HomeMy WebLinkAboutFlaherty 18-01-23IN THE MATTER OF AN ARBITRATION
BETWEEN:
MIDDLESEX LONDON EMERGENCY MEDICAL SERVICES
(“the Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 147
(“the Union”)
Grievance of Andrea Flaherty
(“the Grievor”)
Before: Larry Steinberg, Sole Arbitrator
Appearances
For the Employer:
John Saunders, Counsel
Colin Heise, EMS Coordinator—Human Resources
John Prno, Deputy Chief
Tawana Giscombe, Articling Student (except November 16, 2017)
Evan Taylor, Articling Student (November 16, 2017 only)
For the Union:
Tim Hannigan, Counsel
Meagan Slack, Steward
Andrea Flaherty, Grievor
Hearings held in London Ontario on April 24, May 29 and November 16, 2017
Overview
[1] This matter concerns a grievance filed by the union on behalf of the grievor alleging
that the employer failed to accommodate her pregnancy in the workplace in 2015. The
remedies sought include compensation for six weeks pay and an extraordinary request
for $25,000.00 for injury to dignity, feelings and self -respect.
[2] The grievor was accommodated effective March 2, 2015. Her claim is that she
should have been accommodated at an earlier date.
[3] The employer argues that it followed its well-established policy for accommodating
employees who require modified work, and that in view of the other employees requiring
accommodation, the grievor was accommodated at the earliest possible time which was
March 2, 2015. The employer argues it would have suffered undue hardship to have
accommodated the grievor in the positions she identified because the work was not
productive and/or was too costly.
[4] The union does not challenge the employer’s policy but argues that there were
additional work opportunities that were available that the grievor could perform. Based on
the evidence and argument before me, I find that there were some possible work
opportunities that should have been considered for modified work and that the employer
did not prove undue hardship with respect to those jobs.
Facts
[5] Evidence was given by the grievor and Jessica Gons alves (“Gonsalves”), a
paramedic, for the union. Evidence for the employer was given by Colin Heise (“Heise”),
EMS Coordinator Human Resources and Alan Hunt (“Hunt”), Deputy Chief EMS but at
the relevant time, Deputy Chief, Professional Standards.
[6] The employer is a provider of emergency medical services. It employs 190 full -
time employees and 80 part-time employees.
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[7] There are only two classifications in the bargaining unit. These are Primary Care
Paramedic (“PCP”), which was the grievor’s classification , and Advanced Care
Paramedic (“ACP”). The work is almost identical for employees in both classifications, the
only difference being that the ACPs can perform a wider range of medical duties. In
addition, the employer employs managerial employees and logistics employees which
are non-bargaining unit positions.
[8] Approximately 37% of the employees in the bargaining unit are female, and in view
of the demands of the job, most are young and of child-bearing age.
[9] The job of a paramedic is physically demanding and requires a significant amount
of bending, lifting and twisting.
[10] As a result of the physical demands of the job, it is not uncommon for there to be
employees who cannot do the full range of duties of the PCP and ACP but who are able
to perform modified duties. In addition, there comes a point when pregnant employees
cannot perform the full range of duties of the job but who are able to perform modified
duties.
[11] The challenge for the employer is that with only two classifications in the bargaining
unit, the amount of suitable modified work available for all of its employees who require
accommodation is insufficient to keep up with the demand for such work.
[12] As a result, the employer has adopted a process to distribute the scarce modified
work opportunities. The employer maintains a list of employees who require modified
work. An employee’s ranking on the list is determined by the date of their disability.
Employees rise up the list as their colleagues, who were doing modified work, are
sufficiently recovered so that they can return to full duties. The employer makes no
distinction based on the reason for the disability for purposes of eligibility for modified
work and placement on the list.
[13] The process to determine the existence of modified work is done as follows. Every
Monday morning Heise sends an email to the two Deputy Chiefs inquiring whether they
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have modified work suitable for employees requiring accommodation . The email is not
sent to those who report to the Deputy Chiefs and who in many cases would be directly
involved in providing and supervising the work. The email is not forwarded to these
individuals nor do the Deputy Chiefs contact them in any formal way to obtain their input
into the existence of modified work. It appears that the Deputy Chiefs become aware of
the work through informal discussions or knowledge obtained by them in the course of
their overall supervision of their areas of responsibility and at formal bi-weekly
management meetings.
[14] The evidence is that the vast majority of the modified work offered to bargaining
unit employees is in the Logistics Division (“Logistics”). When assigned to perform
modified work in Logistics, bargaining unit employees are doing the work of employees
classified as Logistics Officer. There are two things that are noteworthy about this
arrangement. First, as noted above, Logistics is not part of the bargaining unit. In fact, the
employees in Logistics are not represented by a union. Second, while in Logistics, all the
terms of the collective agreement continue to apply to bargaining unit employees,
including wage rates. In 2015, the wage rate for a Logistics Officer was $21.00 per hour
whereas the wage rate for a PCP was $36.73 per hour and for an ACP $41.14.
[15] The evidence is that there are usually two employees being accommodated in
Logistics at the same time, although there could be more depending on the needs of the
division.
[16] The grievor was very pro-active in seeking modified work. She advised Heise in
October 2014 that she was pregnant and would require modified duties in the future. On
January 5, 2015, the grievor’s doctor restricted her to modified duties due to her
pregnancy. Her primary restrictions involved lifting. There is no dispute that the grievor
required modified duties or that the limitations were not required.
[17] On January 6, 2015 Heise sent an email to the Deputy Chiefs inquiring if they were
aware of any modified work opportunities. Hunt responded the same day that he had one
week of work doing data entry. The work was not done until February 3, 2105 due to
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vacations by Heise and Hunt (he wanted to be present while the work was being done).
It was offered to another employee who ranked ahead of the grievor according to the
process described above.
[18] On January 9, 2015, a mere four days after the grievor was approved for modified
duties, she sent an email to Heise confirming that she was advised that no modified duties
would be offered to her at that time and that there were other employees who took priority
over her if such duties did become available. She informed Heise that she would be filing
a grievance regarding “the company’s refusal to provide accommodation, which will
necessarily include a claim for any and all back pay,[sic] general damages under the
Ontario Human Rights Code.” The grievance was filed on January 15, 2015 and received
by the employer on January 30, 2015.
[19] In accordance with its policy, the grievor was offered modified work commencing
on March 2, 2015. The work was in Logistics, but in addition, included a “Special Project
for Professional Standards (as needed by DC Hunt).” This was a reference to the Survivor
Lunch which will be referred to in greater detail below. The grievor was in fact transferred
from Logistics to perform work on the Special Project in mid to late March 2015 and
remained on that assignment until the birth of her baby on May 1, 2015.
[20] A number of jobs were identified by the union and the grievor which they assert
would have been suitable modified work for the grievor prior to her placement on March
2, 2105. The evidence about those jobs is as follo ws.
[21] Riding third was identified. The employer staffs its emergency vehicles with two
paramedics. The grievor testified that she could have been assigned as a third paramedic
and could have done all of the normal work of a paramedic with the exception of lifting.
[22] The evidence is that work of the paramedics was being performed in a proper and
timely way by the two paramedics normally assigned to the emerge ncy vehicles. The
evidence is that there was no history of paramedics riding third in order to provide
modified work the only exception being when an employee returns to work from an
extended absence. This is used as a process of work hardening and only for a few shifts
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at most. In addition, the evidence is that the only other instances of riding third were for
students enrolled in courses to become a paramedic who require, as part of their training,
a certain number of hours of on-the-job training and for ride alongs for politicians. Finally,
the employer’s witnesses testified that they believed that there is a potential health and
safety risk to pregnant employees from patients who can, without warning, become violent
and physically lash out.
[23] A Public Education role was also identified. There is a full-time non-union
Coordinator whose job is to engage with the public on such matters as CPR and public
awareness of various topics. There is also a public relations element to the job such as
permitting the public to touch and sit in an emergency vehicle. The work that the union
identified was assisting the Coordinator in carrying out the responsibilities of the job No
specifics were provided except as noted below.
[24] In an announcement dated January 5, 2015 , from the Coordinator indicated that
there was a secondment position for a full-time paramedic to assist with the Race Against
Drugs (“RAD”) program, a community-based drug and alcohol awareness program. The
work was available from February 2 to February 6. The successful applicant, chosen by
seniority, would be taken off their scheduled shifts and paid 40 hours at their current rate
of pay.
[25] The evidence is that the employer did not consider this opportunity for modified
work because this position was the subject of an agreement between the union and the
employer that this work would be offered to the most senior paramedic who applied in
order to give them a respite from being on the road. The employer did not discuss this
opportunity with the union.
[26] Aside from this opportunity, the evidence is that the only possible job opportunities
in Public Education that might exist are volunteer only positions. Only the job of the
Coordinator is funded. The nature of the work is such that if there are no volunteers to
attend to a function to which the employer has been invited, then the employer will not
staff the event.
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[27] The Community Paramedic Program was identified. This was a one-year Pilot
Project that was funded entirely by the provincial government. County council approved
it subject to all funding coming from the province. A Deputy Superintendent was assigned
to the job. The only work available in this program was on a volunteer basis but Hunt
testified that he did not believe there were any such opportunities in the January to March
2015 period. In cross-examination, he was shown a communication from January 2015
from the Deputy Superintendent assigned to the project seeking volunteer full-time and
contract paramedics to be part of the pilot project seeking to reduce non-emergency calls
for assistance. Hunt testified he was not aware of this opportunity but noted it was not a
funded position. There was very little evidence about the work of this project.
[28] The Survivor Lunch was also identified. The evidence is that the grievor was
accommodated on this project commencing in mid-March but feels that she should have
been accommodated at an earlier date.
[29] The evidence is that each year the employer hosts a lunch in late May or early
June for individuals who, due to the efforts of the employer and/or the Fire Service and/or
the Police Service, survived potentially life-threatening situations. The work consists of
contacting the survivors to invite them to the event, and then contacting the relevant
emergency responders who were involved with the survivor s to coordinate their
attendance at the lunch.
[30] The evidence also shows that the individual who replaced the grievor on the project
did not do a good job resulting in his replacement (Gonsalves) having to do much more
work than expected and in dire need of some clarification about what had been done prior
to her taking over the project. As a result, the grievor was contacted while on her maternity
leave, and to her credit, came in to work for 30 minutes to bring Gonsalves up to speed
on what she had done prior to leaving.
[31] The evidence of the employer is that the work is scheduled to be done in mid to
late March for two reasons. First, the employer wants to include the first quarter survivors
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in the lunch. Second, the employer’s view is that the closer to the event that the work is
done, the less duplicative work is required because, due to the fragile nature of the health
of the survivor population, the number of those able to attend is constantly changing due
to the death and disability of the survivor population.
[32] The union also referred to off-load work at the Hospital. The focus of the work is to
remain with patients taken by the employer to the hospital but who must wait for a bed to
become available. The evidence is that the employer receives funding from the province
to be provided to the hospital to hire a registered nurse to perform this work. In addition,
the evidence is that there is a health and safety risk for pregnant employees if such work
was made available since there would be lifting involved and the risk of patients lashing
out.
[33] The union also suggests that some work could be made available deep cleaning
the employer’s vehicles. The evidence is that this function is performed by paramedics as
part of their regularly assigned duties. There was no evidence that this work was not
getting performed as and when required.
Position of the Parties
Union
[34] The union argues that it is predictable that the employer will be required to provide
temporary modified work to those of its employees who become pregnant. The union
argues that the fact that the accommodation is temporary gives the employer more
flexibility than if the need for accommodation was permanent.
[35] The union does not take issue with the accommodation that was provided to the
grievor, or as a general matter, the employer’s policy regarding the provision of modified
work. The union did however take the position that the grievor could have been
accommodated prior to March 2, 2015, the date when modified work was offered to her
by the application of the policy.
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[36] The union criticizes the employer for the fact that in January and February only two
employees were accommodated in Logistics and it was not until March 5 that three
employees were accommodated in Logistics. In essence the union asserts that this
resulted from the fact that, with the exception of the Survivor Lunch, the employer’s search
for modified work is narrowly focused only on opportunities in Logistics. Other
opportunities were not considered.
[37] The union also criticizes the employer for the process of sending emails about
modified work opportunities only to the Deputy Chiefs, and not forwarded by them, to
those who report to them who actually have the work. The union further criticizes the
content of the emails for the fact that they are generic with no information about the
specific accommodation required. The union characterizes the employer’s approach as
passive and not pro-active.
[38] The union notes that the RAD position was available in early February for a week
and was not even discussed as a possible modified position. In addition, the union notes
the volunteer positions in the Community program were not reviewed to determine if some
part of it could be paid work.
[39] The union also focuses on the option of riding third and noted that there were non-
patient care aspects of the job that could have been done by the grievor as modified work.
[40] With respect to the Logistics position, the union notes that the employer normally
only accommodates two employees with this work but observes that for a period of time
there were three employees accommodated and questioned why that could not have
occurred earlier thus providing the grievor with modified work.
[41] Finally, with respect to the Survivor Lunch, the union argues that given the amount
of work to be done as evidenced by the fact that there was work to be done after the
grievor left the position, the grievor could have been accommodated at least two weeks
earlier than she was in this work.
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[42] The union cites numerous authorities in support of its argument. The most relevant
statements of general principle for purposes of resolving this case are as follows:
(i) “More than mere negligible effort is required to satisfy the duty to
accommodate. The use of the term ‘undue’ infers that some hardship is
acceptable; it is only ‘undue’ hardship that satisfies this test.” (Renaud v.
Central Okanagan School District No. 23 [1992] 2 S.C.R. 970 (“Renaud”) per
Sopinka J. at para. 26).
(ii) “The test is not whether it was impossible for the employer to accommodate
the employee’s characteristics. The employer does not have a duty to change
the working conditions in a fundamental way, but does have a duty, if it can do
so without undue hardship, to arrange the employee’s workplace or duties to
enable the employee to do his or her work.” (Hydro-Québec v. Syndicat des
employé-e-s de techniques professionnelles et de bureau d'Hydro -Québec,
section locale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561 per Deschamps J. at
para. 16)
(iii) “…I do not understand that the issues of productivity and ability to perform
should be considered in quite the same light as with temporarily disabled
employees who are expected to recover to the point of full recovery. It is one
thing to structure temporary light duties to assist a person toward recovery
where the emphasis need not be on the economic worth of the activity to much
or any degree…” (Canada Post Corp. v. C.U.P.W., 1993 CarswellNat 1729
(“Canada Post”) (Jolliffe) at para. 76).
(iv) “The courts have directed that in situations where an Employer asserts reasons
for its decision not to accommodate, the onus is upon the employer to establish
the reasonableness of its position. The generally accepted rule is that
impressionistic evidence is not good enough and some ‘degree of objective
evidence is required before an employer may be found to (sic) discharged (its)
duties to adduce evidence that the employer’s efforts to accommodate was
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reasonable in all the circumstances.’ “(Orangeville (Town) Police Services
Board v. Orangeville Police Assn., 1994 CarswellOnt 1849 (Knopf) (Orangeville
Police”) at para.36).
[43] The union also refers to the following cases which held that riding third was an
appropriate form of accommodation for paramedics and urged that the same result was
appropriate in this case: Brant (County) v. O.P.S.E.U., Local 256, 2012 CarswellOnt 2586
(Marcotte) (“Brant County”); application for judicial review denied, 2013 CarswellOnt
14923 (Div. Ct); Simcoe (County) Ambulance Service v. O.P.S.E.U., Local 911 , 2007
CarswellOnt 6639 (Gorsky); application for judicial review granted 2009 CarswellOnt
7631 (Div. Ct.); New Brunswick Public Service Labour Relations Board, 2013 CarswellNB
379.
Employer
[44] The employer argues that the context of the workplace is important in this case.
There are only two classifications in the bargaining unit each of which is required to lift
beyond the grievor’s restrictions. Due to the nature of the work and the demographics of
the workforce, the demand for modified work significantly and continually exceeds the
supply.
[45] The employer also notes that most modified work opportunities are provided in
Logistics which is outside of the bargaining unit and that bargaining unit employees are
pay-protected (at a rate almost double that paid to Logistics employees performing the
same work) and remain covered by the terms of the collective agreement when
performing this work. The employer argues that this in effect amounts to creating a job
for purposes of accommodating bargaining unit employees which goes beyond its duty to
accommodate.
[46] The employer also notes that it has consistently applied its policy to all employees
who require accommodation, including the grievor and others at the relevant time.
Available work is provided to employees in order of the date of their disability regardless
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of its cause. This process has been in place for quite some time and has not been
challenged even in this case.
[47] The opportunities for modified work are canvassed weekly by email to the Deputy
Chiefs and discussed at bi-weekly meetings attended not only by the Deputy Chiefs but
also those who report to them. The employer notes that this is a small workforce where
all those involved in searching for modified work are employed in the same building in
close proximity to one another. In the employer’s submission , this is more than sufficient
to ensure that work opportunities are identified.
[48] With respect to the RAD opportunity, the employer notes that, by agreement
between the union and the employer, these opportunities are posted and given to the
most senior applicant as a means of giving them a break from being on the road. Neither
the union nor the employer discussed this as an opportunity for modified work, and in fact,
neither did the grievor pursue it as such. The employer notes that the duty to
accommodate is one that rests on the employer, union and employee .
[49] With respect to riding third and deep cleaning, the employer notes that there is no
need or requirement to do so. All the work that needs to be done can be adequately
handled by two paramedics. The employer argues that there is no economic benefit to it
from having a third paramedic on the vehicle, there is no funding for it and it is not required
to provide appropriate treatment. In addition, the employer notes that the evidence was
that there was a health and safety risk to pregnant employees since patients are
unpredictable and can lash out at any time. The employer asserts that it would amount to
undue hardship in these circumstances to perm it the grievor to ride third.
[50] The employer argues that it only permits a third person on its vehicles as a work
hardening exercise for a few shifts on return to work after a lengthy absence, to assist in
training paramedic students and ride-alongs for politician. The employer has never used
this as a modified work opportunity.
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[51] The employer argues that both the Community Paramedic and Public Education
programs identified by the grievor only had volunteer opportunities and only had funding
for the management individual in charge of the program.
[52] With respect to the Survivor Lunch, the employer notes that this modified work
opportunity involves no paramedic duties yet is paid at the paramedic rate of pay. The
timing of the availability of this work has to do with issues of continuity and experience
has shown that this is best achieved when the work is commenced in March.
[53] The employer also cites a great many authorities in support of its position that it
fulfilled its duty to accommodate. The relevant principles from these cases are as follows:
i) “The cases also state that the modified work has to be productive. In Essex
Police Services Board Arbitrator Goodfellow stated, at page 228, that ‘it cannot
be overstated that the job must be a productive one. It would, in my opinion, be
undue hardship to require an employer to provide make -work.’ …”
(Automodular Corporation and CAW-CANADA and its Local 1256, 2011 CanLII
20787 (ON LA)(Chauvin) at para. 94).
ii) “ …In exercising that duty, [to accommodate] however, arbitrators have stated
that an employer is not required to create a new job specifically for the
employee or to carve out parts of an employee’s job where an employee is
unable to, due to disability, to perform the core duties of his/her job (citations
omitted).” (Communications, Energy and Paperworkers Union of Canada Local
41-0 and Nestle Purina Petcare, 2012 CanLII 65216 (ON LA)(Jesin) at p. 20.
See also Hamilton Health Sciences and ONA (Pringle), 2013 CarswellOnt 8640
(McNamee) at para. 34).
iii) “There is little point in giving [the grievor] a series of tasks that are already
being performed by other employees as part of their own jobs; that would be
precisely the type of solution-creating a job that is of little or no value to the
company that many of the cases cited above say is not covered by the duty to
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accommodate…” (ADM Milling Co. v. United Food and Commercial Workers
International Union, Local 175, (2008), 177 L.A.C. 4th 314 (Slotnick).
iv) “…The cases make it clear that modified work must be productive, and that it
would amount to an excessive cost, for the purposes of Section 17 of the Code,
to require an employer such as this Employer to fundamentally restructur e its
workplace duties so as to create a new, shadow, or a ‘above complement’
position that is not productive….” (Revera Long Term Care Inc. and SEIU,
Local 1, 2016 CarswellOnt 4729 (Chauvin) (“Revera”) at para. 55).
[54] The employer also commented on some of the cases relied on by the union. For
example, with specific reference to the RAD opportunity, the employer notes that in
Renaud (at paras. 42 and 43), the Supreme Court made it clear that the union also has a
duty to accommodate and if there is any liability for the failure to offer the RAD opportunity
to the grievor, then the union shares responsibility.
[55] With respect to the Canada Post case, the employer notes that the grievor required
accommodation for four months. The accommodation she seeks therefore is only
temporary in the sense that she will return to full duties but given the len gth of the
accommodation she requires, this is not temporary when measured by the length of the
required accommodation.
[56] With respect to the Brant County, the employer notes that this case is entirely
distinguishable since the decision of both the arbitrator and the court was based on the
language of the collective agreement and not on general principles of accommodation .
Union Reply
[57] The union replies that with respect to the RAD position, the evidence was that it
was filled by the employer in accordance with a long-standing understanding between the
parties. There was no discussion between them about whether to offer the work to the
grievor and no evidence that the union stood in the way of that possibility. As a result, the
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union bears no responsibility for the failure to offer this work to the grievor if I find that it
should have been.
Analysis and Decision
[58] The parties agree that the only issue in this case is whether the employer
accommodated the grievor’s pregnancy to the point of undue hardship. As a pregnant
employee, the grievor has a right under the Human Rights Code, R.S.O. 1990, c.H.19 as
amended (the “Code”) to be accommodated in her employment unless such
accommodation would cause undue hardship to the employer considering the cost,
outside sources of funding, if any, and health and safety considerations.
[59] Legislation of this type “is of a special nature, not quite constitutional but certainly
more than the ordinary…” (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII
18 (SCC) at para. 12). As a result, it is to be interpreted in light of its context and purposes
and to be given a liberal and purposive interpretation. Protected rights receive a broad
interpretation, while exceptions and defences are narrowly construed. (Quebec
(Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City);
Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand
(City), 2000 SCC 27 (CanLII) at paras. 27-30).
[60] There is no dispute that an essential duty of a paramedic is to lift and that, due to
her pregnancy, the grievor is not able to perform that essential duty . In accordance with
the settled law in this area, the grievor’s right to be free from discrimination in employment
due to sex must be broadly construed and the employer’s defence or exception of
accommodation to the point of undue hardship must b e narrowly construed. This is
consistent with the view expressed in the cases that undue hardship is more than mere
inconvenience and some hardship does not relieve the employer from the duty to
accommodate.
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[61] I agree with the employer that the objective circumstances of the employer are
relevant in this case. There are only two classifications under the collective agreement
performing essentially the same work and the evidence shows that there were
consistently more employees seeking modified work than there were available positions.
This has created two challenges for the employer.
[62] The first is the need to develop a policy to determine how to allocate scarce
modified work among bargaining unit employees. The policy adopted is to provide the
work according to the date of the employee’s disability and regardless of the cause of the
disability. This is a rational and non-discriminatory policy that applies equally to all
employees. The union has not in the past, and does not in this case, challenge the policy
or that it was not applied to the grievor in the same way it was applied to all other
employees.
[63] The second challenge is to identify appropriate modified work opportunities. Since
all jobs in the bargaining unit have the same essential duties, the employer has looked to
positions that are not in the bargaining unit for a source of modified duties. Most of the
work is in Logistics. When performing such work, the terms and conditions of the collective
agreement continue to apply.
[64] The union argues that the process followed by the employer in identifying work
opportunities is flawed since the weekly emails are only sent to the Deputy Chiefs and
not to those reporting to them who would supervise and thus be aware of the need for
work and because the emails are devoid of detailed information regarding the needs of
the employee seeking modified work.
[65] I am satisfied that this process is effective in identifying work opportunities. The
Deputy Chiefs and those who report to them work for the most part in the same b uilding
and are therefore in constant communication. Hunt testified that through informal
communication with his reports and the bi-weekly management meetings attended by
himself, his reports and Heise, he is aware of all modified work opportunities.
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[66] The employer is to be commended for its approach to identifying and providing
modified work to paramedics who require it. Arguably, the employer has exceeded its
obligations under the Code in terms of the cost implications of the modified work it offers
in Logistics. The work in Logistics is not bargaining unit work. T he evidence is that there
are only two non-bargaining unit employees who are permanently assigned to perform
the Logistics work and two or three bargaining unit employees performing the very same
work at roughly twice the hourly rate and receiving all the benefits under the collective
agreement.
[67] Similarly, organizing the Survivor Lunch entails primarily clerical or administrative
skills and not the skills of a paramedic. I agree with the em ployer’s comment in argument
that it is overpaying by having this work performed at paramedic rates.
[68] In my view, the cost implications to the employer of its current accommodation
process and efforts is a relevant fact to be considered when faced with suggestions that
the employer should provide additional modified work opportunities with significant cost
implications. The employer has asserted that in this context, it would suffer undue
hardship if it accommodated the grievor in the positions identified by the union which are
not funded and rely on volunteers. There is no evidence that the employer considered the
possibility of offering such work as modified work.
[69] The problem is that no objective evidence was led to support such claims. The
evidence can be characterized as impressionistic at best and is not sufficient to satisfy
the onus on the employer to establish that accommodating the grievor in such positions
would amount to undue hardship (see “Orangeville Police”). This problem is compounded
by the fact that the right at issue arises from the Code which is legislation of a special
nature and that defences under such legislation are to be narrowly construed .
[70] I turn now to consider the work opportunities identified b y the union.
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Ride Third
[71] The employer has resisted this as an option for modified work on two grounds. The
first and main ground is that riding third is not productive wor k. The secondary ground is
the health and safety risk to the grievor since patients can be unpredictable and can lash
out which might put the grievor and her baby at risk.
[72] The employer argues that its staffing model for providing service is two paramedics
except in the circumstances of short periods for work hardening and as part of training
students (who are not paid). The employer argues that its staffing model has proven to
be effective in that the required work is performed to acceptable standards and is
completed within acceptable timelines. In short, there is no operational need for a
paramedic to ride third and to do so would amount to the creation of a non-productive job
which would impose undue hardship on the employer.
[73] There was no dispute that some of the essential duties of a paramedic could be
assigned to the grievor without violating her lifting restrictions. The work assigned to the
grievor would have to take into account her lifting restrictions and the health and safety
risk identified by the employer1 but there was no evidence that other work could not have
been made available to her.
[74] The real issue is whether assigning her to such a job amounts to the creation of
an unproductive job.
[75] The cost implications for the employer are not insignificant. It would increase the
direct wage cost (to say nothing of the other collective agreement costs) of operating an
ambulance by with no corresponding increase in output or productivit y. Moreover, the
grievor would have required such accommodation for a four -month period (January 5 to
1 The grievor was exposed to the very risk identified by the employer on January 4, 2015, the day before her lifting
restrictions were imposed by her doctor. While attempting to obtain vital signs on a patient, the patient suddenly
became aggressive, hit the grievor several times in the face and hit her in the lower right abdomen. Fortunately,
the grievor and her baby were unhurt.
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May 9, 2015).2 While I agree with the authority cited by the union that temporary modified
work with the aim to return someone to work and permanent modified work must be
analyzed differently when considering the economic worth of the modified work, it is not
unreasonable to consider economic worth issues where the modified work was expected
to last for four months.
[76] In addition, there are the contextual issues referred to above to consider. The
employer is already incurring significant costs accommodating bargaining unit employees
in Logistics and the Survivor Lunch which at least is productive work. As noted above,
riding third would add significant costs, in the order of 50% just for wages, to the
operational costs of operating an ambulance for a four-month period without any increase
in productivity.
[77] Having considered all of the circumstances and the evidence before me I am of
the opinion that permitting the grievor to ride third would impose undue hardship on the
employer. In the absence of any evidence of an operational need for a third person on a
vehicle, to accommodate the grievor would amount to an unproductive above-
complement position which has been held to amount to undue hardship (see Revera).
Moreover, the impact of the undue hardship would be compounded by the length of the
required accommodation, the fact that the employer is already providing accommodation
in over-complement in non-bargaining unit positions at collective agreement rates for
work which does not require the skills of a paramedic, and in light of the number of
employees requiring accommodation, would fundamentally alter the staffing model where
there is no evidence of a need to do so.
[78] This result is contrary to some of the cases cited by the union however in my view
they are distinguishable.
[79] For example, in County of Brant, riding third was specifically referred to as an
option in a provision of the collective agreement. Both the arbitrator and the court decided
2 The grievor’s due date was May 9, 2015 although her baby was born on May 1, 2015.
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the case based on the language of the collective agreement and not on general principles
of accommodation.
[80] In Ambulance New Brunswick, the employer refused to continue to accommodate
a paramedic by permitting her to ride third where, due to a medical condition, she was
refused the necessary class of license needed to drive an ambulance. The employer
justified its decision primarily on the issue of safety, and as well, the cost of permitting the
employee to ride third for the lengthy period of time it would take to have the license
reinstated. The adjudicator held that the employer limited its options within existing
schedules and district operations and “…did not address the impact of absorbing the cost
of continuing Saunders as a third paramedic .” (at para. 115). There was no evidence
before the adjudicator that the employer was incurring costs under an existing policy
regarding modified work and therefore no need to consider whether the incremental cost
to the employer of riding third amounted to undue hardship. As well, the employer did not
argue, and accordingly there was no analysis, whether riding third is unproductive work
and the impact of that on the issue of undue hardship.
RAD
[81] The RAD opportunity during the February 2 to February 6 time frame raises an
interesting issue. There is no doubt that this would have provided suitable modified work
for the grievor. It would have cost the employer nothing since the opportunity was for a
full-time paramedic to fill the job and there can be no argument that the work was not
productive. The problem was that neither the employer, the union or the grievor raised it
at the time it was advertised on January 5, 2015.
[82] The evidence of the employer was that this was because of a long-standing
agreement between the union and the employer that the most senior applicant would be
selected for the position as a means of giving them some respite from having to be on the
road. There was no explanation from the grievor in her evidence why she did not pursue
this work. The employer’s position was also that the grievor would not have been offered
the position in any event since there was another employee seeking modified work who
had priority over the grievor under the employer’s policy. The union disputed that.
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[83] The employer argued that if there was a violation of the duty to accommodate it
was shared by the union and the grievor for not raising the issue. I disagree. The
obligation of the union and the grievor in a case such as this is to cooperate with the
employer in finding suitable accommodation. In this case, it was the employer’s duty to
identify this as suitable work and to discuss the issue with the union and the grievor. No
such discussion took place. The union and grievor would only become liable if they
impeded reasonable accommodation by a failure to cooperate which clearly was not the
case (Renaud at paras.39 to 51).
[84] The employer should have but did not raise the issue of RAD as possible
accommodation with the union, and in that respect, it did not discharge its duty to
accommodate.
[85] It is not possible to know what the outcome of such discussions would have been.
For example, the union might have refused to waive the agreement regarding the RAD
position on the basis that to do so amounts to undue hardship since the rights of senior
employees might be adversely affected (Renaud at para. 45). Even if the union was
agreeable to permitting the RAD opportunity to be used as a modified work opportunity,
as noted above, there is a dispute whether the grievor would have been eligible for this
work opportunity under the employer’s policy.
Community Paramedicine
[86] This pilot project was funded by the province to the extent of one management
FTE. It appears that there were some volunteer opportunities available but to have f illed
those opportunities with paid modified work would, in eff ect, be adding an above
complement position. There was no evidence how much work there was or how long it
would have occupied the incumbent.
[87] On the other hand, there was also no evidence what the impact would have been
from a cost perspective to utilizing this position, even if only temporarily, as modified work.
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No doubt there would have been additional cost to the employer but that in and of itself,
and in the absence of evidence, does not amount to undue hardship.
[88] I find that this was a potential opportunity for modified work that was not considered
by the employer and is therefore a violation of its duty to accommodate.
Survivor Lunch
[89] The union asserts that the employer could have assigned the grievor to this project
earlier than it did. It claims that there was sufficient work and points to the fact that the
grievor went in after she started her maternity leave to advise Gonsalves.
[90] The evidence was that the reason Gonsalves was faced with so much confusion
and work was because her predecessor on the project (the grievor’s successor) did not
perform well on the project. This is obviously not something that could be anticipated and
does not support the union’s argument that the work could have started earlier.
[91] The employer’s argument is that the work simply did not have to be done prior to
the beginning of March because of the need for current statistics and the nature of the
survivor population. This evidence was not seriously challenged. Moreover, there was no
evidence that the nature of the work was such that it could not be done in the timeframe
allocated for it by the employer.
[92] I am of the opinion that there is no compelling case from a productivity perspective
why the work should have commenced earlier.
Deep Cleaning
[93] This is work that is part of the normal work of a paramedic. The suggestion that
this work was appropriate for modified duties suffers from the same problem of the riding
third suggestion—it is not productive work.
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Off-Load Nurse
[94] As I understood the evidence, funds are provided to the employer to assist the
hospital in hiring a registered nurse to perform this function. It is obvious that the employer
could not have assigned one of its employees to the work as a form of modified work. If I
am mistaken about who the employer of the registered nurse is, there are other reasons
why this was not suitable as modified work including the fact that some of the required
work would have been beyond the grievor’s limitations and the health and safety concerns
expressed by the employer.
General Damages
[95] The union claimed general damages for the grievor in the amount of $25,000.00
for “injury to dignity, feelings and self -respect.” The amount of this claim is out of all
proportion to what occurred and appears, on the face of the claim, to be intended to be
punitive rather than compensatory in nature.
[96] While I have found that the employer did not comply in some respects with its duty
to accommodate the grievor, the manner of its breach of duty was not such as to justify
an award of this magnitude. The employer responded to the grievor’s requests for
modified work respectfully and with due regard to her fundamental right to be
accommodated under the Code. The employer administered its policy fairly and with
sensitivity to the needs of all its employees, including the grievor, who required
accommodation at the relevant time. Moreover, there was no evidence about the impact
of the employer’s failure to accommodate on the grievor’s dignity, feelings or self-respect.
[97] Since the rights protected by the Code are fundamental in nature, it is not difficult
to justify an award of general damages where those rights have been violated. However,
the amount of the award must be proportional to the nature, extent and impact of the
breach. After considering all of the evidence before me, including the nature, extent and
impact of the breach, I award the grievor $500.00 in damages.
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Remedy
[98] I have found that the employer did not fulfill its duty to accommodate with respect
to RAD and the volunteer positions in Public Education and Community Paramedical and
so declare. Due to the complexities of the employer’s accommodation process, the parties
agreed that I should restrict my award at this stage to a declaration and remit the matter
to them to determine remedy.
[99] I remain seized to deal with any issues that might arise with respect to the
implementation of this award.
Dated at Toronto Ontario this 23rd day of January 2018.
_____________
Larry Steinberg