HomeMy WebLinkAboutCunnane 12-03-01 i
IN THE MATTER OF AN ARBITRATION
BETWEEN:
THE CORPORATION OF THE COUNTY OF BRANT
(The "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 256
(The "Union")
AND in the matter of the individual grievance of-Mr. Glen Cunnane.
ARBITRATOR: William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER: B.R. Baldwin, counsel
D. Lane, stu.-at-law
K. Dropko, A/Mgr., H.R.
C. Longeway, EMS mgr.
R. Papple, para.duty mgr.
FOR THE UNION: E. Holmes, counsel
W. Schween, steward
W. Buckley, steward
G. Cunnane, grievor
Hearing held in Brantford on September 20, 2011 and February 16, 2012.
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AWARD
In the January 2, 2011 grievance, the Union claims Mr. Glen Cunnane (the
"grievor") was discriminated against by the Employer when it failed to
accommodate him. In particular, the Union contends the Employer improperly
denied the grievor's request to ride 3rd in an ambulance when he had been
medically cleared to do so, with only the restriction of no lifting over 40 lbs.
The Employer position is there has been no violation of the parties' collective
agreement.
The parties referred to the following provisions of the collective agreement
under which the grievance arises:
2.02 The Employer and the Union agree that there will be no
intimidation, discrimination, interference, restraint, or coercion
exercised or practised by either of them or by any of their
representatives or members. Particularly, there shall be no
discrimination against employees with respect to terms and
conditions of employment on the grounds of race, creed, colour,
age, sex (gender), sexual orientation, marital status, family status,
religion, nationality, ancestry, place of origin, or handicap
(disability), Union membership or activity.
The parties will negotiate accommodation measures to eliminate
discrimination, provided that the accommodation does not cause
undue hardship on either party as defined in the Ontario Human
Rights Code.
Where an employee has submitted appropriate medical
documentation, he may be accommodated by riding third on a car
in order to maintain his skill level.
In all cases employees on accommodation will be provided
meaningful work within their skills and abilities.
The Employer operates an ambulance service. Ambulances are required to be
staffed by a minimum of two paramedics, the standard crew size for the
Employer. When paramedics arrive at the location specified by dispatch, they
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attend to the patient's medical needs and then, typically, transport the patient
to the base hospital. Relevant to our purposes, to transport a patient the two
paramedics place him or her on a stretcher (or, less often, in a stair chair),
convey the stretcher back to the ambulance, move it into the ambulance and
then follow the reverse order of lifts when they arrive at the hospital.
In regard to lifting a patient and then moving the patient on the stretcher, the
Employer's "Physical Demands Analysis" for the paramedic job, under the
"Strength" category, indicates, "Lifting-Maximum 60 (kg.), Usual 24-40 (kg.)".
Under the heading "Frequency" concerning lifts, it is rated "4 - Major job
demand - Maximum ability required - Frequent repetition for more than 3
hours daily." Further, the "PAE Evaluation Components" for the paramedic
position indicate "minimum" physical demands, as follows: "High Arm - 77 LB
- Arm and shoulder strength for rare lifts of a 190 LB patient on a patient
transport utility during a 2 person lift/carry..." The document also indicates:
"Arm - 103 LB - Arm strength based on a rare lift of a 190 LB patient on a
patient transport utility during 2 person lifts such as a stair chair..." The
minima "LB" are 51 lbs. and 77 lbs., respectively.
The grievor started working as a paramedic in 1995 as a Primary Care
Paramedic ("PCP") and seven years later, he qualified as an Advanced Care
Paramedic ("ACP"). In addition to performing all the duties of a PCP, such as
driving the ambulance, triage, performing "all patient care modalities", as
provided for in the Ministry of Health and Long-Term Care "Basic Life Support
["BLS"] Patient Care Standards", an ACP can start an intravenous line,
administer certain narcotics, and, intubate a patient.
On October 24, 2010, the grievor was at a patient's location and carrying the
Advanced Life Support ("ALS") bag in his left hand when he stumbled. His
incidence report of that date states: "Missed last step and top of right foot
caught on carpet stair. Foot bent back and knee bent forward. Fell partially to
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ground." He also experienced pain from his left hand to left shoulder. The
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Functional Abilities Form ("FAF") filled out by a physician that same night
indicates the grievor could return to work, but with restrictions on use of his
right foot in regard to walking, standing, stair climbing, ladder climbing and
repetitive bending/twisting. In the October 29, 2010 FAF, the physician also
placed restrictions on the grievor's use of his left arm, including no lifting from
floor to waist, and, lifting up to 5 lbs. He also restricted lifting from waist to
shoulder, and, "No heavy pushing/pulling." The physician reported,
"Essentially, this man can only do a `desk type'job in an office." The FAF of
November 19, 2010 maintained the same type of restrictions, albeit with slight
moderation in regard to the grievor's right foot and left arm. In the December
10, 2010 FAF, the physician writes: "While he has no restrictions with respect
to his right foot [and] ankle, he has restrictions for his left shoulder injury." In
an Employer "Health Illness Report" of that same date, the physician noted the
grievor was restricted to lifting "maximum of 40 lbs" for 3 1/2 weeks. On
December 23, 2010 the physician wrote on that report that the grievor "may
ride in a 3-person crew." On January 5, 2011, the grievor returned to
performing his full duties as a paramedic.
From the date of accident, October 24, 2010, to his return to full duties as a
paramedic on January 5, 2011, the grievor did not lose any time. He was
accommodated at work by being assigned supervisory duties, largely involving
sorting and filing the various reports ambulance crews are required to complete
and submit for each shift, which work paramedics do not normally do but
which he had previously performed for a period of time in the capacity of
A/Supervisor. As his mobility increased, he performed additional duties which
paramedics usually perform, i.e., "general base duties," such as sweeping,
mopping, and, cleaning vehicles. He estimated these comprise some 5 to 10
percent of a paramedic's usual duties.
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When the physician lifted the grievor's right foot restrictions on December 10,
2010, the grievor requested that the Employer accommodate him at work by
allowing him to be a 3rd member of the required 2-member paramedic
ambulance crew. The grievor was of the view his requested accommodation
was appropriate: "Riding third re-integrates us to what we do and prepares us
to assume that role, again." He said he would have been able to perform all his
paramedic duties, "with the exception of the restriction of lifting no more than
forty lbs. with my left arm." He estimated he could otherwise perform 90 to 95
percent of a paramedic's duties. The grievor's request was initially denied by
the duty manager, Mr. Papple, on December 13, 2010, and on December 22,
2010, Mr. Longeway, the Employer's Manager, informed the grievor, as follows,
in an e-mail, in response to the grievor's request of December 15, 2010:
At this time Glen, I am unable to grant your request.
The last medical note submitted indicated you would be reassessed in 3
and 1/2 weeks. There is no indication that you will be 100% at that time
and back to full duties. There may be further extension to the time of
disability and accommodation at that time for an unknown period of
time.
The employer is concerned that the unkowns [sic] of the pre-hospital
environment may put you in position of risk to further injury and
exacerbation of the current injury. We cannot control that environment
and wish to have employees perform other modified duties until such
time the physician and other medical practitioners clear the employee to
return to full time, normal duties without restriction, before allowing
employees to ride 3rd.
When the time comes that you are cleared 100% to return to regular
duties we will allow a period of work hardening and riding 3rd to allow
reintegration to the regular duties of an ACP paramedic.
The grievor also was of the view he could be properly accommodated as 3rd in
an ambulance because other paramedics had done so in the past. His evidence
is that between 2006 or 2007 and early 2010, five other paramedics had ridden
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3rd in an ambulance for some 1 to 4 weeks, and one of those for "probably
greater than eight weeks."
In cross-examination the grievor agreed that on any call, routinely five or more
per shift, paramedics could be required to lift patients and a lift is never
performed by only one paramedic. He agreed that patients can be difficult and
highly anxious, at times. He said he requested to ride 3rd in an ambulance not
because of his lifting restrictions, but because it would allow for "skill
maintenance and re-introduction to the job." He made his request only after
his foot restrictions were removed by his physician. He agreed a 3rd crew
member is not required in an ambulance.
The grievor agreed that on January 1, 2011, he had filed a, "Personal Injury
Report" indicating that when washing a vehicle that day, a bucket rolled under
it and, "while removing the bucket, my hand was pinched between the bottom
of the vehicle and the bucket." He did not seek medical attention. On that
report, he also indicated, "Had my modified duties been in keeping with
legislative and collective agreement...requirements my hand would not have
been caught as I would have been [a third crew member]." The grievor
disagreed he had filed this report to make the point that he could be injured
even while performing modified duties; "No, it intends to be helpful, factual as
to the circumstance." He agreed paramedic duties include washing vehicles.
He is aware of the Physical Demands Analysis for the paramedic position. He
agreed he was not "de-activated" by the base hospital and had not missed work
as a paramedic for 90 days. The grievor agreed he did not work rotating shifts,
but only 12-hour shifts, while on modified duties.
In re-examination, the grievor said that for a heavy patient, a 2-person
ambulance crew would contact dispatch to arrange for a "lift assist" from
another ambulance crew. Fire and police departments also respond to such
calls, if necessary. The grievor has had but six or so confrontations in his
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career with a difficult or high-anxiety patient. Paramedics do not deal with the
"physical aspects" of a confrontation but rely on the police service to deal with
it. To the best of his understanding, the Physical Demands Analysis was not
negotiated between the Employer and the Union. The only thing in an
ambulance, including medical equipment in the ALS bag, over 50 lbs is the
stretcher. The next heaviest object weights 38 lbs. The stair chair weighs
approximately 15 lbs.
Mr. Charles Longeway is the manager of the ambulance service. He
commenced work in this area as a paramedic in 1976. He is familiar with PCP
duties and somewhat so with ACP Duties. There are only paramedics in the
bargaining unit. The Ambulance Act establishes the essential duties of a
paramedic. A paramedic is expected to fulfil all the duties of that role as
legislatively prescribed. As concerns patient lifts, Mr. Longeway said
paramedics are expected to "lift safely [a patient] from whatever position to the
stretcher", which is a 2-person job for paramedics, as is carrying a stretcher
because it is "too awkward" to be moved by one person. On some calls, the
ambulance may be parked, "some distance away" from the patient's location.
In terms of the total weight involved, Mr. Longeway's evidence is that the
stretcher itself weighs approximately 90 lbs., and the patient can weigh "say,
eighty pounds to five hundred pounds", the latter weight being the maximum
load on a stretcher. He estimated an average patient weight of 180 lbs. A "lift
assist" procedure is used only if the terrain is "difficult", for example, a
riverbank, or the building presents difficulty, for example, a winding staircase
and its use does not depend on the weight involved. The vast majority of lifts
are done without a "lift assist". Lifting a patient safely is an essential duty of
the paramedic job.
Mr. Longeway's evidence is that the "Physical Demands Analysis" is provided to
paramedics' doctors for them to be aware of the physical demands for the
position. The lifting requirements specified in it are accurate, from his
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perspective. "A sixty kilogram patient and a ninety-pound stretcher totals two
hundred and twenty-two pounds, a very reasonable maximum weight," which a
paramedic is expected to lift as his or her portion of the 2-person lift. The
Employer's current statistical data indicate 4 or 5 patients per day, per crew,
are lifted by paramedics. The Ambulance Act mandates two paramedic crews
per ambulance, as does this Employer.
As to assignment of modified duties to paramedics who have physical
restrictions, Mr. Longeway said, "When sick or injured and unable to perform
normal duties, we do workplace accommodation [for paramedics] in the office.
Those duties are essentially ones done by supervisors who can also do
paramedical duties. There are other projects we want to do but [normally] can't
get to, for example, ambulance assignment/maintenance reports. With [the
grievor], because of his computer skills, we were able to get some of these
done.... [His work] was very useful, it was great to have that work done." One
of those duties assigned to the grievor was to assist a supervisor in the creation
of a return-to-work program; "a good time to update our program." The grievor
was replaced by a part-time paramedic following his October 24, 2010 injury.
As concerns the BLS Patient Care Standards, the Ministry of Health and Long-
Term Care Emergency Health Services Branch is the regulatory body for the
Ambulance Act and services thereunder. A required standard involves patient
lifts and this standard applies to a paramedic, "any time on duty", including a
3rd crew member.
In regard to his December 22, 2010 e-mail to the grievor, Mr. Longeway denied
the request to be a 3rd crew member: "When riding third, you're on the road,
responding to dispatch.... You go into a house, everything seems nice and
secure and a little old lady becomes violent. Even if you're healthy, you can
become injured, and if already injured, you can exacerbate the injury.... Or
going into a bar and a brawl starts.... Or traversing to a river's edge on bad
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terrain you can injure yourself or exacerbate an injury.... Once [a paramedic] is
cleared to return to work with no restrictions, we'd allow riding third for work
hardening. For [the grievor], in December [20 10] it indicated at least three and
a half weeks out" before being cleared to return to his normal duties. In the
grievor's case, he was "nowhere near" 90 days and possibly being de-activated.
Mr. Longeway's evidence is that the "PAE Evaluation Components", including
"High Arm" and "Arm" categories, "provide agility evaluation for people wanting
to be paramedics." We use this to see if the applicants can do the job....
Paramedics need to meet a minimum for lifting. If a person [meets the PAE
components] it means we can be confident they can lift safely and not injure
themselves, the patient, or their partner..., for example, drop the stretcher."
As concerns the paramedics the grievor indentified who had been a 3rd crew
member in an ambulance, one Ms. Wesley, in 2010 injured her shoulder while
off duty, was cleared to return to work, "but told to do lifts are part of her re-
integration. She was allowed to ride third. At one point during a shift, another
paramedic raised concerns about this accommodation.... We started to re-
evaluate our return-to-work program. I determined it was not safe to all
[involved] to have a third [on the crew]". All other instances referred to by the
grievor occurred prior to the above situation in 2010. The grievor's request to
be accommodated in the 3rd crew role was the first one subsequent to Mr.
Longeway's determination.
In further reference to the BLS Patient Care Standards, under "Pre-Arrival At
Scene," a "paramedic will: 14. Secure, lift and carry the patient using
appropriate methods and devices." Under "G. Patient Management", a
paramedic "will: 9. Secure, lift and carry the patient to and from the
ambulance.
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- If the patient is a child, consider allowing the parent to carry the child
unless contraindicated by specific illness/injury.
- Determine whether the patient can be carried safely by self and
partner. If deemed unsafe, request and direct others at scene to assist
with the task.
- If the patient refuses to be carved, attempt to convince the patient to
be carried. If the patient walks or is walked to the ambulance,
document specific reasons.
Under "C. Patient Care Skills List-Minimum Requirements", it states: "16.
Lifting and moving a patient: a) using proper body mechanics... c) using the
appropriate device". Mr. Longeway's evidence is that the above required
standards apply to the paramedics under his supervision.
In cross-examination, Mr. Longeway agreed that the minimally-required two
paramedics assigned to an ambulance can be any combination of PCPs and
ACPs and where one is an ACP, there are additional staff functions specific to
an ACP than if there are two PCPs. He agreed the presence of an ACP has
potential benefit to the patient and the service when that ambulance crew
responds to a call, perhaps negating the requirement to call a second
ambulance, where a crew member is an ACP. He agreed it is not the norm that
some patients are too large for two paramedics to lift, but the Employer does
not keep statistics on such occurrences. Mr. Longeway said it is "more often
than not", that other services such as fire and police, respond to the same
dispatch call for an ambulance in the County area. For the City area, it is "less
likely" they will also respond. When these other services also respond to a call,
fire-fighters more often than police will assist in lifting patients and stretchers,
"under the direction of a paramedic", which avoids having to dispatch, if
needed, a second ambulance. He agreed it is built into the standard that, if it
is deemed unsafe for two paramedics to lift a patient into the ambulance, they
are required to request assistance, which standard would apply if there is a 3rd
member on the crew who is prohibited from lifting.
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The Employer has a single "emergency response" vehicle crewed by a single
individual, either a supervisor or paramedic, which can be dispatched to a call,
sometimes arriving before the ambulance. That vehicle does not carry a
stretcher but does carry other types of equipment used by paramedics. When
an ambulance has a patient it is bringing to the hospital and receives an acute
care call involving someone with more significant injury or illness, a not
common scenario, the ambulance will divert from its journey to respond to the
call. In that circumstance, one paramedic stays in the ambulance with the first
patient and the other leaves to attend to the acute care call. A second
ambulance is then sent to carry the second patient to the hospital.
In regard to the grievor, Mr. Longeway said he appeared to be content to
perform supervisory duties and it was only when his medical restriction was
lifted regarding his foot when he requested to be a 3rd crew member in an
ambulance. He agreed the supervisory duties the grievor performed would
otherwise, but not as "efficiently", have been performed by a supervisor at no
extra cost to the Employer. The Employer did have extra cost due to replacing
the grievor with another paramedic. He agreed that while A/Supervisor, 90 to
95% of the grievor's duties were supervisory in nature, and 5 to 10% were
paramedic duties. He agreed whether to re-train or upgrade a paramedic who
had not performed his or her duties for more than 90 days was a discretionary
decision on the part of the base hospital. Part of the rationale, Mr. Longeway
said, was due to concern that paramedics need to keep up their skills.
However, paramedics who are not performing their duties can keep their skills
up through "practice scenarios in the training room". He agreed that being a
3rd crew member is more closely aligned with the grievor's regular duties than
performing supervisory duties.
As to the matter of potential risk attached to the grievor as 3rd in an ambulance
Mr. Longeway said that risk could be in the form of dealing with a mentally-
disturbed patient, or a disoriented patient, or, someone not wanting to get on
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the stretcher as needed, and are of the sort any paramedic is exposed to on a
call. The Employer does not keep statistics as to those types of situations but
he offered, "it's not in the fiftieth percentile but it is a common occurrence."
Mr. Longeway, himself, recently had the occasion to be a member of an
ambulance crew, at which time one of his thumbs was splinted due to an
injury. Mr. Longeway said, "I had no restrictions,just a splint on my thumb."
He said there was no risk of re-injury because the site was protected. He did
not think the grievor, if riding 3rd, would knowingly violate his restrictions;
"given the unknowns of the pre-hospital setting, he could be at risk", as would
any paramedic in that circumstance. Mr. Longeway said his December 22,
2010 e-mail to the grievor reflected a general policy and was not specific to the
grievor's circumstances. However, Mr. Longeway said, "I did review his specific
situation and his e-mail to me. The concern was that he wasn't one hundred
percent, he still had restrictions and the risk of delay, with further injury, of his
return to his full-time job." He agreed the grievor had indicated he was
prepared to assume that risk.
Mr. Longeway was referred to an April 1, 2010 e-mail to Mr. Papple, from a
paramedic which, essentially, expressed her concerns about safety risks to
herself and a paramedic who was riding 3rd who was "still hurt and unable to
participate as a member of the crew...", specifically in regard to patient lifts.
In re-examination, Mr. Longeway said that while the grievor's opinion was he
could 90 to 95% of a paramedic's duties, i.e., save for lifting patients, lifting
patients must be done for nearly every call when transporting patients to the
hospital. He said that, "often", when an ambulance crew arrives at the call
location, "the nature of the call is significantly different from what you were
told".
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The Union submitted that the Employer did not accommodate the grievor to the
point of undue hardship and, in that regard, discriminated against him. There
is no issue that when the grievor was injured on October 24, 2010, his
accommodation in the supervisory position was appropriate in light of his
restrictions resulting from his injuries, under the provisions of the Human
Rights Code, and which duties would ultimately be performed by a supervisor
had the grievor not been assigned that work. When his foot injury resolved
itself in December, 2010, he requested that, due to his remaining shoulder
injury and restriction to lifting no more than 40 lbs., he be accommodated by
being assigned to ride 3rd in an ambulance, as was his physician's December
23, 2010, written documentation recommending that position. His request was
denied by the Employer for the sole reason of a possible, potential, speculative
risk of further injury or exacerbation of his shoulder injury if he were to be so
assigned. The Employer's view that only when the grievor was fully cleared
would he be allowed to perform the work of a paramedic on a work hardening
basis, begs the question of why work hardening is necessary if he is cleared to
perform that work.
The Union submitted there are advantages if the grievor, an ACP, rode 3rd in an
ambulance in the form of benefits to patients and to the Employers; the former
would benefit from his ability to perform ACP paramedic duties a PCP cannot
do and the latter by way of not having to call out a second ambulance should
ACP duties be required. The benefit for the grievor is that riding 3rd is a
recovery aid allowing for gradual re-integration and maintenance of his ACP
paramedic skills. Further, riding 3rd in an ambulance is closer to the work
ACPs actually perform, save and except the lifting component, than is the
supervisory work.
In regard to the Employer's concerns about safety risks to the grievor, co-
workers and patients of the grievor rode 3rd in an ambulance, the Union
submitted there are general risks paramedics assume, with or without
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restrictions, for any role they perform, including washing vehicles. Risk also
exists when paramedics are confronted with an un-cooperative or mentally
challenged, or disoriented patient, but which encounters are rare and, in any
event, the police can be contacted to deal with that situation. That is, these
sorts of risk are inherent in the paramedic's job as safety risks and not just for
the grievor on a restricted work accommodation. Moreover, it is significant that
the two paramedics, in responding to a call, engage in all lifting activities,
which work gives rise to the possible risk of injury. Any paramedic riding 3rd
however, can avoid all those risks because the other two would be doing the
work. As a 3rd crew member, the grievor would be able to drive the ambulance,
thereby allowing the other two crew members to engage in patient care. As
well, police and fire services often attend at calls for paramedics and do provide
assistance as necessary, including lifting patients. In any event, there is no
evidence, statistical or otherwise, as to the amount of risk the grievor would be
exposed to, rather, the Employer puts forth, at best, speculation as to potential
risk. In that regard, while there was a complaint about the risk associated with
a 3rd crew member with physical restrictions, a single complaint or concern
expressed by a co-worker must be viewed with great care as a basis for
interfering with the grievor's human rights under the Human Rights Code. (In
regard to the above referred-to April, 2010, concern raised by a fellow
paramedic about Ms. Wesley, it would seem she was to be involved in lifting
patients as part of her "reintegration", which is not the circumstance at hand
involving the grievor). In allowing the grievor to be accommodated as a 3rd crew
member, there would be almost no additional cost to the Employer because,
regardless of doing supervisory work or riding 3rd, the Employer would be
required to pay another paramedic to replace the grievor, which it did through
use of a part-time paramedic.
The Union argued the test for accommodation is that of"undue hardship",
thus, an amount of hardship is to be expected, properly, when accommodating
an injured worker. In the instant case, it cannot be argued the Employer would
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experience undue financial hardship by way of accommodating the grievor as a
3rd crew member.
The Union submitted that art. 2.02 contains significant provisions that apply in
the instant case. Specifically, art. 2.02 addresses the matter of accommodation
for a paramedic, viz., "Where an employee has submitted appropriate medical
documentation, he may be accommodated by riding third in a car in order to
maintain his skill level." It is not in dispute the grievor did submit appropriate
medical documentation allowing him to ride in an ambulance as a 3rd crew
member. Further, that article states, "In all cases employees on
accommodation will be provided meaningful work within their skills and
abilities." The grievor's skills and abilities are those of an ACP and not those of
a super-visor per se, albeit he does have a/supervisor experience.
The Unions submitted the Human Rights Commission's "Policy and guidelines
on disability and the duty to accommodate" supports its position, as does the
caselaw, i.e., all efforts are to be expended in order to accommodate an
employee in a position as close to his or her job first, and then, secondly,
consideration is given to the issue of up to the point of undue hardship. In
other words, under the Code guidelines, it is always preferable to accommodate
an injured employee in his or her own position first, if there is no undue
hardship, and, it is only after such accommodation cannot be made when
alternative work is to be considered. As stated under the above Policy:
4.3 Most appropriate accommodation
The duty to accommodate requires that the most appropriate
accommodation be determined and then be undertaken, short of undue
hardship. The most appropriate accommodation is one that most
respects the dignity of the individual with a disability, meets individual
needs, best promotes integration and full participation, and ensures
confidentiality
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Whether an accommodation is "appropriate" is a determination
completely distinct and separate from whether the accommodation would
result in "undue hardship"...
Under section 4.3.2 "Alternative Work", the Policy addresses the form of
consideration to be taken if accommodation in the injured employee's job
cannot be achieved, to wit:
Although accommodation in the pre-disability job is always preferable, it
may not always be possible.... Nothing in the Code or in section 17
specifically restricts the requirement to accommodate a worker with a
disability to the pre-existing position. Conversely, nothing in section 17
expressly authorizes it either.
The Union submitted that where an employee can do the "lion's share" of the
work in his or her pre-disability position and can be accommodated in it, then
he or she should be so accommodated. In the instant case, the grievor can do
all the work of a paramedic position, save for lifting. However, as a 3rd crew
member, the other two paramedics can properly undertake a lift, the norm for
lifting, and where two paramedics cannot carry out a lift, other agencies'
personnel assist, or, as is the standard in the BLS, a second vehicle is sent for
that purpose. That is, in that circumstance, which appears to only arise in a
small number of cases, there are procedures in place so that the grievor, as the
3rd crewmember, would not be at risk. The Employer cannot demonstrate
undue hardship if the grievor were to ride 3rd in an ambulance. In that respect,
the single complaint or concern from one co-worker about a colleague riding
3rd, along with expressing speculation about potential or probably risk, is not
sufficient evidence of undue hardship based on safety risks, which evidentiary
onus the Employer must meet, so as to override the grievor's human rights to
be accommodated, and to be free from discrimination due to his disability.
The Union submitted that in the matter of accommodation in the pre-existing
position, an employer is required to be flexible in applying the standards for a
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position and rigid rules are to be avoided in applying those standards to the
disabled employee. In the instant case, since the grievor is capable of
performing all paramedic work in conformance with standards save for lifting,
to insist that he must be able to perform 100% of paramedic work represents a
rigid, not flexible, approach to accommodating the grievor and ought not be
endorsed. The Union submitted that accommodation is a matter of process and
not simply an outcome. In this regard, Re Ontario Public Service Employees
Union v. Ontario (Human Rights Commission) (Kenna), [2005] O.G.S.B.A. No. 30
(Briggs) can be said to reflect a requirement on an employer to undertake a 4-
step process in considering how to accommodate an injured worker, at para.
94. First, it must be determined if the injured employee can perform his or her
job as it exists. Second, if not possible to do so, the employer is to assess
whether or not the existing job can be modified so as to make it suitable for the
injured employee. Third, if it cannot be modified, the employer is required to
determine whether or not another job is suitable. Fourth, if the injured
employee cannot perform the essential duties of that other job, it must be
determined by the employer if it can be modified to suit the injured employee.
At each step, moreover, the employer's efforts "must be genuine and not
perfunctory (para. 94). In the instant case, riding 3rd with the restriction of no
lifting over 40 lbs. is an appropriate modification of the grievor's paramedic job
and in which he ought to have been accommodated. For the Employer to
demonstrate there exists safety risks on the part of the grievor while riding 3rd
in an ambulance, the magnitude of the risk and those who bear that risk must
be established to a sufficient degree so as to be demonstrable safety risks,
which the Employer has not done in this case.
The grievor indicated to the Employer he is willing to assume a risk as a 3rd
member of an ambulance crew. Under the above referred-to Human Rights
Policy, ss. 5.3.3(b) provides for his ability to do so; "A person with a disability
may wish to assume a risk". Under that subsection, undue hardship is created
if"the risk is so significant as to outweigh the benefits of equality..." Moreover,
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18
i
since the grievor's rights under the Human Rights Code are contained in a
statute held to be quasi-constitutional in nature, there needs to be substantial
or significant evidence of safety risks to override his quasi-constitutional rights.
There is, however, no such evidence at hand. Rather, balanced against the
grievor's rights is but the notion of speculative risk or potential injury, i.e.,
falling short of, under the title "Seriousness of the risk" in ss. 5.3.3(b); "is it a
real risk, or merely hypothetical or speculative?"
In support of its position on the merits of the grievance, the Unions submitted
Re United Air Lines and I.A.M., [1993] C.L.A.D. 1212, 33 L.A.C. (4th) 89
(MacIntyre); Re Central Okanagan School District No. 23 v. Renaud, [1992]
S.C.J. No. 75 (S.C.C.); Re Ontario Liquor Board Employees' Union v. Ontario
(Liquor Control Board) (French), [2002] O.G.S.B.A. No. 32 (Marszewski); Re
Hydro-Quebec v. Syndicat des employe-e-s techniques professionnelles et de
bureau d'Hydro- Quebec, section locale 2000 (SCFP-FTQ), [2008] S.D.J. 44, 174
L.A.C. (4th) 1 (S.C.C.); Re Ontario Public Service Employees Union, supra, and, Re
Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2
S.C.R. 489 (S.C.C.).
The Employer submitted it did not improperly fail to accommodate the grievor
subsequent to the point in time when his foot injury resolved. At that point in
time, the grievor was medically restricted to lifting no more than 40 lbs. Lifting
patients and stretchers is an essential requirement of the paramedic position.
It is standard for paramedics set by the Ministry of Health pursuant to its
mandate under the Ambulance Act. The evidence is that two paramedics are
required to execute a lift, the stretcher itself weighting 90 lbs. The grievor could
not lift the stretcher, let alone with a patient on it, albeit he could have carried
a small child under 40 lbs. to the ambulance. That is, the grievor could not
perform a fundamental, statutory duty that is essential to the paramedic job.
The fact that lifting may only constitute but a small percentage of overall
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19
paramedic duties is a "red herring" argument; lifting is not a severable duty,
rather, it is a statutory requirement and it is not disputed that on any given
call, paramedics may be required to lift a patient.
The evidence is that for 5 or 6 calls per shift, lifting is required, which lifting
occurs on four separate occasions to get the patient into the ambulance and the
same number to get them out of the ambulance and into a hospital bed. In
short,,lifting is a paramedic duty regularly perfumed during the course of a
shift. From that, it flows there is no duty to accommodate the grievor in the
paramedic position because he could not do an essential, core duty that is
regularly performed. Indeed, that the grievor requested to ride 3rd in an
ambulance is an admission he cannot be in the paramedic position, where the
standard crew consists of two paramedics, and as provided for in the
Employer's budget. Rather, the grievor seeks that the duty to accommodate
requires the Employer to place him in a supernumerary position that is not
needed. There is however, no requirement for the Employer to create such a
position. The Employer argued that finding in favour of its positions based on
the above ends the matter and safety issues need not be addressed.
Nonetheless, in regard to safety matters, when the grievor was injured on
October 24, 2010, it is not in dispute that as a result of his injuries, he could
not perform the work of a paramedic. In accommodating the grievor's
disability, the Employer assigned him useful supervisory work, not
supernumerary work, drawing upon his computer skills and past experience as
an A/Supervisor, i.e., an accommodation within his skills and ability. In
placing the grievor in that position, the Employer's decision does not change
the legal equation under art. 2.02 of the collective agreement. Contrary to the
Union's assertion, that article does not state that any "meaningful work" has to
be that of a paramedic. It is uncontested the grievor has the skill and ability to
perform supervisory work that was meaningful. Moreover, there is no issue the
grievor's accommodation in the supervisory position was reasonable and
Final
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20
appropriate up to the time of his request to ride 3rd in an ambulance. How
then, does that accommodation go from being reasonable and appropriate to
being unreasonable and in violation of the Human Rights Code? The duty to
accommodate does not become unreasonable simply because the grievor has a
well-intentioned preference to be a supernumerary paramedic and use his
paramedic skills. The Employer is not forced to provide the grievor with a
position over and above the norm for crewing an ambulance, where in allowing
the grievor his preference legitimate safety issues come into play, but which
issues did not arise when he was performing meaningful work in the
supervisory position.
In regard to the Union's position on the safety aspects of the paramedic
position, the Employer submitted that under the Occupational Health and
Safety Act, it has significant obligations to protect its employees in their work.
For example, under s. 25.(l), the Employer has the mandatory duty "to ensure
and ... (h) take every precaution reasonable in the circumstances for the
protection of a worker;". Mr. Longeway's evidence is that in the uncontrolled
pre-hospital environment, i.e., responding to a call, there are safety risks for the
grievor. And while the grievor expressed his willingness to assume those risks,
the Employer has the responsibility for health and safety of its employees under
the OHSA and it is not fair for the grievor to say he will take that risk when the
Employer has a statutory obligation to protect him from safety risks. Further,
while there is a degree of safety risk to all paramedics all the time when
working, it is bona fide, legitimate and reasonable for the Employer to control
those risks to the grievor by way of performing supervisory work. Statistical
information on the types of exposure to safety risks of paramedics in the field is
not necessary to reach the common sense conclusion that the grievor did not
face those risks in the controlled environment of the supervisory assignment
versus the uncontrolled pre-hospital environment.
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21
In regard to the Union's submissions, the Employer noted that an arbitrator is
not bound by the policies of the Human Rights commission in that they do not
have the status of law and are not equivalent to jurisprudence Re OPSEU
(Kerna), supra. Neither Re United Air Lines, supra, nor Re Ontario Liquor Board,
supra, deals with the performance of a statutory duty and no similar issue
where the arbitrator had to find that an essential duty could not be performed.
As to the matter of flexibility in the Employer's approach to job standards vis-a-
vis accommodation, Mr. Longeway's evidence is that he gave consideration to
the grievor's circumstances in October and December, 2010, in particular, to
the grievor's request to ride 3rd on the latter occasion, in reviewing the doctor's
notes and the file on the grievor's circumstances. There is no need for a form of
bureaucratic process, rather, Mr. Longeway was required to put his mind to the
issue, which he did, and his determination is subject to the cases at hand and
the law. In any event, there was no lack of flexibility on his part. Rather, as
required under ss. 25(1)(h) of the OHSA, Mr. Longeway took every precaution
reasonable for the protection of the grievor in his circumstances. Moreover, Mr.
Longeway was concerned that in riding 3rd in an ambulance, the grievor might
experience an event so as to delay his return to paramedic duties and which
delay would extend the Employer's Workers Safety and Insurance Act
obligations. That is, minimizing the potential of occupational injury on the part
of the grievor is a legitimate goal for the Employer, aside from the protection of
the grievor and the avoidance of risk to him. The grievor, in any event, is not
entitled to be accommodated in an ideal fashion; as long as the accommodation
is appropriate, the Employer meets its obligations under the Code.
The Employer submitted that the lifting standard for paramedics is reasonably
necessary to achieve its goal, and that of the BLS requirements, to provide the
highest level of health care and safety to patients. A contextual inquiry of the
grievor's accommodation reveals his supervisory position was reasonable
accommodation. The Employer is not obliged, and the grievor is not entitled, to
provide ideal accommodation. The Employer is in the best position to
Final
22
determine appropriate accommodation. In that regard, the Employer is not
required to place the grievor in a supernumerary position, but is required to
place him in a productive one that has meaningful work, which it did. Nor is
there an obligation on the Employer to create a new position only for the
purpose of accommodating the grievor, which, in essence, the grievor was
requesting by being 3rd on an ambulance. There is, also, no requirement on the
Employer to demonstrate that other accommodations amount to undue
hardship, but only that the chosen accommodation is appropriate and
reasonable, as was its accommodation of the grievor, especially so since the
grievor was unable to perform the essential duty of lifting.
In support of its position on the merits of the grievance, the Employer
submitted Re United Food and commercial Workers, Local 175 v. Cargill Canada
(Alexander), [2008] O.L.A.A. No. 472, 176 L.A.C. (4th) 306 (Jesin); Re Boise
Cascade Canada Ltd. And U.P.I.U., Loc. 1330, [1994] O.L.A.A. No. 73, 41 L.A.C.
(4th) 291 (Palmer); Re Simcoe (County) v. O.PS.E.U., Local 911 (2009), 189 L.AC.
(4TH) 300, [2009] O.J. No. 5221 (Ont. Div. Ct.); Re Central Okanagan School
.District No. 23 v. Renaud, [19.92] S.C.J. No. 75, (1992), 95 D.L.R. (4th) 577
(Renaud); Re Bowater Canadian Forest Products Inc. v. Industrial Wood and
Allied Workers of Canada, Local 2693 (Giardino Grievance), [2003] O.L.A.A. No.
597 (Surdykowski); Re Byers Transport Ltd. V. Teamsters Local Union 213
(Pollock Grievance), [2002] C.L.A.D. No. 237 (McPhillips); Re Dominion Colour
Corporation and Teamsters Chemical, Energy and Allied Workers, Local 1880 83
L.A.C. (4th) 330 (Ellis); Re Canadian National Railway Co. and Brotherhood of
Locomotive Engineers (2003) 118 L.A.C. (4th) 228 (Picker); Re Toronto (City) v.
Canadian Union of Public Employees, Local 416 (Toronto Civic Employees' Union)
(Wardman Grievance) [2003] O.L.A.A. No. 482 (Marcotte); Re Ontario Public
Service Employees Union v. Ontario (Ministry of Community, Family and
Children's Services) (Balog Grievance), [2004] O.G.S.B.A. No. 73 (Abramsky); Re
Hutchinson v. Canada (Minister of the Environment), [2003] F.C.J. No. 439, 2003
FCA 133 (CAFCA); Re Ontario (Ministry of Community and Social Services) v.
Final
23
Grievance Settlement Board, [2000] O.J. No. 3411, 50 O.R. (3d) 560 (ON CA); Re
Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety
and Correctional Services) (Hart-Day Grievance), [2011] O.G.S.B.A. No. 107, 210
L.A.C. (4th) 350 (Dissanayake); Re Sobeys Milton Retail Support Centre v. United
Food and Commercial Workers Canada, Local 175 (Gomez Grievance), [2010]
O.L.A.A. No. 131 (Marcotte); Re Nipissing-Parry Sound Catholic District School
Board and C.U.P.E., Local 2799 (Re), 66 C.L.A.S. 208, 2001 CLB 12773
(Marcotte); Re Stelco Inc., Hilton Works and U.S.W.A., Loc. 1005, Re, [1995]
O.L.A.A. No. 90, 50 L.A.C. (4th) 301 (Marcotte); Re Community Nursing Home
and U.F.C.W. Loc. 175 & 633 (1996), 60 L.A.C. (4th) 35 (Gorsky).
In reply, the Union submitted that while art. 2.01 states a paramedic, "may" be
accommodated by riding 3rd, as the Employer noted, under the Code an inquiry
into accommodation is contextual and from that standpoint, the mandatory
requirement not to discriminate against a disabled employee reveals that the
Employer has a substantial obligation specific to accommodating the grievor by
allowing him to ride 3rd in an ambulance, regardless of the use of the term
"may" or "shall" in that provision. The Employer did not reject the grievor's
request to ride 3rd in an ambulance for supernumerary reasons but, as
expressly stated, for "safety" concerns. The Human Rights Commission
Guidelines are significant in that they are thoughtful and thorough, and, while
not binding on an arbitrator, neither is the case law. The accommodation in
the supervisory position became inappropriate when the grievor's medical
condition changed and it must be borne in mind that accommodation is an on-
going duty based on medical documentation; if the documentation changes, so
does the duty to accommodate. The Union does not dispute the Employer's
obligations under OHSA regarding safety for its employees. However, that Act
must be considered in light of the Code, which is superior legislation to OHSA.
Under the Code, the competing interests of the Employer concerning safety
must be weighed against the Code requirements for accommodated work to be
Final
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24
consistent with the dignity, worth and value to the grievor of his paramedic
position.
An extra position in the ambulance is not a supernumerary position, rather, it
is like the A/Supervisor position. It is to be remembered that the grievor would
be the 3rd member of an ambulance crew, and which 2-paramedic crew can do
all the work required according to legislated standards. The Employer is
obliged to make the most suitable accommodation for the needs of the grievor
vis-a-vis his disability and, riding 3rd in an ambulance accomplishes that
requirement, particularly in the light of inquiry into accommodation through a
contextual approach. There is no requirement in law on the grievor to be able
to perform every essential duty of the paramedic position. The grievor would be
productive, given his ACP status and, at least, no less productive than in the
supervisory position. The latter position, moreover, removed more essential
paramedic duties from the grievor than the former position.
The issue to be determined in this award is whether or not the Employer
discriminated against the grievor in not accommodating his disability by way of
riding 3rd in an ambulance. I find the merits of the grievance, on the evidence
and submissions before me, require determination of whether or not the
grievor's left shoulder injury, restricting his ability to lift no more than 40 lbs.,
properly prohibited him from accommodation he sought when medically cleared
for that accommodation, effective December 23, 2010, i.e., the date the grievor's
physician provided written authorization to the Employer. (There is no dispute
the grievor obtained that authorization in some other fashion as of December
10, 2010, when he first requested the accommodation in issue. Nothing turns
on the date of authorization for purposes of this award.)
The matter of accommodation of an injured paramedic is addressed in the third
paragraph of art. 2.02 of the parties' collective agreement, to wit: "When an
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25
employee has submitted appropriate medical documentation, he may be
accommodated by riding third on [sic] a car in order to maintain his skill level."
An examination of this provision and a review of the submitted cases indicates
an appropriate arbitral approach to the matter at hand.
Firstly, I note that in none of the cases submitted by the parties is there
reference to collective agreement provisions, similar to the third and fourth
paragraphs of art. 2.02 in the collective agreement at hand. Significantly, for
our purposes, the third paragraph of art. 2.02 states: "Where an employee has
submitted appropriate medical documentation, he may be accommodated by
riding third on [sic] a car in order to maintain his skill level". The significance
of this provision is that it expresses the parties' agreement that riding 3rd in an
ambulance is appropriate accommodation for a disabled paramedic, cf., Re
Ontario Public Service Employees, supra, para. 94; Re Ontario Liquor Control
Board, supra, para. 59; Re Toronto (City) supra, para. 92. See also Re Canadian
National Railway, supra; Re Ontario (Ministry of Community, Family and
Children's' Services) supra; Re Hutchinson v. Canada, supra, where the matter
of appropriate accommodation was in issue. Moreover, since the parties agree
that riding 3rd is appropriate accommodation, it cannot be said that the
position is redundant or supernumerary (cf., Re Canadian National Railway,
supra, para. 14; Re Dominion Colour Corp., supra, para. 225; Re Byers
Transport, supra, para. 38). Secondly, because the parties agree that riding 3rd
is an appropriate accommodation, the matter of undue hardship based on
financial costs does not necessarily arise. In this respect, it may be that a
prolonged accommodation in that position could give rise to the issue of undue
financial hardship, however, the short period of time the grievor would have
been in that accommodated position, at best some 3 1/2 weeks, cannot at all be
said to cause undue financial hardship on the Employer. Thirdly, because the
parties agree riding 3rd in an ambulance is appropriate accommodation for an
injured paramedic, it must be assumed, reasonably, they agree an injured
paramedic may not be able to perform all the duties of a paramedic since, by its
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26
nature, accommodated work is modified work of the pre-disability position. A
modification by way of reduction in the number of duties to be performed is
viewed by arbitrators as appropriate for accommodation purposes (e.g., Re
United Air Lines, supra, para. 41; Re Ontario Liquor Board, supra, at para. 75).
In this regard, while the Employer emphasized that the essential duties of a
paramedic are legislatively prescribed, there is no distinction between
legislatively-prescribed and non-legislatively prescribed essential duties in the
submitted cases nor in the Human Rights Code and its policy statements before
me. I agree with the Employer that the policy statements are not binding on me
Re Cargill Canada, supra, para. 24; Re Boise Cascade, supra, para. 31. Rather,
I simply note they do not make the distinction put forward by the Employer. In
any event, because the parties agree that riding 3rd in an ambulance is
appropriate accommodation, it must be reasonably assumed that this sort of
accommodation does not per se interfere with the Employer's and regulatory
goal of"providing the highest level of health and safety to those served by
ambulance paramedics" Re Simcoe County, supra, para. 22.
Fourthly, by use of the word "may" in the above provision in art. 2.02, the
parties are agreed the Employer has the discretion to determine if riding 3rd in
an ambulance is reasonable or suitable accommodation depending upon the
specific circumstances of the injured paramedic, there being no issue it is per
se appropriate accommodation. That said, however, the grievor's right to
accommodation arises under the Human Rights Code, which legislation
supercedes, or overrules, the provisions of a collective agreement, even absent a
conflict between the legislation and the collective agreement (e.g., Re Central
Okanagan School District, supra, para. 23; Re Bowater, supra, para. 42).
Therefore, an exercise of the Employer's discretion under art. 2.02 cannot
improperly interfere with the grievor's rights under the Code. In exercising that
discretion for purposes of determining the reasonableness or suitability of the
requested accommodation for an injured employee, there is an obligation on the
employer to be "flexible in applying its bob performance] standard if such
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27
flexibility enables the employee in question to work and does not cause the
employer undue hardship." Re Hydro-Quebec, supra, para. 13. That is,
determination of reasonableness is to be made in light of the specific nature of
an employee's injury or disability and in light of a flexible approach to the
application of job performance standards in order that the employee can be
accommodated up to the point of undue hardship. In that respect, what may
or may not be suitable accommodation up to the point of undue hardship "will
depend upon the particular circumstances of the particular situation" Re
Bowater Canada, supra, para. 41.
Fifthly, it is recognized that undue hardship attaches itself to health and safety
matters Re Ontario Liquor Board, supra, at para. 75: "8. Undue hardship may
mean: ... Contravention of health and safety requirements," including those
under the OHSA; Re Cargill Canada, supra, para. 18: "This case raises the
thorny problem with [sic] how one balances the right of the disabled employee
to equal treatment in employment with the obligation of the Employer under
OHSA to take every reasonable precaution to protect the health and safety of its
employees". Where the matter of safety concerns arises in the context of
accommodating an injured employee, the Supreme Court in Central Alberta
Dairy Pool, addresses that which must be considered, at p. 521: "Where safety
is at issue both the magnitude of the risk and the identity of those who bear it
are relevant considerations". In considering these matters, moreover, in Re
Simcoe County, supra, the Ontario Divisional Court enunciated the approach
arbitrators should follow, at para. 25: "[the arbitrator] was required to embark
on a contextual inquiry in determining whether or not [the grievor] could be
accommodated short of undue hardship. Different circumstances present
different risks and thereby requiring different levels of safety". Similar to the
circumstances at hand, the Simcoe County case dealt with the issue of
accommodating a paramedic in that position where the grievor's disability
caused him to be unable to meet the vision requirements in order to drive an
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i
ambulance. As concerns the matter of"different levels of safety", supra, the
Court states, at para. 21:
1i
The arbitrator accepted that the goal established by the Ministry of
Health Land Ambulance Service was to provide the highest level of health
and safety standards to all those served by ambulance paramedics. He
accepted that the closer the standard is to providing an ideal service, the
greater the likelihood that patients will receive the medical care they
require, promptly and competently.
Thus, at para. 22:
... the arbitrator was required to determine.whether or not the standard
was reasonably necessary to achieve the employer's and regulator's goal
of providing the highest level of health and safety to those served by
ambulance paramedics.
In applying the above approaches to the matter at hand, there is no issue the
grievor's October 24, 2010 injuries prevented him from performing his
paramedic duties. There is also no issue he was appropriately accommodated
when assigned supervisory duties, particularly since he had previously been in
the position of A/Supervisor. Rather, when his foot injury resolved, he
requested accommodation by being assigned 3rd in an ambulance. That is, it
was the change in his physical condition in December 2010, which led to his
accommodation request for that position, which position was more closely
associated with the duties of his pre-disability position than were his
A/Supervisor duties. The Employer, first by Mr. Papple and, second, by Mr.
Longeway on December 22, 2010, denied his request. Given that riding 3rd in
an ambulance is appropriate accommodation, per se, it must be determined
whether or not the Employer's denial of his request was improper in the specific
circumstances of the grievor's injury.
Final
29
As can be seen from Mr. Longeway's December 22, 2010 e-mail to the grievor,
his request was denied on the basis of risk of further injury or exacerbation of
his shoulder injury in the "pre-hospital environment". That is, the Employer
decided not to accommodate the grievor as requested on the view that it was
not suitable or reasonable accommodation because to do so, would place the
grievor in a position of risk to his safety and, as a corollary, safety of his co-
workers and patients.
There is no doubt that if the grievor participated in lifting a patient with his
active shoulder injury, he would exceed his lifting restriction and create
potential safety risks for himself, his co-workers and the patient. Clearly, the
grievor could not perform the essential duty of lifting patients in a safe manner
while riding 3rd in an ambulance. In my view, both "the magnitude of the risk
and those who bear it" Re Central Alberta Dairy Pool, supra, (para. 62), are such
that to put the grievor in the position of having to participate in a lift creates
undue hardship on the Employer concerning the safe performance of that
essential duty. However, the standard is that two paramedics perform a lift,
not three. Therefore, in the normal circumstance, the grievor would not be
required to engage in lifting. Moreover, the evidence is that while not
uncommon, when more than two paramedics are needed to perform a lift, other
services, such as the police and the fire departments, can assist in a lift when
present on the scene, but in any event, the standard practice is to call for a
second ambulance. Further, there is no evidence before me as to the actual
occurrence of assisted-lift circumstances to demonstrate that more-than-two
persons lifts occur in such frequency as to be the norm, or of significant
frequency, so as to justify preventing the grievor from riding 3rd in an
ambulance.
As concerns the safety risks associated with the pre-hospital environment it
would appear that such risks are inherent in the work of a paramedic.
However, I agree with Union counsel that the Employer's evidence of safety risk
Final
30
in the grievor's case, absent participation in a lift, are speculative and speak to
potential risk (cf., Re Cargill Canada, supra, where medical evidence established
that the accommodation sought by the grievor "would result in a significantly
greater risk of injury to that employee and/or to other employees" (para. 25)).
In that regard, when the parties agreed that riding 3rd in an ambulance is
appropriate accommodation, it is reasonable to assume they understood the
disabled paramedic would be exposed to the inherent risks of the position.
Accordingly, it must be taken that in making this agreement, the Employer was
aware of its obligation under OHSA to provide a work environment that is safe
for its employees. Similarly, where the Human Rights Commission indicates in
its guidelines that in some circumstances, it is not unreasonable for a disabled
person to assume risk associated with an appropriate accommodation, that
policy can reasonably be assumed to have been developed with the knowledge
of an employer's obligations under OHSA, viz.:
Where possible, persons with disabilities should be allowed to assume
risk with dignity, subject tot eh undue hardship standard. At the same
time, the organization has an obligation under health and safety
legislation not to place persons in a situation of direct threat of harm.
High probability of substantial harm to anyone will constitute an undue
hardship. -
What the above reveals is that where a disabled employee can be appropriately
accommodated in a position where potential risk exists, the potential for risk
does not, in and of itself, prevent that person from exercising his or her rights
under the Human Rights Code. In the instant case, there is no objective
evidence before me concerning the frequency with which paramedics suffer
injury as a result of the inherent risks associated with performing their duties.
This is not to say that deciding on the matter at hand rests on some form of
statistical evidence, rather, there is no evidence before me to establish that the
potential for risk translates into actual risk, or direct threat of risk so as to
conclude there is a greater probability of risk to the grievor in riding 3rd in an
ambulance and performing all other paramedic duties than lifting.
Final
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31
I find that, in assuming the risks inherent in the paramedic position, the risks
he assumes are potential risks and not direct threats to his safety or that of co-
workers and patients. Moreover, I find the benefits attached to riding 3rd in an
ambulance for the grievor outweigh the potential risks inherent in the
paramedic position. The grievor would be in a position that quite closely aligns
with his pre-disability position and allows him to continue to practice the
majority of his paramedic skills.
Based on all the foregoing, I find the Employer discriminated against the grievor
when it denied to accommodate him in the position of 3rd in an ambulance as
provided for under art. 2.02 of the collective agreement. I find that the
requested accommodation is appropriate and reasonable accommodation. I
find that accommodating the grievor in that position does not create undue
financial hardship or undue hardship on the basis of creating risk to the
grievor's safety or to the safety of co-workers and patients.'
The grievance, therefore, is upheld.
Dated at Toronto, this —1st—day of_March , 2012.
"William A. Marcotte"
William A. Marcotte
Arbitrator
Final