HomeMy WebLinkAbout2003-1194.Sanfilippo.05-02-23 Decision`Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2003-1194, 2003-1195, 2003-1608, 2003-2037, 2003-2046, 2003-3657
UNION# OLB318/03, OLB322/03, OLB356/03, OLB394/03, OLB410/03, OLB082/04
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Sanfilippo) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Michael V. Watters Vice-Chair
FOR THE UNION R. Graham Williamson
Koskie Minsky LLP
Barristers and Solicitors
FOR THE EMPLOYER Alison Renton
Counsel
Liquor Control Board of Ontario
HEARING March 11, June 11, September 24, October
18, November 9, November 10, 18, 19, 30,
December 1, 2004.
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Decision
This proceeding arises from six (6) grievances filed by the grievor, Ms.
Karen Sanfilippo. Five (5) of the grievances stem from the Employer’s decision
not to schedule the grievor for overtime on Sundays and on other premium days in
the approximate period April, 2003 to February, 2004. The remaining grievance
relates to a complaint that the Employer refused to provide the grievor with
accommodated work after February 11, 2004. The Union asserts that the
Employer’s actions constitute a violation of both the collective agreement and the
Human Rights Code.
The hearing of this matter was both lengthy and complex. A substantial
amount of evidence and argument was presented over the course of ten (10) days
of hearings. All of this evidence and argument has been considered in the
fashioning of this Award.
The parties at the outset agreed that the grievor is disabled and is entitled to
the protection of the Human Rights Code. They differed, however, as to whether
the Employer accommodated the grievor to the point of undue hardship. Given the
nature of this issue, the employer agreed to proceed first with the presentation of
evidence. The Employer’s evidence was presented by Mr. Chuck Robbins, Ms.
Jan Meek, Mr. Mark Wagner and Mr. Don Thibodeau. Mr. Robbins has been
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employed by the LCBO since 1980 and has been a Store Manager for
approximately ten (10) years. He became the Manager of Store #593 in Byron,
Ontario in April, 2003. From that date forward, Mr. Robbins was the grievor’s
Manager. Ms. Meek has been employed by the LCBO since 1988. She is a
Human Resources Advisor and, in that capacity, is responsible for the management
of Workplace Safety and Insurance Board (WSIB) claims. Ms. Meek assumed
carriage of the grievor’s WSIB file in September, 2002. Mr. Wagner has been
employed by the LCBO since 1996. He has been the Human Resources Manager
for the Western Region since 1999. Mr. Wagner was actively involved in the
grievor’s file from mid-2003 onwards. Ms. Meek reports directly to Mr. Wagner.
Mr. Thibodeau has been employed by the LCBO since 1972. He serves as the
District Manager for District #5. Mr. Thibodeau oversees the operations of thirty
(30) Stores in London, Ontario and the surrounding area. Ms. Meek, Mr. Wagner
and Mr. Thibodeau all work out of the Regional Office in London.
The Union elected not to call any evidence. Counsel for the Union indicated
that he was content to rely on the evidence of the Employer’s witnesses and on the
exhibits filed. A list of the exhibits is appended hereto.
The grievor was hired as a casual Customer Service Representative (CSR) in
November, 1993. She became a permanent full-time CSR in June, 2001. At the
time material to this case, the grievor worked at Store #593 in Byron. The record
discloses that the grievor suffered a work-related injury to her left arm in May,
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1998 and a further work-related injury to her back in June, 2002. Both injuries
resulted in a degree of permanent impairment. The grievor claimed and received
WSIB benefits in respect of these injuries. Work restrictions were imposed
following the initial injury in 1998.
Store #593 is a ‘B’ Store. At the relevant time, the Store operated on a
double shift basis, that is, there was both a day shift and an afternoon shift Monday
through Saturday. On these days, the Store was open between 9:30 a.m. and 10:00
p.m. The Store was also open on Sunday between the hours of 12:00 noon and
5:00 p.m. The complement of staff at Store #593 was as follows: a Manager (Mr.
Robbins); an Assistant Manager; a Product Consultant; four (4) permanent full-
time CSR’s, including the grievor; and six (6) casual employees. With the
exception of the Manager, all of these positions fall within the bargaining unit.
The positions of Assistant Manager and Product Consultant are rated higher than
the permanent full-time CSR position. The casual positions are lower rated.
A CSR is expected to perform cashiering, stock handling and customer
service functions. Mr. Robbins listed the cashiering duties, as follows: greet the
customer at the cash register; ask the customer a series of questions; enter the
purchases on the cash register by either scanning the product or manually entering
the transaction on the keyboard; key in Air Miles or credit card numbers; bag or
box purchases; and offer a carry-out, if required. He similarly listed the following
stock handling duties: remove pallets of product from the delivery truck to the
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warehouse area of the Store; scan the load through the use of a hand held scanner;
remove all cases from the pallets; place cases that are to be put in stock on carts
and remove to the Store floor; put stock on the shelves in the Store; and place
remaining stock on the shelves in the warehouse area. Mr. Robbins stated that the
weight of product in cases varies according to the size of the box and the number
of bottles contained therein. In his words, the cases are “fairly heavy”. Mr.
Robbins asserted that the customer service function is not an independent function
as it is connected to the performance of the cashiering and stock handling duties.
He advised that CSRs are expected to engage in customer service at all times. This
view was shared by Mr. Thibodeau. He testified that the customer service function
is a component of both cashiering and stock handling. Both witnesses testified that
the Store Manager or Shift Leader may also assign a variety of other tasks to the
CSR. Mr. Robbins maintained that the above-described duties were consistently
performed by CSRs in all of the Stores he has worked in.
A substantial number of documents were filed in this proceeding relating to
the grievor’s medical condition and to her physical ability to perform the work of a
CSR. Not all of these documents need to be referenced for purposes of this Award.
It is necessary, however, to address certain of the documents in order to provide
some context for how this dispute arose.
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When Ms. Meek assumed responsibility for the grievor’s WSIB file, the
grievor was working under the terms of a Modified Work Plan dated July 2, 2002
(Exhibit #40). This document outlined the following restrictions:
“....................................................................................
Accommodation Requirements...................................
Based on medical dated Oct. 19/99 and Feb. 22/02:
Restrictions are for left arm. Avoid repetitive pinch/
push/pull with non-Dominant left hand; avoid
repetitive lifting with left hand; light/moderate loads
only with left hand; carrying not more than 10 lbs.
with left hand.
Based on medical dated June 12/02: Restrictions for
lower back walking as tolerated; standing not more
than 60 min; no bending/twisting; lifting floor to
waist and waist to head 30 lbs. limit repetition; carrying not
more than 10 lbs.; pushing/pulling trolley not more
than 6 cases of liquor.
Job Duties to Include
Cashiering not more than 30 mins at one time;
facing up and dusting waist level and above;
stocking shelves waist level and above with
product put on carts by others; light maintenance;
customer service; surveillance; gift wrapping; store ambience;
ALL DUTIES THAT ALL REPETITIVE IN NATURE
MUST BE ROTATED.................................................
....................................................................................”
It is apparent that, at this juncture, the grievor was performing the cashiering and
stock handling duties, as modified.
Following the receipt of a Health Care Provider’s Report dated August 22,
2002 (Exhibit #41), Ms. Meek sought clarification from Dr. Peter Dzongowski, the
grievor’s personal physician. Dr. Dzongowski responded by way of another
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Health Care Provider’s Report dated November 18, 2002 (Exhibit #43) and a
medical report dated November 20, 2002 (Exhibit #44). The former indicates that
the grievor was not to lift or engage in repetitive work with her left arm for a
period of two (2) weeks. The latter reads, as follows:
“I am replying to your most recent letter. You had a number of
questions relating to Ms. Sanfilippo’s restrictions. I have filled out
numerous forms on her behalf to try and clarify things. As you know,
her symptoms come and go. When she has a flare-up, she is quite
restricted, whereas other times when she is functioning well, she can
do a number of things. As far as the details of the restrictions, you
can appreciate that without performing an in-store assessment, it is
nearly impossible to try to specify these issues in detail. For this
reason, the patient is allowed to pace herself. As an example, when
the symptoms are minimal, the patient is able to work cash and
perform some repetition. When her arm symptoms flare, she is no
longer able to do these tasks and may require significant limitations,
such as customer service.
Due to the number of Health Care Provider Reports requested, it
would appear that this continues to be an area of confusion. I
reviewed the chart and note that I have provided eight Health Care
Provider Reports in the past nine months. I think the best thing would
be to obtain an occupational evaluation and have someone on site to
assess the jobs and specify tasks suitable for the injury. I will be
contacting WSIB to arrange such testing.
............................................................................................................................."
I note that Dr. Dzongowski subsequently extended the restrictions set out in
Exhibit #43 by a further six (6) weeks (Exhibit #45) and that the WSIB approved
the grievor’s claim for lost time and health care benefits from November 16, 2002
(Exhibit #46).
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Mr. Paul McNorgan, an Ergonomist with the Operations Division of the
WSIB, conducted an on-site visit at Store #593 on February 13, 2003. He met with
the grievor and Kelly Harrigon, who was then the Store Manager, in an effort to
provide suggestions with respect to how the former could be effectively
accommodated. His report, filed as Exhibit #47, reads in part:
“The primary duties of customer service clerk include:
*Cashier
*Ringing in product
*Bagging purchases
*Tendering cash/cards
*Stocking shelves, loading coolers
*Pulling up product on shelves
*Loading/unloading cases in storage area/refrigerator area of store
*Completing scanning requirements
*Customer service
*answering product inquiries
*directing customers to product
*Store maintenance
*Sweeping mopping floor
*Dusting bottles
The duties this worker has been able to perform includes telephone
calling of customers, store surveillance for theft, clerical duties
including computer work and mark down reports, inventory counts
and stock checks.
The worker has tried on several occasions to increase duties by
incorporating more “regular duties” but has not been successful in any
of these attempts.
While there is accommodation potential in this store to reduce some
of the case handling work (portable lift devices, telescoping flexible
conveyors, height adjustable carts, etc.) The handling of individual
bottles/cans in the major job functions (cashier, stocking shelves,
pulling up product) requires gripping and lifting activities with both
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hands and arms. The repetitiveness of this activity is related to the
store volume in stores having weekly and seasonal variations.
The worker has not demonstrated an ability to progress to regular
duties and this is suggestive that the pre injury job is not suitable.
Accommodation of the individual product handling activities does not
appear possible at this time. If more specific functional capabilities
with respect to weight and frequency tolerance are know (sic.) it may
be possible to be more specific for accommodation of the regular
functions of this work (exposure limits related to duration or
frequency).
The current duties that this worker is performing (surveillance,
counting inventory, straightening rack labels) are not consistently
available and often result in this worker having to ask the manager
what she should be doing. At the time on the onsite review the store
manager did suggest a work project was required that would be able to
provide a few weeks of consistent work for this worker. The work is
computer related and the worker did express some concern about her
ability to tolerate prolonged computer duties. Frequent breaks (every
30 minutes 1-2 minutes break from left-hand use) are recommended.
The manager emphasized that there is always some suitable work they
can find for this worker to perform however the worker did express
frustration over not being able to do what is required of the pre injury
job. She did indicate feeling non-productive during a lot her time at
work.
The ability of this employer to competitively sustain this worker at
this LCBO store location is questionable. The level to which her
work has been limited would likely prevent her from being able
transfer to other stores or being successful in a similar retail
environment.
Currently the medical information for this worker does not provide
much indication of potential functional improvement nor is current
objective functional quantification present. It may be possible for
further diagnostic clarification with respect to nerve involvement in
the neck region as this may be affecting the left arm function. Also
updated medical precautions may help the employer in determining
ongoing work for this worker.
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With current information it would not appear that this worker is able
to perform her full pre-injury job. Accommodation potential to
benefit this worker is limited and the employer’s ability to sustain the
worker to her and their satisfaction is questionable.”
Ms. Meek in her evidence confirmed that the grievor was not performing
cashiering or stock handling functions at the time the above report was prepared.
Following the receipt of further medical documentation, the Employer
decided that the grievor could return to the cashiering and stock handling functions
subject to certain restrictions. The revised Modified Work Plan dated March 12,
2003 (Exhibit #50) reads, in part:
“Accommodation Requirements
No repetitive use of left arm (elbow), lifting floor to waist 30 lbs.,
lifting waist to head 10 lbs., carrying 30 lbs. and pushing/pulling 55
lbs.
Job Duties to Include
Cashiering – NO MORE THAN 30 minutes at which time Karen
should take a 10 minute break from using her arms by doing customer
service, store surveillance; after 10 minutes of not using arms Karen
can alternate with the following; facing up alternating arms, stocking
shelves single bottles only (no litre and a half bottles) alternating
arms, dusting of bottles, miniatures etc., office work. No lifting cases
(will review after April 13/03). Karen should ensure after a maximum
of 30 minutes of repetitive use of her arms that she is to take a 10
minute break from doing anything with her arms-she can walk the
store during this time doing customer service, store surveillance.
DUTIES TO BE PERFORMED ON A ROTATIONAL BASIS”
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It appears from the evidence that the above Modified Work Plan was not followed
for long, as the grievor experienced problems within two (2) to three (3) days of
the change and lost further time away from work due to a reaggravation of the arm
injury. More specifically, the grievor ceased performing the cashiering and stock
handling functions, as modified.
In early April, 2003, the Employer, with the grievor’s approval, arranged for
a doctor to doctor consult between Dr. Dzongowski and Dr. Lyndon Mascarenhas
of Sibley & Associates Inc. In his letter of April 4, 2003, (Exhibit #52), Dr.
Mascarenhas reported, as follows:
“Dr. Dzongowski essentially outlined to me that he felt the next
appropriate step would be to perform a Functional Abilities
Evaluation to determine what Ms. Sanfilippo could and could not do
from a functional perspective. He felt that we had reached the end as
far as medical options were concerned. There appeared to be no
further follow-up, either from a physiatry, neurological or orthopedic
perspective”
A Functional Abilities Evaluation (FAE) was undertaken by Sibley &
Associates Inc. on April 24, 2003. A detailed report was filed as Exhibit #59. The
pertinent part of the document states:
“The employer indicated that the client’s job responsibilities prior to
her injuries included: operating the cash register, unloading stock,
storing stock, rotating stock, general dusting and cleaning, wet and
dry mopping, emptying garbage cans and computer work. The
employer indicated that the client has had difficulties with repetitive
cash register work and that she is also on modified duties which
restrict her cash register usage, lifting and repetitive movements.
When assessing Ms. Sanfilippo’s current job restrictions and
modifications and the results of her Functional Evaluation it is
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recommended that the client continue with the current modifications
and restrictions and that she not increase her duties until she has
commenced an exercise program to increase her overall strength
levels.
It is further recommended that the client commence a strength
program as outlined above, with the assistance and guidance from a
Kinesiologist, for a period of 3 months. At the end of the 3 month
strength program, it is then recommended that Ms. Sanfilippo be re-
evaluated to determine if she has progressed enough to change her job
duties, restrictions and modifications.
Following the issuance of the FAE report, the grievor visited a kinesiologist
for purposes of setting up an exercise program. It is Ms. Meek’s understanding
that the grievor experienced considerable pain at the initial session, and indeed
after, and for that reason the initiative was discontinued. It appears that, as a
consequence, the recommended programs were not completed.
The grievor was off work in the period August 8 to August 26, 2003 because
of an arm problem. She returned to work on August 26th and August 27th but was
then off again until September 3, 2003. These absences prompted Mr. Thibodeau
to write Dr. Dzongowski for purposes of obtaining a prognosis for the future. His
letter of September 30, 2003 (Exhibit #64) reads:
“As you are aware Karen has been on modified duties of no repetitive
use of her arms for the last nine months. In the nine months Karen
has had a cortisone shot, physiotherapy, and a Functional Abilities
Evaluation (FAE). With the FAE it was suggested Karen start an
exercise program 3 times a week for 3 months at which point she
would be reevaluated to see if their had been any improvement. It
was also suggested that a Kinesiologist be with her for the first 4 or 5
sessions to ensure proper performance of the exercise plan. With the
help of WSIB a Kinesiologist was provided for Karen. Unfortunately
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Karen was unable to complete these 4 or 5 sessions as she stated she
was in too much pain and even lost time from work due to the amount
of pain she was in.
Currently Karen continues to come to work performing customer
service duties. She continues to miss time from work due to the pain
in her arms.
We would like to know what the prognosis is for the future. Will
Karen be able to at anytime in the future start increasing her duties. In
your opinion will she ever be able to do any cashiering? Is she
involved in any type of treatment for her condition?”
Dr. Dzongowski responded to this request by his report of October 28, 2003
(Exhibit #67). His conclusions were stated as follows:
“Ms. Sanfilippo suffers from three separate injuries.
1. She had an injury to her neck and has degenerative disc disease
which gives her neck and arm pain.
2. She has fairly severe left lateral epicondylitis which is a repetitive
strain injury preventing repetitive tasks such as cashier duties.
3. She has low back pain and is limited in her ability to stand or sit in
one position for prolonged periods of time.
As such, the prognosis is poor. I do not think she will be able to
return to cashiering. Her treatment currently consists only of
medications. She has exhausted other treatment modalities”
At this point, it is necessary to elaborate on the duties performed by the
grievor in the period April, 2003 to February, 2004. As stated previously, Mr.
Robbins became the Manager of Store #593 in April, 2003. At that time, the
grievor was on restricted duties and was not performing any cashiering or stock
handling functions. Mr. Robbins testified that the grievor was primarily involved
in the performance of customer service and other non-physical work. He stated
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that this work included the following tasks: servicing customers on the floor;
answering the telephone; taking customer orders over the telephone; arranging for
price changes and “month ends”; preparing material on the computer for displays;
checking bin tags to ensure the accuracy of prices; and dealing with defective
stock. Mr. Robbins described these tasks as “jobs that have to be done”. At one
point in his testimony, Mr. Robbins appeared to suggest that the completion of the
aforementioned tasks did not represent a full days work. He described these tasks
as “sporadic duties” and stated that “we had a hard time keeping Karen busy” as
“there wasn’t a whole lot of things for her to do”. At another juncture, Mr.
Robbins was asked whether the work the grievor was doing was of value to Store
#593 for forty (40) hours a week. I recorded his response as follows: “What she
did had to get done, so Yes”. I was left with the impression that this answer was
premised, to a certain extent, on the fact the grievor also performed various duties
which might otherwise have been done by the Manager, Assistant Manager or
Product Consultant. Mr. Robbins noted that, on occasion, he had to remind the
grievor not to engage in tasks beyond her restrictions. Apparently, she would from
time to time assist other staff by operating the cash register for a few customers or
by doing a carry-out with her good arm. A Performance Appraisal of the grievor’s
work dated June 16, 2003 was filed as Exhibit #14. She received an overall
performance rating of “solid performance”, as she met the “expectations of a
qualified and experienced employee”. The grievor wrote the following comment
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on the appraisal form: “.........I try not to reinjure them, but sometimes doing the
simplest thing can be irritating. I do find it hard to be productive 40hrs a week, so
I look forward to more training.”
Mr. Robbins advised that he was required to schedule additional staff when
the grievor was on duty in order to ensure there were sufficient employees to
perform the cashiering and stock handling functions. He acknowledged that the
additional employees did not always work a full eight (8) hour shift. Mr. Robbins
stated that he documented the extra hours worked by employees who were
“covering” for the grievor. By way of example, he recorded the following number
of extra hours on the Store schedule (Exhibit #12): week of July 20, 2003-20
hours; week of November 9, 2003-20 hours; week of December 14, 2003-40 hours;
and week of December 21, 2003-24 hours. Mr. Thibodeau testified that he
receives a Recap of Accommodations form from Store Managers which shows the
number of hours worked by casual employees in each accounting period when
filling in for an employee on restrictions. The Recap of Accommodations forms
relating to the grievor were filed as Exhibit #85. Mr. Thibodeau stated that, while
he reviewed the forms, they did not have any bearing on the ultimate decision to
put an end to the grievor’s employment at Store #593. He advised that the
document was used simply to capture the number of replacement hours. In Mr.
Thibodeau’s words, “cost would not be a deciding factor in whether we would
accommodate some one”.
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As mentioned above, Store #593 is open on Sundays between the hours of
12:00 noon and 5:00 p.m. Mr. Robbins indicated that, at the time material to this
dispute, only three (3) employees were required to work the Sunday shift and that
all of them were expected to perform cash, stock and carry-outs. Employees
wishing to volunteer for Sunday work were required to indicate their availability
on a Sunday Availability Report (Exhibit #13). In the normal course, employees
would be selected for such work on the basis of a Letter of Agreement found at
page 205 of the collective agreement. Pursuant to the Letter, Sunday work is to be
first offered to permanent full-time employees in order of seniority. If fewer than
the required number of full-time employees volunteer, the work is next to be
offered to permanent part-time employees in order of seniority. If fewer than the
required number of part-time employees volunteer, then the work is to be offered
to casual employees again in order of seniority. Despite this contractual provision,
Mr. Robbins did not schedule the grievor to work on Sundays or on other premium
days, with the exception of the Christmas period, in the period April, 2003 to
February, 2004 notwithstanding that she had indicated she was willing and
available to work on certain of these days. Mr. Robbins testified that he was
directed by Mr. Thibodeau to schedule in this manner as the grievor was physically
unable to perform the required tasks. To be clear, this direction resulted in more
junior employees being scheduled for the premium hours. Mr. Robbins
acknowledged that he did not make an individual assessment as to whether there
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was any work available on Sundays which the grievor could perform. Rather, he
merely complied with the direction given by his District Manager. It appears on
the evidence that the grievor was scheduled to work certain premium hours over
the Christmas 2003 holiday period. Mr. Robbins explained that the volume of
customers in that busy period justified placing an employee on the sales floor to
assist customers.
Mr. Thibodeau agreed that he directed Mr. Robbins not to put the grievor on
the Sunday schedule for overtime purposes. He stated that this direction was given
in July, 2003. His recollection on this point is consistent with the following
notation Mr. Robbins put on the Sunday Availability Report:
“Karen will not be put on schedules for Sunday overtime, until Chuck
is directed to do so by District Manager.”
The notation is dated July 15, 2003. Mr. Thibodeau suggested that the grievor
may, in fact, have worked some Sundays prior to that date. This apparent
discrepancy in the evidence is not material for purposes of resolving this dispute as
the parties agreed they would try to assess the extent of the grievor’s loss if the
Union was successful in establishing a general entitlement to the hours in issue.
Mr. Thibodeau described Sundays as a “put through” day. He stated that the
primary responsibility of staff working on such a day is to take care of customers
and to ensure the shelves are full of product. Mr. Thibodeau testified that the
Stores are operated with minimum staff on Sundays and that all of the scheduled
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employees must be able to work on cash, stock the shelves and refrigerator as
necessary, and do carry-outs for customers. In his words, the employees are
expected to “multi-task” and to perform “the full range of duties”. It was Mr.
Thibodeau’s evidence that, in his judgment, the grievor was physically incapable
of meeting this expectation. Mr. Thibodeau stressed that, because of the lower
level of staffing on Sundays, employees are not required to engage in the type of
office and backroom functions performed during the regular week. By way of
example, he noted that a Manager would not schedule an employee to come in on a
Sunday or other holiday to take inventory. Rather, the preference is to have such
work done without attracting premium pay. Mr. Thibodeau observed that the
Employer schedules “Sunday to a minimum because it is a premium pay day”. It
is clear from the entirety of Mr. Thibodeau’s evidence that his direction was
intended to apply to Sundays and other holidays, with the possible exception of
Christmas or some other peak period. He acknowledged that with respect to the
latter, the increased volume of business might support the scheduling of the grievor
to perform customer service on the sales floor.
Mr. Thibodeau testified that he instructed Mr. Robbins in October, 2003 to
not assign office work, including use of the computer, to the grievor. He was
concerned that this type of repetitive work may have contributed to the grievor’s
lost time in August, 2003. It is clear that the grievor did not agree with this further
restriction. Mr. Thibodeau’s notes of a conversation with the grievor on October 6,
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2003 (Exhibit #81) disclose that the grievor told him that she felt the Employer
was being too cautious by not letting her perform office work. Mr. Thibodeau in
his evidence advised that he preferred to err on the side of caution given the
repetitive nature of the work. He acknowledged that he did not seek a medical
opinion on this issue and that he did not bring anyone into the Store to assess if the
office work fell within the grievor’s restrictions. Mr. Thibodeau also observed that
office work is primarily the function of the Manager or Assistant Manager,
although at times it can be delegated to a CSR.
Ms. Meek testified that she was asked by WSIB staff in July, 2003 if the
Employer would consider a Labour Market Re-entry (LMR) plan for the grievor.
After discussing the matter with Mr. Wagner, it was decided that she should
explore the costs of this option. Ms. Meek subsequently asked Mr. Alkarim Kanji,
the Manager of Corporate Health Services at the Employer’s Head Office, to
prepare a LMR calculation. Mr. Kanji e-mailed an estimate of possible costs to her
on August 12, 2003 (Exhibit #74). This estimate was shared with Mr. Wagner on
that same day and was subsequently forwarded to Mr. Thibodeau on November 11,
2003 (Exhibit #75). It is apparent from a reading of Mr. Kanji’s response that the
cost of a LMR plan to the Employer could be substantial. I note at this point that
the LCBO is a Schedule 2 Employer and that it is responsible to cover the cost of
all payments and benefits provided to an injured employee by the WSIB, plus a
sizeable administrative surcharge. Mr. Wagner testified that he could foresee in
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August, 2003 that a LMR plan could be a viable option. In his mind, it was then
becoming increasingly apparent that the LCBO was becoming incapable of
providing duties the grievor could perform that were both of value and would not
lead to recurrent lost time. It is clear, however, that no steps were actually taken at
that time to further investigate or pursue the LMR option. The Employer did not
communicate with either the Union or the grievor concerning the possibility of
such a course of action.
Mr. Thibodeau advised that by the Fall of 2003, he too was becoming
concerned about the grievor’s inability to perform all of the duties of her CSR
position. He noted that she was very limited in terms of the CSR functions, as she
could not do cash, stock or work of a repetitive nature. His concern was
heightened after the receipt of Dr. Dzongowski’s report of October 28, 2003,
which has been reproduced above. Simply put, Mr. Thibodeau was forming the
opinion that the grievor could no longer perform the essential duties of the CSR
position.
The grievor, in conjunction with Mr. Robbins, prepared a list of tasks which
she was physically capable of performing in Store #593. This list, which was filed
in this proceeding as Exhibit #9, included the following tasks:
E-tracking
Breakers
Fill gift items
Price changes-rip tags
Pricer cards
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Price tags-new items/changes
Customer service
Check licensee orders/already boxed up
Keep log book up to date
Video program
Order supplies
Check stock outs
Check VA program
Check payroll
Train new cashiers
Deleting delisted brands
Fill and order year around accessories
Close store
Set up cashiers
Take deposits
Cash off employees
Safe balancing
Fill seasonal gifts
Occasionally do carry out-bags only
Make up beer buckets, etc.
Phone Vintage customers when order in
File Vintage tags
Product searches for customers
Petty cash
Take off air miles/LTO cards when no stock
Receive IST’s from other stores
Key in customer complaints
Store opening
Store balancing
Cashier advances
Gift certificates
Take customer complaints
Returns
Securcor banking/pickups
Divert the warehouse
Inventory counts-gondolas only
Check inventory counts
Q-C circulars
Fill 6 pack carriers
Fill singles
Order image program
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File office work
Upload scanner guns-X reference
Shift leader
Return empty baskets and carts to front
Empty garbage
Answer phone
Assist cashiers when they buzz
Replace or make missing tags
Handle new product-tags-make space
Get customer orders ready-bottles
IST’s to other stores
Accept load/do add ons/transmit
Walk store to check for add ons
Process SOPS
Take licensee orders
The grievor gave the above list to Mr. Thibodeau on November 19, 2003.
Mr. Thibodeau documented their conversation on that day by way of handwritten
notes filed as Exhibit #82. These notes read, in part:
“Karen provided D.M. with a list of duties (attached) which she feels
she is able to perform without injury to her arm.
She stated to D.M. that the list does not include any cashiering or
stock duties and therefore Employer should have no problem letting
her try this out since she cannot handle only doing customer service
for her entire shift especially when there are no customers. She said
she feels unproductive and bored and it hurts her back to always be on
her feet.
Karen admitted that she does jump on someone else’s cash if
necessary for customer service. D.M. said she should not be since this
is not within her restrictions and also is against policy. She said “its
reality”.
D.M. made it clear that some of the duties on her list include keyboard
work and could be repetitive. She said she’s been doing some and
she’s fine.
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D.M. also stated that there is no expectation or requirement to take
tasks from Manager or Assistant simply so that she can do other duties
aside from only customer service. Karen is prepared to participate in
the 10 week restoration program. She said at least then I’ll know what
I can or can’t do.”
Mr. Thibodeau informed the grievor on November 19, 2003 that he would
have to speak to Ms. Meek, Mr. Wagner and Mr. Jim Turner, the Regional
Director, about the list of duties. He also asked her to provide a brief explanation
of the steps involved in each of the identified tasks. The grievor supplied this
elaboration to Mr. Thibodeau in mid-December, 2003. This document was filed as
Exhibit #10. At or about the same time, Mr. Thibodeau received a further medical
report from Dr. Dzongowski dated December 8, 2003 (Exhibit #69). The report
states:
“Karen, as you know, has significant limitations secondary to injuries
as outlined in my last correspondence. She desperately wants to work
and brought in a two page list of jobs she feels she is capable of doing.
She finds it difficult to simply stand around and greet customers. I
have reviewed her list and it would appear that this would fit her
restrictions. I am not sure if these jobs correspond to actual positions
available.”
Mr. Thibodeau subsequently viewed the list of tasks described on Exhibit
#10. He prepared a two (2) page handwritten assessment relating to these tasks
(Exhibit #83) in which he noted that many of the tasks involved keyboarding or
repetitive work, were infrequently performed, or were attached to other positions.
Mr. Thibodeau also met with Mr. Wagner and Ms. Meek in mid-December, 2003
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to discuss the listed duties. A decision was reached at the meeting to permit the
grievor to perform the duties as required and to monitor the time spent on same
following the Christmas season. Mr. Robbins was thereafter told that he could
assign the listed duties to the grievor, as required. He was further informed by Mr.
Thibodeau that she was not to perform any cashiering function.
For the sake of completeness, I note that the grievor was off work due to an
injury between December 6 and 9, 2003. This absence followed her attendance at
a WSIB assessment held on December 5th to determine her suitability for a hand
and arm clinic of ten (10) weeks duration.
As stated above, the Employer decided to track which of the duties listed on
Exhibits #9 and #10 were actually performed by the grievor and the amount of
time spent on same. Ms. Meek forwarded a series of Manager’s Assessment
Forms to Mr. Robbins to be completed by he and the grievor on a daily basis for
this purpose. More specifically, they were required to list the task performed and
the time spent in performing the duty. Manager’s Assessment Forms for the period
January 19 to February 7, 2004 were filed as Exhibit #11. Mr. Wagner testified
that the Employer elected to defer the assessment until after the busy Christmas
season. It was his belief that a review of the work performed in that period would
not accurately reflect the average volume of work in the Store at a given time. Mr.
Robbins, in his evidence, expressed the opinion that the month of January was a
slow period for the Byron Store. A review of Exhibit #11 shows the following
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total time spent on the listed tasks on a daily basis; 4 ½ hours, 3 hours, 1 ½ hours,
2 hours, 1 ½ hours, 2 ½ hours, 5 ¼ hours, 5 hours and 10 minutes, 4 ¾ hours, 5
hours, 4 hours and 25 minutes and 30 minutes. Mr. Robbins advised that he did
not record what other employees were doing in the Store over the period the
grievor was monitored. It was his evidence that other employees would have
performed some of the listed duties in that period. Mr. Robbins was also not
involved in any assessment of the work at other Stores to determine the time spent
by staff on the same corp of duties.
Mr. Robbins testified that the duties listed in Exhibits #9 and #10 are all
tasks that could be delegated to a CSR if the need arose. Mr. Robbins advised that
the grievor did not perform all of the identified tasks on a daily basis. He stated
that some of the tasks are required to be performed daily, while others are only
required on a weekly or monthly basis. Mr. Robbins observed that the daily tasks
are insufficient to keep one (1) person busy for the entire day. He also indicated
that no single CSR at Store #593 was permanently assigned to perform all of the
listed duties. Mr. Robbins stated that while he assigned some of this work to the
grievor, her primary responsibility under the modified work plan, was to provide
customer service on the sales floor. On this point, he expressed the opinion that
there was no real need to have a CSR just perform customer service on the floor
for the entire day, with the possible exception of during the Christmas season or
some other peak holiday period. After forwarding the Manager’s Assessment
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Forms to the Human Resources Department, Mr. Robbins had no involvement in
the decision making process which ultimately resulted in the grievor’s departure
from Store #593.
Ms. Meek testified that she was not responsible for determining whether a
job could be found for the grievor out of the tasks listed in Exhibits #9 and #10. In
her view, however, there was no single position that corresponded with the tasks.
Ms. Meek confirmed that Mr. Robbins was not asked to gather information about
how many of the tasks were being performed by other employees at Store #593
and the time devoted to same. Similarly, she advised that, to the best of her
knowledge, other Store Managers were not canvassed on this issue in respect of the
work performed in their Stores. Lastly, Ms. Meek acknowledged that, during the
period the grievor was not doing cash or stock, she never asked the grievor’s
doctor if it was possible to modify these functions to better meet the grievor’s
physical restrictions. In a similar vein, no other physician was invited to the Store
for purposes of determining whether the cash and/or stock functions could be
modified.
Ms. Meek, as indicated, was the person primarily responsible for gathering
information and communicating with others about the grievor’s file. It was her
evidence, however, that she was not involved in the initial decision to not have the
grievor work on Sundays or the later decision to end her employment at Store #593
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and to resort, instead, to a LMR placement. Ms. Meek also advised that she was
not involved in considering the grievor for other positions within the LCBO.
Ms. Meek, Mr. Thibodeau and Mr. Wagner met at some undetermined point
between February 7 and February 11, 2004 for purposes of reviewing the
Manager’s Assessment Forms described above. Mr. Thibodeau’s conclusions from
this review may be summarized as follows:
i) the tasks the grievor was performing did not equate with the
classification of CSR and were not functions that could be
sustained or identified as a position. In his words, the tasks
identified in Exhibits #9 and #10 “did not make up what we
view as a position of CSR”;
ii) the functions recorded on the Manager’s Assessment Forms
“did not constitute a full eight hour day in terms of one job”. In
his judgment, putting the various tasks together would not
amount to an eight (8) hour day “in comparison to a CSR doing
their functions”;
iii) some of the functions were done infrequently, others took five
(5) minutes or less to complete, and some would normally be
performed by employees in a higher classification. In Mr.
Thibodeau’s view, there should not have been an expectation on
the grievor’s part that she would be assigned supervisory, or
other routine, functions of the Manager or Assistant Manager
position. Mr. Thibodeau acknowledged that there was nothing
listed in Exhibit #9 that the Manager could not assign to the
grievor or some other CSR; and
iv) some of the functions the grievor performed did not add value
to the operation of the Store. Indeed, it was Mr. Thibodeau’s
evidence that the functions recorded on the Manager’s
Assessment Forms were of “minimal value” and did not
represent “meaningful work”. In his view, the Employer did
not require someone in the Store doing customer service work
without also performing the cash and stock functions.
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Mr. Thibodeau agreed that it was ultimately determined that the tasks
recorded on the Manager’s Assessment Forms did not constitute a full job and that
this decision was mainly influenced by the amount of time spent by the grievor in
the performance of the identified tasks. Mr. Thibodeau stressed, however, that he
did not make the ultimate decision in this case. He acknowledged that no
assessment was done as to who else in Store #593 was performing the tasks in
question or as to the actual time spent by them in respect of such duties.
Additionally, he agreed that no assessment was performed at the other twenty-nine
(29) Stores under his direction.
In cross-examination, Mr. Thibodeau was asked whether the practice or
policy in his District is that an employee cannot be accommodated if he/she is
unable to perform the cash and stock functions of the CSR position. He answered
that this was his understanding of how to manage this issue based on discussions
with peers, his Human Resources Advisor, and Mr. Turner. Mr. Thibodeau was
also asked if the assessment as to whether an employee can be accommodated ends
if the employee cannot do both cash and stock. I recorded his response as “Yes,
that is my understanding”. Mr. Thibodeau was unaware of the existence of any
written memo to this effect.
A section of the Employer’s Administration Manual relating to “Modified
Work Program” was filed as Exhibit #80. The fourth page of the Exhibit
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references the establishment of a Modified Work Committee comprised of three
(3) management representatives, three (3) Union representatives and a chairperson.
The document outlines the function of the Committee as follows:
“The Modified Work Committee will review positions within the
LCBO to recommend to management any potentially suitable
positions for rehabilitative employment”.
Ms. Meek advised that she was not familiar with the Modified Work Committee
and, as a consequence, did not ask it to consider the grievor’s case. She later
indicated that the policy is not followed in the Western Region. She was unsure
about other Regions. Mr. Thibodeau testified that he was unfamiliar with the
Committee.
Mr. Wagner’s review of the Manager’s Assessment Forms led him to
conclude that there was insufficient work of value available for the grievor to
perform. From his evidence, it is apparent that this conclusion was premised on
the actual time spent on the duties recorded on the above-mentioned forms. He
observed that for a number of days the work performed totaled two (2) or four (4)
hours. From Mr. Wagner’s perspective, this number of hours was not even “in the
ball park” in respect of whether the work performed amounted to a viable position.
He observed that the “minor administrative tasks” engaged in by the grievor
constituted “a relatively small portion of the work shift”. Mr. Wagner noted that
the balance of the grievor’s workday was spent on the sales floor providing
assistance to customers.
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After reaching the above stated conclusion, Mr. Wagner met with Mr.
Turner, the Regional Director. Mr. Wagner stated his opinion that there was
insufficient work of value for the grievor to perform and recommended that a LMR
plan was the best option to pursue. Mr. Wagner testified that Mr. Turner agreed
with both his assessment of the situation and his recommendation. He advised
that, on the basis of his recommendation, Mr. Turner made the decision that the
grievor could no longer continue working at Store #593 and that, instead, the LMR
option would be pursued. Mr. Turner was not called to testify in this proceeding.
Following his discussion with the Regional Director, Mr. Wagner met with
the grievor and her Union representative on February 11, 2004. Mr. Thibodeau
and Ms. Meek were also in attendance at the meeting. The grievor was advised
that the LCBO could no longer accommodate her and that the WSIB would be so
informed and would be asked to implement a LMR plan. It is clear, from all of the
evidence, that this was the first time that any Employer representative advised
either the grievor or the Union that the LCBO could no longer accommodate her
disabilities and would, instead, resort to the LMR option. To be clear, neither the
grievor nor the Union were told at any time prior to February 11, 2004 that the
Employer was even considering an LMR for Ms. Sanfilippo.
It is unnecessary to get into the details of a LMR plan. It is sufficient to note
that it is the WSIB that determines whether to implement such a plan and the
content of same. Simply put, a LMR plan is premised on an inability on the part of
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the Employer to accommodate the needs of the disabled employee through suitable
modified work. Such a plan is designed to provide training and/or education to
prepare the individual for other employment more consistent with her or his
physical restrictions. I was told that the program is designed to meet the statutory
objective of restoring earnings to the level of eighty-five percent (85%) of pre-
injury earnings and that the Employer is responsible for any required “top-up”. In
this instance, as a Schedule 2 Employer, the LCBO bears all of the costs associated
with the LMR. I was further informed that the Employer is entitled to appeal any
decision reached as to the content of a LMR plan. Counsel for the Union
acknowledged that the grievor is now taking training at Fanshawe College in
London, Ontario, under the auspices of a LMR, in the area of human resources.
Ms. Meek, as previously noted, was not involved prior to February 11, 2004
in assessing or considering the grievor for other positions within the LCBO. She
testified that she did discuss the positions of Manager, Assistant Manager and
Product Consultant with Mr. Thibodeau and Mr. Wagner but only “in passing” and
in very general terms. Ms. Meek did not engage in an in-depth analysis of these
positions. She noted that all of these positions would have represented a
promotion for the grievor and that the position of Manager could have removed her
from the bargaining unit depending on the category of Store. Ms. Meek
acknowledged that postings for other positions were processed by her office in
2003. She agreed that the vacancies were not assessed in terms of whether they
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would better meet the grievor’s restrictions. Ms. Meek advised that in that period,
she was not considering other jobs for the grievor.
Mr. Thibodeau recalled that there was some discussion about the Product
Consultant position. It appeared to be his view that the grievor would have to
obtain this higher classification through success in a competition. Mr. Thibodeau
stated that he was not involved in any discussions surrounding the Manager or
Assistant Manager positions, or any other positions either within or outside of the
Retail Division. It is apparent that Mr. Thibodeau did not assess the grievor’s skill,
ability and restrictions against any other positions and that he did not participate in
any discussions about approaching the Union for assistance in accommodating the
grievor.
Job postings dated February 11, 2004 were filed relating to the positions of
Clerk/Receptionist and Duty Free Clerk (Exhibits #78 and #79). Both positions
were in the London Retail Service Centre which is part of the Employer’s Logistics
Division. Mr. Wagner testified that these positions were considered for the grievor
but were rejected, in part, because they both required repetitive and sustained
computer work. He agreed that in making this assessment as to suitability, he did
not have a doctor or an ergonomist review the positions. Mr. Wagner also noted
that the LCBO does not practice cross-divisional accommodation. The
Clerk/Receptionist position would have represented a demotion for the grievor,
while the Duty Free Clerk position would have been a promotion.
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Mr. Wagner testified that he has a general knowledge of positions in the
Retail Division and that he gave some thought to alternate jobs for the grievor. He
acknowledged that he did not do a formal evaluation of the grievor’s skills,
abilities and restrictions against any jobs in the Retail Division. It was his further
evidence that before meeting with the grievor and the Union on February 11, 2004,
he surveyed available positions within the City of London, including those in the
Regional Office, the District Office and in the Stores. Mr. Wagner determined
from his survey that there were no available vacancies. Lastly, Mr. Wagner
acknowledged that prior to February 11, 2004, he did not approach the Union to
discuss the accommodation of the grievor, including the possibility of either
placing her in a position without the need for a posting or transferring her across
divisions.
The relevant provisions of the collective agreement read:
ARTICLE 2 – Relationships
2.1(b) There shall be no discrimination or harassment practiced by reason of race,
ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual
orientation, age, marital status, family status, or handicap, as defined in the
Ontario Human Rights Code.
LETTER OF AGREEMENT
Sunday Openings
The LCBO and the Union agree that work resulting from the
opening of LCBO’s stores on Sunday shall be voluntary for
Permanent Full-Time (PFT) and Permanent Part-Time (PPT)
employees.
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Sunday Work shall also be voluntary for Casual employees for
whom such Sunday work would result in overtime.
Sunday work shall be offered in the following manner and
sequence.
a) First, to PFT employees on a voluntary basis in order of
seniority.
b) Should fewer than the required number of PFT employees
volunteer, such Sunday work shall then be offered to PPT
employees, in order of seniority.
c) Should fewer than the required number of PPT employees
volunteer, such Sunday work shall then be offered to Casual
employees in order of seniority.
d) Should fewer than the required number of casual employees
volunteer, such Sunday work may be assigned to casual
employees who have worked less than forty (40) hours during
that week.
The applicable statutory provisions are as follows:
LABOUR RELATIONS ACT, 1995
48(12) An arbitrator or the chair of an arbitration board, as the case
may be, has power,
(j) to interpret and apply human rights and other employment-related
statutes, despite any conflict between those statutes and the terms of
the collective agreement.
HUMAN RIGHTS CODE
5(1) - Every person has a right to equal treatment with respect to
employment without discrimination because of race, ancestry,
place of origin, colour, ethnic origin, citizenship, creed, sex, sexual
orientation, age, record of offences, marital status, same-sex
partnership status, family status or disability.
10(1) - In Part 1 and in this Part,
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“disability” means
a. any degree of physical disability, infirmity, malformation or
disfigurement that is caused by bodily injury, birth defect or illness
and, without limiting the generality of the foregoing, includes diabetes
mellitus, epilepsy, a brain injury, any degree of paralysis, amputation,
lack of physical co-ordination, blindness or visual impediment,
deafness or hearing impediment, muteness or speech impediment, or
physical reliance on a guide dog or other animal or on a wheelchair or
other remedial appliance or device,
b. a condition of mental impairment or a developmental disability,
c. a learning disability, or a dysfunction in one or more of the processes
involved in understanding or using symbols or spoken language,
d. a mental disorder, or
e. an injury or disability for which benefits were claimed or received
under the insurance plan established under the Workplace Safety and
Insurance Act, 1997;
17(1) - A right of a person under this Act is not infringed for the reason
only that the person is incapable of peforming or fulfilling the
essential duties or requirements attending the exercise of the right
because of disability.
(2) - The Commission, the Tribunal or a court shall not find a person
incapable unless it is satisfied that the needs of the person cannot
be accommodated without undue hardship on the person
responsible for accommodating those needs, considering the cost,
outside sources of funding, if any, and health and safety
requirements, if any.
41(1) - Where the Tribunal, after a hearing, finds that a right of the
complainant under Part I has been infringed and that the
infringement is a contravention of section 9 by a party to the
proceeding, the Tribunal may, by order,
a) direct the party to do anything that, in the opinion of the
Tribunal, the party ought to do to achieve compliance with this
Act, both in respect of the complaint and in respect of future
practices;
b) and direct the party to make restitution, including monetary
compensation, for loss arising out of the infringement, and,
where the infringement has been engaged in willfully or
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recklessly, monetary compensation may include an award, not
exceeding $10,000 for mental anguish.
Ontario Workplace Safety And Insurance Act, 1997
41(6) - The employer shall accommodate the work or the workplace for
the worker to the extent that the accommodation does not cause the
employer undue hardship.
42(1) - The Board shall provide a worker with a labour market re-entry
assessment if any of the following circumstances exist:
2. If the worker’s employer has been unable to arrange work for the worker
that is consistent with the worker’s functional abilities and that restores
the worker’s pre-injury earnings.
(2) - Based on the results of the assessment, the Board shall decide if a
worker requires a labour market re-entry plan in order to enable the
worker to re-enter the labour market and reduce or eliminate the
loss of earnings that may result from the injury.
(4) - The Board shall arrange for a plan to be prepared for a worker if
the Board determines that the worker requires a labour market re-
entry plan.
(8) - The Board shall pay such expenses related to the plan as the Board
considers appropriate to enable the worker to re-enter the labour
market.
90(1) - Every Schedule 2 employer is individually liable to pay the
benefits under the insurance plan respecting workers employed by
the employer on the date of the accident.
(2) - The employer shall reimburse the Board for any payments
made by the Board on behalf of the employer under the insurance
plan. The amount to be reimbursed is an amount owing to the
Board.
The parties agree that this Vice-Chair has the authority to interpret and apply
human rights legislation. They further agree that the grievor suffers from a
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disability and has the right to be free from discrimination under both the collective
agreement and the Human Rights Code. By way of overview, it is the Union’s
position that the Employer has failed to accommodate the grievor and her disability
by refusing to schedule her to work on Sundays and other premium shifts, and by
removing her from work in the Store system from and after February 11, 2004.
From the perspective of the Union, these actions constitute unlawful discrimination
as, in its view, the Employer has failed to establish that it accommodated the
grievor to the point of undue hardship, as required by law. The Union asserts that
the Employer has failed to give proper attention to the full extent of its legal
obligation to accommodate the grievor. Rather, the LCBO improperly adopted the
position that it did not have to accommodate Ms. Sanfilippo if she could not
“multi-task” or perform both the cashiering and stock handling functions.
Counsel for the Union filed a Brief setting out the law on the following
aspects of its case: (i) the authority of an arbitrator to interpret and apply human
rights legislation; (ii) the right of the grievor, as a disabled employee, to be free
from discrimination; (iii) the onus on the Employer of establishing the undue
hardship defence; (iv) the extent of the duty to accommodate; (v) the elements
which must be established to prove undue hardship; (vi) the LMR plan and its
relationship to the duty to accommodate; and (vii) the presumptive nature of
damages under the Human Rights Code. It is unnecessary to here reproduce all of
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the argument contained in the Brief on the aforementioned issues. Rather, I have
appended the Union’s Brief to this award.
Counsel for the Union noted that on some of the Sundays and premium days
in issue, junior employees were scheduled to work despite the fact the grievor was
willing and able to work the shifts. Mr. Robbins scheduled in this manner on the
basis of the direction given to him by Mr. Thibodeau. Counsel argued that such
scheduling was contrary to the Letter Of Agreement on Sunday Openings, as the
grievor had a right, as a permanent full-time employee, to work on Sunday in order
of her seniority. He further argued that the failure to schedule the grievor
amounted to a breach of the Human Rights Code, as the Employer’s decision was
premised on her disability. Counsel referenced Mr. Thibodeau’s evidence that the
Employer schedules a minimum number of staff on Sundays and that, accordingly,
there is a need for all employees to be able to “multi-task”. He suggested that this
equates to a blanket rule that only able bodied employees can work on Sundays or
on other premium shifts. Counsel submitted that such an approach to scheduling
could be challenged on a number of grounds. His arguments on this aspect of the
case may be summarized as follows:
i) the Employer’s scheduling practice in respect of Sundays and other
premium days disregarded the duty to accommodate and the need to
ensure the existence of dignity and diversity in the workplace;
ii) little, if any, evidence was presented to justify the rule. The
Employer’s only evidence was that it costs more to staff the Store
on Sundays and other premium days. Counsel observed that no
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evidence was presented about the extent of the cost or, more
specifically, about the increased cost of scheduling more employees
on these days. Indeed, on his assessment, no evidence was led to
indicate that the Employer even considered or weighed the actual
costs;
iii) no evidence was presented by the Employer to establish that
accommodating the grievor on Sundays and other premium days
would have resulted in undue hardship;
iv) the adoption of the blanket rule applied in this instance was
discriminatory and fails to satisfy the legal test articulated by the
Supreme Court of Canada in the Meiorin case in British Columbia
(Public Service Employee Relations Commission v. British
Columbia Government and Services Employees’ Union, (1999)
S.C.R.3. More specifically, it was submitted that the Employer did
not establish the following: that the rule was adopted for a purpose
or goal that was rationally connected to the function being
performed; that the rule was adopted in good faith and in the belief
that it was necessary for the fulfillment of the purpose or goal; and
that it was impossible to otherwise accommodate the grievor
without undue hardship;
v) the Employer failed to consider an individualized accommodation
for the grievor in respect of Sundays or premium days. Counsel for
the Union noted, by way of example, that the Employer did not
assess whether the required tasks could be assigned or bundled in a
different way.
For all of these reasons, it is the Union’s position that the Employer failed, in both
a procedural and substantive sense, to accommodate the grievor to the point of
undue hardship.
The further position of the Union is that the Employer breached both the
collective agreement and the Human Rights Code through its decision of February
11, 2004 to discontinue the grievor’s accommodation. Counsel for the Union
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focused on three (3) basic concerns. First, he submitted that problems exist with
respect to the evidence surrounding the decision making process. Second, counsel
argued that the procedure used to assess the grievor’s ability and the availability of
work was flawed and did not satisfy the legal obligation imposed on the Employer
in a case such as this. Lastly, it was submitted that the Employer failed to establish
on the evidence that it could not accommodate the grievor without experiencing
undue hardship.
Counsel for the Union noted that Mr. Robbins, Ms. Meek, Mr. Thibodeau
and Mr. Wagner all testified that they did not make the decision being challenged
in this proceeding. On his analysis, the evidence indicating Mr. Turner made the
decision is purely hearsay, as Mr. Turner was not called as a witness to explain
why he decided as he did and on what considerations his decision was based.
Counsel suggested that this Vice-Chair is being asked to “impute” the basis for the
decision from the evidence of the other witnesses for the LCBO. In this regard, he
claimed that there is a lack of firm evidence to show that Mr. Turner “rubber-
stamped” Mr. Wagner’s recommendation. Counsel asserted that Mr. Turner’s
decision could be equally consistent with an effort to simply get rid of disabled
employees. He also noted that there is a resulting gap in the evidence as to why
the Employer adopted the rule that an employee can no longer be accommodated if
unable to perform both cash and stock. Counsel argued that there was a real
obligation on the Employer to call Mr. Turner as a witness to explain why this
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standard was adopted and applied to the grievor, and to expose him to cross-
examination on these vital questions.
Counsel for the Union stressed that the grievor was on modified duties
between March, 2003 and February, 2004. In this period, the grievor did not
perform the cash and stock functions. Counsel questioned why the Employer
decided that it could no longer maintain, the status quo. He observed that there
was no worsening of the grievor’s condition nor any reorganization in the Store
that would explain the change in approach. Indeed, counsel suggested that the only
thing that changed was the Employer’s “attitude” and that it simply no longer
wanted to accommodate the grievor. He argued that there is no evidence to
indicate that the continuation of the status quo would have created a situation of
undue hardship. Counsel referenced the complete lack of any evidence relating to
cost, outside sources of funding and health and safety concerns.
It is the position of the Union that an onus exists on the Employer to
establish that the grievor could not perform the job of CSR and that such job could
not be modified so as to accommodate her disability. In counsel’s view, a CSR
does not have a “specific job”. Rather, the role of an employee in such position is
to assist with cash and stock, customer service and other functions related to the
operation of the Store, in accordance with directions given by the Store Manager or
Shift Leader. Counsel described the job of a CSR as being comprised of “a bundle
of tasks” and suggested that how these tasks are divided between CSRs working at
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any given time is within the discretion of the Employer. He re-iterated that this
bundle includes the customer service role. On his analysis, when the grievor was
assigned to customer service, other CSRs were able to perform the other tasks in
the bundle, such as cash or stock. It is the thrust of counsel’s argument that the
Employer failed to give proper weight to the customer service component of the
job when it decided the grievor could no longer be accommodated. Counsel
asserted that this error was compounded by the Employer’s failure to recognize
that the grievor could have performed customer service as well as all of the duties
listed in Exhibits #9 and #10. He referenced Mr. Robbin’s acknowledgement that
all of the latter functions could be assigned to a CSR and are performed at all retail
Stores. He further referenced Mr. Robbin’s statement that the grievor was engaged
in work of value for forty (40) hours a week. In the final analysis, counsel
submitted that the tasks performed by the grievor represented real and meaningful
work which she could have continued to perform had the Employer not opted to
end her employment on February 11, 2004. He observed that this work continued
to be done by other CSRs after the grievor left Store #593.
On a related point, counsel for the Union submitted that the Employer was
deficient in its evaluation of the tasks listed in Exhibits #9 and #10. His
submissions on this aspect of the case may be summarized as follows:
i) the evaluation was performed in the months of January and
February, these being the slowest months in terms of volume of
business. Counsel suggested that the evaluation would likely have
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been different, and more favourable, if done at a different time of
the year;
ii) the evaluation was premised on a period of just two (2) weeks. In
counsel’s judgment, this constituted an insufficient period of
assessment;
iii) no effort was made by the Employer to gather information as to how
many of the tasks listed on Exhibit #9 and #10 were performed by
other employees in Store #593 and the time they devoted to same.
Counsel submitted that, as a consequence, the Employer did not
accurately assess how much of this work was actually available for
the grievor to perform;
iv) no thought was given by the Employer to evaluating other Stores in
London or elsewhere in the Region for purposes of determining how
much of this work was available at other locations. Counsel
suggested that the grievor could have been assigned to do the listed
tasks at more than one (1) location. He noted that there are a number
of ‘A’ Stores in the Region which are larger, and have a greater
volume of business, than Store #593. In the Union’s view, the
Employer failed to consider an alternate form of accommodation on
the basis of its misplaced belief that an employee did not have to be
accommodated if unable to do both cash and stock; and,
v) the Employer did not assess whether it would be more or less
efficient to have one (1) person perform customer service and the
listed tasks and whether to have done so would have resulted in
undue hardship.
It is the further position of the Union that, even if the Exhibit #9 and #10
tasks did not provide sufficient, proper or meaningful work, the Employer was still
obliged to determine if the grievor’s job could be modified. Counsel argued that,
despite all of the medical reports and tests received, there was no consideration by
the Employer if it could change the way cash and stock functions were performed
so as to permit the grievor to do such work. From the perspective of the Union, it
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was incumbent on the LCBO to canvass the possibility of modifying the cash and
stock functions.
Counsel for the Union also maintained that the Employer had an obligation
to look at the availability of other jobs within the LCBO. He noted, in this regard,
that the bargaining unit is Provincial wide. Counsel suggested that the evidence
relating to the consideration of other jobs is “spotty at best”. He referenced Mr.
Thibodeau’s statement that the inquiry ends if an employee cannot do cash and
stock. Counsel noted that the Employer did not evaluate jobs posted in the period
prior to February 11, 2004 and that the LCBO did not approach the Union about
possibly circumventing the posting requirements of the collective agreement in
order to achieve or facilitate an accommodation. I was also asked to find that Mr.
Wagner’s analysis of other jobs was insufficient to satisfy the Employer’s
obligation. More particularly, counsel claimed that there was no real or
meaningful weighing of other jobs against the greivor’s skill, ability and
restrictions.
Counsel for the Union argued that the Employer’s rule that an employee
cannot be accommodated if they are unable to perform cash and stock, has to be
assessed pursuant to the Meiorin test. More specifically, he argued that I have to
assess the following questions: was the purpose or goal of the rule rationally
connected to the job being performed; was the rule adopted in good faith in the
belief it was necessary for the fulfillment of the purpose or goal; was it reasonably
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necessary to accomplish this purpose or goal; and was it impossible to otherwise
accommodate the grievor without undue hardship. Counsel asked me to find
against the Employer on all of these questions. He emphasized that, in his view,
there is no evidence either that the Employer adequately turned its mind to an
individual assessment of the grievor’s circumstances and the need for an
accommodation or to whether it was possible to accommodate her to the point of
undue hardship.
In summary, counsel for the Union submitted that the Employer, in order to
fully comply with its legal obligation to accommodate, ought to have evaluated the
following options: maintaining the status quo; changing or modifying the cash/or
stock functions; bundling or reconfiguring the CSR duties; assigning the grievor to
two (2) or more locations in order to continue the work she was performing prior to
February 11, 2004; and assessing the suitability of other jobs within the LCBO.
Counsel stressed that these assessments were not undertaken and that, as a
consequence, the Employer has failed to establish a defence of undue hardship
under the Human Rights Code.
It is the position of the Union that it has established a breach of both the
collective agreement and the Human Rights Code given that the grievor was
treated differently than other employees, and discriminated against, on the grounds
of her disability. I was asked to award the following remedies:
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1. A declaration that the Employer, in its treatment of the grievor,
breached the requirements of the collective agreement and the Human
Rights Code;
2. Damages under the collective agreement to make the grievor whole in
respect of matters including lost wages, benefits, vacation and sick
days flowing from the Employer’s decision not to employ the grievor
after February 11, 2004;
3. Damages under the Human Rights Code for the grievor’s loss of the
right to be free from discrimination and her experience of
victimization;
4. An order that the Employer return the grievor to work and complete a
full and proper assessment as to how she can best be accommodated
and that a reasonable timeline be set for the completion of the
assessment;
5. That it be initially left to the parties to calculate the amount owing to
the grievor as a consequence of the Employer’s failure to schedule her
on Sundays and on other premium days; and
6. That this Vice-Chair remain seized with respect to implementation of
the Award.
The Union relies on the following authorities in support of its case: British
Columbia (Public Service Employee Relations Commission) v. British Columbia
Government and Services Employees’ Union, previously cited; Central Okanagan
School District No. 23 v. Renaud, (1992) 2 S.C.R. 970; Ontario (Human Rights
Commission) v. Simpson Sears Ltd., (1985) 2 S.C.R. 536; Ontario Public Service
Employees Union v. Ontario (Ministry of Community and Social Services), (1996)
O.J. No. 608 (Ont. Div. Ct.); Canadian Union of Public Employees v. Toronto
District School Board (2003), unreported (Howe); Proboard Ltd. and C.E.P., Local
49-0 (2002), 112 L.A.C. (4th) 371 (Kaplan); Unilever HPC NA and Teamsters,
Chemical Energy and Allied Workers, Local 132 (2002), 106 L.A.C. (4th) 360
(Springate); Air Canada and C.A.W. – Canada, Local 2213 (2001), 101 L.A.C.
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(4th) 311 (Dissanayake); Bakery Workers v. Canada Bread (1965), 16 L.A.C. 202
(Reville); City of Victoria v. C.U.P.E., Local 50 (1982), 2 L.A.C. (3d) 368
(Brown); British Columbia (Superintendent of Motor Vehicles) v. British
Columbia (Council of Human Rights) (“Grismer”), (1999) 3 S.C.R. 868; Quebec v.
Boisbriand (“Mercier”) (2000), 185 D.L.R. (4th) 385 (S.C.C.); Entrop v. Imperial
Oil (2000), 189 D.L.R. (4th) 14 (Ont. C.A.); Ontario (Human Rights Commission)
v. Shelter Corp., (2001) O.J. No. 297 (Ont. Div. Ct.); Jeppesen v. Ancaster (Town),
(2001) O.H.R.B. I.D. No. 1; Parry Sound (District) Social Services Administration
Board v. OPSEU, Local 324 (2003), 230 D.L.R. (4th) 257 (S.C.C.); Better Beef
Ltd. v. U.F.C.W., Local 175 (2003), 119 L.A.C. (4th) 361 (Dissanayake);
Ahkwesahnsne Police Association v. Mohawk Council of Akwesasne (2003), 122
L.A.C. (4th) 161 (Chapman); TTC v. A.T.U., Local 113 (Langille), (2003)
O.L.A.A. No. 520 (Chapman); Parisien v. Ottawa Carleton Regional Transit,
(2003) C.H.R.D. No. 6; Re York County Hospital And Ontario Nurses’
Association (1992), 26 L.A.C. (4th) 384 (Watters); Re Mount Sinai Hospital And
Ontario Nurses’ Association (1996), 54 L.A.C. (4th) 261 (Brown); Re Greater
Niagara General Hospital And Ontario Nurses’ Association (1995), 50 L.A.C. (4th)
34 (Brown).
Counsel for the Employer noted that in early 2003, the grievor was
performing modified duties in respect of the cashiering and stock handling
functions. More specifically, she was then performing cash for thirty (30) minutes
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at a time and was permitted to stock the shelves one (1) bottle at a time. Counsel
further noted that the grievor’s condition deteriorated to the extent she could not
perform either cash or stock from March, 2003 onward. Counsel described the
aforementioned duties as the essential, or core, functions of the CSR position.
Counsel submitted that the Employer in February, 2004 properly concluded that
the grievor would not be able to perform these duties, in their original form, in the
future. She added that the Employer also had no reason to then believe it was
possible to further modify the cash or stock functions. On counsel’s analysis, no
amount of accommodation would have enabled the grievor to perform the essential
duties of the CSR position. In her judgment, an Employer, generally, is not legally
obligated to accommodate an employee who is incapable of performing or
fulfilling the essential functions of the job for which she or he was hired. Simply
stated, it was her submission in this case that such an obligation, if imposed, would
take the instant Employer beyond the point of undue hardship. I was, ultimately,
asked to conclude that there was no contractual or statutory obligation to retain the
grievor in the CSR position when it was apparent she could no longer perform the
essential or core functions of the job and, particularly so, when there was no
foreseeable prospect of improvement in her condition.
It is the further position of the Employer that, in the circumstances of this
case, it was not required to create a new job for the grievor entirely foreign to the
one for which she was hired or to bundle together a number of duties unrelated to
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the essential functions of the CSR position. More specifically, with respect to the
latter point, counsel argued that the Employer was not obligated to bundle together
a series of customer service functions unrelated to cashiering or stock handling, as
to do so would be tantamount to the creation of a new position. In response to a
question from this Vice-Chair, counsel maintained that customer service is not a
“stand-alone” or independent function. Rather, it is intrinsically related to, and
forms part of, the cash and stock functions. Counsel argued, in the alternative, that
a requirement to bundle a group of duties together must result in a productive role
in the Employer’s organization, otherwise the situation would be one of undue
hardship.
Notwithstanding the Employer’s primary position on bundling of duties,
counsel noted that duties were actually bundled or cobbled together for the grievor
in this instance. This bundle of duties was comprised of the tasks listed in Exhibits
#9 and #10. Counsel re-iterated that the Employer evaluated these duties and the
time spent on same through a review of the Manager’s Assessment Forms. From
her perspective, the evaluation determined that the various tasks performed did not
represent a bundle of essential, necessary or productive duties, and that such duties
when taken together would not constitute a position under the collective
agreement. It was counsel’s submission that the grievor in February, 2004 was not
performing productive work for the LCBO and that retaining her at Store #593 to
do non-essential and unproductive work on a full-time basis would have amounted,
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in substance, to an inappropriate wage subsidy. She argued, in effect, that the
Employer was not obliged to keep the grievor in an unproductive job as an
accommodation. Counsel acknowledged that the Employer may have had the
financial resources to maintain the grievor’s employment. She urged, however,
that I not decide this case on that basis. Rather, she asserted that I should consider
whether the grievor could perform the essential functions of the CSR job with
some accommodation or, in the alternative, whether she could perform work of
value in some other way.
Counsel for the Employer argued that Mr. Wagner did consider other
positions for the grievor. She referenced his efforts with respect to the two (2)
positions in the Logistics Division. Counsel noted that Mr. Wagner concluded that
the grievor would be unable to satisfy the job requirements, as both involved
repetitive computer work. She further observed that, in the absence of evidence
from the grievor, it would be difficult for me to determine whether the grievor
could perform the work of either the Clerk/Receptionist or the Duty Free Clerk.
Counsel repeated that the former position would have amounted to a demotion for
the grievor, while the latter would have represented a promotion. She also
suggested that to require the Employer to transfer across divisions, against its
normal practice, would result in the grievor getting better treatment than other non-
disabled employees and could lead to an undesired precedent in the sense that
disabled employees in the warehouse might seek transfers into the retail system.
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Counsel similarly argued that the Employer was not obligated to put the grievor
into a Manager, Assistant Manager or Product Consultant position, as all of these
positions would have represented a promotion and, in the case of the Manager
position, would have removed her from the bargaining unit. Finally, it was the
submission of counsel that the duty to accommodate the grievor did not require the
Employer to displace some other employee from her or his position.
Counsel argued that, unlike the situation in Meiorin and Grismer, the
Employer did not act pursuant to a blanket policy. The Employer did not, for
example, require that the grievor be able to lift stock of a prescribed weight or
complete cash transactions within a predetermined time. On counsel’s assessment,
the Employment instead engaged in a thoughtful and lengthy process of gathering
and reviewing medical information from a variety of sources in order to determine
how the grievor could be accommodated in the Store system. She stressed that the
grievor’s work in respect of both cash and stock was initially modified and that she
was subsequently allowed to perform other duties when it became clear that she
could no longer perform any cash or stock function. Counsel emphasized that the
Employer accommodated the grievor’s inability to perform cash and stock for
approximately one (1) year. She maintained that the sequence of events in that
period, as described in the evidence, shows that the Employer did attempt to adopt
an individualized approach vis à vis the grievor’s disability and continued to do so
until it became apparent there would likely be no improvement in the foreseeable
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future. Counsel acknowledged that the Employer should perhaps have involved
the Union in the search for an effective accommodation prior to February 11, 2004.
She suggested, however, that there is no evidence to indicate that anything
different could have been done to accommodate the grievor in her employment.
Counsel for the Employer noted that the WSIB determined that the LCBO
could no longer accommodate the grievor and, on that basis, moved forward with a
LMR plan. She suggested that the placement of the grievor on a LMR plan
confirms the correctness of the Employer’s assessment. Additionally, she argued
that such placement should be viewed as an accommodation effort on the part of
the Employer, presumably because it was involved in discussions with the WSIB
about the advisability of moving in that direction and because of its ultimate
responsibility for the costs of the plan as a Schedule 2 Employer. In the
alternative, counsel submitted that the Employer’s role in the implementation of
the LMR plan was a relevant consideration in respect of both the adequacy of the
accommodation efforts and for purposes of remedy. Counsel acknowledged that,
quite apart from any consideration as to the impact of the Workplace Safety and
Insurance Act, 1997, this Vice-Chair possesses the authority to assess whether Ms.
Sanfilippo has been properly accommodated under the collective agreement and
the Human Rights Code.
Counsel argued that it was unnecessary to call Mr. Turner as a witness in
respect of this aspect of the dispute. She referenced Mr. Wagner’s evidence that he
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provided a recommendation to Mr. Turner and that Mr. Turner, in his presence,
accepted it. She also noted that the Union in its opening argument did not allege
bad faith against the LCBO or any of its representatives. Counsel suggested that
the Union was, in effect, attempting to change its case through closing argument.
It is the position of the Employer that it was entitled to restrict the grievor’s
work on Sunday and other premium days to those periods in which there was a
need, because of customer demand, to have a CSR on the sales floor. In this
regard, counsel stressed that employees scheduled on Sundays, described as “put-
through days”, had to be able to perform both cash and stock because of the
minimal staffing. In her submission, the Employer was not obliged to provide a
wage subsidy in the period in question to an employee who was unable to perform
the functions required and deemed essential. Counsel considered it material that
the Employer did accommodate the grievor for at least forty (40) hours of work
each week in the period April, 2003 to February, 2004. It was the gist of her
submission that the Employer, in the circumstances, was not obliged to go further.
For all of the above reasons, it is the position of the Employer that it
accommodated the grievor’s disability on both issues to the point of undue
hardship and that, as a consequence, it was entitled to cease its efforts to
accommodate her as of February 11, 2004. Counsel submitted that, as a
consequence, the Union should not be awarded the relief claimed on behalf of the
grievor. She further asked that I not remit this matter back to the Employer. On
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her analysis, there is nothing to suggest that further attempts to accommodate
would yield a different result. In the alternative, counsel argued that the grievor
should not be awarded any relief in respect of the period following February 11,
2004. This argument is premised on the agreement of counsel, reached during the
course of the hearing, to treat February 11th as “a cut-off date” for purposes of the
presentation of evidence. More specifically, both counsel agreed that the issue
before this Vice-Chair is whether the Employer reached a situation of undue
hardship as of that date and, therefore, had no continuing obligation to
accommodate thereafter. As a further alternative, counsel for the Employer
maintained that any damages awarded had to reflect the grievor’s continuing
receipt of LMR benefits, all of which are ultimately paid for by the Employer.
The Employer relies on the following authorities: Re Ontario English
Catholic Teachers’ Association and Office and Professional Employees’
International Union (1997), 61 L.A.C. (4th) 109 (Burkett); Bonner v. Minister of
Health (Ont.) (1992), 92 CLLC 16. 161 (Ontario Human Rights Tribunal); Re
Maple Leaf Foods Inc. and United Food and Commercial Workers, Local 175/633
(1996), 60 L.A.C. (4th) 146 (Kirkwood); Bowater Canadian Forest Products Inc. v.
Industrial Wood and Allied Workers of Canada, Local 2693 (Giardino Grievance),
(2003) O.L.A.A. No. 597 (Surdykowski); Re Canada Post Corp. and Canadian
Union of Postal Workers (Godbout) (1993), 32 L.A.C. (4th) 289 (Jolliffe); Re
Hamilton Civic Hospitals and Canadian Union of Public Employees, Local 794
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(1995), 44 L.A.C. (4th) 31 (Kennedy); Re Calgary Herald and Calgary Printing
Trades Union, Local 1 (1995), 52 L.A.C. (4th) 393 (Tettensor); Re Better Beef Ltd.
and United Food and Commercial Workers International Union, Region 18 (1994),
42 L.A.C. (4th) 244 (Welling); Great Atlantic and Pacific Co. of Canada v. United
Food and Commercial Workers International Union, Local 175 (Konefal
Grievance), (2004) O.L.A.A. No. 85 (Brent); Re National Steel Car Ltd. and
United Steelworkers of America, Local 7135 (1997), 64 L.A.C. (4th) 242 (Rose);
Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1998), 169
D.L.R. (4th) 489 (Ont. C.A.); United Food and Commercial Workers Union, Local
1000A v. Kretschmar Inc. (MacEachern Grievance), (2004) O.L.A.A. No. 373
(Herman); Communications, Energy and Paperworkers’ Union, Local 212 v.
Domtar Fine Papers Inc., (2000) O.J. No. 2018 (Ont. Div. Ct.); Re Community
Nursing Home-Port Hope and United Food and Commercial Workers International
Union, Local 175 and 633 (1996), 60 L.A.C. (4th) 35 (Gorsky); KIK (Toronto) Inc.
v. United Steelworkers of America (Barnes Grievance), (2003) O.L.A.A. No. 667
(Starkman); Winpack Portion Packaging Ltd. v. United Steelworkers of America
(Bai Grievance), (2003) O.L.A.A. No. 416 (Picher); Biltrite Rubber (1984) Inc. v.
United Steelworkers of America, Local 526 (Beazley Grievance), (2002)
O.L.A.A. No. 666 (Newman).
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The Union’s reply included the following arguments:
i) this Vice-Chair is the person who must decide if the work the grievor
performed was of value and constituted essential tasks for the CSR
position. The issue cannot be determined on the basis of the self-
serving statements of the Employer’s witnesses. The onus rests on the
Employer to prove, and not merely to say, that cashiering and stock
handling are essential functions of a CSR;
ii) if the Employer is correct and there are only two (2) essential duties
of the CSR position, namely cash and stock, then each has a customer
service component which the grievor is capable of performing.
Alternatively, the grievor is able to perform the customer service and
other tasks listed in Exhibits #9 and #10. Counsel noted Mr. Robbins’
evidence that a Manager could assign all of the listed tasks to a CSR,
notwithstanding that some of them are attached to higher rated
positions in the Store. He argued that the Employer has to
accommodate to the point of undue hardship before a finding can be
made that an employee cannot exercise an essential function or
requirement of the job. In any event, counsel suggested that the real
test is whether the disabled employee can perform work of value;
iii) an onus exists on the Employer to show that it considered all possible
modifications to the cash and stock functions in an effort to
accommodate the grievor. Counsel for the Union emphasized that the
Employer did not invite any doctors, or other experts, to the
workplace to assess the work and the grievor’s ability to perform it;
iv) the Employer’s duty to accommodate is not satisfied by a narrow or
limited assessment of the grievor’s ability to perform just some of the
tasks which may be delegated to a CSR. Rather an obligation exists,
especially when there is a pool of work within the classification, to
consider whether tasks can be bundled together in a meaningful way
so as to create a productive position. Additionally, the Employer is
required to assess whether the grievor could perform the duties of
other positions in their original, or in modified, form. Counsel for the
Union argued that this responsibility required the Employer, inter alia,
to look at available postings even if the positions would have resulted
in a promotion for the grievor;
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v) Mr. Wagner testified that the Employer, as a matter of practice, does
not transfer across divisions. Counsel for the Union stressed that Mr.
Wagner failed to advance reasons to support this approach or to
explain why such transfers would occasion undue hardship to the
LCBO. He further suggested that Mr. Wagner leaped to the
conclusion that the grievor would be unable to perform the work of
the two (2) positions in the Logistics Division without reviewing the
actual job requirements against her restrictions;
vi) the Letter of Agreement relating to Sunday Openings does not
expressly except disabled employees. The Employer’s obligation in
respect of such work is to accommodate to the point of undue
hardship. From the Union’s perspective, loss of some efficiency is the
type of hardship that must be tolerated in order to give meaning to the
right to be free from discrimination;
vii) the Employer in this case applied two (2) blanket standards. First, the
grievor was not given Sunday or premium work because she could not
multi-task, as required on a “push through” day. Second, the grievor
could no longer be accommodated following February 11, 2004 as she
could no longer perform both the cash and stock functions. Counsel
for the Union submitted that both standards failed to meet the Meiorin
test, as the Employer has not shown undue hardship would result from
accommodating the grievor’s needs;
viii) Counsel for the Union submitted that the grievor is entitled to a
remedy post February 11, 2004. He argued that, as in an unjust
dismissal case, damages may be awarded to compensate for the
consequences flowing from the Employer’s decision. On his analysis,
it does not matter that I did not hear evidence of what occurred after
February 11th. Counsel agreed that in fashioning an appropriate
remedy, some consideration would have to be given to the fact the
grievor has been on a LMR plan.
As previously mentioned, the parties agree that the grievor is disabled and is
entitled to the protections of the Human Rights Code. They also agree that this
Vice-Chair has the authority to interpret and apply human rights and other
employment-related statutes. In view of the manner in which this case was
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presented, it would seem the parties further agree that the fundamental question in
this case is whether the Employer accommodated the grievor’s disability to the
point of undue hardship in respect of both the Sunday and premium day work issue
and the Employer’s ultimate decision to stop accommodating the grievor as of
February 11, 2004.
As is clear from a reading of the authorities, the Employer is obligated under
section 17 of the Human Rights Code to accommodate a disabled employee, such
as the grievor, to the point of undue hardship. An onus exists in a proceeding of
this nature for the Employer to show that it has met this statutory threshold. Both
the grievor and the Union are responsible to cooperate with, and not impede, the
Employer’s efforts to accommodate. In the instant case, the grievor has satisfied
this responsibility by securing a significant amount of medical opinion for the
LCBO’s review and by agreeing to participate in numerous medical tests and
assessments. She also, for the most part, complied with the Modified Work Plans
established by the Employer. The Union, in this case, was not involved in an in-
depth way in the accommodation process. This lack of involvement occurred
because of the approach the Employer adopted to the grievor’s accommodation.
More specifically, the Employer did not ask for the Union’s input on how to best
accommodate the grievor and, most importantly, did not inform the Union of its
intent to cease its accommodation efforts until after the decision was made. The
Union, like the grievor, first heard about the Employer’s plan to pursue LMR on
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February 11, 2004. In retrospect, I think that the Employer should have engaged in
an earlier, and more comprehensive, consultation with the Union about the range
of issues relating to the grievor’s accommodation.
The state of the law concerning the duty to accommodate is complex. This
results, in large measure, from the fact that the law is evolving to meet changing
perceptions and beliefs about the rights of disabled employees in the workplace. It
also reflects the reality that the nature and extent of the duty varies with the actual
circumstances of individual cases. Lastly, it is apparent that contractual and
statutory duties relating to the duty to accommodate have been supplemented by
way of a series of decisions of the Supreme Court of Canada. These decisions
serve to instruct parties involved in the accommodation process about how they
should generally approach the issue so as to avoid any unlawful discrimination of
the employee.
Professor Michael Lynk provides an overview of the duty to accommodate
in his article ‘Disability and the Duty to Accommodate, An Arbitrator’s
Perspective’, found in the Labour Arbitration Year Book 2001-2002, Volume 1,
Lancaster House. He writes:
“The duty to accommodate is a fundamental legal obligation. It flows from two
sources, the applicable human rights legislation, and rulings of the Supreme Court
of Canada. In a series of important decisions dating back to 1985, the Supreme
Court has held:
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(1) Human rights legislation has a quasi-constitutional place in Canadian law, and
all other statutes, policies and practices, whether public or private, must
normally be consistent with it.
(2) Discrimination may be unintentional, yet it will be in violation of human
rights legislation if a person covered by a protected ground is subjected to
adverse differential treatment without justification.
(3) Accommodation is a significant obligation, and is required to be a central
feature of the Canadian workplace.
(4) The duty rests on employers, unions and the employee seeking
accommodation, all of whom are required to assume responsibility for
ensuring the success of an accommodation arrangement.
(5) The primary responsibility rests with the employer, because it has ultimate
control over the workplace. Once it receives a request, it must initiate the
search for appropriate accommodation.
(6) The union must cooperate, and not unreasonably block a viable
accommodation option.
(7) The employee is expected to participate in the accommodation process, and
cannot refuse a reasonable offer of accommodation.
(8) Collective agreement provisions are to be respected, but they may have to be
waived if they unreasonably block a viable accommodation option, or if they
treat individuals who are protected by human rights legislation differently,
without a compelling justification.
In three recent decisions, the Supreme Court of Canada has clarified and
broadened the extent of the duty, ruling:
(1) Accommodation measures must be taken unless it is impossible to do so
without undue hardship.
(2) The threshold of undue hardship is high.
(3) Employers and unions must be sensitive to the various ways in which
individual capabilities can be accommodated.
(4) Workplace standards, such as lifting requirements or work schedules, that
unintentionally distinguish among employees on a protected ground are
subject to being struck down or modified. Employers must build liberal
conceptions of equality into workplace practices.
(5) Courts, labour arbitrators and human rights tribunals are to take a strict
approach to exemptions from the duty to accommodate. Exemptions are to be
permitted only where they are reasonably necessary to the achievement of
legitimate business-related objectives.”
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(pages 59-60)
I am satisfied that Professor Lynk’s summary provides a solid starting point for an
examination of the issues raised in this case. I will first address the Employer’s
decision to cease its accommodation efforts as of February 11, 2004 and will then
turn to the issue of whether it improperly denied the grievor access to shifts on
Sundays and on other premium workdays.
The Employer’s primary position on the larger issue is that it may cease
accommodating a CSR if the employee is unable to perform both the cashiering
and stock handling functions. As noted above, counsel for the Employer described
these as the essential functions of the position. On the Employer’s analysis, undue
hardship would result from an obligation to accommodate an employee physically
incapable of performing the essential functions of the CSR job.
In support of its submission that an employee must be able to perform the
essential duties of the job, the Employer references and relies on the following:
(i) the Ontario Human Rights Commission’s ‘Policy And Guidelines On
Disability And The Duty to Accommodate’. The following statement is
found at page 19 of the document:
“The Code guarantees equal treatment to all persons capable of
performing the essential duties or requirements of the job or service.
No one can be judged incapable of performing those duties until
efforts have been made to accommodate the individual up to the point
of undue hardship. The first step is to separate the essential from the
non-essential duties of the job. Where possible, non-essential tasks
can be reassigned to another person. The person with the disability
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should then be assessed in terms of his or her ability to perform the
essential duties and, on that basis, accommodation should be
considered.”
(ii) the award in Re Ontario English Catholic Teachers’ Association and Office
and Professional Employees’ International Union. In this award, Arbitrator
Burkett commented, as follows:
“....., it is clear that the object of accommodation under the Human
Rights Code is to enable the handicapped person to perform the
essential duties of a position. The recent jurisprudence, therefore,
confirms that it is the disabled employee who must be assisted to
perform the essential duties of his/her position (page 121) or of some
available position rather than the position being modified to meet the
requirements of the employee. If a disabled employee is unable to
perform the essential or core duties of his/her position or an available
position, regardless of whatever attempts might be made at
accommodation, that is the end of the matter.”
(page 11)
It is apparent from a reading of the above passage that Arbitrator Burkett
focused on the essential duties of the position, which in that case were those
of a mailroom/printing clerk position. It is noteworthy, however, that he
also spoke of a duty to consider the disabled employee for another “available
position”, if he or she is unable to perform the essential duties of the regular
position. Clearly, Arbitrator Burkett did not think that the inquiry ends after
an assessment of the employee’s ability to perform the essential duties of the
pre-injury job;
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(iii) the award in Re Maple Leaf Foods Inc. In this award, Arbitrator Kirkwood
concluded that section 17(1) of the Human Rights Code “only relieves the
Employer of liability, if the Grievor cannot do the essential duties of the
position, without imposing undue hardship on the Employer by attempting
to accommodate the Grievor ….” (page 15). Like Arbitrator Burkett,
however, she suggested that this is not the extent of the Employer’s
obligation. On this point, the award reads:
“It is not sufficient for the Employer to say that the Grievor cannot
perform any of the job descriptions, but the Employer must also be
able to show that the job descriptions cannot be changed without
imposing undue hardship on the Employer.”
(page 15)
(iv) the award in Re Bowater Canadian Forest Products Inc. In this award,
Arbitrator Surdykowski also made reference to the essential functions of the
position. However, he recognized that an Employer “is not entitled to require
or expect a disabled employee to perform all of the normal functions of the
regular job” (page 13). On this point, he observed that:
“................Indeed, if necessary, and if it is possible to do so without
undue hardship, a disabled employee must even be excused from an
essential function of a job. (Obviously, the extent to which an
employee must be excused from essential functions will depend on the
exigencies of the particular situation).”
(page 13)
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Arbitrator Surdykowski added that:
“...............If the disabled employee cannot be accommodated in
his/her regular job, the employer must then consider whether the
employee can be accommodated in a job in another location or
department, again typically in consultation with the union.”
(page 13)
It is clear that Arbitrator Surdykowski contemplated a broader duty to
accommodate than the one advanced by the Employer in this case.
(v) the award in Re Community Nursing Home-Port Hope. In this award,
Arbitrator Gorsky upheld the Employer’s decision not to recall the grievor
back to work from a medical leave of absence until such time as she was
physically capable of performing the essential work of a Health Care Aide.
He further agreed with the Employer’s assessment that no amount of
accommodation would have enabled the grievor to perform the essential
duties and requirements of the Health Care Aide position and that its duty to
accommodate did not require the creation of a new position. I note that
Arbitrator Gorsky did not contemplate that an employee be able to perform
one hundred percent (100%) of his or her former duties. He commented as
follows on this point:
“I do not regard the requirement that an employee be able, with
accommodation, to perform the essential duties and requirements of
his/her position as requiring performance of 100% of them. At some
point, however, the elimination of essential duties and requirements
will result in the creation of a fundamentally different position.”
(page 16)
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(vi) the award in Re KIK (Toronto) Inc. In this award, Arbitrator Starkman
accepted the Employer’s assessment that the grievor was incapable of
performing the essential duties of his janitorial position as a consequence of
his medical restrictions. He found that the Employer correctly concluded
that there were no positions which met the grievor’s restrictions and that, in
all of the circumstances, the Employer’s failure to provide the grievor with
alternate work was not a violation of the Human Rights Code because to do
so would have created undue hardship. In reaching this conclusion,
Arbitrator Starkman stated:
“...............Neither is there an obligation for the Employer to employ
the grievor in a position when he is unable to perform the essential, or
core functions, of the position and particularly when there is no
foreseeable prospect of improvement.”
(page 14)
At this juncture, I note that Arbitrator Starkman observed that there was “no
suggestion that there were a bundle of tasks that could have been aggregated from
other employees to form a job that the grievor could do” (page 14). I infer from
this observation that he would have considered requiring the Employer to bundle
tasks together, if there had been some evidence relating to that option.
As stated earlier, the Employer questions whether it is obligated to bundle
tasks together in order to create a job for the grievor. It relies on the awards in Re
Bowater Canadian Forest Products Inc. and Re Winpack Portion Packaging Ltd.
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In the former award, Arbitrator Surdykowski did not accept “the general
proposition that an employer is necessarily obliged to cobble together or otherwise
create a new job in order to continue the employment of a handicapped employee”
(page 13). In the latter award, Arbitrator P.C. Picher concluded that the company
under its duty to accommodate to the point of undue hardship was not required to
carve out lighter duties from the Selector-Packer position in order to form a
separate and modified job to accommodate the grievor’s work restrictions. She
found that a requirement to do so would have resulted in undue hardship, as it
would “fundamentally disrupt the health and safety balance that has been created
in the rotation of the various job duties performed by the Selector-Packers and
would place the Selector-Packers at an unacceptable level of health and safety
risk” (page 7). The Employer in the case now before me did not attempt to justify
its decisions on grounds of health and safety.
The Employer in this proceeding also disputes that it is obligated to create a new
job for the grievor under the duty to accommodate. It relies on the following
authorities:
(i) the award in Re Calgary Herald. In this award, Arbitrator Tettensor
accepted the proposition that the duty to accommodate does not require an
Employer to create a new job or one that is not productive or one that has the
core duties removed;
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(ii) the Ontario Divisional Court decision in Re Domtar Fine Papers Inc. In this
decision, the Court held that the arbitrator correctly determined that the
Employer, in the circumstances of that case, was not obligated to create a job
even though the wages would be paid by the WSIB;
(iii) the award in Re Better Beef Ltd. In this award, Arbitrator Welling
expressed the opinion that the duty to accommodate did not require the
company to redesign the workforce or to create a new position for the
grievor;
(iv) the award in Re KIK (Toronto) Inc. In this award, Arbitrator Starkman
found that the Employer was not required under the Human Rights Code to
create an entirely new position to accommodate the grievor’s restrictions,
and,
(v) the award in Re Community Nursing Home-Port Hope. In this award,
Arbitrator Gorsky found that the Employer was not required to create what
was, in essence, a different job for the grievor to perform.
After due consideration, I must conclude that the Employer is advancing an
excessively narrow view of the duty it has to accommodate the grievor’s disability.
I am satisfied that the Employer must go well beyond simply looking at the
grievor’s ability to perform what it considers to be the essential functions of her
former CSR position in order to reach the point of undue hardship. I have
considered the following in reaching this conclusion:
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(i) The Human Rights Commission in its Policy and Guidelines has
contemplated the fact that an Employer may be required to accommodate a
disabled employee in a job other than the pre-disability job. The following
excerpts from the document are illustrative:
“Although accommodation in the pre-disability job is always
preferable, it may not always be possible. The issue of whether an
employee is entitled to have access to a job other than the pre-
disability job is a matter of some debate. Nothing in the Code or in
section 17 specifically restricts the requirement to accommodate a
worker with disability to the pre-disability position. Conversely,
nothing in section 17 expressly authorizes it either. Nevertheless, in
light of the broad and purposive interpretation that should be afforded
to human rights legislation, it is the Commission’s view that
accommodation in a job other than the pre-disability job may be
appropriate in some circumstances. Section 17 may therefore include
access to alternative work. Some of the following considerations may
assist employers in determining whether such accommodation is
available under section 17(2).
The following questions should be considered:
• Is alternative work possible and available, at present or in the near
future?
• If it is not available, can a new position be created without causing
undue hardship?
• Does it require additional training and does the training impose
undue hardship?
• Do the tasks performed match the job description, or is there
flexibility in the workplace with regard to an employee’s
responsibilities?
• Does the alternative work policy contravene a collective
agreement?
• What are the terms of the collective agreement or individual
contract of employment?
• What are the past practices of the workplace? How
interchangeable are workers? Do employees frequently change
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positions either permanently or temporarily for reasons other than
disability accommodation?
Depending on how the previous questions are answered,
accommodation may therefore include job restructuring, reassignment
to open positions, retraining for alternative positions or job bundling if
that would not constitute undue hardship for the employer. This will
depend on the circumstances of the employment and the labour
environment at a given workplace. In the final analysis, the employee
must be able to perform a useful and productive job for the employer.
An employer-initiated alternative work arrangement must consider the
circumstances of the individual’s return to work. When an employee
asks to be reinstated in a previous position, the employer may make
the appropriate inquiries to assess whether the employee is fully able
to carry out the essential functions of the job. Whenever possible, the
returning employee should be given an opportunity to prove his or her
ability to perform the pre-disability job.
Where the employee can no longer perform his or her current job and
if alternative work is appropriate based on the analysis described
above, the Commission is of the view that the employer should
consider permanent alternative work. This is consistent with a line of
labour arbitration cases that have found that the duty to accommodate
may include significant workplace reorganization as well as with the
obligation to provide suitable work in order to satisfy the duty to re-
employ injured workers.”
(pages 20-22)
(ii) Professor Lynk, in the article referenced above, also wrote that an Employer
must do more than simply look at the regular position in deciding if, and
how, a disabled employee should be accommodated. The following excerpt
from his article is instructive as to the extent of the Employer’s obligation:
“While the general rule is easy to state, the outer boundaries of
accommodation are much harder to identify. But this much is clear:
the duty requires more from the employer than simply investigating
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whether any existing job might be suitable for the disabled employee.
Rather, the law obliges an employer to determine whether existing
positions can be adjusted, adapted or modified, and whether there are
other positions in the workplace that might be appropriate. This
responsibility entails an assessment of all reasonable alternatives. To
prove that its accommodation efforts were serious and conscientious,
an employer is required to engage in a four-step process, which
involves (1) determining if the employee can perform his or her
existing job as it is; (2) if not, determining if he or she can perform his
or her existing job in a modified or “re-bundled” form; (3) if not,
determining if he or she can perform another job in its existing form;
and (4) if not, determining if he or she can perform another job in a
modified or re-bundled form.”
(page 58)
(iii) the authors of Canadian Labour Arbitration, Third Edition, Brown and
Beatty, also comment on the breadth of the obligation of the duty to
accommodate. The section of their text relating to this subject includes the
following passages:
“In general terms, arbitrators have said that an assessment should first
be made of the extent of the employee’s disability in his or her actual
work situation. Consideration should be given to whether any aspect
of the job, including the hours of work, can be modified so that the
employee can still perform it. Where it is not possible for an
employee to continue in his or her former position, arbitrators have
ruled that other jobs, in other locations and departments and even, in
appropriate circumstances in other bargaining units, ought to be
canvassed in order to determine whether there is any other work
which the employee could perform. In determining whether disabled
workers have a legitimate claim to some position other than their own,
arbitrators commonly direct employers to make modifications to jobs
and even to provide the employee with training or a trial period,
where it would not be an excessive burden to do so.
All arbitrators agree than even though employers cannot expect
disabled employees to be able to do every aspect of a job, they have a
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right to insist that all employees be able to perform, on a regular basis,
the essential, core functions of their positions. Workplaces do not
have to be totally reorganized, and while it is not uncommon for
employers to be told they must sometimes collect a bundle of tasks
that a disabled employee is capable of performing, some arbitrators
have shied away from imposing such an obligation where it entails
creating a whole new position, and none will do so where the job is
just make work. The test applied by most arbitrators is whether the
job that a disabled employee claims the right to perform is useful and
productive for the employer.”
(section 7:6120)
The authorities, in my judgment, establish that the duty to accommodate
goes well beyond an assessment as to whether a disabled employee can perform
the essential duties and requirements of his or her regular position. While this may
represent an appropriate starting point, such an evaluation cannot end the required
inquiry. I accept that an Employer, especially a large one like the LCBO, must
engage in a more comprehensive process, such as that described by Professor
Lynk. In the context of this case, I am satisfied that the Employer had a duty to
consider a bundling or restructuring of the CSR tasks, as well as to determine if the
grievor could have performed another job in its existing, or in some modified,
form. This latter obligation is not restricted to an examination of existing
vacancies. The consideration of these options would naturally require an
assessment by the Employer as to whether their implementation would occasion
undue hardship.
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Section 17(2) of the Human Rights Code lists three (3) factors to be
considered in any evaluation of undue hardship; cost, outside sources of funding
and health and safety requirements. In this regard, I note the following comments
of Arbitrator Surdykowski in Re Bowater Canadian Forest Products Inc. relating to
whether these factors are the only matters to be assessed on the question of undue
hardship:
“It has been suggested that the only factors that can be considered
when assessing whether the hardship associated with an
accommodation is undue are the three specified in subsection 17(2) of
the Code; namely, cost, outside sources of funding, and health and
safety requirements. In that respect, the Ontario Human Rights
Commission’s policy appears to be that collective agreement
considerations and employee morale are irrelevant to the issue of
undue hardship. With respect, I am not bound by the policies or
pronouncements of the Commission. The primary source of my
jurisdiction as a labour relations arbitrator is the collective agreement.
Not only can I not ignore the primary source of my jurisdiction, I am
obliged to give effect to it to the extent that the collective agreement
does not conflict with the Code or other applicable legislation that the
parties cannot contract out of. Indeed, the Supreme Court of Canada
has said that “costs” relevant to the consideration of the issue of undue
hardship can include the disruption of a collective agreement and
morale problems as well as pure financial costs (see, Central Alberta
Dairy Pool v. Alberta (Human Rights Commission), (1990) 2 S.C.R.
489, per Wilson J). A collective agreement cannot be used to justify
discrimination that is prohibited by the Code, but surely it is
appropriate to consider the impact of a required accommodation on
the rights of other employees under the collective agreement to ensure
that they do not suffer a form of adverse effect discrimination as a
result of the accommodation. For example, it is not appropriate for a
non-handicapped employee (or perhaps another handicapped
employee) to lose his job as a direct result of the accommodation of a
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fellow employee. This is not a question of contracting out of the
Code, but of considering and balancing the legitimate interests of all
concerned.”
(paragraph 42)
While it is unnecessary to decide the issue for purposes of this case, I am inclined
to the view that it may be appropriate in certain cases to consider other matters,
such as collective agreement considerations, in addition to the factors set out in
section 17(2) when called upon to assess whether an Employer has accommodated
a disabled employee to the point of undue hardship.
I note at this juncture that the Employer produced virtually no evidence
relating to the applicability of the factors listed in section 17(2) of the Human
Rights Code to the circumstances of this dispute. Mr. Thibodeau did indicate that
cost considerations may have played a part in the decision around Sunday
scheduling. There was no direct suggestion, however, that these factors influenced
the decision to cease accommodating the grievor as of February 11, 2004.
I accept the Employer’s submission that it does not have to create, or
maintain a disabled employee in, an unproductive job. An Employer is not
required to create a make-work position of little or no value pursuant to its duty to
accommodate. The following awards are all supportive of this principle: Re
Bowater Canadian Forest Products Inc.; Re Maple Leaf Foods Inc.; Re Calgary
Herald; Re Canada Post Corp. (Godbout); and Re Great Atlantic and Pacific Co. of
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Canada (Konefal). The thrust of the jurisprudence is succinctly captured by the
following observation of Arbitrator Kennedy in Re Hamilton Civic Hospitals:
“... at the end of the day and with whatever reasonable
accommodation can be achieved without undue hardship to the
employer, the employee must none the less still be able to perform a
useful and productive job for the employer.”
(page 12)
I also accept the Employer’s submission that it was not required to bump,
displace or dismiss an incumbent in order to accommodate Ms. Sanfilippo. The
court decision in Re Domtar Fine Papers Inc. and the arbitration awards in Re
Better Beef Ltd. and Re National Steel Car Ltd. support this limitation on the duty
to accommodate. The premise articulated in the latter two (2) awards is that “a
disabled employee is entitled to equal treatment despite the disability, not better
treatment because of it”. This reasoning would also seem applicable to a claimed
accommodation that would result in a promotion. In this regard, I note the
following statement found at page 22 of the Ontario Human Rights Commission’s
Policy and Guidelines: “The vacant position must be vacant within a reasonable
amount of time, but the employer is not required to promote the employee”. I
would, generally, subscribe to this view. I recognize, however, that there may be
exceptional cases in which the circumstances would at least require an Employer to
consider the possibility of a promotion in order to satisfy a duty to accommodate.
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It is apparent from all of the evidence that the grievor was not physically
able to engage in the cashiering and stock handling functions of the CSR position
as of February, 2004. She had not performed these functions since early 2003, and
then only in a significantly modified way. To repeat, the grievor could then only
work on cash for thirty (30) minutes at a time and was limited to stocking shelves
one (1) bottle at a time. There is no real indication in the evidence that her
condition was improving such that she could resume the cash and stock functions
on even a modified basis as before. In fact, Dr. Dzongowski’s report of October
28, 2003 (Exhibit #67) suggests this potential was not present. He expressed the
opinion therein that the grievor’s prognosis was poor and that he did not think she
would be able to return to cashiering.
I also find, from a review of all of the medical evidence, that there was
nothing to suggest the grievor could return to either cash or stock if further
modifications were attempted. Clearly, the stock handling function required lifting
of product. If the grievor was physically unable to perform this task one (1) bottle
at a time, it is difficult to imagine how the function could be modified so as to
permit her to perform the work productively and without aggravating her physical
condition. Additionally, as stated above, Dr. Dzongowski indicated in his report of
October 28, 2003, that he thought the grievor would be unable to return to
cashiering. Earlier in his report, he stated that her severe left lateral epicondylitis
(repetitive strain injury) prevented her from performing repetitive tasks such as
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cashiering duties. Given this negative assessment, and in view of all of the other
medical evidence filed, I think that the Employer could reasonably conclude in
February, 2004 that a further modification of the cash and stock duties would not
materially advance the grievor’s accommodation.
The list of duties compiled in Exhibits #9 and #10 are all duties that were
required to be performed in Store #593 and, in fact, at most other retail outlets. As
stated by Mr. Robbins, all of the listed duties could be assigned to a CSR
notwithstanding that some of the tasks were more closely allied with other higher
rated positions. These tasks continued to be performed by others after the grievor
left Store #593. Mr. Robbins, in his evidence, appeared to consider the listed tasks
as constituting work of some value. This view was not shared by Mr. Thibodeau
or Mr. Wagner. Ultimately, I have been persuaded that the tasks listed in the
above-mentioned exhibits did constitute productive work. Simply put, it was work
that had to be performed in the Store by CSRs and others. The real question, in my
mind, is whether there was a sufficient amount of this work available.
Mr. Robbins, Mr. Thibodeau and Mr. Wagner all questioned the sufficiency
of the amount of available work based on the tracking done through the Manager’s
Assessment Forms. I note that the time spent on the tasks on a daily basis in the
period January 19 to February 7, 2004 varied between thirty (30) minutes and five
(5) hours and fifteen (15) minutes. I can appreciate why the Employer might
believe that this amount of work did not represent a full-time position. I am,
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however, inclined to accept the Union’s assessment that this evaluation of
approximately two (2) weeks duration was somewhat short. I also accept that the
figures as to the time devoted to the tasks might have been higher if the evaluation
had been done at another point in time. I can understand that an evaluation
undertaken over the Christmas period might have resulted in an inflated and
distorted impression of the volume of available work. There is no indication,
however, that the actual period the Employer selected to monitor the work
represented an average period in terms of business volume. Indeed, the only
evidence available on the point suggests the contrary.
As indicated, there are a relatively large number of duties listed in Exhibits
#9 and #10. The evidence suggests that duties from the list would be assigned to
the grievor on an as-needed or required basis. It further suggests that such duties
would also be assigned to other CSRs working at Store #593. In my judgment,
given the significant number of listed tasks and the fact they could be augmented
with customer service work on the sales floor, it was incumbent on the Employer
to assess whether the work routine of employees in Store #593 could have been
restructured so as to give more of this work to the grievor. I have also been
persuaded that the Employer should have engaged in efforts to determine whether
it was possible for the grievor to perform the listed duties, together with customer
service, at other Stores within the surrounding area. Had this latter inquiry been
made, the Employer might have been able to bundle together tasks at two (2) or
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more Stores in order to create productive work for the grievor. I do not think that
the above two (2) options would necessarily have resulted in the creation of an
entirely new and distinct position, as was the situation in certain of the awards
relied on by the Employer. Instead the work, be it at Store #593 or at a group of
Stores, would have been comprised of tasks which, in the normal course, could all
be assigned to CSRs. As the Employer did not evaluate these options, it did not
turn its corporate mind as to whether undue hardship would result from their
implementation.
I accept that the duty to accommodate to the point of undue hardship
requires an Employer to assess the suitability of other positions. In this instance, I
am not satisfied that the LCBO gave sufficient attention to the possibility of
placing the grievor in another position, or if any other position could be modified
so as to accommodate her restrictions. Prior to February 11, 2004, Ms. Meek did
not consider postings for other positions that were processed through her office.
Similarly, I think that Mr. Thibodeau, in this period, only considered the Product
Consultant job in a very general or cursory way. This, perhaps, is not surprising as
the Employer was itself uncertain as to how it should address the grievor’s
disability until after the Manager’s Assessment Forms were evaluated. It is clear
to this Vice-Chair, however, that in the brief period between the end of the
assessment on February 7 and the meeting with the grievor on February 11, 2004,
the Employer did not look at the suitability of other positions in a comprehensive
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or meaningful way. Mr. Wagner assumed that the positions in the Logistics
Division would be unsuitable because they involved repetitive work on the
computer. I am not satisfied that the grievor’s ability to perform clerical work of
this nature was properly assessed by the Employer. I note that Mr. Thibodeau
removed the grievor from office work in October, 2003, against her wishes, in
order to err on the side of caution. Mr. Wagner reached his conclusions with
respect to the February 11th postings without the benefit of a specific medical
assessment. After assessing all of the evidence, it is unclear to me as to whether
the grievor, at the time, could engage in clerical type work without experiencing
significant problems or whether such work would be overly repetitive given her
physical restrictions. This is an issue which may require further assessment. I also
consider it material that the Employer relied on its practice of not making inter-
divisional transfers in evaluating its accommodation options. Insufficient evidence
was presented as to why the Employer has adopted this approach. Similarly, I was
not told why an inter-divisional transfer would result in undue hardship for the
Employer. In the absence of an explanation, I am inclined to conclude that the
LCBO applied an overly restrictive approach to the pool of positions it was
prepared to review for purposes of accommodating Ms. Sanfilippo.
I cannot accept the Employer’s submission that its decision to seek out a
LMR plan for the grievor should be treated as part of its effort to accommodate
her. On my reading of section 42 of the Workplace Safety and Insurance Act,
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1997, placement of an employee on a LMR plan is premised on a decision of the
WSIB that she or he requires such a plan in order to re-enter the labour market and
to reduce or eliminate the loss of earnings resulting from the injury. As part of its
assessment, the WSIB has to determine whether the Employer has been unable to
arrange suitable work for the employee that is consistent with her or his functional
abilities. It is the WSIB, and not the Employer, that decides whether a LMR plan
should be established for an employee. Its decision follows a conclusion being
reached by the Employer that it is unable, or no longer able, to provide appropriate
accommodation. Simply stated, I consider that the placement of an employee, such
as the grievor, on a LMR plan is a consequence of action directly taken by the
WSIB rather than by the Employer. I have, therefore, not been persuaded that the
LCBO’s cooperation in the creation of such a plan should be considered as forming
part of its duty to accommodate to the point of undue hardship. I am satisfied,
though, that the placement of the grievor on a LMR plan following February 11,
2004 is a factor which must be considered in fashioning an appropriate remedy.
The grievor has been receiving benefits under the plan, all of which are ultimately
paid for by the Employer. Benefits received have to be taken into account in order
to avoid excessive or duplicate compensation.
I remain unconvinced that anything turns on the Employer’s decision not to
call Mr. Turner as a witness. On my view of the evidence, the Employer’s
decision to cease the accommodation of the grievor and to pursue a LMR plan
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81
flowed directly from Mr. Turner’s acceptance of Mr. Wagner’s recommendation.
Mr. Wagner, in his testimony, explained the foundation for the recommendation
and stated that the Regional Director accepted his assessment of the situation and
the suggested course of action. What was done thereafter is entirely consistent
with Mr. Wagner’s recommendation. Ultimately, I am satisfied that Mr. Turner
gave the go-ahead to pursue a LMR plan based upon what he was told by Mr.
Wagner. There is nothing to indicate the presence of bad faith or improper motive
on the part of Mr. Turner. While he could have been called as a witness to
complete the evidence, or to close the loop, the failure to do so, in and of itself,
does not fatally undermine the Employer’s case vis a vis the reasons underlying the
decision communicated on February 11, 2004.
Turning to the issue of work on Sundays and other premium days, it is clear
that Mr. Thibodeau directed Mr. Robbins not to schedule the grievor for shifts on
these days for three (3) reasons. First, Mr. Thibodeau asserted that the reduced
level of staffing required all scheduled employees to multi-task and, more
importantly, to do both cash and stock functions. Second, the work required was
more focused on cash and stock on these “put-through” days and there was less
office or clerical work available as a consequence. Third, there was a cost factor as
these days are premium days for purposes of the payment of wages.
It is readily apparent that the Employer’s approach to scheduling the grievor
on the days in issue conflicts with the Letter of Agreement on Sunday Openings.
`
82
Pursuant to that Letter, the grievor was entitled to be offered the work ahead of
more junior full-time, part-time and casual employees. Instead, the Employer
elected not to offer the grievor available work, to which she was contractually
entitled, on the basis of her disability. This decision was prima facie
discriminatory and contrary to both the collective agreement and the Human Rights
Code. I am not entirely unsympathetic to the Employer’s situation in respect of
this issue. As stated previously, I accept that an Employer does not have to support
or create unproductive work pursuant to its duty to accommodate a disabled
employee. In this instance, however, I was not given any real insight as to the
hardship the Employer would have experienced if the grievor had been brought in
on Sundays and other premium days to perform tasks similar to those she engaged
in for the other forty (40) hours of her workweek. I am left with the impression
that while there may have been such work to be done, the Employer simply
decided it should be performed on other days. The Employer also did not present
evidence as to the full extent of the financial hardship it would have incurred by
scheduling the grievor on the days in question. Cost, as noted, is one (1) factor
listed in section 17(2) of the Human Rights Code. This Vice-Chair does not
subscribe to the theory that cost is an irrelevant consideration simply because the
LCBO is a large employer with the resources necessary to subsidize unproductive
work. In the final analysis, however, insufficient evidence was presented to
persuade me that it was not possible to accommodate the grievor, in an
`
83
individualized way, in respect of this premium work without the Employer
experiencing undue hardship.
It is unnecessary to address the Union’s arguments with respect to the
Employer’s alleged application of a blanket policy. Even if I assume that the
policies relating to the need to multi-task on Sundays, and to perform either cash or
stock on other days, were rationally connected to the functions to be performed and
were adopted in good faith and in the belief they were necessary to fulfill a valid
business purpose or goal, the Employer under Meiorin would still be required to
demonstrate that it was otherwise impossible to accommodate the grievor without
undue hardship. For the reasons expressed above, I have determined, on the basis
of the evidence before me, that the Employer did not satisfy this latter requirement.
I find and declare that the Employer violated both the collective agreement
and the Human Rights Code by not offering the grievor work on Sundays and other
premium days, and by its decision to no longer retain the grievor at work following
February 11, 2004. I leave it to the parties, as agreed, to attempt to determine the
amount of damages to which the grievor is entitled as a consequence of the
Employer’s decision not to offer the grievor work on Sundays and on other
premium days.
I order the Employer to reinstate the grievor forthwith to her former position
in Store #593. I further order that the Employer conduct an assessment within
sixty (60) days of the receipt of this award as to the following: (i) whether the
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84
duties listed in Exhibits #9 and #10 can be bundled in such a way as to create
productive work in Store #593; (ii) whether the duties listed in these same exhibits
can be bundled between two (2) or more Stores in the surrounding area without
creating undue hardship; and (iii) whether there are any other positions available
that the grievor could perform in their present, or in some modified, form. I leave
it to the parties, initially, to decide on the appropriate area of search.
The grievor is to be made whole for any loss under the collective agreement
resulting from the Employer’s decision to no longer retain her at work after
February 11, 2004. As stated, the extent of damages is to reflect the fact that the
grievor was placed on a LMR plan. I also leave it to the parties, at first instance, to
determine and quantify the grievor’s entitlement.
I have not been persuaded that this is an appropriate case in which to award
damages against the Employer under the Human Rights Code. In reaching this
conclusion, I have considered the following, inter alia: (i) the Employer did
accommodate the grievor over a considerable period of time from the onset of her
disability up until February 11, 2004; (ii) the Employer in the period March, 2003
to February, 2004 made numerous good faith efforts, at considerable expense, to
determine how the grievor could be best accommodated; (iii) there is no evidence
of bad faith or any improper conduct on the part of the Employer in the period
material to this case; and (iv) the grievor has been in receipt of LMR benefits
following the decision of February 11, 2004.
`
85
I will remain seized in the event the parties experience any difficulty in
implementing this Award.
For the reasons expressed above, I have elected to remit this matter back to
the Employer to determine if it can accommodate the grievor’s disability through
the assessment ordered in this award. In the final analysis, I have concluded that
such action should have been taken by the Employer prior to February 11, 2004.
The result of this exercise may be that the Employer is able to find work of value
for the grievor to perform. It may, however, determine that suitable work cannot
be secured without the experience of undue hardship. In view of the uncertainty
inherent in this process, the parties may wish to seriously consider how they
address the status of the LMR plan. Any discontinuation or disruption of the plan
may not prove to be in the grievor’s long-term best interests.
Dated at Toronto, Ontario this 23rd day of February, 2005.
M. V. Watters, Vice-Chair
`
1
List of Exhibits
Exhibit #1 - the collective agreement
Exhibit #2 - grievance of August 28, 2003
Exhibit #3 - grievance of June 24, 2003
Exhibit #4 - grievance of June 25, 2003
Exhibit #5 - grievance of July 17, 2003
Exhibit #6 - grievance of August 21, 2003
Exhibit #7 - grievance of February 13, 2004
Exhibit #8 - list of premium shifts missed and premium shifts worked
Exhibit #9 - list of jobs grievor performed during the day
Exhibit #10(a)(b)(c) - description of tasks listed on Exhibit #9 and coversheet
Exhibit #11 Manager Assessment Forms (for Modified Work
Program) re: January 19 to February 7, 2004
Exhibit #12 - Employee schedules Re: Store #593 for period April 27,
2003 to February 7, 2004
Exhibit #13 - Sunday Availability Reports
Exhibit #14 - Performance Appraisal of Karen Sanfilippo dated June
16, 2003
Exhibit #15 - Health Care Provider’s Report dated February 22, 2002
Exhibit #16 - Modified Work Plan dated March 7, 2002
Exhibit #17 - WSIB correspondence dated May 22, 2002
Exhibit #18 - Health Care Provider’s Report dated May 30, 2002
Exhibit #19 - Letter of June 7, 2002 to Karen Sanfilippo from Don
Thibodeau
Exhibit #20 - Form 7 dated June 5, 2002
Exhibit #21 - Note of Dr. P. Dzongowski dated June 6, 2002
Exhibit #22 - WSIB correspondence dated June 10, 2002
Exhibit #23 - Heath Care Provider’s Report dated June 12, 2002
Exhibit #24 - Form 6 dated June 13, 2002
Exhibit #25 - Employer’s Subsequent Statement dated June 17, 2002
Exhibit #26 - WSIB correspondence dated June 17, 2002
Exhibit #27 - Health Care Provider’s Report dated June 12, 2002 with
additional comments
Exhibit #28 - LCBO correspondence dated July 2, 2002 to WSIB
Exhibit #29 - Note prepared by Karen Sanfilippo
Exhibit #30 - E-mail of July 2, 2002
Exhibit #31 - Note of Dr. P. Dzongowski dated July 5, 2002
Exhibit #32 - Employer’s Subsequent Statement dated July 8, 2002
Exhibit #33 - WSIB correspondence dated July 10, 2002
Exhibit #34 - Employer’s Subsequent Statement dated July 15, 2002
`
2
Exhibit #35(a)(b) - Health Care Provider’s Report dated July 19, 2002
Exhibit #36 - Employer’s Subsequent Statement dated July 24, 2002
Exhibit #37 - Employer’s Subsequent Statement dated July 29, 2002
Exhibit #38 - LCBO correspondence dated August 2, 2002 to Dr. P.
Dzongowski
Exhibit #39 - WSIB correspondence dated September 27, 2002
Exhibit #40 - Modified Work Plan dated July 2, 2002
Exhibit #41 - Health Care Provider’s Report dated August 22, 2002
Exhibit #42 - LCBO correspondence dated November 12, 2002 to Dr.
P. Dzongowski
Exhibit #43 - Health Care Provider’s Report dated November 18, 2002
Exhibit #44 - Medical report of Dr. P. Dzongowski dated November
20, 2002
Exhibit #45 - Health Care Provider’s Report dated December 4, 2002
and invoice
Exhibit #46 - WSIB correspondence dated January 16, 2003
Exhibit #47 - WSIB correspondence dated March 3, 2003 and
Ergonomist Report dated February 28, 2003
Exhibit #48 - Health Care Provider’s Report dated March 3, 2003 and
Clinic Note dated January 28, 2003 of Dr. D. Dittmer
Exhibit #49 - Receipt of Dr. D. Dittmer dated March 5, 2003
Exhibit #50 - Modified Work Plan dated March 12, 2003
Exhibit #51 - LCBO correspondence dated April 3, 2003 to Sibley and
Associates
Exhibit #52 - Medical report of Dr. L. Mascarenhas dated April 4,
2003 (unsigned)
Exhibit #53 - Invoice
Exhibit #54 - Confirmation of Assignment dated April 3, 2003
Exhibit #55 - Medical report of Dr. L. Mascarenhas dated April 2,
2003 (signed)
Exhibit #56 - Note of Dr. P. Dzongowski dated April __, 2003
Exhibit #57 - LCBO correspondence dated April 15, 2003 toKaren
Sanfilippo
Exhibit #58 - Functional Abilities Evaluation Waiver datedApril 24,
2003
Exhibit #59 - Functional Abilities Evaluation dated April 24, 2003
Exhibit #60 - Invoice dated May 7, 2003
Exhibit #61 - Note of Dr. P. Dzongowski dated July 7, 2003
Exhibit #62 - Note of Dr. C. Bruckschwaiger dated August 8, 2003 and
Note of Dr. P. Dzongowski dated August 11, 2003
Exhibit #63 - Note of Dr. P. Dzongowski of September, 2003
`
3
Exhibit #64 - Letter of September 30, 2003 from D. Thibodeau to Dr.
P. Dzongowski
Exhibit #65 - WSIB correspondence dated October 2, 2003
Exhibit #66 - LCBO correspondence dated October 24, 2003
Exhibit #67 - Medical Report of Dr. P. Dzongowski dated October 28,
2003 and invoice
Exhibit #68 - Invoice dated December 8, 2003
Exhibit #69 - Medical Report of Dr. P. Dzongowski dated December 8,
2003 and invoice
Exhibit #70 - Note of Dr. P. Dzongowski dated December 10, 2003
and receipt
Exhibit #71 - LCBO correspondence dated December 18, 2003
Exhibit #72 - WSIB correspondence dated February 12, 2004
Exhibit #73 - Note of October 24, 2003 concerning Jan Meek’s
discussion with Karen Sanfilippo
Exhibit #74 - E-mail of August 12, 2003 from Alkarim Kanji to Jan
Meek
Exhibit #75 - E-mail of November 11, 2003 from Jan Meek to Don
Thibodeau
Exhibit #76 - E-mail of July 31, 2003 from Alkarim Kanji to Jan Meek
Exhibit #77 - Letter of February 16, 2004 from Jan Meek to WSIB
Exhibit #78 - Job Posting of February 11, 2004 re: Clerk/Receptionist
position
Exhibit #79 - Job Posting of February 11, 2004 re: Duty Free Clerk
position
Exhibit #80 - Policy re: Modified Work Program
Exhibit #81 - Note of Don Thibodeau dated October 6, 2003
Exhibit #82 - Handwritten notes of Don Thibodeau
Exhibit #83 - Description of tasks listed on Exhibit #9 and Don
Thibodeau’s handwritten assessment
Exhibit #84 - Handwritten note of Don Thibodeau dated December 19,
2003
Exhibit #85 - Recap of Accommodations
Exhibit #86 - Handwritten notes of Don Thibodeau
GSB File Nos. 1194/03
1195/03
1608/03
2037/03
3657/03
IN THE MATTER OF AN ARBITRATION
BEFORE THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
ONTARIO LIQUOR BOARDS EMPLOYEES' UNION
(the "Union")
-and-
LIQUOR CONTROL BOARD OF ONTARIO
(the "Employer")
GRIEVANCES OF KAREN SANFILIPPO
____________________________________
UNION'S BRIEF and ARGUMENT
LEGAL ONUS AND DUTY TO ACCOMMODATE
____________________________________
KOSKIE MINSKY LLP
900-20 Queen Street West
Toronto, ON
M5H 3R3
Tel: 416-595-2122
Fax: 416-204-2895
R. Graham Williamson
OVERVIEW
The Parties acknowledge that Karen Sanfilippo (the Grievor) suffers a disability as a result of her
workplace injuries. These grievances allege that the Employer has failed to accommodate the
Grievor and her disability, by failing to schedule her to work on Sundays and premium shifts,
and by failing to schedule her to work in the store system from and after February 11, 2004.
It is the Union's position that the Grievor has been discriminated against by the Employer. The
issue to be determined is whether that discrimination was unlawful, or whether the Employer had
accommodated to the point of undue hardship, and that the discrimination was therefore
permitted under the Human Rights Code ("the Code").
ISSUES
This brief addresses the law applicable to this matter on the following issues:
A. The arbitrator has authority to interpret and apply human rights legislation
B. The Grievor has a disability
C. The Employer bears the legal onus of establishing the undue hardship defence
D. The extent of the duty to accommodate
E. The elements which must be established to prove undue hardship
F. The LMR plan is provided by WSIB and is not a form of accommodation
G. That damages under the Code must be awarded in this case
THE ARBITRATOR HAS AUTHORITY
TO INTERPRET AND APPLY HUMAN RIGHTS LEGISLATION
Article 2.1(b) of the Collective Agreement provides a guarantee that all employees shall be free
from discrimination on the basis of handicap (now disability) as defined in the Ontario Human
Rights Code.
Collective Agreement, Exhibit 1
The Ontario Human Rights Code enshrines the right of every person to equal treatment with
respect to employment without discrimination because of disability. Section 5(1) states:
Every person has a right to equal treatment with respect to employment without discrimination
because of …. disability.
Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code")
Book of Authorities, Tab 10
Section 48(12)(j) of the Labour Relations Act, 1995 gives an arbitrator the power and authority
to interpret and apply human rights statutes. That provision is applicable in proceedings of the
Grievance Settlement Board pursuant to sections 2 and 7 of the Crown Employees Collective
Bargaining Act, 1993.
Labour Relations Act, 1995, s. 48
Book of Authorities, Tab 11
Crown Employees Collective Bargaining Act, 1993, s. 2 and 7
Book of Authorities, Tab 9
Furthermore, the rights and obligations of the Code are incorporated into the collective
agreement. The right of the employer to manage its enterprises and to direct the work force, are
therefore subject not only to the express provisions of the collective agreement, but also to the
statutory provisions of the Code and other employment-related statutes.
Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324
Supplementary Book of Authorities, Tab ,at paras.s 23, 55 and infra
THE GRIEVOR HAS A DISABILITY AND
HAS A RIGHT TO BE FREE FROM DISCRIMINATION
Disability is defined in s. 10 of the Code, and includes:
(a) any degree of physical disability, infirmity, … that is caused by bodily injury.. or
illness;
(e) an injury or disability for which benefits were claimed or received under the insurance
plan established under the Workplace Safety and Insurance Act, 1997.
the Code, Book of Authorities, Tab
It is acknowledged by the Employer that the Grievor has physical restrictions and limitations
which arose from her workplace injury for which she has received insurance benefits under the
Workplace Safety and Insurance Act, 1997
The rights set out in the Code are quasi-constitutional rights and should be protected. Given the
importance of these rights, Courts have routinely stated that human rights legislation must be
given a broad and purposive interpretation. Accordingly, the rights must be construed liberally,
and defences to those rights should be construed narrowly.
Ontario (Human Rights Commission) v. Simpsons Sears
Book of Authorities, Tab 3 at p. 8
Quebec v. Boisbriand ("Mercier")
Supplementary Book of Authorities, Tab
THE EMPLOYER BEARS THE ONUS
OF ESTABLISHING THE UNDUE HARDSHIP DEFENCE
The Union acknowledges that it has the onus to establish a prima facie case of discrimination.
Unilever HPC v. Teamsters Local 132
Book of Authorities Tab 7, at 369
Failure to employ an employee because of disability is by itself discrimination. Further, and in
any event, the Employer has not adhered to the collective agreement in respect of scheduling and
payment of wages, and has not treated the Grievor the same as an able bodied employee.
Air Canada v. CAW Loc. 2213
Book of Authorities Tab 8, at 313-315
Once the Union and the Grievor have established that the Grievor has been discriminated against
the onus shifts to the Employer to establish that the discrimination was not unlawful. The
Employer may establish that the discrimination was not unlawful discrimination only where it
can establish that the Grievor could not be accommodated without undue hardship. The onus is
upon the Employer to bring itself within the undue hardship defence.
The Code, s. 17
Book of Authorities, Tab 10
Meiorin
Book of Authorities, Tab 1
B.C. (Supt. Motor Vehicle)v. B.C. (Council of Hr. Rights) ("Grismer")
Supplementary Book of Authorities, Tab , at para 41
Entrop v. Imperial Oil
Supplementary Book of Authorities, Tab , infra, and at paras 63 and 93
Unilever HPC v. Teamsters Local 132
Book of Authorities Tab 7, at 370
It is a legal error to suppose that there is any onus upon the Union or the Grievor to demonstrate
that the Grievor could be accommodated without undue hardship on the part of the Employer.
Ontario Public Service Employees Union v.
Ontario (Ministry of Community and Social Services),
Book of Authorities Tab 4, at para 17
Ontario Human Rights Commission Policy and Guidelines on the
Duty to Accommodate ("OHRC Accommodation Policy")
Book of Authorities Tab 13, at 29
THE DUTY TO ACCOMMODATE
1) The Defence
Section 17 of the Code provides a defence to conduct which would otherwise be unlawful
discrimination in employment. That section states:
1) A right of a person under this Act is not infringed for the reason only that the person is incapable of
performing or fulfilling the essential duties or requirements attending the exercise of the right because of
disability.
2) The Commission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that
the needs of the person cannot be accommodated without undue hardship on the person responsible for
accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety
requirements, if any.
the Code, Book of Authorities, Tab
The rights set out in the Code are quasi-constitutional rights. Given the importance of these
rights, Courts have routinely stated that human rights legislation must be given a broad and
purposive interpretation. Accordingly, the rights must be construed liberally, and defences to
those rights should be construed narrowly.
Mercier
Supplementary Book of Authorities, Tab , paras 27-30
The statute specifically lists three factors that may be considered in determining whether further
accommodation would cause undue hardship. Therefore, no considerations other than these three
can properly be considered in assessing undue hardship in Ontario. The factors are:
• cost
• outside sources of funding, if any
• health and safety requirements, if any
OHRC Accommodation Policy
Book of Authorities Tab 13 , at 27
2) Requirement for Objective Evidence
In order to establish undue hardship, the Employer must provide objective, real and direct
evidence, and in the case of cost, such evidence must be quantifiable. A simple statement that the
Grievor cannot be accommodated, if based upon impressionistic views or stereotypes, is not
sufficient.
Meiorin, supra, at para 78-79
Book of Authorities, Tab 1
Grismer, supra, at para 41
Supplementary Book of Authorities, Tab
OHRC Accommodation Policy
Book of Authorities, Tab 13, at p. 29-30
3) General Principles
The Employer's attempts to accommodate the Grievor must be informed by a number of general
principles, including:
• Respect for Dignity – accommodation must be provided in a manner that most respects
the dignity of the Grievor, if to do so does not constitute undue hardship
• Individualized Accommodation – each person with a disability must be considered,
assessed and accommodated individually
• integration and full participation – where possible, accommodation should promote
barrier-free and inclusive accommodation.
OHRC Accommodation Policy
and cases cited therein
Book of Authorities, Tab 13, at p. 12 -16
4) Legal Principles
In Meiorin the Supreme Court of Canada has prescribed a unified legal test for assessing whether
the duty to accommodate has been met. To rebut a prima facie case of discrimination, the
Employer must establish that the decision, standard, factor, requirement or rule
i- was adopted for a purpose or goal that is rationally connected to the function
being performed
ii- was adopted in good faith, in the belief that it is necessary for the fulfillment of
the purpose or goal, and
iii- is reasonably necessary to accomplish that purpose or goal, and that it was
impossible to otherwise accommodate the Grievor without undue hardship.
Meiorin,
Book of Authorities, Tab 1 at para 54
adopted and applied Entrop, Grismer, and others
In assessing these factors, the Arbitrator or court must ensure that each person is assessed
according to his or her own personal abilities. It is improper and incorrect to judge a person
against presumed characteristics, or presumed group characteristics.
Grismer
Supplementary Book of Authorities, Tab
5. Duty is Procedural and Substantive
The obligation to engage in an individualized and context-specific assessment applies not only to
the outcome of attempt to accommodate, but also to the steps taken by an Employer in
attempting to accommodate. Grismer dealt with the failure to properly assess whether Mr.
Grismer ought to have been entitled to a driver's license. It is evident from the Supreme Court's
decision that the procedure used to assess accommodation, is as important as the substantive
content of the accommodation.
Meiroin
Book of Authorities, Tab 1, paras. 77-78
Grismer
Supplementary Book of Authorities, Tab ,
Human rights adjudicators have found that an Employer's failure to adequately investigate
options for accommodating a disabled employee results in a breach of that employee's human
rights, and must result in setting aside a discharge.
Parisien v. Ottawa Carleton Regional Transit
Supplementary Book of Authorities, Tab , paras. 69 -73
Jeppesen v. Ancaster
Supplementary Book of Authorities, Tab , paras. 178-182
6. Summary of Obligations and Expectations
In his excellent paper Disability and the Duty to Accommodate: An Arbitrator's Perspective
Professor Lynk provides a summary of the legal obligations which are applicable to this case:
The duty to accommodate is a fundamental legal obligation. it flows from two sources,
the applicable human rights legislation, and the rulings of the Supreme Court of Canada.
In a series of important decisions dating back to 1985, the Supreme Court has held:
(1) Human rights legislation has a quasi-constitutional place in Canadian law, and all
other statutes, policies and practices, whether public or private, must normally be
consistent with it.
(2) Discrimination may be unintentional, yet it will be in violation of human rights
legislation if a person covered by a protected ground is subjected to adverse
differential treatment without justification.
(3) Accommodation is a significant obligation, and it is required to be a central feature of
the Canadian workplace.
(4) The duty rests on employers, unions and the employee seeking accommodation, all of
whom are required to assume responsibility for ensuring the success of an
accommodation arrangement.
(5) The primary responsibility rests with the employer, because it has ultimate control
over the workplace. Once it receives a request, it must initiate the search fo
appropriate accommodation.
(6) The union must cooperate, and not unreasonably block a viable accommodation
option.
(7) The employee is expected to participate in the accommodation process, and cannot
refuse a reasonable offer of accommodation.
(8) Collective agreement provisions are to be respected, but they may have to be waived
if they unreasonable block a viable accommodation option, or if they treat individuals
who are protected by human rights legislation differently, without a compelling
reason.
In three recent decisions [Mercier (Boisebriand), Grismer, and Meiorin - supra], the
Supreme Court of Canada has clarified and broadened the extent of the duty, ruling:
(1) Accommodation measures must be taken unless it is impossible to do so without
undue hardship.
(2) The threshold of undue hardship is high.
(3) Employers and unions must be sensitive to the various ways in which individual
capabilities can be accommodated.
(4) Workplace standards, such as lifting requirements or work schedules, that
unintentionally distinguish among employees on a protected ground are subject to
being struck down or modified. Employers must build liberal conceptions of equality
into workplace practices.
(5) Courts, labour arbitrators and human rights tribunals are to take a strict approach to
exemptions from the duty to accommodate. Exemptions are to be permitted only
where they are reasonable necessary to the achievement of legitimate business-
related objectives.
7. Obligation of the Union and Grievor
It is of note that in this case the Employer did not approach the Union or the Grievor and did not
seek to involve them in the procedural search for alternative work or otherwise engage them in
the accommodation process. Nevertheless, the Union and the Grievor have met their legal
obligations by ensuring that the Employer was provided with all relevant information and not
impeding any attempts to accommodate the Grievor.
The Supreme Court of Canada in Renault has examined the duty owed by a complainant
(Grievor) and a trade union in respect of workplace accommodation.
Renault
Book of Authorities, Tab 2, at paras 32-45
• The Grievor must bring to the attention of the employer the facts relating to the
discrimination or need to be accommodated, but does not have a duty to originate a
solution. When an employer has initiated a proposal tat is reasonable and would, if
implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the
implementation of the proposal. (para 44)
• Where a trade union is not party to a discriminatory rule or policy (ie. it has not been
negotiate in the collective agreement) the union's obligation is to "not impede" the
employer's attempts to accommodate. The Employer must canvas other methods of
accommodation before the union can be expected to assist in finding or implementing a
solution. The union's duty arises only when its involvement is required to make
accommodation possible and no other reasonable alternative resolution of the matter has
been found or could reasonably have been found. (para 40)
WHAT IS UNDUE HARDSHIP?
As set out above, s. 17 of the Code requires that the Employer accommodate the Grievor to the
point of undue hardship. Failure to do so makes the Employer's conduct unlawful.
The statute specifically lists three factors that may be considered in determining whether further
accommodation would cause undue hardship. Therefore, no considerations other than these three
can properly be considered in assessing undue hardship in Ontario. The factors are:
• cost
• outside sources of funding, if any
• health and safety requirements, if any
OHRC Accommodation Policy
Book of Authorities Tab 13, at 27
There was no evidence led of any of these factors upon which the Board could conclude that it
would constitute undue hardship for the Employer to further accommodate the Grievor.
LMR THROUGH WSIB IS NOT ACCOMMODATION
The Workplace Safety and Insurance Act, 1997 requires Employers to offer to reemploy injured
workers, and to accommodate the work or the workplace for the worker to the extent that the
accommodation does not cause undue hardship.
Workplace Safety and Insurance Act, 1997, s. 41(6)
Supplementary Book of Authorities, Tab
It is only where the Employer cannot accommodate an employee (or is not cooperating with the
early and safe return to work) that a Labour Market Re-entry (LMR) assessment and plan shall
be offered.
Workplace Safety and Insurance Act, 1997, s. 43
Supplementary Book of Authorities, Tab
The LMR assessment and plan is offered by the Workplace Safety and Insurance Board, not the
Employer.
Workplace Safety and Insurance Act, 1997, s. 43
Supplementary Book of Authorities, Tab
The difference between Schedule 1 and Schedule 2 employers under the Workplace Safety and
Insurance Act, 1997 is that the former pay premiums to the insurance fund, whereas Schedule 2
employers are individually liable to pay benefits under the insurance plan respecting workers
who they employed at the time of accident.
Workplace Safety and Insurance Act, 1997, ss. 88-93
Supplementary Book of Authorities, Tab
DAMAGES UNDER THE CODE ARE PRESUMPTIVE
s. 41(1)(b) of the Code provides that if the Board finds that the Employer has infringed the
Grievor's human rights, it may, by order,
(b) direct the party to make restitution, including monetary compensation, for loss
arising out of the infringement, and, where the infringement has been engaged in
wilfully or recklessly, monetary compensation may include an award, not
exceeding $10, 000, for mental anguish.
The Board is entitled to award non-pecuniary damages arising out of the infringement of the
Code. Such an award is to compensate for the intrinsic value of the infringement of the
complainant's rights under the Code. In the words of the Divisional Court "it is compensation for
the loss of the right to be free from discrimination and the experience of victimization". Such
damages may be awarded in the absence of evidence of metal anguish There is no ceiling on the
amount of general damages.
Ontario (Human Rights Commission) v. Shelter Corp,
Supplementary Book of Authorities, Tab ,at paras 42-43
This is a power that can, and should, be exercised by arbitrators. Damages for the breach of an
individual's rights commonly form part of a remedial response to findings of discrimination.
TTC v. ATU, Loc. 113 (Langille)
Supplementary Book of Authorities, Tab , at para 35 on
Additionally, if the Board finds that the Grievor has suffered mental anguish as a result of the
infringement of her rights, it may order additional damages of up to $10, 000 for each right
infringed.
The Code, s. 41(1)(b)