness of thIS actIvIty IS related to the
store volume In stores havIng weekly and seasonal vanatIOns
The worker has not demonstrated an abIlIty to progress to regular
dutIes and thIS IS suggestIve that the pre Injury Job IS not sUItable
AccommodatIOn of the IndIVIdual product handlIng actIvItIes does not
appear possible at tlllS tune If more specIfic functIOnal capabIlItIes
wIth respect to weIght and frequency tolerance are know (SIC) It may
be possIble to be more specIfic for accommodatIOn of the regular
functIOns of thIS work (exposure lImIts related to duratIOn or
frequency)
The current dutIes that tlllS worker IS perfonnIng (surveIllance,
countIng Inventory, straightenIng rack labels) are not consIstently
aVailable and often result In tlllS worker havIng to ask the manager
what she should be dOIng At the tIme on the onsIte reVIew the store
manager dId suggest a work project was reqUIred that would be able to
provIde a few weeks of consIstent work for thIS worker The work IS
computer related and the worker dId express some concern about her
abIlIty to tolerate prolonged computer dutIes Frequent breaks (every
30 mInutes 1-2 mInutes break from left-hand use) are recommended.
The manager emphasIzed that there IS always some sUItable work they
can find for tlllS worker to perfonn however the worker dId express
frustratIOn over not beIng able to do what IS reqUIred of the pre Injury
Job She dId IndIcate feelIng non-productIve dunng a lot her tune at
work.
The abIlIty of thIS employer to competItIvely sustaIn thIS worker at
tlllS LCBO store locatIOn IS questIOnable The level to whIch her
work has been lImIted would lIkely prevent her from beIng able
transfer to other stores or beIng successful In a sImIlar retail
enVIromnent
Currently the medIcal InfOnnatIOn for tlllS worker does not provIde
much IndIcatIOn of potentIal functIOnal Improvement nor IS current
objectIve functIOnal quantIficatIOn present It may be possible for
further diagnostIc clanficatIOn wIth respect to nerve Involvement In
the neck regIOn as tlllS may be affectIng the left ann functIOn Also
updated medIcal precautIOns may help the employer In determInIng
ongOIng work for tlllS worker
10
WIth current mfonnatIOn It would not appear that tlus worker IS able
to perform her full pre-mjury job AccommodatIOn potentIal to
benefit tlus worker IS hmIted and the employer's abIhty to sustam the
worker to her and theIr satIsfactIOn IS questIOnable"
Ms Meek m her eVIdence confinned that the gnevor was not perfonnmg
casluenng or stock handhng functIOns at the tune the above report was prepared.
F ollowmg the receIpt of further medIcal documentatIOn, the Employer
decIded that the gnevor could return to the casluenng and stock handlmg functIOns
subject to certam restnctIOns The revIsed ModIfied Work Plan dated March 12,
2003 (ExhibIt #50) reads, m part
"AccommodatIOn ReqUIrements
No repetItIve use of left arm (elbow), hftmg floor to Waist 30 lbs ,
hftmg Waist to head 10 lbs , carrymg 30 lbs and puslung/pulhng 55
lbs
Job DutIes to Include
CashIenng - NO MORE THAN 30 mmutes at whIch tIme Karen
should take a 10 mmute break from usmg her anns by domg customer
servIce, store surveIllance, after 10 mmutes of not usmg arms Karen
can alternate wIth the followmg, facmg up alternatmg arms, stockmg
shelves smgle bottles only (no htre and a half bottles) alternatmg
arms, dustmg of bottles, mmIatures etc , office work. No hftmg cases
(wIll reVIew after ApnI13/03) Karen should ensure after a maXImum
of 30 mmutes of repetItIve use of her arms that she IS to take a 10
mmute break from domg anytlung wIth her anns-she can walk the
store dunng thIS tIme domg customer servIce, store surveIllance
DUTIES TO BE PERFORMED ON A ROTATIONAL BASIS"
11
It appears from the eVIdence that the above ModIfied Work Plan was not followed
for long, as the gnevor expenenced problems wIthm two (2) to three (3) days of
the change and lost further tIme away from work due to a reaggravatIOn of the arm
mJury More specIfically, the gnevor ceased perfonnmg the casluenng and stock
handlmg functIOns, as modIfied.
In early Apnl, 2003, the Employer, wIth the gnevor's approval, arranged for
a doctor to doctor consult between Dr DzongowskI and Dr Lyndon Mascarenhas
of SIbley & Associates Inc In Ius letter of Apnl 4, 2003, (ExhibIt #52), Dr
Mascarenhas reported, as follows
"Dr DzongowskI essentIally outhned to me that he felt the next
appropnate step would be to perfonn a FunctIOnal AbIhtIes
EvaluatIOn to determme what Ms Sanfihppo could and could not do
from a functIOnal perspectIve He felt that we had reached the end as
far as medIcal optIOns were concerned. There appeared to be no
further follow-up, eIther from a physIatry, neurologIcal or orthopedIc
perspectIve"
A FunctIOnal AbIhtIes EvaluatIOn (F AE) was undertaken by Sibley &
Associates Inc on Apnl 24, 2003 A detailed report was filed as ExhibIt #59 The
pertment part of the document states
"The employer mdIcated that the chent's Job responsibIhtIes pnor to
her mJunes mcluded. operatmg the cash regIster, unloadmg stock,
stonng stock, rotatmg stock, general dustmg and cleanmg, wet and
dry moppmg, emptymg garbage cans and computer work. The
employer mdIcated that the chent has had dIfficultIes wIth repetItIve
cash regIster work and that she IS also on modIfied dutIes whIch
restnct her cash regIster usage, hftmg and repetItIve movements
When assessmg Ms Sanfihppo's current Job restnctIOns and
modIficatIOns and the results of her FunctIOnal EvaluatIOn It IS
12
recommended that the chent contmue wIth the current modIficatIOns
and restnctIOns and that she not mcrease her dutIes untIl she has
commenced an exerCIse program to mcrease her overall strength
levels
It IS further recommended that the chent commence a strength
program as outhned above, wIth the assIstance and gUIdance from a
KmesIOlogIst, for a penod of 3 months At the end of the 3 month
strength program, It IS then recommended that Ms Sanfihppo be re-
evaluated to determme If she has progressed enough to change her Job
dutIes, restnctIOns and modIficatIOns
F ollowmg the Issuance of the F AE report, the gnevor vIsIted a kmesIOlogIst
for purposes of settmg up an exerCIse program It IS Ms Meek's understandmg
that the gnevor expenenced consIderable pam at the mItIal seSSIOn, and mdeed
after, and for that reason the mItIatIve was dIscontmued. It appears that, as a
consequence, the recommended programs were not completed.
The gnevor was off work m the penod August 8 to August 26,2003 because
of an arm problem She returned to work on August 26th and August 2ih but was
then off agam untIl September 3, 2003 These absences prompted Mr Thibodeau
to wnte Dr DzongowskI for purposes of obtammg a prognosIs for the future HIS
letter of September 30, 2003 (ExhibIt #64) reads
"As you are aware Karen has been on modIfied dutIes of no repetItIve
use of her arms for the last mne months In the mne months Karen
has had a cortIsone shot, physIOtherapy, and a FunctIOnal AbIhtIes
EvaluatIOn (F AE) WIth the F AE It was suggested Karen start an
exerCIse program 3 tunes a week for 3 months at whIch pomt she
would be reevaluated to see If theIr had been any Improvement It
was also suggested that a KmesIOlogIst be wIth her for the first 4 or 5
seSSIOns to ensure proper performance of the exerCIse plan WIth the
help of WSIB a KmesIOlogIst was provIded for Karen Unfortunately
13
Karen was unable to complete these 4 or 5 seSSIOns as she stated she
was m too much pam and even lost tune from work due to the amount
of pam she was m
Currently Karen contmues to come to work performmg customer
servIce dutIes She contmues to mISS tIme from work due to the pam
m her anns
We would like to know what the prognosIs IS for the future WIll
Karen be able to at anytIme m the future start mcreasmg her dutIes In
your opmIOn wIll she ever be able to do any caslllenng? Is she
mvolved m any type of treatment for her condItIon?"
Dr DzongowskI responded to thIS request by hIS report of October 28, 2003
(ExhIbIt #67) HIS conclusIOns were stated as follows
"Ms Sanfihppo suffers from three separate mJunes
1 She had an mJury to her neck and has degeneratIve dISC dIsease
whIch gIves her neck and arm pam
2 She has fairly severe left lateral epIcondyhtIs whIch IS a repetItIve
stram mJury preventmg repetItIve tasks such as cashIer dutIes
3 She has low back pam and IS hmIted m her abIhty to stand or SIt m
one posItIOn for prolonged pen ods of tIme
As such, the prognosIs IS poor I do not thmk she wIll be able to
return to caslllenng Her treatment currently consIsts only of
medIcatIOns She has exhausted other treatment modahtIes"
At thIS pomt, It IS necessary to elaborate on the dutIes performed by the
gnevor m the penod Apnl, 2003 to February, 2004 As stated prevIOusly, Mr
Robbms became the Manager of Store #593 m Apnl, 2003 At that tune, the
gnevor was on restncted dutIes and was not perfonnmg any caslllenng or stock
handlmg functIOns Mr Robbms testIfied that the gnevor was pnmanly mvolved
m the perfonnance of customer serVIce and other non-physIcal work. He stated
14
that thIS work mcluded the followmg tasks servIcmg customers on the floor,
answenng the telephone, takmg customer orders over the telephone, arrangmg for
pnce changes and "month ends", prepanng matenal on the computer for dIsplays,
checkmg bm tags to ensure the accuracy of pnces, and deahng wIth defectIve
stock. Mr Robbms described these tasks as 'Jobs that have to be done" At one
pomt m Ius testImony, Mr Robbms appeared to suggest that the completIOn of the
aforementIOned tasks dId not represent a full days work. He described these tasks
as "sporadIc dutIes" and stated that "we had a hard tune keepmg Karen busy" as
"there wasn't a whole lot of tlungs for her to do" At another Juncture, Mr
Robbms was asked whether the work the gnevor was domg was of value to Store
#593 for forty (40) hours a week. I recorded hIS response as follows "What she
dId had to get done, so Yes" I was left wIth the ImpreSSIOn that thIS answer was
premIsed, to a certam extent, on the fact the gnevor also performed vanous dutIes
whIch mIght otherwIse have been done by the Manager, AssIstant Manager or
Product Consultant Mr Robbms noted that, on occaSIOn, he had to remmd the
gnevor not to engage m tasks beyond her restnctIOns Apparently, she would from
tune to tune assIst other staff by operatmg the cash regIster for a few customers or
by domg a carry-out wIth her good ann A Performance Appraisal of the gnevor's
work dated June 16, 2003 was filed as ExhibIt # 14 She receIved an overall
performance ratmg of "sohd perfonnance", as she met the "expectatIOns of a
quahfied and expenenced employee" The gnevor wrote the followmg comment
15
on the appraisal form " .I try not to remJure them, but sometImes domg the
sImplest thmg can be IrrItatmg I do find It hard to be productIve 40hrs a week, so
I look forward to more trammg "
Mr Robbms advIsed that he was reqUIred to schedule addItIonal staff when
the gnevor was on duty m order to ensure there were sufficIent employees to
perform the caslllenng and stock handhng functIOns He acknowledged that the
addItIonal employees dId not always work a full eIght (8) hour shIft Mr Robbms
stated that he documented the extra hours worked by employees who were
"covenng" for the gnevor By way of example, he recorded the followmg number
of extra hours on the Store schedule (ExhibIt #12) week of July 20, 2003-20
hours, week of November 9, 2003-20 hours, week of December 14,2003-40 hours,
and week of December 21, 2003-24 hours Mr Thibodeau testIfied that he
receIves a Recap of AccommodatIOns form from Store Managers whIch shows the
number of hours worked by casual employees m each accountmg penod when
filhng m for an employee on restnctIOns The Recap of AccommodatIOns forms
relatmg to the gnevor were filed as ExhibIt #85 Mr Thibodeau stated that, whIle
he revIewed the fonns, they dId not have any beanng on the ultImate decIsIOn to
put an end to the gnevor's employment at Store #593 He advIsed that the
document was used sImply to capture the number of replacement hours In Mr
Thibodeau's words, "cost would not be a decIdmg factor m whether we would
accommodate some one"
16
As mentIOned above, Store #593 IS open on Sundays between the hours of
12 00 noon and 5 00 p.m Mr Robbms mdIcated that, at the tIme matenal to thIS
dIspute, only three (3) employees were reqUIred to work the Sunday ShIft and that
all of them were expected to perfonn cash, stock and carry-outs Employees
wIslllng to volunteer for Sunday work were reqUIred to mdIcate theIr aVaIlabIhty
on a Sunday AVaIlabIhty Report (ExhibIt #13) In the nonnal course, employees
would be selected for such work on the basIs of a Letter of Agreement found at
page 205 of the collectIve agreement Pursuant to the Letter, Sunday work IS to be
first offered to penn anent full-tIme employees m order of senIonty If fewer than
the reqUIred number of full-tIme employees volunteer, the work IS next to be
offered to permanent part-tIme employees m order of senIonty If fewer than the
reqUIred number of part-tIme employees volunteer, then the work IS to be offered
to casual employees agam m order of senIonty DespIte thIS contractual prOVISIOn,
Mr Robbms dId not schedule the gnevor to work on Sundays or on other premmm
days, wIth the exceptIOn of the Chnstmas penod, m the penod Apnl, 2003 to
Febnmry, 2004 notwIthstandmg that she had mdIcated she was wIlhng and
aVailable to work on certam of these days Mr Robbms testIfied that he was
dIrected by Mr Thibodeau to schedule m tlllS manner as the gnevor was physIcally
unable to perform the reqUIred tasks To be clear, tlllS dIrectIOn resulted m more
JUnIor employees bemg scheduled for the premmm hours Mr Robbms
acknowledged that he dId not make an mdIvIdual assessment as to whether there
17
was any work aVailable on Sundays whIch the gnevor could perform Rather, he
merely comphed wIth the dIrectIOn gIven by hIS DIstnct Manager It appears on
the eVIdence that the gnevor was scheduled to work certam premmm hours over
the Chnstmas 2003 hohday penod. Mr Robbms explamed that the volume of
customers m that busy penod JustIfied placmg an employee on the sales floor to
assIst customers
Mr Tlllbodeau agreed that he dIrected Mr Robbms not to put the gnevor on
the Sunday schedule for overtIme purposes He stated that tlllS dIrectIOn was gIven
m July, 2003 HIS recollectIOn on tlllS pomt IS consIstent WIth the followmg
notatIOn Mr Robbms put on the Sunday A vaIlabIhty Report
"Karen wIll not be put on schedules for Sunday overtIme, untIl Chuck
IS dIrected to do so by DIstnct Manager"
The notatIOn IS dated July 15, 2003 Mr Thibodeau suggested that the gnevor
may, m fact, have worked some Sundays pnor to that date ThIS apparent
dIscrepancy m the eVIdence IS not matenal for purposes of resolvmg tlllS dIspute as
the partIes agreed they would try to assess the extent of the gnevor's loss If the
Umon was successful m estabhshmg a general entItlement to the hours m Issue
Mr Thibodeau described Sundays as a "put through" day He stated that the
pnmary responsibIhty of staff workmg on such a day IS to take care of customers
and to ensure the shelves are full of product Mr Thibodeau testIfied that the
Stores are operated wIth mmImum staff on Sundays and that all of the scheduled
18
employees must be able to work on cash, stock the shelves and refngerator as
necessary, and do carry-outs for customers In hIS words, the employees are
expected to "multI -task" and to perform "the full range of dutIes" It was Mr
Thibodeau's eVIdence that, m Ius Judgment, the gnevor was physIcally mcapable
of meetmg tlus expectatIOn Mr Tlubodeau stressed that, because of the lower
level of staffing on Sundays, employees are not reqUIred to engage m the type of
office and backroom functIOns performed dunng the regular week. By way of
example, he noted that a Manager would not schedule an employee to come m on a
Sunday or other holIday to take mventory Rather, the preference IS to have such
work done wIthout attractmg premmm pay Mr Thibodeau observed that the
Employer schedules "Sunday to a mmImum because It IS a premmm pay day" It
IS clear from the entIrety of Mr Thibodeau's eVIdence that hIS dIrectIOn was
mtended to apply to Sundays and other holIdays, wIth the possIble exceptIOn of
Chnstmas or some other peak penod. He acknowledged that wIth respect to the
latter, the mcreased volume of busmess mIght support the schedulIng of the gnevor
to perform customer servIce on the sales floor
Mr Thibodeau testIfied that he mstructed Mr Robbms m October, 2003 to
not assIgn office work, mcludmg use of the computer, to the gnevor He was
concerned that tlus type of repetItIve work may have contributed to the gnevor's
lost tune m August, 2003 It IS clear that the gnevor dId not agree wIth tlus further
restnctIOn Mr Thibodeau's notes of a conversatIOn wIth the gnevor on October 6,
19
2003 (ExhibIt #81) dIsclose that the gnevor told hIm that she felt the Employer
was bemg too cautIOus by not lettmg her perform office work. Mr Thibodeau m
hIS eVIdence advIsed that he preferred to err on the sIde of cautIOn gIven the
repetItIve nature of the work. He acknowledged that he dId not seek a medIcal
opmIOn on tlllS Issue and that he dId not bnng anyone mto the Store to assess If the
office work fell wItllln the gnevor's restnctIOns Mr Thibodeau also observed that
office work IS prunanly the functIOn of the Manager or AssIstant Manager,
although at tunes It can be delegated to a CSR.
Ms Meek testIfied that she was asked by WSIB staff m July, 2003 If the
Employer would consIder a Labour Market Re-entry (LMR) plan for the gnevor
After dIscussmg the matter wIth Mr Wagner, It was decIded that she should
explore the costs of thIS optIOn Ms Meek subsequently asked Mr Alkanm KanjI,
the Manager of Corporate Health ServIces at the Employer's Head Office, to
prepare a LMR calculatIOn Mr KanjI e-mmled an estImate of possible costs to her
on August 12, 2003 (ExhibIt #74) ThIS estImate was shared wIth Mr Wagner on
that same day and was subsequently forwarded to Mr Thibodeau on November 11,
2003 (ExhibIt #75) It IS apparent from a readmg of Mr KanjI'S response that the
cost of a LMR plan to the Employer could be substantIal I note at tlllS pomt that
the LCBO IS a Schedule 2 Employer and that It IS responsible to cover the cost of
all payments and benefits provIded to an mjured employee by the WSIB, plus a
sIzeable admmIstratIve surcharge Mr Wagner testIfied that he could foresee m
20
August, 2003 that a LMR plan could be a vIable optIOn In hIS mInd, It was then
becomIng IncreasIngly apparent that the LCBO was becomIng Incapable of
provIdIng dutIes the gnevor could perform that were both of value and would not
lead to recurrent lost tune It IS clear, however, that no steps were actually taken at
that tune to further InvestIgate or pursue the LMR optIOn The Employer dId not
commumcate wIth eIther the Umon or the gnevor concernIng the possibIlIty of
such a course of actIOn
Mr Thibodeau advIsed that by the Fall of 2003, he too was becomIng
concerned about the gnevor's InabIlIty to perform all of the dutIes of her CSR
posItIOn He noted that she was very lImIted In terms of the CSR functIOns, as she
could not do cash, stock or work of a repetItIve nature HIS concern was
heIghtened after the receIpt of Dr DzongowskI's report of October 28, 2003,
whIch has been reproduced above SImply put, Mr Thibodeau was formIng the
OpInIOn that the gnevor could no longer perform the essentIal dutIes of the CSR
posItIOn
The gnevor, In conjUnctIOn wIth Mr RobbIns, prepared a lIst of tasks whIch
she was physIcally capable of perfonnIng In Store #593 ThIS lIst, whIch was filed
In tlllS proceedIng as ExhibIt #9, Included the folloWIng tasks
. E-trackIng
. Breakers
. FIll gIft Items
. Pnce changes-np tags
. Pncer cards
21
. Pnce tags-new Items/changes
. Customer servIce
. Check hcensee orders/already boxed up
. Keep log book up to date
. VIdeo program
. Order supphes
. Check stock outs
. Check V A program
. Check payroll
. Tram new cashIers
. Deletmg dehsted brands
. FIll and order year around accessones
. Close store
. Set up cashIers
. Take deposIts
. Cash off employees
. Safe balancmg
. F III seasonal gIftS
. OccasIOnally do carry out-bags only
. Make up beer buckets, etc
. Phone Vmtage customers when order m
. FIle Vmtage tags
. Product searches for customers
. Petty cash
. Take off air mIles/L TO cards when no stock
. ReceIve 1ST's from other stores
. Key m customer complamts
. Store openmg
. Store balancmg
. CashIer advances
. GIft certIficates
. Take customer complamts
. Returns
. Securcor bankmg/pIckups
. DIvert the warehouse
. Inventory counts-gondolas only
. Check mventory counts
. Q-C cIrculars
. FIll 6 pack carrIers
. FIll smgles
. Order nnage program
22
. FIle office work
. Upload scanner guns-X reference
. ShIft leader
. Return empty baskets and carts to front
. Empty garbage
. Answer phone
. ASSISt cashIers when they buzz
. Replace or make mISSIng tags
. Handle new product-tags-make space
. Get customer orders ready-bottles
. 1ST's to other stores
. Accept load/do add ons/transmIt
. Walk store to check for add ons
. Process SOPS
. Take hcensee orders
The gnevor gave the above hst to Mr Thibodeau on November 19, 2003
Mr Thibodeau documented theIr conversatIOn on that day by way of handwntten
notes filed as ExhibIt #82 These notes read, In part
"Karen provIded D .M. wIth a hst of dutIes (attached) whIch she feels
she IS able to perfonn wIthout Injury to her ann
She stated to D .M. that the hst does not Include any casluenng or
stock dutIes and therefore Employer should have no problem lettIng
her try tlus out SInce she cannot handle only dOIng customer serVIce
for her entIre shIft especially when there are no customers She said
she feels unproductIve and bored and It hurts her back to always be on
her feet
Karen admItted that she does Jump on someone else's cash If
necessary for customer servIce D .M. Said she should not be SInce thIS
IS not wItlun her restnctIOns and also IS agaInst pohcy She said "ItS
reahty"
D .M. made It clear that some of the dutIes on her hst Include keyboard
work and could be repetItIve She said she's been dOIng some and
she's fine
23
D .M. also stated that there IS no expectatIOn or reqUIrement to take
tasks from Manager or AssIstant sImply so that she can do other dutIes
aSIde from only customer serVIce Karen IS prepared to partIcIpate m
the 10 week restoratIOn program She said at least then I'll know what
I can or can't do "
Mr Tlubodeau mfonned the gnevor on November 19, 2003 that he would
have to speak to Ms Meek, Mr Wagner and Mr lun Turner, the RegIOnal
DIrector, about the hst of dutIes He also asked her to provIde a bnef explanatIOn
of the steps mvolved m each of the IdentIfied tasks The gnevor supphed tlus
elaboratIOn to Mr Tlubodeau m mId-December, 2003 ThIS document was filed as
ExhibIt # 10 At or about the Saine tune, Mr Thibodeau receIved a further medIcal
report from Dr DzongowskI dated December 8, 2003 (ExhibIt #69) The report
states
"Karen, as you know, has sIgmficant hmItatIOns secondary to mJunes
as outhned m my last correspondence She desperately wants to work
and brought m a two page hst of Jobs she feels she IS capable of domg
She finds It dIfficult to sImply stand around and greet customers I
have revIewed her hst and It would appear that thIS would fit her
restnctIOns I am not sure If these Jobs correspond to actual posItIOns
aVailable"
Mr Thibodeau subsequently vIewed the hst of tasks described on ExhibIt
#10 He prepared a two (2) page handwrItten assessment relatmg to these tasks
(ExhIbIt #83) m whIch he noted that many of the tasks mvolved keyboardmg or
repetItIve work, were mfrequently performed, or were attached to other posItIOns
Mr Thibodeau also met wIth Mr Wagner and Ms Meek m mId-December, 2003
24
to dISCUSS the hsted dutIes A decIsIOn was reached at the meetmg to permIt the
gnevor to perform the dutIes as reqUIred and to momtor the tIme spent on same
followmg the Chnstmas season Mr Robbms was thereafter told that he could
assIgn the hsted dutIes to the gnevor, as reqUIred. He was further mfonned by Mr
Thibodeau that she was not to perform any casluenng functIOn
F or the sake of completeness, I note that the gnevor was off work due to an
mJury between December 6 and 9, 2003 ThIS absence followed her attendance at
a WSIB assessment held on December 5th to detennme her sUItabIhty for a hand
and ann chmc of ten (10) weeks duratIOn
As stated above, the Employer decIded to track whIch of the dutIes hsted on
ExhibIts #9 and # 1 0 were actually performed by the gnevor and the amount of
tIme spent on same Ms Meek forwarded a senes of Manager's Assessment
Forms to Mr Robbms to be completed by he and the gnevor on a daily basIs for
thIS purpose More specIfically, they were reqUIred to hst the task performed and
the tIme spent m performmg the duty Manager's Assessment Forms for the penod
January 19 to February 7, 2004 were filed as ExhibIt #11 Mr Wagner testIfied
that the Employer elected to defer the assessment untIl after the busy Chnstmas
season It was Ius behef that a reVIew of the work performed m that penod would
not accurately reflect the average volume of work m the Store at a gIven tune Mr
Robbms, m Ius eVIdence, expressed the opmIOn that the month of January was a
slow penod for the Byron Store A reVIew of ExhibIt # 11 shows the followmg
25
total tIme spent on the hsted tasks on a daily basIs, 4 y; hours, 3 hours, 1 y; hours,
2 hours, 1 y; hours, 2 y; hours, 5 1;4 hours, 5 hours and 10 mmutes, 4 % hours, 5
hours, 4 hours and 25 mmutes and 30 mmutes Mr Robbms advIsed that he dId
not record what other employees were domg m the Store over the penod the
gnevor was momtored. It was Ius eVIdence that other employees would have
performed some of the hsted dutIes m that penod. Mr Robbms was also not
mvolved m any assessment of the work at other Stores to detennme the tune spent
by staff on the same corp of dutIes
Mr Robbms testIfied that the dutIes hsted m ExhibIts #9 and # 1 0 are all
tasks that could be delegated to a CSR If the need arose Mr Robbms advIsed that
the gnevor dId not perform all of the IdentIfied tasks on a daily basIs He stated
that some of the tasks are reqUIred to be performed daily, whIle others are only
reqUIred on a weekly or monthly basIs Mr Robbms observed that the daily tasks
are msufficIent to keep one (1) person busy for the entIre day He also mdIcated
that no smgle CSR at Store #593 was permanently assIgned to perform all of the
hsted dutIes Mr Robbms stated that whIle he assIgned some of thIS work to the
gnevor, her pnmary responsibIhty under the modIfied work plan, was to provIde
customer servIce on the sales floor On tlus pomt, he expressed the opmIOn that
there was no real need to have a CSR Just perfonn customer serVIce on the floor
for the entIre day, wIth the possIble exceptIOn of dunng the Chnstmas season or
some other peak hohday penod. After forwardmg the Manager's Assessment
26
Forms to the Human Resources Department, Mr Robbms had no mvolvement m
the decIsIOn makmg process whIch ultImately resulted m the gnevor's departure
from Store #593
Ms Meek testIfied that she was not responsible for detennmmg whether a
Job could be found for the gnevor out of the tasks hsted m ExhibIts #9 and # 1 0 In
her VIew, however, there was no smgle posItIOn that corresponded wIth the tasks
Ms Meek confinned that Mr Robbms was not asked to gather mfonnatIOn about
how many of the tasks were bemg perfonned by other employees at Store #593
and the tnne devoted to same SnnIlarly, she advIsed that, to the best of her
knowledge, other Store Managers were not canvassed on thIS Issue m respect of the
work performed m theIr Stores Lastly, Ms Meek acknowledged that, dunng the
penod the gnevor was not domg cash or stock, she never asked the gnevor's
doctor If It was possible to modIfy these functIOns to better meet the gnevor's
physIcal restnctIOns In a sImIlar vem, no other physICian was mVIted to the Store
for purposes of determmmg whether the cash and/or stock functIOns could be
modIfied.
Ms Meek, as mdIcated, was the person prnnanly responsIble for gathenng
mfonnatIOn and communIcatmg wIth others about the gnevor's file It was her
eVIdence, however, that she was not mvolved m the mItIal decIsIOn to not have the
gnevor work on Sundays or the later decIsIOn to end her employment at Store #593
27
and to resort, mstead, to a LMR placement Ms Meek also advIsed that she was
not mvolved m consIdenng the gnevor for other posItIOns wIthm the LCBO
Ms Meek, Mr ThIbodeau and Mr Wagner met at some undetermmed pomt
between February 7 and February 11, 2004 for purposes of revIewmg the
Manager's Assessment Forms descnbed above Mr Thibodeau's conclusIOns from
tlus reVIew may be summanzed as follows
1) the tasks the gnevor was perfonnmg dId not equate wIth the
classIficatIOn of CSR and were not functIOns that could be
sustamed or IdentIfied as a posItIOn In Ius words, the tasks
IdentIfied m ExhibIts #9 and # 1 0 "dId not make up what we
VIew as a posItIOn of CSR",
11) the functIOns recorded on the Manager's Assessment Forms
"dId not constItute a full eIght hour day m terms of one Job" In
hIS Judgment, puttmg the vanous tasks together would not
amount to an eIght (8) hour day "m companson to a CSR domg
theIr functIOns",
111) some of the functIOns were done mfrequently, others took five
(5) mmutes or less to complete, and some would nonnally be
performed by employees m a hIgher classIficatIOn In Mr
Thibodeau's VIew, there should not have been an expectatIOn on
the gnevor's part that she would be assIgned supervIsory, or
other routme, functIOns of the Manager or AssIstant Manager
posItIOn Mr Thibodeau acknowledged that there was nothmg
hsted m ExhibIt #9 that the Manager could not assIgn to the
gnevor or some other CSR, and
IV) some of the functIOns the gnevor performed dId not add value
to the operatIOn of the Store Indeed, It was Mr Thibodeau's
eVIdence that the functIOns recorded on the Manager's
Assessment Forms were of "mInImal value" and dId not
represent "meanmgful work" In Ius VIew, the Employer dId
not reqUIre someone m the Store domg customer serVIce work
wIthout also perfonnmg the cash and stock functIOns
28
Mr Thibodeau agreed that It was ultImately detennmed that the tasks
recorded on the Manager's Assessment Forms dId not constItute a full Job and that
thIS decIsIOn was mamly mfluenced by the amount of tIme spent by the gnevor m
the performance of the IdentIfied tasks Mr Thibodeau stressed, however, that he
dId not make the ultImate decIsIOn m thIS case He acknowledged that no
assessment was done as to who else m Store #593 was performmg the tasks m
questIOn or as to the actual tIme spent by them m respect of such dutIes
AddItIonally, he agreed that no assessment was performed at the other twenty-mne
(29) Stores under hIS dIrectIOn
In cross-exammatIOn, Mr Tlubodeau was asked whether the practIce or
polIcy m Ius DIstnct IS that an employee cannot be accommodated If he/she IS
unable to perform the cash and stock functIOns of the CSR posItIOn He answered
that tlus was Ius understandmg of how to manage tlus Issue based on dIscussIOns
wIth peers, Ius Human Resources AdvIsor, and Mr Turner Mr Thibodeau was
also asked If the assessment as to whether an employee can be accommodated ends
If the employee cannot do both cash and stock. I recorded hIS response as "Yes,
that IS my understandmg" Mr Thibodeau was unaware of the eXIstence of any
wntten memo to thIS effect
A sectIOn of the Employer's AdmmIstratIOn Manual relatmg to "ModIfied
Work Program" was filed as ExhibIt #80 The fourth page of the ExhibIt
29
references the establIshment of a ModIfied Work CommIttee compnsed of three
(3) management representatIves, three (3) Umon representatIves and a chairperson
The document outlmes the functIOn of the CommIttee as follows
"The ModIfied Work CommIttee wIll reVIew posItIOns wItlun the
LCBO to recommend to management any potentIally sUItable
posItIOns for rehabIlItatIve employment"
Ms Meek advIsed that she was not famIlIar wIth the ModIfied Work CommIttee
and, as a consequence, dId not ask It to consIder the gnevor's case She later
mdIcated that the polIcy IS not followed m the Western RegIOn She was unsure
about other RegIOns Mr Thibodeau testIfied that he was unfamIlIar wIth the
CommIttee
Mr Wagner's reVIew of the Manager's Assessment Forms led hIm to
conclude that there was msufficIent work of value aVailable for the gnevor to
perform From hIS eVIdence, It IS apparent that thIS conclusIOn was premIsed on
the actual tIme spent on the dutIes recorded on the above-mentIOned forms He
observed that for a number of days the work performed totaled two (2) or four (4)
hours From Mr Wagner's perspectIve, thIS number of hours was not even "m the
ball park" m respect of whether the work performed aIllounted to a vIable posItIOn
He observed that the "mmor admmIstratIve tasks" engaged m by the gnevor
constItuted "a relatIvely small portIOn of the work sluf1" Mr Wagner noted that
the balance of the gnevor's workday was spent on the sales floor provIdmg
assIstance to customers
30
After reachmg the above stated conclusIOn, Mr Wagner met wIth Mr
Turner, the RegIOnal DIrector Mr Wagner stated hIS opmIOn that there was
msufficIent work of value for the gnevor to perform and recommended that a LMR
plan was the best optIOn to pursue Mr Wagner testIfied that Mr Turner agreed
wIth both Ius assessment of the sItuatIOn and Ius recommendatIOn He advIsed
that, on the basIs of Ius recommendatIOn, Mr Turner made the decIsIOn that the
gnevor could no longer contmue workmg at Store #593 and that, mstead, the LMR
optIOn would be pursued Mr Turner was not called to testIfy m tlus proceedmg
Followmg Ius dIscussIOn wIth the RegIOnal DIrector, Mr Wagner met wIth
the gnevor and her UnIon representatIve on February 11, 2004 Mr Thibodeau
and Ms Meek were also m attendance at the meetmg The gnevor was advIsed
that the LCBO could no longer accommodate her and that the WSIB would be so
mformed and would be asked to Implement a LMR plan It IS clear, from all of the
eVIdence, that thIS was the first tIme that any Employer representatIve advIsed
eIther the gnevor or the UnIon that the LCBO could no longer accommodate her
dIsabIlItIes and would, mstead, resort to the LMR optIOn To be clear, neIther the
gnevor nor the UnIon were told at any tune pnor to February 11, 2004 that the
Employer was even consIdenng an LMR for Ms SanfilIppo
It IS unnecessary to get mto the details of a LMR plan It IS sufficIent to note
that It IS the WSIB that detennmes whether to Implement such a plan and the
content of same SImply put, a LMR plan IS premIsed on an mabIlIty on the part of
31
the Employer to accommodate the needs of the dIsabled employee through sUItable
modIfied work Such a plan IS desIgned to provIde trammg and/or educatIOn to
prepare the mdIvIdual for other employment more consIstent WIth her or hIS
physIcal restnctIOns I was told that the program IS desIgned to meet the statutory
objectIve of restonng earnmgs to the level of eIghty-five percent (85%) of pre-
mJury earnmgs and that the Employer IS responsible for any reqUIred "top-up" In
tlllS mstance, as a Schedule 2 Employer, the LCBO bears all of the costs associated
wIth the LMR. I was further mfonned that the Employer IS entItled to appeal any
decIsIOn reached as to the content of a LMR plan Counsel for the Umon
acknowledged that the gnevor IS now takmg trammg at Fanshawe College m
London, Ontano, under the auspIces of a LMR, m the area of human resources
Ms Meek, as prevIOusly noted, was not mvolved pnor to February 11,2004
m assessmg or consIdenng the gnevor for other posItIOns wIthm the LCBO She
testIfied that she dId dISCUSS the posItIOns of Manager, AssIstant Manager and
Product Consultant wIth Mr Thibodeau and Mr Wagner but only "m passmg" and
m very general terms Ms Meek dId not engage m an m-depth analysIs of these
posItIOns She noted that all of these posItIOns would have represented a
promotIOn for the gnevor and that the posItIOn of Manager could have removed her
from the bargammg umt dependmg on the category of Store Ms Meek
acknowledged that postmgs for other posItIOns were processed by her office m
2003 She agreed that the vacanCIes were not assessed m terms of whether they
32
would better meet the gnevor's restnctIOns Ms Meek advIsed that m that penod,
she was not consIdenng other Jobs for the gnevor
Mr ThIbodeau recalled that there was some dIscussIOn about the Product
Consultant posItIOn It appeared to be Ius VIew that the gnevor would have to
obtam tlus hIgher classIficatIOn through success m a competItIOn Mr Thibodeau
stated that he was not mvolved m any dIscussIOns surroundmg the Manager or
AssIstant Manager posItIOns, or any other posItIOns eIther wItlun or outsIde of the
Retail DIvIsIOn It IS apparent that Mr Thibodeau dId not assess the gnevor's skIll,
abIlIty and restnctIOns agamst any other posItIOns and that he dId not partIcIpate m
any dIscuSSIOns about approachmg the UnIon for assIstance m accommodatmg the
gnevor
Job postmgs dated February 11, 2004 were filed relatmg to the posItIOns of
Clerk/ReceptIOnIst and Duty Free Clerk (ExhibIts #78 and #79) Both posItIOns
were m the London Retail ServIce Centre whIch IS part of the Employer's LOgIStICS
DIvIsIOn Mr Wagner testIfied that these posItIOns were consIdered for the gnevor
but were rejected, m part, because they both reqUIred repetItIve and sustamed
computer work. He agreed that m makmg tlus assessment as to sUItabIlIty, he dId
not have a doctor or an ergonomIst reVIew the posItIOns Mr Wagner also noted
that the LCBO does not practIce cross-dIvIsIOnal accommodatIon The
Clerk/ReceptIOnIst posItIOn would have represented a demotIOn for the gnevor,
wlule the Duty Free Clerk posItIOn would have been a promotIOn
33
Mr Wagner testIfied that he has a general knowledge of posItIOns m the
Retail DIvIsIOn and that he gave some thought to alternate Jobs for the gnevor He
acknowledged that he dId not do a formal evaluatIOn of the gnevor's skIlls,
abIlItIes and restnctIOns agamst any Jobs m the Retail DIvIsIOn It was Ius further
eVIdence that before meetmg wIth the gnevor and the UnIon on February 11,2004,
he surveyed aVailable posItIOns wItlun the CIty of London, mcludmg those m the
RegIOnal Office, the DIstnct Office and m the Stores Mr Wagner detennmed
from Ius survey that there were no aVailable vacanCIes Lastly, Mr Wagner
acknowledged that pnor to February 11, 2004, he dId not approach the UnIon to
dISCUSS the accommodatIOn of the gnevor, mcludmg the possIbIlIty of eIther
placmg her m a posItIOn wIthout the need for a postmg or transfernng her across
dIvIsIOns
The relevant prOVISIOns of the collectIve agreement read.
ARTICLE 2 - RelatIOnshIps
2 1 (b) There shall be no dIscnmmatIOn or harassment practIced by reason of race,
ancestry, place of ongm, colour, ethnIc ongm, cItIzenshIp, creed, sex, sexual
onentatIOn, age, marItal status, famIly status, or handIcap, as defined m the
OntarIO Human RIghts Code
LETTER OF AGREEMENT
Sunday Openmgs
The LCBO and the UnIon agree that work resultmg from the
openIng ofLCBO's stores on Sunday shall be voluntary for
Permanent Full-Tune (PFT) and Permanent Part-Tune (PPT)
employees
34
Sunday Work shall also be voluntary for Casual employees for
whom such Sunday work would result m overtIme
Sunday work shall be offered m the followmg manner and
sequence
a) FIrst, to PFT employees on a voluntary basIs m order of
senIonty
b) Should fewer than the reqUIred number of PFT employees
volunteer, such Sunday work shall then be offered to PPT
employees, m order of senIonty
c) Should fewer than the reqUIred number of PPT employees
volunteer, such Sunday work shall then be offered to Casual
employees m order of senIonty
d) Should fewer than the reqUIred number of casual employees
volunteer, such Sunday work may be assIgned to casual
employees who have worked less than forty (40) hours dunng
that week.
The applIcable statutory prOVISIOns are as follows
LABOUR RELATIONS ACT, 1995
48( 12) An arbItrator or the chair of an arbItratIOn board, as the case
may be, has power,
(j) to mterpret and apply human nghts and other employment-related
statutes, despIte any conflIct between those statutes and the terms of
the collectIve agreement
HUMAN RIGHTS CODE
5(1) - Every person has a nght to equal treatment WIth respect to
employment WIthout dIscnmmatIOn because of race, ancestry,
place of ongm, colour, ethnIc ongm, cItIzenshIp, creed, sex, sexual
onentatIOn, age, record of offences, mantal status, same-sex
partnershIp status, famIly status or dIsabIlIty
1 O( 1 ) - In Part 1 and m tlllS Part,
35
"dIsabIhty" means
a. any degree of physIcal dIsabIhty, mfirmIty, malformatIOn or
dIsfigurement that IS caused by bodIly mJury, bIrth defect or Illness
and, wIthout hmItmg the generahty of the foregomg, mcludes diabetes
mellItus, epIlepsy, a bram mJury, any degree of paralysIs, amputatIOn,
lack of physIcal co-ordmatIOn, bhndness or vIsual ImpedIment,
deafness or heanng ImpedIment, muteness or speech ImpedIment, or
physIcal rehance on a gUIde dog or other ammal or on a wheelchair or
other remedial apphance or devIce,
b a condItIon of mentalllnpaInnent or a developmental dIsabIhty,
c a learnmg dIsabIhty, or a dysfunctIOn m one or more of the processes
mvolved m understandmg or usmg symbols or spoken language,
d. a mental dIsorder, or
e an mJury or dIsabIhty for whIch benefits were claimed or receIved
under the msurance plan estabhshed under the Workplace Safety and
Insurance Act, 1997,
17(1) - A nght of a person under thIS Act IS not mfnnged for the reason
only that the person IS mcapable of pefonnmg or fulfillmg the
essentIal dutIes or reqUIrements attendmg the exerCIse of the nght
because of dIsabIhty
(2) - The CommIssIOn, the Tribunal or a court shall not find a person
mcapable unless It IS satIsfied that the needs of the person cannot
be accommodated wIthout undue hardshIp on the person
responsible for accommodatmg those needs, consIdenng the cost,
outsIde sources of fundmg, If any, and health and safety
reqUIrements, If any
41 (1) - Where the Tribunal, after a heanng, finds that a nght of the
complamant under Part I has been mfnnged and that the
mfnngement IS a contraventIOn of sectIOn 9 by a party to the
proceedmg, the Tnbunal may, by order,
a) dIrect the party to do anytlllng that, m the opmIOn of the
Tribunal, the party ought to do to achIeve comphance wIth thIS
Act, both m respect of the complamt and m respect of future
practIces,
b) and dIrect the party to make restItutIOn, mcludmg monetary
compensatIOn, for loss ansmg out of the mfnngement, and,
where the mfnngement has been engaged m wIllfully or
36
recklessly, monetary compensatIOn may mclude an award, not
exceedmg $10,000 for mental angUIsh
Ontano Workplace Safety And Insurance Act 1997
41 (6) - The employer shall accommodate the work or the workplace for
the worker to the extent that the accommodatIOn does not cause the
employer undue hardshIp
42(1) - The Board shall provIde a worker wIth a labour market re-entry
assessment If any of the followmg CIrcumstances eXIst
2 If the worker's employer has been unable to arrange work for the worker
that IS consIstent WIth the worker's functIOnal abIlItIes and that restores
the worker's pre-mJury earnmgs
(2) - Based on the results of the assessment, the Board shall decIde If a
worker reqUIres a labour market re-entry plan m order to enable the
worker to re-enter the labour market and reduce or elImmate the
loss of earnmgs that may result from the mJury
(4) - The Board shall arrange for a plan to be prepared for a worker If
the Board determmes that the worker reqUIres a labour market re-
entry plan
(8) - The Board shall pay such expenses related to the plan as the Board
consIders appropnate to enable the worker to re-enter the labour
market
90(1) - Every Schedule 2 employer IS mdIvIdually lIable to pay the
benefits under the msurance plan respectmg workers employed by
the employer on the date of the accIdent
(2) - The employer shall reImburse the Board for any payments
made by the Board on behalf of the employer under the msurance
plan The amount to be reImbursed IS an amount owmg to the
Board.
The partIes agree that tlllS VIce-Chair has the authonty to mterpret and apply
human nghts legIslatIOn They further agree that the gnevor suffers from a
37
dIsabIlIty and has the nght to be free from dIscnmmatIOn under both the collectIve
agreement and the Human RIghts Code By way of overvIew, It IS the UnIon's
posItIOn that the Employer has faIled to accommodate the gnevor and her dIsabIlIty
by refusmg to schedule her to work on Sundays and other premmm ShIftS, and by
removmg her from work m the Store system from and after February 11, 2004
From the perspectIve of the UnIon, these actIOns constItute unlawful dIscnmmatIOn
as, m ItS vIew, the Employer has faIled to establIsh that It accommodated the
gnevor to the pomt of undue hardshIp, as reqUIred by law The UnIon asserts that
the Employer has faIled to gIve proper attentIOn to the full extent of ItS legal
oblIgatIOn to accommodate the gnevor Rather, the LCBO Improperly adopted the
posItIOn that It dId not have to accommodate Ms SanfilIppo If she could not
"multI-task" or perform both the cashIenng and stock handlIng functIOns
Counsel for the UnIon filed a Bnef settmg out the law on the followmg
aspects of ItS case (1) the authonty of an arbItrator to mterpret and apply human
nghts legIslatIOn, (11) the nght of the gnevor, as a dIsabled employee, to be free
from dIscnmmatIOn, (111) the onus on the Employer of establIshmg the undue
hardshIp defence, (IV) the extent of the duty to accommodate, (v) the elements
whIch must be establIshed to prove undue hardshIp, (VI) the LMR plan and ItS
relatIOnslllP to the duty to accommodate, and (V11) the presumptIve nature of
damages under the Human RIghts Code It IS unnecessary to here reproduce all of
38
the argument contamed m the Bnef on the aforementIOned Issues Rather, I have
appended the UnIon's Bnefto thIS award.
Counsel for the UnIon noted that on some of the Sundays and premIUm days
m Issue, JUnIor employees were scheduled to work despIte the fact the gnevor was
wIlhng and able to work the shIfts Mr Robbms scheduled m tlllS manner on the
basIs of the dIrectIOn gIven to hun by Mr Thibodeau Counsel argued that such
scheduhng was contrary to the Letter Of Agreement on Sunday OpenIngs, as the
gnevor had a nght, as a pennanent full-tIme employee, to work on Sunday m order
of her senIonty He further argued that the failure to schedule the gnevor
amounted to a breach of the Human RIghts Code, as the Employer's decIsIOn was
premIsed on her dIsabIhty Counsel referenced Mr ThIbodeau's eVIdence that the
Employer schedules a mmImum number of staff on Sundays and that, accordmgly,
there IS a need for all employees to be able to "multI -task" He suggested that thIS
equates to a blanket rule that only able bodIed employees can work on Sundays or
on other premIUm shIfts Counsel submItted that such an approach to scheduhng
could be challenged on a number of grounds HIS arguments on thIS aspect of the
case may be summanzed as follows
1) the Employer's schedulmg practIce m respect of Sundays and other
premIUm days dIsregarded the duty to accommodate and the need to
ensure the eXIstence of dIgnIty and dIversIty m the workplace,
u) httle, If any, eVIdence was presented to JustIfy the rule The
Employer's only eVIdence was that It costs more to staff the Store
on Sundays and other premIUm days Counsel observed that no
39
eVIdence was presented about the extent of the cost or, more
specIfically, about the mcreased cost of schedulmg more employees
on these days Indeed, on hIS assessment, no eVIdence was led to
mdIcate that the Employer even consIdered or weIghed the actual
costs,
111) no eVIdence was presented by the Employer to estabhsh that
accommodatmg the gnevor on Sundays and other premmm days
would have resulted m undue hardshIp,
IV) the adoptIOn of the blanket rule apphed m tlllS mstance was
dIscnmmatory and falls to satIsfy the legal test artIculated by the
Supreme Court of Canada m the MeIOnn case m BntIsh ColumbIa
(Pubhc ServIce Employee RelatIOns CommIssIOn V BntIsh
Columbia Government and ServIces Employees' UnIon, (1999)
S C.R.3 More specIfically, It was submItted that the Employer dId
not estabhsh the followmg that the rule was adopted for a purpose
or goal that was ratIOnally connected to the functIOn bemg
performed, that the rule was adopted m good faith and m the behef
that It was necessary for the fulfillment of the purpose or goal, and
that It was ImpossIble to otherwIse accommodate the gnevor
wIthout undue hardshIp,
v) the Employer faIled to consIder an mdIvIduahzed accommodatIOn
for the gnevor m respect of Sundays or premmm days Counsel for
the UnIon noted, by way of example, that the Employer dId not
assess whether the reqUIred tasks could be assIgned or bundled m a
dIfferent way
For all of these reasons, It IS the UnIon's posItIOn that the Employer faIled, m both
a procedural and substantIve sense, to accommodate the gnevor to the pomt of
undue hardshIp
The further posItIOn of the UnIon IS that the Employer breached both the
collectIve agreement and the Human RIghts Code through ItS decIsIOn of February
11, 2004 to dIscontmue the gnevor's accommodatIOn Counsel for the UnIon
40
focused on three (3) basIc concerns FIrst, he submItted that problems eXIst WIth
respect to the eVIdence surroundIng the decIsIOn makIng process Second, counsel
argued that the procedure used to assess the gnevor's abIhty and the aVaIlabIhty of
work was flawed and dId not satIsfy the legal obhgatIOn nnposed on the Employer
In a case such as tlllS Lastly, It was submItted that the Employer faIled to estabhsh
on the eVIdence that It could not accommodate the gnevor wIthout expenencIng
undue hardshIp
Counsel for the Umon noted that Mr RobbIns, Ms Meek, Mr Thibodeau
and Mr Wagner all testIfied that they dId not make the decIsIOn beIng challenged
In thIS proceedIng On hIS analYSIS, the eVIdence IndIcatIng Mr Turner made the
decIsIOn IS purely hearsay, as Mr Turner was not called as a wItness to explaIn
why he decIded as he dId and on what consIderatIOns hIS decIsIOn was based.
Counsel suggested that thIS VIce-Chair IS beIng asked to "Impute" the basIs for the
decIsIOn from the eVIdence of the other wItnesses for the LCBO In thIS regard, he
claimed that there IS a lack of firm eVIdence to show that Mr Turner "rubber-
stamped" Mr Wagner's recommendatIOn Counsel asserted that Mr Turner's
decIsIOn could be equally consIstent WIth an effort to sImply get nd of dIsabled
employees He also noted that there IS a resultIng gap In the eVIdence as to why
the Employer adopted the rule that an employee can no longer be accommodated If
unable to perfonn both cash and stock. Counsel argued that there was a real
obhgatIOn on the Employer to call Mr Turner as a wItness to explaIn why tlllS
41
standard was adopted and applIed to the gnevor, and to expose hIm to cross-
exammatIOn on these vItal questIOns
Counsel for the UnIon stressed that the gnevor was on modIfied dutIes
between March, 2003 and February, 2004 In tlus penod, the gnevor dId not
perform the cash and stock functIOns Counsel questIOned why the Employer
decIded that It could no longer mamtam, the status quo He observed that there
was no worsenIng of the gnevor's condItIon nor any reorganIZatIOn m the Store
that would explam the change m approach Indeed, counsel suggested that the only
tlung that changed was the Employer's "attItude" and that It sImply no longer
wanted to accommodate the gnevor He argued that there IS no eVIdence to
mdIcate that the contmuatIOn of the status quo would have created a sItuatIOn of
undue hardshIp Counsel referenced the complete lack of any eVIdence relatmg to
cost, outsIde sources of fundmg and health and safety concerns
It IS the posItIOn of the UnIon that an onus eXIsts on the Employer to
establIsh that the gnevor could not perform the Job of CSR and that such Job could
not be modIfied so as to accommodate her dIsabIlIty In counsel's VIew, a CSR
does not have a "specIfic Job" Rather, the role of an employee m such posItIOn IS
to assIst WIth cash and stock, customer servIce and other functIOns related to the
operatIOn of the Store, m accordance wIth dIrectIOns gIven by the Store Manager or
ShIft Leader Counsel descnbed the Job of a CSR as bemg compnsed of "a bundle
of tasks" and suggested that how these tasks are dIvIded between CSRs workmg at
42
any gIven tIme IS wIthm the dIscretIOn of the Employer He re-Iterated that thIS
bundle mcludes the customer serVIce role On hIS analYSIS, when the gnevor was
assIgned to customer servIce, other CSRs were able to perform the other tasks m
the bundle, such as cash or stock. It IS the thrust of counsel's argument that the
Employer faIled to gIve proper weIght to the customer serVIce component of the
Job when It decIded the gnevor could no longer be accommodated Counsel
asserted that tlllS error was compounded by the Employer's failure to recogmze
that the gnevor could have performed customer servIce as well as all of the dutIes
hsted m ExhibIts #9 and # 1 0 He referenced Mr Robbm's acknowledgement that
all of the latter functIOns could be assIgned to a CSR and are performed at all retail
Stores He further referenced Mr Robbm's statement that the gnevor was engaged
m work of value for forty (40) hours a week In the final analysIs, counsel
submItted that the tasks performed by the gnevor represented real and meanmgful
work whIch she could have contmued to perform had the Employer not opted to
end her employment on Febnmry 11, 2004 He observed that thIS work contmued
to be done by other CSRs after the gnevor left Store #593
On a related pomt, counsel for the Umon submItted that the Employer was
deficIent m ItS evaluatIOn of the tasks hsted m ExlllbItS #9 and # 10 HIS
submIssIOns on tlllS aspect of the case may be summanzed as follows
1) the evaluatIOn was perfonned m the months of January and
February, these bemg the slowest months m terms of volume of
busmess Counsel suggested that the evaluatIOn would likely have
43
been dIfferent, and more favourable, If done at a dIfferent tIme of
the year;
11) the evaluatIOn was premIsed on a penod of Just two (2) weeks In
counsel's Judgment, thIS constItuted an InsufficIent penod of
assessment,
111) no effort was made by the Employer to gather InfOrmatIOn as to how
many of the tasks lIsted on ExhibIt #9 and # 1 0 were perfonned by
other employees In Store #593 and the tIme they devoted to same
Counsel submItted that, as a consequence, the Employer dId not
accurately assess how much of thIS work was actually aVailable for
the gnevor to perfonn,
IV) no thought was gIven by the Employer to evaluatIng other Stores In
London or elsewhere In the RegIOn for purposes of determInIng how
much of tlllS work was aVailable at other locatIOns Counsel
suggested that the gnevor could have been assIgned to do the lIsted
tasks at more than one (1) locatIOn He noted that there are a number
of 'A' Stores In the RegIOn whIch are larger, and have a greater
volume of busIness, than Store #593 In the UnIon's VIew, the
Employer faIled to consIder an alternate form of accommodatIOn on
the basIs of ItS mIsplaced belIef that an employee dId not have to be
accommodated If unable to do both cash and stock, and,
v) the Employer dId not assess whether It would be more or less
efficIent to have one (1) person perform customer serVIce and the
lIsted tasks and whether to have done so would have resulted In
undue hardshIp
It IS the further posItIOn of the UnIon that, even If the ExhibIt #9 and # 1 0
tasks dId not provIde sufficIent, proper or meanIngful work, the Employer was stIll
oblIged to detennIne If the gnevor's Job could be modIfied Counsel argued that,
despIte all of the medIcal reports and tests receIved, there was no consIderatIOn by
the Employer If It could change the way cash and stock functIOns were performed
so as to permIt the gnevor to do such work. From the perspectIve of the UnIon, It
44
was mcumbent on the LCBO to canvass the possibIlIty of modIfymg the cash and
stock functIOns
Counsel for the UnIon also mamtamed that the Employer had an oblIgatIOn
to look at the aVailabIlIty of other Jobs wItlun the LCBO He noted, m tlus regard,
that the bargammg UnIt IS ProvmcIaI wIde Counsel suggested that the eVIdence
relatmg to the consIderatIOn of other Jobs IS "spotty at best" He referenced Mr
Thibodeau's statement that the mqUIry ends If an employee cannot do cash and
stock. Counsel noted that the Employer dId not evaluate Jobs posted m the penod
pnor to February 11, 2004 and that the LCBO dId not approach the UnIon about
possibly cIrcumventmg the postmg reqUIrements of the collectIve agreement m
order to achIeve or facIlItate an accommodatIOn I was also asked to find that Mr
Wagner's analysIs of other Jobs was msufficIent to satIsfy the Employer's
oblIgatIOn More partIcularly, counsel claimed that there was no real or
meanmgful weIghmg of other Jobs agamst the greIvor's skIll, abIlIty and
restnctIOns
Counsel for the UnIon argued that the Employer's nlle that an employee
cannot be accommodated If they are unable to perform cash and stock, has to be
assessed pursuant to the MeIOnn test More specIfically, he argued that I have to
assess the followmg questIOns was the purpose or goal of the rule ratIOnally
connected to the Job bemg perfonned, was the rule adopted m good faith m the
belIef It was necessary for the fulfillment of the purpose or goal, was It reasonably
45
necessary to accomphsh thIS purpose or goal, and was It ImpOSSIble to otherwIse
accommodate the gnevor wIthout undue hardshIp Counsel asked me to find
agamst the Employer on all of these questIOns He emphasIzed that, m hIS vIew,
there IS no eVIdence eIther that the Employer adequately turned ItS mmd to an
mdIvIdual assessment of the gnevor's CIrcumstances and the need for an
accommodatIOn or to whether It was possible to accommodate her to the pomt of
undue hardshIp
In summary, counsel for the Umon submItted that the Employer, m order to
fully comply wIth ItS legal obhgatIOn to accommodate, ought to have evaluated the
followmg optIOns mamtammg the status quo, changmg or modIfymg the cash/or
stock functIOns, bundhng or reconfigunng the CSR dutIes, assIgnmg the gnevor to
two (2) or more locatIOns m order to contmue the work she was performmg pnor to
Febnmry 11, 2004, and assessmg the sUItabIhty of other Jobs wIthm the LCBO
Counsel stressed that these assessments were not undertaken and that, as a
consequence, the Employer has faIled to estabhsh a defence of undue hardshIp
under the Human RIghts Code
It IS the posItIOn of the Umon that It has estabhshed a breach of both the
collectIve agreement and the Human RIghts Code gIven that the gnevor was
treated dIfferently than other employees, and dIscnmmated agamst, on the grounds
of her dIsabIhty I was asked to award the followmg remedIes
46
1 A declaratIOn that the Employer, m Its treatment of the gnevor,
breached the reqUIrements of the collectIve agreement and the Human
RIghts Code,
2 Damages under the collectIve agreement to make the gnevor whole m
respect of matters mcludmg lost wages, benefits, vacatIOn and sIck
days flowmg from the Employer's decIsIOn not to employ the gnevor
after February 11,2004,
3 Damages under the Human RIghts Code for the gnevor's loss of the
nght to be free from dIscrllnmatIon and her expenence of
vIctImIzatIOn,
4 An order that the Employer return the gnevor to work and complete a
full and proper assessment as to how she can best be accommodated
and that a reasonable tllnehne be set for the completIOn of the
assessment,
5 That It be mItIally left to the partIes to calculate the amount owmg to
the gnevor as a consequence of the Employer's failure to schedule her
on Sundays and on other premmm days, and
6 That thIS VIce-Chair rem am seIzed wIth respect to ImplementatIOn of
the Award.
The UnIon rehes on the followmg authontIes m support of ItS case BntIsh
Columbia (Pubhc ServIce Employee RelatIOns CommIssIOn) V BntIsh Columbia
Government and ServIces Employees' UnIon, prevIOusly cIted, Central Okanagan
School DIstnct No 23 V Renaud, (1992) 2 S C.R. 970, Ontano (Human RIghts
CommIssIOn) V SImpson Sears Ltd , (1985) 2 S C.R. 536, OntarIO Pubhc ServIce
Employees UnIon v. Ontano (MmIstry of CommunIty and Social ServIces ), (1996)
OJ No 608 (Ont DIV Ct), Canadian UnIon of Pubhc Employees v. Toronto
DIstnct School Board (2003), unreported (Howe), Proboard Ltd. and C.E.P , Local
49-0 (2002), 112 L.A.C (4th) 371 (Kaplan), UnIlever HPC NA and Teamsters,
ChemIcal Energy and Alhed Workers, Local 132 (2002), 106 L.A.C (4th) 360
(Spnngate), AIr Canada and C.A.W - Canada, Local 2213 (2001), 101 L.A.C
47
(4th) 311 (DIssanayake), Bakery Workers v Canada Bread (1965), 16 L.A C 202
(RevIlle), CIty of VIctona V C U.P.E, Local 50 (1982), 2 L.A.C (3d) 368
(Brown), BntIsh Columbia (Supenntendent of Motor VehIcles) V BntIsh
Columbia (CouncIl of Human RIghts) ("Gnsmer"), (1999) 3 S C.R. 868, Quebec v.
BOlsbnand ("MercIer") (2000), 185 D.L.R. (4th) 385 (S C C), Entrop v. Impenal
011 (2000), 189 D.L.R. (4th) 14 (Ont C.A.), Ontano (Human RIghts CommIssIOn)
V Shelter Corp, (2001) O.J No 297 (Ont DIV Ct), Jeppesen V Ancaster (Town),
(2001) O.H.R.B I.D No 1, Parry Sound (DIstnct) SocIal ServIces AdmmIstratIOn
Board v. OPSEU, Local 324 (2003), 230 D.L.R. (4th) 257 (S C C), Better Beef
Ltd. v. U.F.C.W., Local 175 (2003), 119 L.A.C ( 4th) 361 (DIssanayake),
Ahkwesahnsne Pohce ASSOCiatIOn v. Mohawk CouncIl of Akwesasne (2003), 122
L.A.C (4th) 161 (Chapman), TTC v A T U, Local 113 (LangIlle), (2003)
O.L.A.A. No 520 (Chapman), PanSIen v Ottawa Carleton RegIOnal TransIt,
(2003) C.H.R.D No 6, Re York County HosPItal And Ontano Nurses'
ASSOCiatIOn (1992), 26 L.A.C (4th) 384 (Watters), Re Mount SmaI HosPItal And
Ontano Nurses' ASSOCiatIOn (1996), 54 L.A.C (4th) 261 (Brown), Re Greater
Niagara General HospItal And Ontano Nurses' ASSOCiatIOn (1995),50 L.A.C (4th)
34 (Brown)
Counsel for the Employer noted that m early 2003, the gnevor was
perfonnmg modIfied dutIes m respect of the caslllenng and stock handhng
functIOns More specIfically, she was then perfonnmg cash for tlllrty (30) mmutes
48
at a tIme and was permItted to stock the shelves one (1) bottle at a tIme Counsel
further noted that the gnevor's condItIon detenorated to the extent she could not
perform eIther cash or stock from March, 2003 onward. Counsel described the
aforementIOned dutIes as the essentIal, or core, functIOns of the CSR posItIOn
Counsel submItted that the Employer m February, 2004 properly concluded that
the gnevor would not be able to perfonn these dutIes, m theIr ongmal fonn, m the
future She added that the Employer also had no reason to then beheve It was
possible to further modIfy the cash or stock functIOns On counsel's analysIs, no
amount of accommodatIOn would have enabled the gnevor to perfonn the essentIal
dutIes of the CSR posItIOn In her Judgment, an Employer, generally, IS not legally
obhgated to accommodate an employee who IS mcapable of performmg or
fulfilhng the essentIal functIOns of the Job for whIch she or he was hIred. SImply
stated, It was her submIssIOn m thIS case that such an obhgatIOn, If Imposed, would
take the mstant Employer beyond the pomt of undue hardshIp I was, ultImately,
asked to conclude that there was no contractual or statutory obhgatIOn to retam the
gnevor m the CSR posItIOn when It was apparent she could no longer perform the
essentIal or core functIOns of the Job and, partIcularly so, when there was no
foreseeable prospect of Improvement m her condItIon
It IS the further posItIOn of the Employer that, m the CIrcumstances of tlus
case, It was not reqUIred to create a new Job for the gnevor entIrely foreIgn to the
one for whIch she was lured or to bundle together a number of dutIes unrelated to
49
the essentIal functIOns of the CSR posItIOn More specIfically, wIth respect to the
latter pomt, counsel argued that the Employer was not obhgated to bundle together
a senes of customer serVIce functIOns unrelated to cashIenng or stock handlmg, as
to do so would be tantamount to the creatIOn of a new posItIOn In response to a
questIOn from tlllS VIce-Chair, counsel mamtamed that customer servIce IS not a
"stand-alone" or mdependent functIOn Rather, It IS mtnnsIcally related to, and
fonns part of, the cash and stock functIOns Counsel argued, m the alternatIve, that
a reqUIrement to bundle a group of dutIes together must result m a productIve role
m the Employer's orgamzatIOn, otherwIse the sItuatIOn would be one of undue
hardshIp
NotwIthstandmg the Employer's pnmary posItIOn on bundhng of dutIes,
counsel noted that dutIes were actually bundled or cobbled together for the gnevor
m thIS mstance ThIS bundle of dutIes was compnsed of the tasks hsted m ExhIbItS
#9 and #10 Counsel re-Iterated that the Employer evaluated these dutIes and the
tIme spent on same through a reVIew of the Manager's Assessment Forms From
her perspectIve, the evaluatIOn determmed that the vanous tasks performed dId not
represent a bundle of essentIal, necessary or productIve dutIes, and that such dutIes
when taken together would not constItute a posItIOn under the collectIve
agreement It was counsel's submIssIOn that the gnevor m February, 2004 was not
perfonnmg productIve work for the LCBO and that retammg her at Store #593 to
do non-essentIal and unproductIve work on a full-tIme basIs would have amounted,
50
m substance, to an mappropnate wage subsIdy She argued, m effect, that the
Employer was not obhged to keep the gnevor m an unproductIve Job as an
accommodatIon Counsel acknowledged that the Employer may have had the
financial resources to mamtam the gnevor's employment She urged, however,
that I not decIde tlllS case on that basIs Rather, she asserted that I should consIder
whether the gnevor could perfonn the essentIal functIOns of the CSR Job wIth
some accommodatIOn or, m the alternatIve, whether she could perform work of
value m some other way
Counsel for the Employer argued that Mr Wagner dId consIder other
posItIOns for the gnevor She referenced hIS efforts wIth respect to the two (2)
posItIOns m the LOgIStICS DIvIsIOn Counsel noted that Mr Wagner concluded that
the gnevor would be unable to satIsfy the Job reqUIrements, as both mvolved
repetItIve computer work. She further observed that, m the absence of eVIdence
from the gnevor, It would be dIfficult for me to determme whether the gnevor
could perform the work of eIther the ClerkJReceptIOlllst or the Duty Free Clerk.
Counsel repeated that the former posItIOn would have amounted to a demotIOn for
the gnevor, wIllIe the latter would have represented a promotIOn She also
suggested that to reqUIre the Employer to transfer across dIvIsIOns, agamst ItS
normal practIce, would result m the gnevor gettmg better treatment than other non-
dIsabled employees and could lead to an undesIred precedent m the sense that
dIsabled employees m the warehouse mIght seek transfers mto the retail system
51
Counsel sImIlarly argued that the Employer was not oblIgated to put the gnevor
mto a Manager, AssIstant Manager or Product Consultant posItIOn, as all of these
posItIOns would have represented a promotIOn and, m the case of the Manager
posItIOn, would have removed her from the bargammg umt Fmally, It was the
submIssIOn of counsel that the duty to accommodate the gnevor dId not reqUIre the
Employer to dIsplace some other employee from her or Ius posItIOn
Counsel argued that, unlike the sItuatIOn m MeIOnn and Gnsmer, the
Employer dId not act pursuant to a blanket polIcy The Employer dId not, for
example, reqUIre that the gnevor be able to 11ft stock of a prescribed weIght or
complete cash transactIOns wIthm a predetermmed tIme On counsel's assessment,
the Employment mstead engaged m a thoughtful and lengthy process of gathenng
and revIewmg medIcal mformatIOn from a varIety of sources m order to determme
how the gnevor could be accommodated m the Store system She stressed that the
gnevor's work m respect of both cash and stock was mItIally modIfied and that she
was subsequently allowed to perform other dutIes when It became clear that she
could no longer perform any cash or stock functIOn Counsel emphasIzed that the
Employer accommodated the gnevor's mabIlIty to perfonn cash and stock for
approxImately one (1) year She mamtamed that the sequence of events m that
penod, as descnbed m the eVIdence, shows that the Employer dId attempt to adopt
an mdIvIdualIzed approach VIS a VIS the gnevor's dIsabIlIty and contmued to do so
untIl It became apparent there would likely be no Improvement m the foreseeable
52
future Counsel acknowledged that the Employer should perhaps have mvolved
the Umon m the search for an effectIve accommodatIOn pnor to February 11,2004
She suggested, however, that there IS no eVIdence to mdlcate that anythmg
dIfferent could have been done to accommodate the gnevor m her employment
Counsel for the Employer noted that the WSIB detennmed that the LCBO
could no longer accommodate the gnevor and, on that basIs, moved forward wIth a
LMR plan She suggested that the placement of the gnevor on a LMR plan
confinns the correctness of the Employer's assessment AddItIonally, she argued
that such placement should be vIewed as an accommodatIOn effort on the part of
the Employer, presumably because It was mvolved m dIscussIOns wIth the WSIB
about the advlsablhty of movmg m that dIrectIOn and because of ItS ultImate
responsiblhty for the costs of the plan as a Schedule 2 Employer In the
alternatIve, counsel submItted that the Employer's role m the ImplementatIOn of
the LMR plan was a relevant consIderatIOn m respect of both the adequacy of the
accommodatIOn efforts and for purposes of remedy Counsel acknowledged that,
qUIte apart from any consIderatIOn as to the Impact of the Workplace Safety and
Insurance Act 1997, tlllS V Ice-Chair possesses the authonty to assess whether Ms
Sanfihppo has been properly accommodated under the collectIve agreement and
the Human RIghts Code
Counsel argued that It was unnecessary to call Mr Turner as a wItness m
respect of tlllS aspect of the dIspute She referenced Mr Wagner's eVIdence that he
53
provIded a recommendatIOn to Mr Turner and that Mr Turner, m hIS presence,
accepted It She also noted that the UnIon m ItS openmg argument dId not allege
bad faith agamst the LCBO or any of ItS representatIves Counsel suggested that
the UnIon was, m effect, attemptmg to change ItS case through closmg argument
It IS the posItIOn of the Employer that It was entItled to restnct the gnevor's
work on Sunday and other premmm days to those penods m whIch there was a
need, because of customer demand, to have a CSR on the sales floor In tlll s
regard, counsel stressed that employees scheduled on Sundays, described as "put-
through days", had to be able to perfonn both cash and stock because of the
mInImal staffing In her submIssIOn, the Employer was not oblIged to provIde a
wage subsIdy m the penod m questIOn to an employee who was unable to perform
the functIOns reqUIred and deemed essentIal Counsel consIdered It matenal that
the Employer dId accommodate the gnevor for at least forty (40) hours of work
each week m the penod Apnl, 2003 to February, 2004 It was the gISt of her
submIssIOn that the Employer, m the cIrcumstances, was not oblIged to go further
For all of the above reasons, It IS the posItIOn of the Employer that It
accommodated the gnevor's dIsabIlIty on both Issues to the pomt of undue
hardshIp and that, as a consequence, It was entItled to cease ItS efforts to
accommodate her as of February 11, 2004 Counsel submItted that, as a
consequence, the UnIon should not be awarded the relIef claimed on behalf of the
gnevor She further asked that I not remIt tlllS matter back to the Employer On
54
her analysIs, there IS nothmg to suggest that further attempts to accommodate
would YIeld a dIfferent result In the alternatIve, counsel argued that the gnevor
should not be awarded any rehef m respect of the penod followmg February 11,
2004 ThIS argument IS premIsed on the agreement of counsel, reached dunng the
course of the heanng, to treat February 11th as "a cut -off date" for purposes of the
presentatIOn of eVIdence More specIfically, both counsel agreed that the Issue
before tlllS VIce-Chair IS whether the Employer reached a sItuatIOn of undue
hardshIp as of that date and, therefore, had no contmumg obhgatIOn to
accommodate thereafter As a further alternatIve, counsel for the Employer
mamtamed that any damages awarded had to reflect the gnevor's contmumg
receIpt of LMR benefits, all of whIch are ultImately paid for by the Employer
The Employer rehes on the followmg authontIes Re Ontano Enghsh
Cathohc Teachers' AssociatIon and Office and ProfessIOnal Employees'
InternatIOnal UnIon (1997), 61 L.A.C (4th) 109 (Burkett), Bonner v Mmlster of
Health (Ont) (1992), 92 CLLC 16 161 (Ontano Human RIghts Tribunal), Re
Maple Leaf Foods Inc. and UnIted Food and Commercial Workers, Local 175/633
(1996),60 L.A.C (4th) 146 (KIrkwood), Bowater Canadian Forest Products Inc. v.
Industnal Wood and Alhed Workers of Canada, Local 2693 ( GIardmo Gnevance ),
(2003) O.L.A.A. No 597 (SurdykowskI), Re Canada Post Corp and Canadian
UnIon of Postal Workers (Godbout) (1993), 32 L.A.C (4th) 289 (Jolhffe), Re
HamIlton CIVIC HosPItals and Canadian UnIon of Pubhc Employees, Local 794
55
(1995), 44 L.A.C (4th) 31 (Kennedy), Re Calgary Herald and Calgary PnntIng
Trades UnIon, Local 1 (1995),52 L.A.C (4th) 393 (Tettensor), Re Better Beef Ltd.
and UnIted Food and CommercIal Workers InternatIOnal UnIon, RegIOn 18 (1994),
42 L.A C (4th) 244 (Welhng), Great AtlantIc and PacIfic Co. of Canada v. UnIted
Food and Commercial Workers InternatIOnal UnIon, Local 175 (Konefal
Gnevance), (2004) O.L.A.A. No 85 (Brent), Re NatIOnal Steel Car Ltd. and
UnIted Steelworkers of Amenca, Local 7135 (1997), 64 L.A.C (4th) 242 (Rose),
Ontano Nurses' ASSOCiatIOn v Onlha SoldIers Memonal HosPItal (1998), 169
D.L.R. (4th) 489 (Ont C.A.), UnIted Food and Commercial Workers UnIon, Local
1000A v. Kretschmar Inc. (MacEachern Gnevance), (2004) O.L.A.A. No 373
(Herman), CommUnICatIOns, Energy and Paperworkers' UnIon, Local 212 v.
Domtar FIne Papers Inc, (2000) O.J No 2018 (Ont DIV Ct), Re CommunIty
NursIng Home-Port Hope and UnIted Food and Commercial Workers InternatIOnal
UnIon, Local 175 and 633 (1996), 60 L.A.C (4th) 35 (Gorsky), KIK (Toronto) Inc
v UnIted Steelworkers of Amenca (Barnes Gnevance), (2003) O.L.A.A. No 667
(Starkman), WInpack PortIOn PackagIng Ltd. v UnIted Steelworkers of Amenca
(Bm Gnevance), (2003) O.L.A.A. No 416 (PIcher), Blltnte Rubber (1984) Inc. v.
UnIted Steelworkers of Amenca, Local 526 (Beazley Gnevance ), (2002)
O.L.A.A. No 666 (Newman)
56
The UnIon's reply mcluded the followmg arguments
1) thIS VIce-Chair IS the person who must decIde If the work the gnevor
performed was of value and constItuted essentIal tasks for the CSR
posItIOn The Issue cannot be determmed on the basIs of the self-
servmg statements of the Employer's wItnesses The onus rests on the
Employer to prove, and not merely to say, that casluenng and stock
handlmg are essentIal functIOns of a CSR,
11) If the Employer IS correct and there are only two (2) essentIal dutIes
of the CSR posItIOn, namely cash and stock, then each has a customer
servIce component whIch the gnevor IS capable of performmg
AlternatIvely, the gnevor IS able to perfonn the customer serVIce and
other tasks hsted m ExhIbItS #9 and # 1 0 Counsel noted Mr Robbms'
eVIdence that a Manager could assIgn all of the hsted tasks to a CSR,
notwIthstandmg that some of them are attached to hIgher rated
posItIOns m the Store He argued that the Employer has to
accommodate to the pomt of undue hardshIp before a findmg can be
made that an employee cannot exerCIse an essentIal functIOn or
reqUIrement of the Job In any event, counsel suggested that the real
test IS whether the dIsabled employee can perform work of value,
111) an onus eXIsts on the Employer to show that It consIdered all possible
modIficatIOns to the cash and stock functIOns m an effort to
accommodate the gnevor Counsel for the UnIon emphasIzed that the
Employer dId not mVIte any doctors, or other experts, to the
workplace to assess the work and the gnevor's abIhty to perform It,
IV) the Employer's duty to accommodate IS not satIsfied by a narrow or
hmIted assessment of the gnevor's abIhty to perform Just some of the
tasks whIch may be delegated to a CSR. Rather an obhgatIOn eXIsts,
especially when there IS a pool of work wIthm the classIficatIOn, to
consIder whether tasks can be bundled together m a meanmgful way
so as to create a productIve posItIOn AddItIonally, the Employer IS
reqUIred to assess whether the gnevor could perform the dutIes of
other posItIOns m theIr ongmal, or m modIfied, form Counsel for the
UnIon argued that tlus responsIbIhty reqUIred the Employer, mter aha,
to look at aVailable postmgs even If the posItIOns would have resulted
m a promotIOn for the gnevor,
57
V) Mr Wagner testIfied that the Employer, as a matter of practIce, does
not transfer across dIvIsIOns Counsel for the UnIon stressed that Mr
Wagner faIled to advance reasons to support thIS approach or to
explaIn why such transfers would occaSIOn undue hardshIp to the
LCBO He further suggested that Mr Wagner leaped to the
conclusIOn that the gnevor would be unable to perform the work of
the two (2) posItIOns In the LOgIStICS DIvIsIOn wIthout reVIeWIng the
actual Job reqUIrements agaInst her restnctIOns,
VI) the Letter of Agreement relatIng to Sunday OpenIngs does not
expressly except dIsabled employees The Employer's obhgatIOn In
respect of such work IS to accommodate to the pOInt of undue
hardshIp From the UnIon's perspectIve, loss of some efficIency IS the
type of hardshIp that must be tolerated In order to gIve meanIng to the
nght to be free from dISCnmInatIOn,
vu) the Employer In tlllS case apphed two (2) blanket standards FIrst, the
gnevor was not gIven Sunday or premmm work because she could not
multI-task, as reqUIred on a "push through" day Second, the gnevor
could no longer be accommodated folloWIng February 11,2004 as she
could no longer perform both the cash and stock functIOns Counsel
for the UnIon submItted that both standards faIled to meet the MeIOnn
test, as the Employer has not shown undue hardshIp would result from
accommodatIng the gnevor's needs,
VUI) Counsel for the UnIon submItted that the gnevor IS entItled to a
remedy post Febnmry 11, 2004 He argued that, as In an unJust
dIsmIssal case, damages may be awarded to compensate for the
consequences floWIng from the Employer's decIsIOn On hIS analysIs,
It does not matter that I dId not hear eVIdence of what occurred after
F ebnmry 11 th Counsel agreed that In faslllonIng an appropnate
remedy, some consIderatIOn would have to be gIven to the fact the
gnevor has been on a LMR plan
As prevIOusly mentIOned, the partIes agree that the gnevor IS dIsabled and IS
entItled to the protectIOns of the Human RIghts Code They also agree that tlllS
VIce-Chair has the authonty to Interpret and apply human nghts and other
employment-related statutes In VIew of the manner In whIch tlllS case was
58
presented, It would seem the partIes further agree that the fundamental questIOn m
thIS case IS whether the Employer accommodated the gnevor's dIsabIlIty to the
pomt of undue hardshIp m respect of both the Sunday and premmm day work Issue
and the Employer's ultImate decIsIOn to stop accommodatmg the gnevor as of
February 11,2004
As IS clear from a readmg of the authontIes, the Employer IS oblIgated under
sectIOn 17 of the Human RIghts Code to accommodate a dIsabled employee, such
as the gnevor, to the pomt of undue hardshIp An onus eXIsts m a proceedmg of
tlllS nature for the Employer to show that It has met tlllS statutory threshold. Both
the gnevor and the UnIon are responsible to cooperate wIth, and not Impede, the
Employer's efforts to accommodate In the mstant case, the gnevor has satIsfied
thIS responsibIlIty by secunng a sIgnIficant amount of medIcal opmIOn for the
LCBO's reVIew and by agreemg to partIcIpate m numerous medIcal tests and
assessments She also, for the most part, complIed wIth the ModIfied Work Plans
establIshed by the Employer The UnIon, m thIS case, was not mvolved m an m-
depth way m the accommodatIOn process ThIS lack of mvolvement occurred
because of the approach the Employer adopted to the gnevor's accommodatIOn
More specIfically, the Employer dId not ask for the UnIon's mput on how to best
accommodate the gnevor and, most Importantly, dId not mfonn the UnIon of ItS
mtent to cease ItS accommodatIOn efforts untIl after the decIsIOn was made The
UnIon, like the gnevor, first heard about the Employer's plan to pursue LMR on
59
February 11,2004 In retrospect, I thmk that the Employer should have engaged m
an earlIer, and more comprehensIve, consultatIOn wIth the Umon about the range
of Issues relatmg to the gnevor's accommodatIOn
The state of the law concernmg the duty to accommodate IS complex ThIS
results, m large measure, from the fact that the law IS evolvmg to meet changmg
perceptIOns and belIefs about the nghts of dIsabled employees m the workplace It
also reflects the realIty that the nature and extent of the duty vanes wIth the actual
CIrcumstances of mdIvIdual cases Lastly, It IS apparent that contractual and
statutory dutIes relatmg to the duty to accommodate have been supplemented by
way of a senes of decIsIOns of the Supreme Court of Canada. These decIsIOns
serve to mstnlct partIes mvolved m the accommodatIOn process about how they
should generally approach the Issue so as to aVOId any unlawful dIscnmmatIOn of
the employee
Professor MIchael Lynk provIdes an overVIew of the duty to accommodate
m hIS artIcle 'DIsabIlIty and the Duty to Accommodate, An ArbItrator's
PerspectIve', found m the Labour ArbItratIOn Year Book 2001-2002, Volume 1,
Lancaster House He wntes
"The duty to accommodate IS a fundamental legal oblIgatIOn It flows from two
sources, the applIcable human nghts legIslatIOn, and nllmgs of the Supreme Court
of Canada. In a senes of Important decIsIOns datmg back to 1985, the Supreme
Court has held.
60
(1) Human nghts legIslatIOn has a quasI-constItutIOnal place In CanadIan law, and
all other statutes, pohcIes and practIces, whether pubhc or pnvate, must
normally be consIstent WIth It
(2) DISCnmInatIOn may be unIntentIOnal, yet It wIll be In vIOlatIOn of human
nghts legIslatIOn If a person covered by a protected ground IS subjected to
adverse dIfferentIal treatment wIthout JustIficatIOn
(3) AccommodatIOn IS a sIgnIficant obhgatIOn, and IS reqUIred to be a central
feature of the Canadian workplace
(4) The duty rests on employers, UnIons and the employee seekIng
accommodatIOn, all of whom are reqUIred to assume responsibIhty for
ensunng the success of an accommodatIOn arrangement
(5) The pnmary responsibIhty rests wIth the employer, because It has ultImate
control over the workplace Once It receIves a request, It must InItIate the
search for appropnate accommodatIOn
(6) The UnIon must cooperate, and not unreasonably block a viable
accommodatIOn optIOn
(7) The employee IS expected to partIcIpate In the accommodatIOn process, and
cannot refuse a reasonable offer of accommodatIOn
(8) CollectIve agreement prOVISIOns are to be respected, but they may have to be
waived If they unreasonably block a viable accommodatIOn optIOn, or If they
treat IndIVIduals who are protected by human nghts legIslatIOn dIfferently,
wIthout a compelhng JustIficatIOn
In three recent decIsIOns, the Supreme Court of Canada has clarIfied and
broadened the extent of the duty, ruhng
(1) AccommodatIOn measures must be taken unless It IS Impossible to do so
wIthout undue hardshIp
(2) The threshold of undue hardshIp IS 111gh
(3) Employers and UnIons must be sensItIve to the vanous ways In whIch
IndIVIdual capabIhtIes can be accommodated
(4) Workplace standards, such as hftIng reqUIrements or work schedules, that
unIntentIOnally dIStIngUISh among employees on a protected ground are
subject to beIng struck down or modIfied Employers must buIld liberal
conceptIOns of equahty Into workplace practIces
(5) Courts, labour arbItrators and human nghts tribunals are to take a stnct
approach to exemptIOns from the duty to accommodate ExemptIOns are to be
pennItted only where they are reasonably necessary to the achIevement of
legItImate busIness-related objectIves"
61
(pages 59-60)
I am satIsfied that Professor Lynk's summary provIdes a solId startmg pomt for an
exammatIOn of the Issues raised m thIS case I wIll first address the Employer's
decIsIOn to cease ItS accommodatIOn efforts as of February 11, 2004 and wIll then
turn to the Issue of whether It Improperly demed the gnevor access to shIfts on
Sundays and on other premmm workdays
The Employer's pnmary posItIOn on the larger Issue IS that It may cease
accommodatmg a CSR If the employee IS unable to perform both the caslllenng
and stock handlIng functIOns As noted above, counsel for the Employer described
these as the essentIal functIOns of the posItIOn On the Employer's analysIs, undue
hardshIp would result from an oblIgatIOn to accommodate an employee physIcally
mcapable ofperformmg the essentIal functIOns of the CSRJob
In support of ItS submIssIOn that an employee must be able to perform the
essentIal dutIes of the Job, the Employer references and relIes on the followmg
(1) the OntarIO Human RIghts CommIssIOn's 'PolIcy And GUIdelInes On
DIsabIlIty And The Duty to Accommodate' The followmg statement IS
found at page 19 of the document
"The Code guarantees equal treatment to all persons capable of
performmg the essentIal dutIes or reqUIrements of the Job or serVIce
No one can be Judged mcapable of perfonnmg those dutIes untIl
efforts have been made to accommodate the mdIvIdual up to the pomt
of undue hardshIp The first step IS to separate the essentIal from the
non-essentIal dutIes of the Job Where possible, non-essentIal tasks
can be reassIgned to another person The person wIth the dIsabIlIty
62
should then be assessed m terms of hIS or her abIhty to perform the
essentIal dutIes and, on that basIs, accommodatIon should be
consIdered "
(11) the award m Re Ontano Enghsh Cathohc Teachers' ASSOCiatIOn and Office
and ProfessIOnal Employees' InternatIOnal Umon In tlus award, ArbItrator
Burkett commented, as follows
" , It IS clear that the object of accommodatIOn under the Human
RIghts Code IS to enable the handIcapped person to perform the
essentIal dutIes of a posItIOn The recent junsprudence, therefore,
confirms that It IS the dIsabled employee who must be assIsted to
perform the essentIal dutIes of Ius/her posItIOn (page 121) or of some
aVailable posItIOn rather than the posItIOn bemg modIfied to meet the
reqUIrements of the employee If a dIsabled employee IS unable to
perform the essentIal or core dutIes of hIs/her posItIOn or an aVailable
posItIOn, regardless of whatever attempts mIght be made at
accommodatIOn, that IS the end of the matter"
(page 11)
It IS apparent from a readmg of the above passage that ArbItrator Burkett
focused on the essentIal dutIes of the posItIOn, whIch m that case were those
of a maIlroom/pnntmg clerk posItIOn It IS noteworthy, however, that he
also spoke of a duty to consIder the dIsabled employee for another "available
posItIOn", If he or she IS unable to perform the essentIal dutIes of the regular
posItIOn Clearly, ArbItrator Burkett dId not thmk that the mqUIry ends after
an assessment of the employee's abIhty to perform the essentIal dutIes of the
pre-mjury job,
63
( 111 ) the award m Re Maple Leaf Foods Inc In thIS award, ArbItrator KIrkwood
concluded that sectIOn 17(1) of the Human RIghts Code "only reheves the
Employer of habIhty, If the Gnevor cannot do the essentIal dutIes of the
posItIOn, wIthout llnposmg undue hardshIp on the Employer by attemptmg
to accommodate the Gnevor " (page 15) LIke ArbItrator Burkett,
however, she suggested that tlus IS not the extent of the Employer's
obhgatIOn On tlus pomt, the award reads
"It IS not sufficIent for the Employer to say that the Gnevor cannot
perform any of the job descnptIOns, but the Employer must also be
able to show that the job descnptIOns cannot be changed wIthout
Imposmg undue hardshIp on the Employer"
(page 15)
(IV) the award m Re Bowater Canadian Forest Products Inc In tlus award,
ArbItrator SurdykowskI also made reference to the essentIal functIOns of the
posItIOn However, he recogmzed that an Employer "IS not entItled to reqUIre
or expect a dIsabled employee to perfonn all of the normal functIOns of the
regular job" (page 13) On tlus pomt, he observed that
" .Indeed, If necessary, and If It IS possIble to do so wIthout
undue hardshIp, a dIsabled employee must even be excused from an
essentIal functIOn of a job (ObvIOusly, the extent to whIch an
employee must be excused from essentIal functIOns wIll depend on the
eXIgencIes of the partIcular sItuatIOn) "
(page 13)
64
ArbItrator SurdykowskI added that
" If the dIsabled employee cannot be accommodated m
Ius/her regular Job, the employer must then consIder whether the
employee can be accommodated m a Job m another locatIOn or
department, agam tYPIcally m consultatIOn wIth the unIon"
(page 13)
It IS clear that ArbItrator SurdykowskI contemplated a broader duty to
accommodate than the one advanced by the Employer m tlus case
(v) the award m Re CommunIty Nursmg Home-Port Hope In tlus award,
ArbItrator Gorsky upheld the Employer's decIsIOn not to recall the gnevor
back to work from a medIcal leave of absence untIl such tllne as she was
physIcally capable of performmg the essentIal work of a Health Care AIde
He further agreed wIth the Employer's assessment that no amount of
accommodatIOn would have enabled the gnevor to perform the essentIal
dutIes and reqUIrements of the Health Care AIde posItIOn and that ItS duty to
accommodate dId not reqUIre the creatIOn of a new posItIOn I note that
ArbItrator Gorsky dId not contemplate that an employee be able to perform
one hundred percent (100%) of hIS or her former dutIes He commented as
follows on tlus pomt
"I do not regard the reqUIrement that an employee be able, wIth
accommodatIOn, to perform the essentIal dutIes and reqUIrements of
Ius/her posItIOn as reqUInng perfonnance of 100% of them At some
pomt, however, the ehmmatIOn of essentIal dutIes and reqUIrements
wIll result m the creatIOn of a fundamentally dIfferent posItIOn"
(page 16)
65
(VI) the award m Re KIK (Toronto) Inc In tlus award, ArbItrator Starkman
accepted the Employer's assessment that the gnevor was mcapable of
performmg the essentIal dutIes of hIS JanItonal posItIOn as a consequence of
hIS medIcal restnctIOns He found that the Employer correctly concluded
that there were no posItIOns whIch met the gnevor's restnctIOns and that, m
all of the cIrcumstances, the Employer's failure to provIde the gnevor wIth
alternate work was not a vIOlatIOn of the Human RIghts Code because to do
so would have created undue hardshIp In reachmg thIS conclusIOn,
ArbItrator Starkman stated.
" NeIther IS there an obhgatIOn for the Employer to employ
the gnevor m a posItIOn when he IS unable to perform the essentIal, or
core functIOns, of the posItIOn and partIcularly when there IS no
foreseeable prospect of Improvement"
(page 14)
At thIS Juncture, I note that ArbItrator Starkman observed that there was "no
suggestIOn that there were a bundle of tasks that could have been aggregated from
other employees to form a Job that the gnevor could do" (page 14) I mfer from
tlus observatIOn that he would have consIdered reqUInng the Employer to bundle
tasks together, If there had been some eVIdence relatmg to that optIOn
As stated earher, the Employer questIOns whether It IS obhgated to bundle
tasks together m order to create a Job for the gnevor It rehes on the awards m Re
Bowater Canadian Forest Products Inc and Re Wmpack PortIOn Packagmg Ltd
66
In the former award, ArbItrator SurdykowskI dId not accept "the general
proposItIOn that an employer IS necessanly obhged to cobble together or otherwIse
create a new Job m order to contmue the employment of a handIcapped employee"
(page 13) In the latter award, ArbItrator P C PIcher concluded that the company
under ItS duty to accommodate to the pomt of undue hardshIp was not reqUIred to
carve out hghter dutIes from the Selector-Packer posItIOn m order to fonn a
separate and modIfied Job to accommodate the gnevor's work restnctIOns She
found that a reqUIrement to do so would have resulted m undue hardshIp, as It
would "fundamentally dIsrupt the health and safety balance that has been created
m the rotatIOn of the vanous Job dutIes performed by the Selector-Packers and
would place the Selector-Packers at an unacceptable level of health and safety
nsk" (page 7) The Employer m the case now before me dId not attempt to JustIfy
ItS decIsIOns on grounds of health and safety
The Employer m thIS proceedmg also dIsputes that It IS obhgated to create a new
Job for the gnevor under the duty to accommodate It rehes on the followmg
authontIes
(1) the award m Re Calgary Herald. In tlus award, ArbItrator Tettensor
accepted the proposItIOn that the duty to accommodate does not reqUIre an
Employer to create a new Job or one that IS not productIve or one that has the
core dutIes removed,
67
(11) the Ontano DIvIsIOnal Court decIsIOn m Re Domtar Fme Papers Inc In thIS
deCISIOn, the Court held that the arbItrator correctly determmed that the
Employer, m the CIrcumstances of that case, was not obhgated to create aJob
even though the wages would be paid by the WSIB,
( 111 ) the award m Re Better Beef Ltd. In tlus award, ArbItrator Welhng
expressed the opmIOn that the duty to accommodate dId not reqUIre the
company to redesIgn the workforce or to create a new posItIOn for the
gnevor,
(IV) the award m Re KIK (Toronto) Inc In thIS award, ArbItrator Starkman
found that the Employer was not reqUIred under the Human RIghts Code to
create an entIrely new posItIOn to accommodate the gnevor's restnctIOns,
and,
(v) the award m Re CommunIty Nursmg Home-Port Hope In thIS award,
ArbItrator Gorsky found that the Employer was not reqUIred to create what
was, m essence, a dIfferent Job for the gnevor to perform
After due consIderatIOn, I must conclude that the Employer IS advancmg an
excessIvely narrow VIew of the duty It has to accommodate the gnevor's dIsabIhty
I am satIsfied that the Employer must go well beyond sImply lookmg at the
gnevor's abIhty to perfonn what It consIders to be the essentIal functIOns of her
fonner CSR posItIOn m order to reach the pomt of undue hardshIp I have
consIdered the followmg m reaclung tlus conclusIOn
68
(1) The Human RIghts CommIssIOn m ItS Pohcy and GUIdehnes has
contemplated the fact that an Employer may be reqUIred to accommodate a
dIsabled employee m a Job other than the pre-dIsabIhty Job The followmg
excerpts from the document are IllustratIve
"Although accommodatIon m the pre-dIsabIhty Job IS always
preferable, It may not always be possIble The Issue of whether an
employee IS entItled to have access to a Job other than the pre-
dIsabIhty Job IS a matter of some debate N othmg m the Code or m
sectIOn 17 specIfically restncts the reqUIrement to accommodate a
worker wIth dIsabIhty to the pre-dIsabIhty posItIOn Conversely,
notlung m sectIOn 17 expressly authonzes It eIther Nevertheless, m
hght of the broad and purpOSIve mterpretatIOn that should be afforded
to human nghts legIslatIOn, It IS the CommIssIOn's vIew that
accommodatIOn m a Job other than the pre-dIsabIhty Job may be
appropnate m some CIrcumstances SectIOn 17 may therefore mclude
access to alternatIve work. Some of the followmg consIderatIOns may
assIst employers m determmmg whether such accommodatIOn IS
aVailable under sectIOn 17(2)
The followmg questIOns should be consIdered.
. Is alternatIve work possible and aVailable, at present or m the near
future?
. If It IS not aVailable, can a new posItIOn be created wIthout causmg
undue hardslup?
. Does It reqUIre addItIonal trammg and does the trammg Impose
undue hardslup?
. Do the tasks performed match the Job descnptIOn, or IS there
flexibIhty m the workplace wIth regard to an employee's
responsibIhtIes?
. Does the alternatIve work pohcy contravene a collectIve
agreement?
. What are the terms of the collectIve agreement or mdIvIdual
contract of employment?
. What are the past practIces of the workplace? How
mterchangeable are workers? Do employees frequently change
69
posItIOns eIther permanently or temporanly for reasons other than
dIsabIhtyaccommodatIOn?
Dependmg on how the prevIOUS questIOns are answered,
accommodatIOn may therefore mclude Job restnlctunng, reassIgnment
to open posItIOns, retrammg for alternatIve posItIOns or Job bundhng If
that would not constItute undue hardshIp for the employer ThIS wIll
depend on the CIrcumstances of the employment and the labour
enVIrOnInent at a gIven workplace In the final analysIs, the employee
must be able to perform a useful and productIve Job for the employer
An employer-mItIated alternatIve work arrangement must consIder the
CIrcumstances of the mdIvIdual' S return to work When an employee
asks to be remstated m a prevIOUS posItIOn, the employer may make
the appropnate mqUInes to assess whether the employee IS fully able
to carry out the essentIal functIOns of the Job Whenever possible, the
returnmg employee should be gIven an opportunIty to prove Ius or her
abIhty to perform the pre-dIsabIhty Job
Where the employee can no longer perfonn Ius or her current Job and
If alternatIve work IS appropnate based on the analysIs descnbed
above, the CommIssIOn IS of the VIew that the employer should
consIder permanent alternatIve work. ThIS IS consIstent WIth a hne of
labour arbItratIOn cases that have found that the duty to accommodate
may mclude sIgnIficant workplace reorganIZatIOn as well as wIth the
obhgatIOn to provIde sUItable work m order to satIsfy the duty to re-
employ mJured workers"
(pages 20-22)
(11) Professor Lynk, m the artIcle referenced above, also wrote that an Employer
must do more than sImply look at the regular posItIOn m decIdmg If, and
how, a dIsabled employee should be accommodated. The followmg excerpt
from Ius artIcle IS mstructIve as to the extent of the Employer's obhgatIOn
"Wlule the general rule IS easy to state, the outer boundanes of
accommodatIOn are much harder to IdentIfy But thIS much IS clear
the duty reqUIres more from the employer than sImply mvestIgatmg
70
whether any eXIstmg Job mIght be sUItable for the dIsabled employee
Rather, the law obhges an employer to detennme whether eXIstmg
posItIOns can be adJusted, adapted or modIfied, and whether there are
other posItIOns m the workplace that mIght be appropnate ThIS
responsibIhty entails an assessment of all reasonable alternatIves To
prove that ItS accommodatIOn efforts were senous and conscIentIOus,
an employer IS reqUIred to engage m a four-step process, whIch
mvolves (1) determmmg If the employee can perform hIS or her
eXIstmg Job as It IS, (2) If not, detennmmg If he or she can perfonn Ius
or her eXIstmg Job m a modIfied or "re-bundled" form, (3) If not,
detennmmg If he or she can perform another Job m ItS eXIstmg fonn,
and (4) If not, determmmg If he or she can perform another Job m a
modIfied or re-bundled fonn "
(page 58)
( 111 ) the authors of Canadian Labour ArbItratIOn, ThIrd EdItIon, Brown and
Beatty, also comment on the breadth of the obhgatIOn of the duty to
accommodate The sectIOn of theIr text relatmg to thIS subJect mcludes the
followmg passages
"In general terms, arbItrators have said that an assessment should first
be made of the extent of the employee's dIsabIhty m Ius or her actual
work sItuatIOn ConsIderatIOn should be gIven to whether any aspect
of the Job, mcludmg the hours of work, can be modIfied so that the
employee can stIll perform It Where It IS not possible for an
employee to contmue m Ius or her fonner posItIOn, arbItrators have
nlled that other Jobs, m other locatIOns and departments and even, m
appropnate CIrcumstances mother bargammg UnIts, ought to be
canvassed m order to detennme whether there IS any other work
whIch the employee could perform In determmmg whether dIsabled
workers have a legItllnate claim to some posItIOn other than theIr own,
arbItrators commonly dIrect employers to make modIficatIOns to Jobs
and even to provIde the employee wIth trammg or a tnal penod,
where It would not be an exceSSIve burden to do so
All arbItrators agree than even though employers cannot expect
dIsabled employees to be able to do every aspect of a Job, they have a
71
nght to mSIst that all employees be able to perform, on a regular basIs,
the essentIal, core functIOns of theIr posItIOns Workplaces do not
have to be totally reorganIzed, and whIle It IS not uncommon for
employers to be told they must sometImes collect a bundle of tasks
that a dIsabled employee IS capable of performmg, some arbItrators
have shIed away from Imposmg such an obhgatIOn where It entails
creatmg a whole new posItIOn, and none wIll do so where the Job IS
Just make work. The test apphed by most arbItrators IS whether the
Job that a dIsabled employee claims the nght to perfonn IS useful and
productIve for the employer"
(sectIOn 7 6120)
The authontIes, m my Judgment, estabhsh that the duty to accommodate
goes well beyond an assessment as to whether a dIsabled employee can perform
the essentIal dutIes and reqUIrements of hIS or her regular posItIOn WhIle thIS may
represent an appropnate startmg pomt, such an evaluatIOn cannot end the reqUIred
mqUIry I accept that an Employer, especially a large one like the LCBO, must
engage m a more comprehensIve process, such as that descnbed by Professor
Lynk. In the context of tlus case, I aIn satIsfied that the Employer had a duty to
consIder a bundlmg or restructunng of the CSR tasks, as well as to detennme If the
gnevor could have performed another Job m ItS eXIstmg, or m some modIfied,
form ThIS latter obhgatIOn IS not restncted to an exammatIOn of eXIstmg
vacanCIes The consIderatIOn of these optIOns would naturally reqUIre an
assessment by the Employer as to whether theIr ImplementatIOn would occaSIOn
undue hardshIp
72
SectIOn 17(2) of the Human RIghts Code hsts three (3) factors to be
consIdered m any evaluatIOn of undue hardshIp, cost, outsIde sources of fundmg
and health and safety reqUIrements In thIS regard, I note the followmg comments
of ArbItrator SurdykowskI m Re Bowater Canadian Forest Products Inc. relatmg to
whether these factors are the only matters to be assessed on the questIOn of undue
hardshIp
"It has been suggested that the only factors that can be consIdered
when assessmg whether the hardshIp associated wIth an
accommodatIOn IS undue are the three specIfied m subsectIOn 17(2) of
the Code, namely, cost, outsIde sources of fundmg, and health and
safety reqUIrements In that respect, the Ontano Human RIghts
CommIssIOn's pohcy appears to be that collectIve agreement
consIderatIOns and employee morale are Irrelevant to the Issue of
undue hardshIp WIth respect, I am not bound by the pohcIes or
pronouncements of the CommIssIOn The pnmary source of my
JunsdIctIOn as a labour relatIOns arbItrator IS the collectIve agreement
Not only can I not Ignore the pnmary source of my JunsdIctIOn, I am
obhged to gIve effect to It to the extent that the collectIve agreement
does not conflIct WIth the Code or other apphcable legIslatIOn that the
partIes cannot contract out of Indeed, the Supreme Court of Canada
has said that "costs" relevant to the consIderatIOn of the Issue of undue
hardshIp can mclude the dIsruptIOn of a collectIve agreement and
morale problems as well as pure financial costs (see, Central Alberta
Dairy Pool v Alberta (Human Rights CommIssIOn), (1990) 2 S C.R.
489, per WIlson J) A collectIve agreement cannot be used to JustIfy
dIscnmmatIOn that IS prohibIted by the Code, but surely It IS
appropnate to consIder the Impact of a reqUIred accommodatIOn on
the nghts of other employees under the collectIve agreement to ensure
that they do not suffer a fonn of adverse effect dIscnmmatIOn as a
result of the accommodatIOn For example, It IS not appropnate for a
non -handIcapped employee (or perhaps another handIcapped
employee) to lose hIS Job as a dIrect result of the accommodatIOn of a
73
fellow employee ThIS IS not a questIOn of contractmg out of the
Code, but of consIdenng and balancmg the legItImate mterests of all
concerned. "
(paragraph 42)
WhIle It IS unnecessary to decIde the Issue for purposes of thIS case, I am mchned
to the VIew that It may be appropnate m certam cases to consIder other matters,
such as collectIve agreement consIderatIOns, m addItIon to the factors set out m
sectIOn 17(2) when called upon to assess whether an Employer has accommodated
a dIsabled employee to the pomt of undue hardshIp
I note at thIS Juncture that the Employer produced vIrtually no eVIdence
relatmg to the apphcabIhty of the factors hsted m sectIOn 17(2) of the Human
RIghts Code to the CIrcumstances of tlus dIspute Mr Thibodeau dId mdIcate that
cost consIderatIOns may have played a part m the decIsIOn around Sunday
scheduhng There was no dIrect suggestIOn, however, that these factors mfluenced
the decIsIOn to cease accommodatmg the gnevor as of February 11,2004
I accept the Employer's submIssIOn that It does not have to create, or
mamtam a dIsabled employee m, an unproductIve Job An Employer IS not
reqUIred to create a make-work posItIOn of httle or no value pursuant to ItS duty to
accommodate The followmg awards are all SupportIve of thIS prmcIple Re
Bowater CanadIan Forest Products Inc , Re Maple Leaf Foods Inc , Re Calgary
Herald, Re Canada Post Corp ( Godbout), and Re Great AtlantIc and PacIfic Co of
74
Canada (Konefal) The thnlst of the Junspnldence IS succmctly captured by the
followmg observatIOn of ArbItrator Kennedy m Re HamIlton CIVIC HosPItals
" at the end of the day and wIth whatever reasonable
accommodatIOn can be achIeved wIthout undue hardshIp to the
employer, the employee must none the less stIll be able to perfonn a
useful and productIve Job for the employer"
(page 12)
I also accept the Employer's submIssIOn that It was not reqUIred to bump,
dIsplace or dIsmIss an mcumbent m order to accommodate Ms Sanfihppo The
court decIsIOn m Re Domtar Fme Papers Inc and the arbItratIOn awards m Re
Better Beef Ltd. and Re NatIOnal Steel Car Ltd. support tlus 11lnItatIOn on the duty
to accommodate The premIse artIculated m the latter two (2) awards IS that "a
dIsabled employee IS entItled to equal treatment despIte the dIsabIhty, not better
treatment because of It" ThIS reasonmg would also seem apphcable to a claimed
accommodatIOn that would result m a promotIOn In tlus regard, I note the
followmg statement found at page 22 of the Ontano Human RIghts CommIssIOn's
Pohcy and GUIdehnes "The vacant posItIOn must be vacant wItlun a reasonable
amount of tIme, but the employer IS not reqUIred to promote the employee" I
would, generally, subscribe to thIS VIew I recognIze, however, that there may be
exceptIOnal cases m whIch the CIrcumstances would at least reqUIre an Employer to
consIder the possibIhty of a promotIOn m order to satIsfy a duty to accommodate
75
It IS apparent from all of the eVIdence that the gnevor was not physIcally
able to engage m the cashIenng and stock handhng functIOns of the CSR posItIOn
as of Febnmry, 2004 She had not performed these functIOns smce early 2003, and
then only m a sIgnIficantly modIfied way To repeat, the gnevor could then only
work on cash for tlurty (30) mmutes at a tllne and was hmIted to stockmg shelves
one (1) bottle at a tllne There IS no real mdIcatIOn m the eVIdence that her
condItIon was llnprovmg such that she could resume the cash and stock functIOns
on even a modIfied basIs as before In fact, Dr DzongowskI' s report of October
28, 2003 (ExhibIt #67) suggests tlus potentIal was not present He expressed the
opmIOn therem that the gnevor's prognosIs was poor and that he dId not thmk she
would be able to return to cashIenng
I also find, from a reVIew of all of the medIcal eVIdence, that there was
nothmg to suggest the gnevor could return to eIther cash or stock If further
modIficatIOns were attempted. Clearly, the stock handhng functIOn reqUIred hftmg
of product If the gnevor was physIcally unable to perform thIS task one (1) bottle
at a tIme, It IS dIfficult to Imagme how the functIOn could be modIfied so as to
permIt her to perform the work productIvely and wIthout aggravatmg her physIcal
condItIon AddItIonally, as stated above, Dr DzongowskI mdIcated m Ius report of
October 28, 2003, that he thought the gnevor would be unable to return to
casluenng Earher m Ius report, he stated that her severe left lateral epIcondyhtIs
(repetItIve stram mJury) prevented her from perfonnmg repetItIve tasks such as
76
cashIenng dutIes GIven thIS negatIve assessment, and m VIew of all of the other
medIcal eVIdence filed, I thmk that the Employer could reasonably conclude m
Febnmry, 2004 that a further modIficatIOn of the cash and stock dutIes would not
matenally advance the gnevor's accommodatIOn
The hst of dutIes compIled m ExlubIts #9 and # 1 0 are all dutIes that were
reqUIred to be perfonned m Store #593 and, m fact, at most other retail outlets As
stated by Mr Robbms, all of the hsted dutIes could be assIgned to a CSR
notwIthstandmg that some of the tasks were more closely allIed wIth other hIgher
rated posItIOns These tasks contmued to be perfonned by others after the gnevor
left Store #593 Mr Robbms, m hIS eVIdence, appeared to consIder the hsted tasks
as constItutmg work of some value ThIS VIew was not shared by Mr Thibodeau
or Mr Wagner UltImately, I have been persuaded that the tasks hsted m the
above-mentIOned exhibIts dId constItute productIve work SImply put, It was work
that had to be performed m the Store by CSRs and others The real questIOn, m my
mmd, IS whether there was a sufficIent amount of thIS work aVailable
Mr Robbms, Mr ThIbodeau and Mr Wagner all questIOned the sufficIency
of the amount of aVailable work based on the trackmg done through the Manager's
Assessment F onns I note that the tllne spent on the tasks on a daily basIs m the
penod January 19 to February 7, 2004 vaned between tlurty (30) mmutes and five
(5) hours and fifteen (15) mmutes I can appreciate why the Employer mIght
beheve that tlus amount of work dId not represent a full-tllne posItIOn I am,
77
however, mchned to accept the UnIon's assessment that thIS evaluatIOn of
approxImately two (2) weeks duratIOn was somewhat short I also accept that the
figures as to the tIme devoted to the tasks mIght have been hIgher If the evaluatIOn
had been done at another pomt m tllne I can understand that an evaluatIOn
undertaken over the Chnstmas penod mIght have resulted m an mflated and
dIstorted llnpressIOn of the volume of aVailable work. There IS no mdIcatIOn,
however, that the actual penod the Employer selected to mOnItor the work
represented an average penod m terms of busmess volume Indeed, the only
eVIdence aVailable on the pomt suggests the contrary
As mdIcated, there are a relatIvely large number of dutIes hsted m ExhibIts
#9 and #10 The eVIdence suggests that dutIes from the hst would be assIgned to
the gnevor on an as-needed or reqUIred basIs It further suggests that such dutIes
would also be assIgned to other CSRs workmg at Store #593 In my Judgment,
gIven the sIgnIficant number of hsted tasks and the fact they could be augmented
wIth customer serVIce work on the sales floor, It was mcumbent on the Employer
to assess whether the work routme of employees m Store #593 could have been
restructured so as to gIve more of tlus work to the gnevor I have also been
persuaded that the Employer should have engaged m efforts to detennme whether
It was possible for the gnevor to perfonn the hsted dutIes, together wIth customer
servIce, at other Stores wItlun the surroundmg area. Had tlus latter mqUIry been
made, the Employer mIght have been able to bundle together tasks at two (2) or
78
more Stores m order to create productIve work for the gnevor I do not thmk that
the above two (2) optIOns would necessarIly have resulted m the creatIOn of an
entIrely new and dIstmct posItIOn, as was the sItuatIOn m certam of the awards
rehed on by the Employer Instead the work, be It at Store #593 or at a group of
Stores, would have been compnsed of tasks whIch, m the nonnal course, could all
be assIgned to CSRs As the Employer dId not evaluate these optIOns, It dId not
turn ItS corporate mmd as to whether undue hardshIp would result from theIr
llnplementatIOn
I accept that the duty to accommodate to the pomt of undue hardshIp
reqUIres an Employer to assess the sUItabIhty of other posItIOns In thIS mstance, I
am not satIsfied that the LCBO gave sufficIent attentIOn to the possIbIhty of
placmg the gnevor m another posItIOn, or If any other posItIOn could be modIfied
so as to accommodate her restnctIOns Pnor to Febnmry 11, 2004, Ms Meek dId
not consIder postmgs for other posItIOns that were processed through her office
SImIlarly, I thmk that Mr Thibodeau, m thIS penod, only consIdered the Product
Consultant Job m a very general or cursory way ThIS, perhaps, IS not surpnsmg as
the Employer was Itself uncertam as to how It should address the gnevor's
dIsabIhty untIl after the Manager's Assessment Forms were evaluated. It IS clear
to tlus VIce-Chair, however, that m the bnef penod between the end of the
assessment on February 7 and the meetmg wIth the gnevor on February 11, 2004,
the Employer dId not look at the sUItabIhty of other posItIOns m a comprehensIve
79
or meanmgful way Mr Wagner assumed that the posItIOns m the LOgIStICS
DIvIsIOn would be unsUItable because they mvolved repetItIve work on the
computer I am not satIsfied that the gnevor's abIhty to perform clencal work of
tlus nature was properly assessed by the Employer I note that Mr Thibodeau
removed the gnevor from office work m October, 2003, agamst her wIshes, m
order to err on the sIde of cautIOn Mr Wagner reached Ius conclusIOns wIth
respect to the February 11th postmgs wIthout the benefit of a specIfic medIcal
assessment After assessmg all of the eVIdence, It IS unclear to me as to whether
the gnevor, at the tllne, could engage m clencal type work wIthout expenencmg
sIgnIficant problems or whether such work would be overly repetItIve gIven her
physIcal restnctIOns ThIS IS an Issue whIch may reqUIre further assessment I also
consIder It matenal that the Employer rehed on ItS practIce of not makmg mter-
dIvIsIOnal transfers m evaluatmg ItS accommodatIOn optIOns InsufficIent eVIdence
was presented as to why the Employer has adopted thIS approach SImIlarly, I was
not told why an mter-dIvIsIOnal transfer would result m undue hardshIp for the
Employer In the absence of an explanatIOn, I am mchned to conclude that the
LCBO apphed an overly restnctIve approach to the pool of posItIOns It was
prepared to reVIew for purposes of accommodatmg Ms Sanfihppo
I cannot accept the Employer's submIssIOn that ItS decIsIOn to seek out a
LMR plan for the gnevor should be treated as part of ItS effort to accommodate
her On my readmg of sectIOn 42 of the Workplace Safety and Insurance Act,
80
1997, placement of an employee on a LMR plan IS premIsed on a decIsIOn of the
WSIB that she or he reqUIres such a plan m order to re-enter the labour market and
to reduce or ehmmate the loss of earnmgs resultmg from the mJury As part of ItS
assessment, the WSIB has to detennme whether the Employer has been unable to
arrange sUItable work for the employee that IS consIstent WIth her or Ius functIOnal
abIhtIes It IS the WSIB, and not the Employer, that decIdes whether a LMR plan
should be estabhshed for an employee Its decIsIOn follows a conclusIOn bemg
reached by the Employer that It IS unable, or no longer able, to provIde appropnate
accommodatIon SImply stated, I consIder that the placement of an employee, such
as the gnevor, on a LMR plan IS a consequence of actIOn dIrectly taken by the
WSIB rather than by the Employer I have, therefore, not been persuaded that the
LCBO's cooperatIOn m the creatIOn of such a plan should be consIdered as formmg
part of ItS duty to accommodate to the pomt of undue hardshIp I am satIsfied,
though, that the placement of the gnevor on a LMR plan followmg F ebnlary 11,
2004 IS a factor whIch must be consIdered m fashIOnmg an appropnate remedy
The gnevor has been receIvmg benefits under the plan, all of whIch are ultImately
paid for by the Employer Benefits receIved have to be taken mto account m order
to aVOId exceSSIve or duphcate compensatIOn
I remam unconvmced that anytlung turns on the Employer's decIsIOn not to
call Mr Turner as a wItness On my VIew of the eVIdence, the Employer's
decIsIOn to cease the accommodatIOn of the gnevor and to pursue a LMR plan
81
flowed dIrectly from Mr Turner's acceptance of Mr Wagner's recommendatIOn
Mr Wagner, m hIS testImony, explamed the foundatIOn for the recommendatIOn
and stated that the RegIOnal DIrector accepted hIS assessment of the sItuatIOn and
the suggested course of actIOn Wllat was done thereafter IS entIrely consIstent
WIth Mr Wagner's recommendatIOn UltImately, I am satIsfied that Mr Turner
gave the go-ahead to pursue a LMR plan based upon what he was told by Mr
Wagner There IS notlung to mdIcate the presence of bad faith or Improper motIve
on the part of Mr Turner Wlule he could have been called as a wItness to
complete the eVIdence, or to close the loop, the failure to do so, m and of Itself,
does not fatally undermme the Employer's case VIS a VIS the reasons underlymg the
decIsIOn communIcated on Febnmry 11,2004
Turnmg to the Issue of work on Sundays and other premmm days, It IS clear
that Mr Thibodeau dIrected Mr Robbms not to schedule the gnevor for ShIftS on
these days for three (3) reasons FIrst, Mr Thibodeau asserted that the reduced
level of staffing reqUIred all scheduled employees to multI-task and, more
Importantly, to do both cash and stock functIOns Second, the work reqUIred was
more focused on cash and stock on these "put-through" days and there was less
office or clencal work aVailable as a consequence Tlurd, there was a cost factor as
these days are premmm days for purposes of the payment of wages
It IS readIly apparent that the Employer's approach to scheduhng the gnevor
on the days m Issue conflIcts WIth the Letter of Agreement on Sunday Openmgs
82
Pursuant to that Letter, the gnevor was entItled to be offered the work ahead of
more JUnIor full-tIme, part-tIme and casual employees Instead, the Employer
elected not to offer the gnevor aVailable work, to whIch she was contractually
entItled, on the basIs of her dIsabIhty ThIS decIsIOn was pnma facIe
dIscnmmatory and contrary to both the collectIve agreement and the Human RIghts
Code I am not entIrely unsympathetIc to the Employer's sItuatIOn m respect of
tlus Issue As stated prevIOusly, I accept that an Employer does not have to support
or create unproductIve work pursuant to ItS duty to accommodate a dIsabled
employee In tlus mstance, however, I was not gIven any real mSIght as to the
hardshIp the Employer would have expenenced If the gnevor had been brought m
on Sundays and other premIUm days to perform tasks sImIlar to those she engaged
m for the other forty (40) hours of her workweek. I am left wIth the ImpreSSIOn
that whIle there may have been such work to be done, the Employer sImply
decIded It should be performed on other days The Employer also dId not present
eVIdence as to the full extent of the financial hardshIp It would have mcurred by
scheduhng the gnevor on the days m questIOn Cost, as noted, IS one (1) factor
hsted m sectIOn 17(2) of the Human RIghts Code ThIS VIce-Chair does not
subscribe to the theory that cost IS an Irrelevant consIderatIOn sImply because the
LCBO IS a large employer wIth the resources necessary to SUbsIdIze unproductIve
work. In the final analysIs, however, msufficIent eVIdence was presented to
persuade me that It was not possible to accommodate the gnevor, m an
83
mdIvIduahzed way, m respect of thIS premIUm work wIthout the Employer
expenencmg undue hardshIp
It IS unnecessary to address the UnIon's arguments wIth respect to the
Employer's alleged apphcatIOn of a blanket pohcy Even If I assume that the
pohcIes relatmg to the need to multI-task on Sundays, and to perform eIther cash or
stock on other days, were ratIOnally connected to the functIOns to be perfonned and
were adopted m good faith and m the behef they were necessary to fulfill a vahd
busmess purpose or goal, the Employer under MeIOnn would stIll be reqUIred to
demonstrate that It was otherwIse ImpoSSIble to accommodate the gnevor wIthout
undue hardshIp For the reasons expressed above, I have determmed, on the basIs
of the eVIdence before me, that the Employer dId not satIsfy thIS latter reqUIrement
I find and declare that the Employer vIOlated both the collectIve agreement
and the Human RIghts Code by not offenng the gnevor work on Sundays and other
premIUm days, and by ItS decISIOn to no longer retam the gnevor at work followmg
Febnmry 11, 2004 I leave It to the partIes, as agreed, to attempt to determme the
amount of damages to whIch the gnevor IS entItled as a consequence of the
Employer's decIsIOn not to offer the gnevor work on Sundays and on other
premIum days
I order the Employer to remstate the gnevor forthwIth to her fonner posItIOn
m Store #593 I further order that the Employer conduct an assessment wItlun
SIxty (60) days of the receIpt of tlus award as to the followmg (1) whether the
84
dutIes hsted m ExhibIts #9 and # 1 0 can be bundled m such a way as to create
productIve work m Store #593, (11) whether the dutIes hsted m these same exhIbIts
can be bundled between two (2) or more Stores m the surroundmg area wIthout
creatmg undue hardshIp, and (111) whether there are any other posItIOns aVailable
that the gnevor could perform m theIr present, or m some modIfied, form I leave
It to the partIes, mItIally, to decIde on the appropnate area of search
The gnevor IS to be made whole for any loss under the collectIve agreement
resultmg from the Employer's decIsIOn to no longer retam her at work after
February 11, 2004 As stated, the extent of damages IS to reflect the fact that the
gnevor was placed on a LMR plan I also leave It to the partIes, at first mstance, to
determme and quantIfy the gnevor's entItlement
I have not been persuaded that thIS IS an appropnate case m whIch to award
damages agamst the Employer under the Human RIghts Code In reachmg thIS
conclusIOn, I have consIdered the followmg, mter aha. (1) the Employer dId
accommodate the gnevor over a consIderable penod of tIme from the onset of her
dIsabIhty up untIl February 11, 2004, (11) the Employer m the penod March, 2003
to February, 2004 made numerous good faith efforts, at consIderable expense, to
detennme how the gnevor could be best accommodated, (111) there IS no eVIdence
of bad faith or any Improper conduct on the part of the Employer m the penod
matenal to tlus case, and (IV) the gnevor has been m receIpt of LMR benefits
followmg the decIsIOn of February 11,2004
85
I wIll remam seIzed m the event the partIes expenence any dIfficulty m
Implementmg thIS Award.
F or the reasons expressed above, I have elected to remIt thIS matter back to
the Employer to detennme If It can accommodate the gnevor's dIsabIhty through
the assessment ordered m tlus award. In the final analysIs, I have concluded that
such actIOn should have been taken by the Employer pnor to February 11, 2004
The result of tlus exerCIse may be that the Employer IS able to find work of value
for the gnevor to perfonn It may, however, detennme that sUItable work cannot
be secured wIthout the expenence of undue hardshIp In VIew of the uncertamty
mherent m thIS process, the partIes may wIsh to senously consIder how they
address the status of the LMR plan Any dIscontmuatIOn or dIsnlptIOn of the plan
may not prove to be m the gnevor's long-term best mterests
Dated at Toronto, Ontano thIS 23rd day of Febnmry, 2005
- I
1
LISt of ExhIbItS
ExhibIt # 1 - the collectIve agreement
ExhibIt #2 - gnevance of August 28, 2003
ExhibIt #3 - gnevance of June 24, 2003
ExhibIt #4 - gnevance of June 25, 2003
ExhibIt #5 - gnevance of July 17, 2003
ExhibIt #6 - gnevance of August 21,2003
ExhibIt #7 - gnevance of Febnmry 13,2004
ExhibIt #8 - hst of premIUm ShIftS mIssed and premIUm shIfts worked
ExhibIt #9 - hst of Jobs gnevor performed dunng the day
ExhibIt #10(a)(b)(c)- descnptIOn of tasks hsted on ExhibIt #9 and coversheet
ExhibIt # 11 Manager Assessment Forms (for ModIfied Work
Program) re January 19 to February 7, 2004
ExhibIt #12 - Employee schedules Re Store #593 for penod Apnl 27,
2003 to February 7,2004
ExhibIt # 13 - Sunday A vaIlabIhty Reports
ExhibIt #14 - Performance Appraisal of Karen Sanfihppo dated June
16,2003
ExhibIt #15 - Health Care ProvIder's Report dated Febnmry 22,2002
ExhibIt #16 - ModIfied Work Plan dated March 7, 2002
ExhibIt #17 - WSIB correspondence dated May 22,2002
ExhibIt #18 - Health Care ProvIder's Report dated May 30, 2002
ExhibIt #19 - Letter of June 7, 2002 to Karen Sanfihppo from Don
Thibodeau
ExhibIt #20 - Form 7 dated June 5,2002
ExhibIt #21 - Note of Dr P DzongowskI dated June 6, 2002
ExhibIt #22 - WSIB correspondence dated June 10,2002
ExhibIt #23 - Heath Care ProvIder's Report dated June 12,2002
ExhibIt #24 - Fonn 6 dated June 13,2002
ExhibIt #25 - Employer's Subsequent Statement dated June 17,2002
ExhibIt #26 - WSIB correspondence dated June 17, 2002
ExhibIt #27 - Health Care ProvIder's Report dated June 12,2002 wIth
addItIonal comments
ExhibIt #28 - LCBO correspondence dated July 2, 2002 to WSIB
ExhibIt #29 - Note prepared by Karen Sanfihppo
ExhibIt #30 - E-mail of July 2, 2002
ExhibIt #31 - Note of Dr P DzongowskI dated July 5, 2002
ExhibIt #32 - Employer's Subsequent Statement dated July 8, 2002
ExhibIt #33 - WSIB correspondence dated July 10,2002
ExhibIt #34 - Employer's Subsequent Statement dated July 15,2002
2
ExhibIt #35(a)(b) - Health Care ProvIder's Report dated July 19, 2002
ExhibIt #36 - Employer's Subsequent Statement dated July 24, 2002
ExhibIt #37 - Employer's Subsequent Statement dated July 29, 2002
ExhibIt #38 - LCBO correspondence dated August 2,2002 to Dr P
DzongowskI
ExhibIt #39 - WSIB correspondence dated September 27, 2002
ExhibIt #40 - ModIfied Work Plan dated July 2, 2002
ExhibIt #41 - Health Care ProvIder's Report dated August 22, 2002
ExhibIt #42 - LCBO correspondence dated November 12,2002 to Dr
P DzongowskI
ExhibIt #43 - Health Care ProvIder's Report dated November 18,2002
ExhibIt #44 - MedIcal report of Dr P DzongowskI dated November
20,2002
ExhibIt #45 - Health Care ProvIder's Report dated December 4,2002
and mVOIce
ExhibIt #46 - WSIB correspondence dated January 16, 2003
ExhibIt #47 - WSIB correspondence dated March 3, 2003 and
ErgonomIst Report dated February 28, 2003
ExhibIt #48 - Health Care ProvIder's Report dated March 3, 2003 and
ChnIC Note dated January 28, 2003 of Dr D DIttmer
ExhibIt #49 - ReceIpt of Dr D DIttmer dated March 5, 2003
ExhibIt #50 - ModIfied Work Plan dated March 12,2003
ExhibIt #51 - LCBO correspondence dated Apnl3, 2003 to Sibley and
AssocIates
ExhibIt #52 - MedIcal report of Dr L Mascarenhas dated Apnl4,
2003 (unsIgned)
ExhibIt #53 - InvOIce
ExhibIt #54 - ConfinnatIOn of AssIgnment dated Apnl3, 2003
ExhibIt #55 - MedIcal report of Dr L Mascarenhas dated Apnl2,
2003 (sIgned)
ExhibIt #56 - Note of Dr P DzongowskI dated Apnl_, 2003
ExhibIt #57 - LCBO correspondence dated Apn115, 2003 toKaren
Sanfihppo
ExhibIt #58 - FunctIOnal AbIhtIes EvaluatIOn Waiver datedApnl24,
2003
ExhibIt #59 - FunctIOnal AbIhtIes EvaluatIOn dated Apn124, 2003
ExhibIt #60 - InvOIce dated May 7, 2003
ExhibIt #61 - Note of Dr P DzongowskI dated July 7, 2003
ExhibIt #62 - Note of Dr C BruckschwaIger dated August 8, 2003 and
Note of Dr P DzongowskI dated August 11,2003
ExhibIt #63 - Note of Dr P DzongowskI of September, 2003
3
ExhibIt #64 - Letter of September 30,2003 from D Thibodeau to Dr
P DzongowskI
ExhibIt #65 - WSIB correspondence dated October 2,2003
ExhibIt #66 - LCBO correspondence dated October 24,2003
ExhibIt #67 - MedIcal Report of Dr P DzongowskI dated October 28,
2003 and mVOIce
ExhibIt #68 - InvOIce dated December 8, 2003
ExhibIt #69 - MedIcal Report of Dr P DzongowskI dated December 8,
2003 and mVOIce
ExhibIt #70 - Note of Dr P DzongowskI dated December 10,2003
and receIpt
ExhibIt #71 - LCBO correspondence dated December 18, 2003
ExhibIt #72 - WSIB correspondence dated February 12,2004
ExhibIt #73 - Note of October 24,2003 concernmg Jan Meek's
dIscussIOn wIth Karen Sanfihppo
ExhibIt #74 - E-mail of August 12,2003 from Alkanm KanJI to Jan
Meek
ExhibIt #75 - E-mail of November 11,2003 from Jan Meek to Don
Thibodeau
ExhibIt #76 - E-mail of July 31,2003 from Alkarlln KanJI to Jan Meek
ExhibIt #77 - Letter of February 16,2004 from Jan Meek to WSIB
ExhibIt #78 - Job Postmg of February 11,2004 re Clerk/ReceptIOnIst
posItIOn
ExhibIt #79 - Job Postmg of February 11,2004 re Duty Free Clerk
posItIOn
ExhibIt #80 - Pohcy re ModIfied Work Program
ExhibIt #81 - Note of Don Thibodeau dated October 6, 2003
ExhibIt #82 - Handwntten notes of Don Thibodeau
ExhibIt #83 - DescnptIOn of tasks hsted on ExhibIt #9 and Don
Thibodeau's handwntten assessment
ExhibIt #84 - Handwntten note of Don ThIbodeau dated December 19,
2003
ExhibIt #85 - Recap of AccommodatIOns
ExhibIt #86 - Handwntten notes of Don Thibodeau
GSB FIle Nos 1194/03
1195/03
1608/03
2037/03
3657/03
IN THE MATTER OF AN ARBITRATION
BEFORE THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
ONTARIO LIQUOR BOARDS EMPLOYEES' UNION
(the "Union")
-and-
LIQUOR CONTROL BOARD OF ONTARIO
(the "Employer")
GRIEVANCES OF KAREN SANFILIPPO
UNION'S BRIEF and ARGUMENT
LEGAL ONUS AND DUTY TO ACCOMMODATE
KOSKIE MINSKY LLP
900-20 Queen Street West
Toronto ON
M5H 3R3
Tel 416-595-2122
Fax 416-204-2895
R. Graham Williamson
OVERVIEW
The PartIes acknowledge that Karen SanfilIppo (the Gnevor) suffers a dIsabIlIty as a result of her
workplace mJunes These gnevances allege that the Employer has faIled to accommodate the
Gnevor and her dIsabIlIty by faIlmg to schedule her to work on Sundays and premIUm ShIftS,
and by faIlmg to schedule her to work m the store system from and after February 11 2004
It IS the Umon's posItIOn that the Gnevor has been dIscnmmated agamst by the Employer The
Issue to be determmed IS whether that dIscnmmatIOn was unlawful, or whether the Employer had
accommodated to the pomt of undue hardshIp and that the dIscnmmatIOn was therefore
permItted under the Human Rights Code (lithe Cade")
ISSUES
ThIS bnef addresses the law applIcable to thIS matter on the followmg Issues
A. The arbItrator has authonty to mterpret and apply human nghts legIslatIOn
B The Gnevor has a dIsabIlIty
C The Employer bears the legal onus of establIshmg the undue hardshIp defence
D The extent of the duty to accommodate
E The elements whIch must be establIshed to prove undue hardshIp
F The LMR plan IS provIded by WSIB and IS not a form of accommodatIOn
G That damages under the Code must be awarded m thIS case
THE ARBITRATOR HAS AUTHORITY
TO INTERPRET AND APPLY HUMAN RIGHTS LEGISLATION
ArtIcle 2 l(b) of the CollectIve Agreement provIdes a guarantee that all employees shall be free
from dIscnmmatIOn on the basIs of handIcap (now dIsabIlIty) as defined m the Ontano Human
Rights Code
Collective Agreement, Exhibit 1
The Ontano Human Rights Code enshnnes the nght of every person to equal treatment wIth
respect to employment wIthout dIscnmmatIOn because of dIsabIlIty SectIOn 5(1) states
Every person has a right to equal treatment with respect to employment without discrimination
because of disability
Human Rights Code, R.S.O 1990, c. H.19, as amended ("the Code")
Book of Authorities, Tab 10
SectIOn 48(12)(j) of the Labour Relations Act, 1995 gIves an arbItrator the power and authonty
to mterpret and apply human nghts statutes That provIsIOn IS applIcable m proceedmgs of the
Gnevance Settlement Board pursuant to sectIOns 2 and 7 of the Crown Employees Collective
Bargaining Act, 1993
Labour Relations Act, 1995, s. 48
Book of Authorities, Tab 11
Crown Employees Collective Bargaining Act, 1993, s. 2 and 7
Book of Authorities, Tab 9
Furthermore the nghts and oblIgatIOns of the Code are mcorporated mto the collectIve
agreement. The nght of the employer to manage ItS enterpnses and to dIrect the work force are
therefore subject not only to the express provIsIOns of the collectIve agreement, but also to the
statutory provIsIOns of the Code and other employment-related statutes
Parry Sound (District) Social Sen,ices Administration Board v OPSEU, Local 324
Supplementary Book of Authorities, Tab ,at paras.s 23, 55 and infra
THE GRIEVOR HAS A DISABILITY AND
HAS A RIGHT TO BE FREE FROM DISCRIMINATION
DIsabIlIty IS defined m s lOaf the Code, and mcludes
(a) any degree of physIcal dIsabIlIty mfirmIty that IS caused by bodIly mJury or
Illness
(e) an mJury or dIsabIlIty for whIch benefits were claimed or receIved under the msurance
plan establIshed under the Workplace Safety and Insurance Act, 1997
the Code, Book of Authorities, Tab
It IS acknowledged by the Employer that the Gnevor has physIcal restnctIOns and lImItatIOns
whIch arose from her workplace mJury for whIch she has receIved msurance benefits under the
Workplace Safety and Insurance Act, 1997
The nghts set out m the Code are quasI-constItutIOnal nghts and should be protected. GIven the
Importance of these nghts, Courts have routmely stated that human nghts legIslatIOn must be
gIven a broad and purpOSIve mterpretatIOn. Accordmgly the nghts must be construed lIberally
and defences to those nghts should be construed narrowly
Ontario (Human Rights Commission) v Simpsons Sears
Book of Authorities, Tab 3 at p. 8
Quebec v Boisbriand ("Mercier")
Supplementary Book of Authorities, Tab
THE EMPLOYER BEARS THE ONUS
OF ESTABLISHING THE UNDUE HARDSHIP DEFENCE
The Umon acknowledges that It has the onus to establIsh a prima facie case of dIscnmmatIOn.
Unilever HPC v Teamsters Local 132
Book of Authorities Tab 7, at 369
FaIlure to employ an employee because of dIsabIlIty IS by Itself dIscnmmatIOn. Further and m
any event, the Employer has not adhered to the collectIve agreement m respect of schedulIng and
payment of wages, and has not treated the Gnevor the same as an able bodIed employee
Air Canada v CA W Loc. 2213
Book of Authorities Tab 8, at 313-315
Once the Umon and the Gnevor have establIshed that the Gnevor has been dIscnmmated agamst
the onus ShIftS to the Employer to establIsh that the dIscnmmatIOn was not unlawful The
Employer may establIsh that the dIscnmmatIOn was not unlawful dIscnmmatIOn only where It
can establIsh that the Gnevor could not be accommodated wIthout undue hardshIp The onus IS
upon the Employer to bnng ItselfwIthm the undue hardshIp defence
The Code, s. 17
Book of Authorities, Tab 10
Meiorin
Book of Authorities, Tab 1
B. C (Supt. Motor Vehicle)v B. C (Council of Hr Rights) ("Grismer")
Supplementary Book of Authorities, Tab , at para 41
Entrop v Imperial Oil
Supplementary Book of Authorities, Tab , infra, and at paras 63 and 93
Unilever HPC v Teamsters Local 132
Book of Authorities Tab 7, at 370
It IS a legal error to suppose that there IS any onus upon the Umon or the Gnevor to demonstrate
that the Gnevor could be accommodated wIthout undue hardshIp on the part of the Employer
Ontario Public Sen,ice Employees Union v
Ontario (Ministry of Community and Social Sen'ices),
Book of Authorities Tab 4, at para 17
Ontario Human Rights Commission Policy and Guidelines on the
Duty to Accommodate ("OHRC Accommodation Policy")
Book of Authorities Tab 13, at 29
THE DUTY TO ACCOMMODATE
1) The Defence
SectIOn 17 of the Code provIdes a defence to conduct whIch would otherwIse be unlawful
dIscnmmatIOn m employment. That sectIOn states
1) A right of a person under this Act is not infringed for the reason only that the person is incapable of
performing or fulfilling the essential duties or requirements attending the exercise of the right because of
disability
2) The COlmnission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that
the needs of the person cannot be accOlmnodated without undue hardship on the person responsible for
accOlmnodating those needs, considering the cost, outside sources of funding, if any and health and safety
requirements, if any
the Code, Book of Authorities, Tab
The nghts set out m the Code are quasI-constItutIOnal nghts GIven the Importance of these
nghts, Courts have routmely stated that human nghts legIslatIOn must be gIven a broad and
purposIve mterpretatIOn. Accordmgly the nghts must be construed lIberally and defences to
those nghts should be construed narrowly
Mercier
Supplementary Book of Authorities, Tab, paras 27-30
The statute specIfically lIsts three factors that may be consIdered m determmmg whether further
accommodatIOn would cause undue hardshIp Therefore, no consIderatIOns other than these three
can properly be consIdered m assessmg undue hardshIp mOntana The factors are
. cost
. outsIde sources of fundmg, If any
. health and safety reqUIrements, If any
OHRC Accommodation Policy
Book of Authorities Tab 13 , at 27
2) Requirement for Objective Evidence
In order to establIsh undue hardshIp the Employer must provIde obJectIve real and dIrect
eVIdence, and m the case of cost, such eVIdence must be quantIfiable A sImple statement that the
Gnevor cannot be accommodated, If based upon ImpressIOmstIc VIews or stereotypes, IS not
sufficIent.
Meiorin, supra, at para 78-79
Book of Authorities, Tab 1
Grismer, supra, at para 41
Supplementary Book of Authorities, Tab
OHRC Accommodation Policy
Book of Authorities, Tab 13, at p. 29-30
3) General Principles
The Employer's attempts to accommodate the Gnevor must be Informed by a number of general
pnncIples, IncludIng
. Respect for Dignity - accommodatIOn must be provIded In a manner that most respects
the dIgmty of the Gnevor If to do so does not constItute undue hardshIp
. Individualized Accommodation - each person wIth a dIsabIlIty must be consIdered,
assessed and accommodated IndIVIdually
. integration and full participation - where possIble, accommodatIOn should promote
barner-free and InclUSIVe accommodatIOn.
OHRC Accommodation Policy
and cases cited therein
Book of Authorities, Tab 13, at p. 12 -16
4) Legal Principles
In Meiorin the Supreme Court of Canada has prescnbed a umfied legal test for aSseSSIng whether
the duty to accommodate has been met. To rebut a prima facie case of dISCnmInatIOn, the
Employer must establIsh that the decIsIOn, standard, factor reqUIrement or rule
1- was adopted for a purpose or goal that IS ratIOnally connected to the functIOn
beIng performed
11- was adopted In good faith, In the belIef that It IS necessary for the fulfillment of
the purpose or goal, and
111- IS reasonably necessary to accomplIsh that purpose or goal, and that It was
ImpoSSIble to otherwIse accommodate the Gnevor wIthout undue hardshIp
Meiorin,
Book of Authorities, Tab 1 at para 54
adopted and applied Entrop, Grismer, and others
In assessIng these factors, the ArbItrator or court must ensure that each person IS assessed
accordIng to hIS or her own personal abIlItIes It IS Improper and Incorrect to Judge a person
agaInst presumed charactenstIcs, or presumed group charactenstIcs
Grismer
Supplementary Book of Authorities, Tab
5. Duty is Procedural and Substantive
The oblIgatIOn to engage In an IndIVIdualIzed and context-specIfic assessment applIes not only to
the outcome of attempt to accommodate, but also to the steps taken by an Employer In
attemptIng to accommodate Grismer dealt wIth the faIlure to properly assess whether Mr
Gnsmer ought to have been entItled to a dnver's lIcense It IS eVIdent from the Supreme Court's
decIsIOn that the procedure used to assess accommodatIOn, IS as Important as the substantIve
content of the accommodatIOn.
Meiroin
Book of Authorities, Tab 1, paras. 77-78
Grismer
Supplementary Book of Authorities, Tab ,
Human nghts adJudIcators have found that an Employer's faIlure to adequately InVestIgate
optIOns for accommodatIng a dIsabled employee results In a breach of that employee's human
nghts, and must result In settIng aSIde a dIscharge
Parisien v Ottawa Carleton Regional Transit
Supplementary Book of Authorities, Tab , paras. 69 -73
Jeppesen v Ancaster
Supplementary Book of Authorities, Tab , paras. 178-182
6. Summary of Obligations and Expectations
In hIS excellent paper Disability and the Duty to Accommodate An Arbitrator's Perspective
Professor Lynk provIdes a summary of the legal oblIgatIOns whIch are applIcable to thIS case
The dut, to accommodate IS a fundamental legal obhgatIOn. It flows from two sources,
the apphcable human nghts legIslatIOn, and the ruhngs of the Supreme Court of Canada.
In a senes of Important deCISIOns datmg back to 1985 the Supreme Court has held.
(1) Human nghts legIslatIOn has a quasI-constItutIOnal place m CanadIan law and all
other statutes, pohcIes and practIces, whether pubhc or pnvate must normalh be
consIstent WIth It.
(2) DIscnmmatIOn ma, be umntentIOnal, vet It wIll be m vIOlatIOn of human nghts
legIslatIOn If a person covered b, a protected ground IS subjected to adverse
dIfferentIal treatment WIthout JustIfIcatIOn.
(3) AccommodatIOn IS a sIgmficant obhgatIOn, and It IS reqUIred to be a central feature of
the Canadian workplace
(4) The dut, rests on emplovers unions and the emplovee seeking accommodation all of
whom are reqUIred to assume responsibihn for ensunng the success of an
accommodatIOn arrangement.
(5) The pnman responsibIht, rests wIth the emplover because It has ultImate control
over the workplace Once It receIves a request, It must mItIate the search fo
appropnate accommodatIOn.
(6) The umon must cooperate and not unreasonabh block a viable accommodatIOn
optIOn.
(7) The emplovee IS expected to partIcIpate m the accommodatIOn process, and cannot
refuse a reasonable offer of accommodatIOn.
(8) CollectIve agreement proVISIOns are to be respected, but the, ma, have to be waIved
If the, unreasonable block a VIable accommodatIOn optIOn, or If the, treat mdIvIduals
who are protected b, human nghts legIslatIOn dIfferenth WIthout a compellmg
reason.
In three recent deCISIOns [MerCIer (BOlsebnand) Gnsmer and MeIOnn - supra] the
Supreme Court of Canada has clanfied and broadened the extent of the dut, ruhng
(1) AccommodatIOn measures must be taken unless It IS impossible to do so WIthout
undue hardshIp
(2) The threshold of undue hardshIp IS hIgh.
(3) Emplovers and umons must be sensItIve to the vanous wavs m whIch mdIvIdual
capabIhtIes can be accommodated.
(4) Workplace standards, such as hftmg reqUIrements or work schedules, that
unmtentIOnalh dIstmgUIsh among emplovees on a protected ground are subject to
bemg struck down or modIfied. Emplovers must buIld liberal conceptIOns of equaht,
mto workplace practIces
(5) Courts, labour arbItrators and human nghts tribunals are to take a stnct approach to
exemptIOns from the dut, to accommodate ExemptIOns are to be permItted onh
where the, are reasonable necessan to the achIevement of legItImate busmess-
related objectIves
7 Obligation of the Union and Grievor
It IS of note that In thIS case the Employer dId not approach the Umon or the Gnevor and dId not
seek to Involve them In the procedural search for alternatIve work or otherwIse engage them In
the accommodatIOn process Nevertheless, the Umon and the Gnevor have met theIr legal
oblIgatIOns by ensunng that the Employer was provIded WIth all relevant InfOrmatIOn and not
ImpedIng any attempts to accommodate the Gnevor
The Supreme Court of Canada In Renault has examIned the duty owed by a complaInant
(Gnevor) and a trade umon In respect of workplace accommodatIOn
Renault
Book of Authorities, Tab 2, at paras 32-45
. The Gnevor must bnng to the attentIOn of the employer the facts relatIng to the
dISCnmInatIOn or need to be accommodated, but does not have a duty to ongInate a
solutIOn When an employer has ImtIated a proposal tat IS reasonable and would, If
Implemented, fulfil the duty to accommodate, the complaInant has a duty to faCIlItate the
ImplementatIOn of the proposal (para 44)
. Where a trade umon IS not party to a dISCnmInatory rule or polIcy (ie It has not been
negotIate In the collectIve agreement) the umon's oblIgatIOn IS to "not Impede" the
employer's attempts to accommodate The Employer must canvas other methods of
accommodatIOn before the umon can be expected to assIst In findIng or ImplementIng a
solutIOn. The umon's duty anses only when ItS Involvement IS reqUIred to make
accommodatIOn possIble and no other reasonable alternatIve resolutIOn of the matter has
been found or could reasonably have been found. (para 40)
WHAT IS UNDUE HARDSHIP?
As set out above, s 17 of the Code reqUIres that the Employer accommodate the Gnevor to the
pOInt of undue hardshIp FaIlure to do so makes the Employer's conduct unlawful
The statute specIfically lIsts three factors that may be consIdered In determInIng whether further
accommodatIOn would cause undue hardshIp Therefore, no consIderatIOns other than these three
can properly be consIdered In assessIng undue hardshIp In Ontano The factors are
. cost
. outsIde sources of fundIng, If any
. health and safety reqUIrements, If any
OHRC Accommodation Policy
Book of Authorities Tab 13, at 27
There was no eVIdence led of any of these factors upon whIch the Board could conclude that It
would constItute undue hardshIp for the Employer to further accommodate the Gnevor
LMR THROUGH WSIB IS NOT ACCOMMODATION
The Workplace Safety and Insurance Act, 1997 reqUIres Employers to offer to reemploy InJured
workers, and to accommodate the work or the workplace for the worker to the extent that the
accommodatIOn does not cause undue hardshIp
Workplace Safety and Insurance Act, 1997, s. 41(6)
Supplementary Book of Authorities, Tab
It IS only where the Employer cannot accommodate an employee (or IS not cooperatIng WIth the
early and safe return to work) that a Labour Market Re-entry (LMR) assessment and plan shall
be offered.
Workplace Safety and Insurance Act, 1997, s. 43
Supplementary Book of Authorities, Tab
The LMR assessment and plan IS offered by the Workplace Safety and Insurance Board, not the
Employer
Workplace Safety and Insurance Act, 1997, s. 43
Supplementary Book of Authorities, Tab
The dIfference between Schedule 1 and Schedule 2 employers under the Workplace Safety and
Insurance Act, 1997 IS that the former pay premIUms to the Insurance fund, whereas Schedule 2
employers are IndIVIdually lIable to pay benefits under the Insurance plan respectIng workers
who they employed at the tIme of accIdent.
Workplace Safety and Insurance Act, 1997, ss. 88-93
Supplementary Book of Authorities, Tab
DAMAGES UNDER THE CODE ARE PRESUMPTIVE
s 41(1)(b) of the Code provIdes that If the Board finds that the Employer has Infnnged the
Gnevor's human nghts, It may by order
(b) dIrect the party to make restItutIOn, IncludIng monetary compensatIOn, for loss
anSIng out of the Infnngement, and, where the Infnngement has been engaged In
wIlfully or recklessly monetary compensatIOn may Include an award, not
exceedIng $10 000 for mental angUIsh.
The Board IS entItled to award non-pecumary damages anSIng out of the Infnngement of the
Code Such an award IS to compensate for the IntnnsIC value of the Infnngement of the
complaInant's nghts under the Code In the words of the DIvIsIOnal Court lilt IS compensatIOn for
the loss of the nght to be free from dISCnmInatIOn and the expenence of vIctImIzatIOn II Such
damages may be awarded In the absence of eVIdence of metal angUIsh There IS no ceIlIng on the
amount of general damages
Ontario (Human Rights Commission) v Shelter Corp,
Supplementary Book of Authorities, Tab ,at paras 42-43
ThIS IS a power that can, and should, be exercIsed by arbItrators Damages for the breach of an
IndIVIdual's nghts commonly form part of a remedIal response to findIngs of dISCnmInatIOn.
TTC v A TU, Loc. 113 (Langille)
Supplementary Book of Authorities, Tab , at para 35 on
AddItIOnally If the Board finds that the Gnevor has suffered mental angUIsh as a result of the
Infnngement of her nghts, It may order addItIOnal damages of up to $10 000 for each nght
Infnnged.
The Code, s. 41(1)(b)