HomeMy WebLinkAbout2003-3162.Di Caro.05-04-07 DecisionCrown 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# 2003-3162
UNION# OLB540/03
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Boards Employees’ Union
(Di Caro) Union
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario) Employer
BEFORE Nimal Dissanayake Vice-Chair
FOR THE UNION Larry Steinberg
Koskie Minsky LLP
Barristers and Solicitors
FOR THE EMPLOYER Gordon Fitzgerald
Counsel
Liquor Control Board of Ontario
HEARING July 8, September 14 & 15, 2004;
January 25, February 8, March 18, 2005.
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Decision
This is a grievance alleging failure to accommodate. The
parties agreed to the following facts with regard to the
grievor’s employment and medical information.
AGREED STATEMENT OF FACT
1. This concerns the grievance of Joseph Di
Caro (“the grievor”) that was filed on
October 30, 2003 alleging that the
Employer violated Article 2.1 of the
collective agreement and the Human Rights
Code by failing to accommodate him in
accordance with his medical restrictions.
The grievance is attached as Exhibit 1.
2. The grievor was, at all material times,
employed as a full time customer service
representative (“CSR”). His seniority
date is May 28, 1984.
3. The grievor has a history of back
problems. For example, he is in receipt
of an 11% permanent disability award for
non-economic loss arising from a low back
injury sustained on August 28, 1995.
4. As early as February, 1994 the grievor
was experiencing back problems which
periodically caused him to be absent from
work, returning to work on a work
hardening program with reduced hours or
working regular hours but on modified
duties. As of May, 1998 the grievor was
working reduced hours and performing
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modified duties that required him to
alternate between sitting, standing and
walking with no lifting, no climbing of
stairs or ladders, no above shoulder work
and no repetitive bending or twisting.
The modified duties performed by the
grievor included customer service
(consultation and advice to customers on
product selection), light housekeeping
duties (i.e. dusting bottles and shelves,
cleaning counters and shelves, facing up
bottles (self paced and only as tolerated
and only the bottles at waist level),
administrative and clerical functions if
available and floor surveillance. The
document entitled “Modified Work Plan” to
be effective May 11, 1998 was signed by
the grievor and his manager on May 12,
1998 and is attached as Exhibit 2.
5. By August 12, 1998 the grievor had
resumed full time hours but was still
under restrictions regarding the nature
and type of work he could perform. The
restrictions included alternating between
positions when required, no lifting floor
to waist or waist to head, no carrying
beyond 10 lbs., no pushing and pulling
climbing of ladders and no bending and
twisting. The work provided to the
grievor was the same as set out in the
Modified Work Plan effective May 11, 1998
with the exception that he was also
assigned work “stocking shelves (to be
performed in a self-paced capacity and
only at waist level and above)”. This
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modified work plan was to be in effect
for an “indefinite” period of time as
indicated in the document entitled
“Modified Work Plan” that was effective
August 19, 1998 and signed by the grievor
and his manager on August 21, 1998 and
attached as Exhibit 3.
6. Since May 1998, as a result of his
physical condition, the grievor has not
done any cashiering duties and his
shelving duties have been restricted as
outlined above. The nature of the duties
performed by the grievor is captured in a
series of forms entitled “Manager’s
Assessment Form (for Modified Work”)
dated January 1999 (attached as Exhibit
4), May 23, 2001 (Exhibit 5) November 15,
2002 (days) (attached as Exhibit 6) and
November 15, 2002 (nights) (attached as
Exhibit 7).
7. On April 19, 2003, while putting files
away in a cabinet at work the grievor
felt a pain in his lower back that
radiated down his leg. He went off work
at that time and, as of the hearing date,
has not returned.
8. Since he has been absent from work, the
grievor has provided the Employer with a
series of reports from his physicians.
These include notes and Health Care
Provider’s Reports from Dr. Besik, the
grievor’s family physician, dated July
30, August 13 and 27, 2003, September 10,
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and 24, October 7, 15, 22 (all in 2003)
and June 1, 2004. The grievor also
provided the Employer with reports from
his Physiotherapist dated September 17,
2003 and December 1, 2003. All of these
are collectively attached and numbered
consecutively as Exhibit 8.
9. On May 22, 2003, Dr. Racanelli, the
grievor’s then family physician, sent a
Health Care Provider’s Report to the
Employer (attached as Exhibit 9). The
report set out the grievor’s limitations
and indicated that he could return to his
previous modified duties 4 hours per day
on days starting on May 26th and that he
could return to 8 hours per day on June
9, 2003.
10. The Employer then referred the grievor
for a Functional Abilities Evaluation
(“FAE”) that was conducted by Sibley &
Associates on June 9, 2003. A report was
produced (and is attached as Exhibit 10)
and concluded that the grievor had
sufficient “abilities to return to his
position as a cashier at LCBO”.
11. On July 23, 2003 the Employer wrote to
the grievor and enclosed the results of
the FAE (attached as Exhibit 11). Prior
to sending the grievor for the FAE, the
Employer, in reference to the limitations
outlined in Exhibit 9 and in reference to
its view of the essential duties of a
CSR, had determined that it could not
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accommodate the grievor’s limitations
with “necessary, productive and
meaningful work.” Based on the results
of the FAE the Employer offered the
grievor accommodated work at Store #1
(2625D Weston Road, North York) with the
following duties, namely: Customer
Service (greeting/assisting customers in
the retail floor area of the store),
cashiering (with provision of anti-
fatigue matting and ergonomic stool),
facing shelves, stocking shelves (single
bottle stocking, stock already prepared
on cart), light housekeeping (dusting
bottles, shelves) and clerical duties as
available (price changes, SOP’s RTS,
shelf talkers/signage). The Employer
also offered the grievor the assistance
of an occupational therapist to attend
onsite and act as a job coach for the
grievor.
12. The grievor’s physician wrote to the
Employer on six (6) occasions subsequent
to July 23, 2003 indicating that he was
not fit to return to work. (See Exhibit
8). Finally, on October 15, 2003 the
grievor’s physician forwarded a note to
the Employer along with a
physiotherapist’s report (attached as
Exhibit 12) stating that the grievor
could start work on October 20th with a
graduated return to work (two (2) hours
per day on alternate days for two (2)
weeks increasing to two (2) hours daily
for two (2) weeks and then increasing the
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hours after a further two (2) week
period). The physiotherapist’s report
stated that the grievor could lift one
pound repeatedly but could not keep his
arms elevated for more than one minute.
13. In response, the Employer wrote to the
grievor on October 21, 2003 (attached as
Exhibit 13). After referring to the
restrictions contained in Exhibit 12 and
his physician’s note of October 15th, the
Employer indicated that the grievor could
not successfully meet the requirements of
the return to work offer made by the
Employer in Exhibit 11. The Employer
noted that the grievor was unable to keep
his arms elevated for more than one
minute but could lift one pound
repeatedly. The Employer also noted
that single 750 ml bottles weigh more
than one pound with items such as six
packs of beer, one-litre and 40 ounce
bottles weighing more. In addition the
Employer stated that it could only offer
a graduated return to work program with a
minimum work tolerance of four hours per
day progressing to full time hours for
operational and scheduling purposes. The
Employer indicated that it did not have
“physically suitable, meaningful and
productive work” within the grievor’s
capabilities. The Employer stated that
it was encouraged that the grievor’s
physiotherapist indicated that he was
working at specific exercises and
requested that the grievor provide
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medical documentation to support his
progress “when your work hardening
program progresses to the point in which
you are able to perform at the level
required by the above noted return to
work program”. The Employer indicated
that at that time the ability of the
Employer to accommodate the grievor with
“physically suitable, productive,
meaningful work within the scope of the
essential duties of your Customer Service
Representative position” would be
reviewed.
14. Additional medical information was sent
to the Employer as follows. A copy of an
MRI scan performed on October 31, 2003
indicating L4/5 lateral disc herniation
with left L4 nerve root impingement and
central disc herniation at the C6/7 level
(attached as Exhibit 14). The report of
Dr. E.G. Duncan, neurological surgeon,
dated February 25, 2004 who did not
recommend any surgical intervention
(attached as Exhibit 15) but did
encourage the grievor to gradually
increase his activity and engage in a
regular exercise program. Further, Dr.
Jacqueline C. Stewart, rheumatologist,
prepared a report dated November 12, 2003
which concluded that “I do not feel that
he is able to return to work at this time
and in fact, it is questionable whether
he will be able to do physical work that
was required in his previous job.”
(Attached as Exhibit 16). This report
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was not seen by the Employer prior to
July 7, 2004.
15. The two most recent “Health Care
Provider’s Reports” from Dr. Besik are
dated January 21, 2004 (attached as
Exhibit 17) and May 18, 2004 (Exhibit
18). In the first report, the grievor’s
limitations were set out in detail with
the following added by way of general
comments, namely: “Permanent disability.
Permanent modified work. Not able to do
cashiering duties (i.e.) Repetitive (sic)
lifting of even 1 lb. Bottle and cannot
also stalk (sic) shelves as repetitive
(sic) movement involved.”
16. In the report dated May 18, 2004 (Exhibit
18) the general comments are as follows:
“Permanent disability. Can do permanent
modified work (i.e.) Desk Work (i.e.) Not
able to do cashier duties due to
restrictions on repetitive (sic) lifting
& motions & cannot stalk (sic) shelves
again due to no repetitive movement”.
17. In response to Exhibit 18 the Employer
wrote to the grievor on May 26, 2004
(attached as Exhibit 19) and indicated
that based on that report “it is noted
that there have been some changes in your
reported capabilities”. As a result, the
Employer scheduled a meeting with the
grievor and his union representative on
May 31, 2004.
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18. At the meeting a “Manager’s Assessment
Form (for Modified Work Programs)”
(attached as Exhibit 20) was filled out.
19. On June 1, 2004 the Employer wrote to the
grievor’s family physician (attached as
Exhibit 21) requesting information
whether there was a medical requirement
for modified hours and if so the
recommended hours and time frame to
progress to full time hours. The doctor
responded by way of a note faxed to the
Employer the same day (see Exhibit 8)
indicating that the grievor required
permanent modified work as outlined in
previous reports and that the grievor
should start with four (4) hours per day
on alternate days. If tolerated well for
one (1) week the grievor could then go to
four (4) hours per day. The grievor
could then go to one (1) week at eight
(8) hours followed by one (1) week at
four (4) hours and, after a week, go to
eight (8) hours per day.
20. By letter dated June 24, 2004 (attached
as Exhibit 22) the Employer wrote to the
grievor and once again offered the
modified work it originally offered on
July 23, 2003 (Exhibit 11) and then again
on October 21, 2002 (Exhibit 13). It
stated that the tasks would be assigned
on a rotational basis “so that there will
be no prolonged posturing involved.” The
Employer further stated that “You have
indicated that you cannot perform the
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essential functions of your position,
even with modification. While you have
indicated that you can talk to customers
and perform seated office/clerical tasks,
unfortunately these tasks in and of
themselves do not constitute meaningful,
useful and productive work.”
21. The Employer has not disputed the medical
evidence submitted by the grievor that
identifies his physical restrictions and,
in fact, has accepted that evidence of
the grievor’s physical restrictions as
the medical basis for its decision as to
whether the grievor is or is not able to
perform the modified work program offered
by the Employer.
22. The job description for the CSR position
is attached as Exhibit 23.
23. For purposes of Article 21.4 of the
collective agreement, the Employer’s
operations are divided into various
geographical posting areas. The
Employer’s warehouses are each
themselves, individual geographical
posting areas, as is the Head Office. In
the Retail Division, several stores
comprise a given geographic posting area.
As set out in Article 21.4 of the
collective agreement, if a new job
classification within the bargaining unit
is created or a permanent vacancy occurs
in an existing job classification, the
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Employer posts the job within the
specified geographic area.
24. The parties agree that they can add to or
supplement this Agreed Statement of Fact
as they determine is necessary to put all
of the material evidence before the
Board.
The foregoing facts were supplemented by viva voce
evidence and a total of 27 documents filed as exhibits. While a
substantial volume of evidence was adduced over several days
there is little factual dispute. The issues are more of a legal
nature as to the scope of the employer’s duty to accommodate an
employee who has been medically assessed to be unable to
perform, even with any modification, what the employer has
determined to be the essential duties of his pre-injury job.
The employer’s position is that in those circumstances the
employer’s duty to accommodate is at an end. In other words, if
the disable employee is unable, even with any modification, to
do the essential duties of the job for which he was hired, the
employer has no obligation to make further efforts to find any
other work for him as an accommodation. The grievor was hired
as a CSR. The employer considers “cashiering” and “stocking” as
the essential duties of a CSR. Medically it has been determined
that even with any available modifications, the grievor is
permanently prevented from performing any cashiering or
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stocking. Therefore, according to the employer, it has no
further obligation to attempt to accommodate the grievor.
Ms. Bonnie MacPhail, a Human Resources Advisor, was
involved in the employer’s efforts to return the grievor to
work, particularly as advisor to the District Manager, Mr. Myron
Tymochko. She testified in chief that following his injury in
April 2003, the grievor provided a Healthcare Providers Report.
When she reviewed it with Mr. Tymochko, it raised “some
questions about how his functional restrictions translated into
what he will actually be doing at work”. Therefore, it was
decided that a job specific Functional Abilities Examination
(FAE) be done to get a better understanding of how the grievor’s
restrictions impacted on his CSR duties. The FAE report
concluded that the grievor will be able to meet the physical
requirements of the CSR job with accommodation on lifting and
carrying and with job coaching by an occupational therapist or
kinesiologist. Based on the FAE report and the CSR duties, on
July 23, 2003 the following offer was sent to the grievor, over
the signature of Mr. Tymochko.
Please find enclosed the results of the Functional
Abilities Evaluation you attended on June 9, 2003.
As you are aware, you are claiming an aggravation
of your ongoing low back condition, for which you
have an 11% permanent impairment, related to the
job duties of cleaning out filing cabinets, which
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you performed on April 19, 2003. Your physician
indicated on May 22, 2003 that you were able to
return to previous modified duties, 4 hours per
day, commencing May 26, 2003, with the following
functional limitations:
> Limit walking to short distances
> Limit standing to 15 minute durations
> Limit sitting to 30 minute durations
> No bending/twisting
> No lifting from any level
> No carrying
> No stair or ladder climbing
> No pushing/pulling of a trolley
Your doctor advised you would be able to resume
eight-hour days, with these restrictions June 9,
2003.
In our review of the essential duties of your
position as a Customer Service Representative, it
was determined that we were unable to accommodate
your stated functional limitations with the
provision of necessary, productive and meaningful
work. As a result it was requested that you attend
an Independent Functional Abilities Evaluation.
Although the results of the evaluation indicate you
demonstrated inconsistent, sub maximal effort, your
demonstrated functional abilities were assessed to
meet the physical demands of the essential duties
of cashiering/stock handling for the Customer
Service Representative position.
Your functional limitations, relative to the job
demands, were demonstrated as follows:
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> Low level and mid level lifting limited
to a maximum of 20 lbs on an occasional
basis
> Carrying at waist level limited to 15 lbs
on an occasional basis
having consideration for the above information, it
has been determined that we are able to accommodate
your demonstrated functional abilities. We are
offering you a return to work program at Store #1,
located at 2625D Weston Road, North York, with the
following duties effective immediately:
> Customer Service (greeting/assisting
customers in the retail floor area of the
store)
> Cashiering (with provision of anti-
fatigue matting and ergonomic stool)
> facing shelves
> Stocking shelves (single bottle stocking,
stock already prepared on cart)
> Light housekeeping (dusting bottles,
shelves)
> Clerical duties as available (price
changes, SOP’s, RTS, shelf
talkers/signage)
We are also prepared to facilitate an occupational
therapist attend onsite with you for your return to
work to act as a job coach to provide
recommendations for proper lifting and carrying
techniques as well as ergonomic suggestions as
required.
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As soon as you are prepared to accept our return to
work offer, please contact Bonnie MacPhail, HR
Advisor, so that the necessary arrangements can be
made.
It is to be noted that this offer of accommodation
included cashiering and stocking, albeit with modifications or
assistance. The offer was thus contrary to the medical opinions
hitherto provided by the grievor’s healthcare providers. The
grievor did not accept the offer of accommodation. Instead a
series of medical notes followed, indicating that the grievor
was not able to return to work pending further assessment. Ms.
MacPhail testified that the employer accepted all of the medical
notes.
On October 15, 2003, the grievor provided a medical note
from his family physician, Dr. F.R. Besik, stating that the
grievor can return to work on graduated hours on a work
hardening program commencing October 20, 2003. The doctor
recommended that he start with 2 hours a day on alternate days
and not at peak hours and that after two weeks he could increase
to 2 hours daily. Ms. MacPhail testified that along with Mr.
Tymochko, the doctor’s recommendation was reviewed along with
the restrictions contained in the physiotherapist’s report, and
it was concluded that “there was no productive job duties that
could be provided” to the grievor. The employer sent a further
17
letter to the grievor, essentially making the same offer of
accommodation made earlier. Ms. Macphail testified that in
light of the physiotherapist’s report the employer drew the
conclusion that the grievor was unable to perform the job duties
included in the offer of accommodation. She testified that the
grievor did not dispute that conclusion, but grieved.
Ms. MacPhail testified that several further medical notes
were received from the grievor’s doctors. The employer decided
to find over first hand from the grievor what he felt he could
and could not do. On May 31, 2003 a meeting was held with the
grievor, his union representative, Mr. Tymochko and Ms. MacPhail
in attendance. At this meeting, the grievor was asked whether
he felt he was or was not able to perform various duties which
were part of the CSR position. His responses and comments on
each duty were documented on a form. Ms. MacPhail testified
that based on that meeting, the employer concluded that the
grievor could do limited customer service, i.e. speaking to
customers, but not helping with product, and he could do office
work.
The employer then sought clarification from the grievor’s
doctor as to the graduated hours he had previously recommended.
The doctor responded that the grievor could start with 4 hours
on alternate days and increase to 4 hours daily after a week.
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If the grievor was able to do this, he could do 8 hours on
alternate weeks and finally increase to 8 hours weekly.
Ms. MacPhail testified that with this information, Mr.
Tymochko concluded that “given the abilities presented,
productive and meaningful work could not be offered within the
scope of the CSR job and the store system.” Mr. Tymochko sent a
letter dated June 24, 2004 to the grievor, for the third time
making the same offer of accommodation which included cashiering
and stocking duties, which his doctors had held to be outside
his medical restrictions.
Ms. MacPhail further testified that as far as she could
recall, the grievor nor the union had ever suggested that the
grievor be accommodated other than in a store. She stated that
generally it was not common for employees to transfer from
stores to a warehouse or head office. She further testified
that for posting purposes the Province is divided into several
regions. The Central region is divided into three geographic
areas J, A and G. If a vacancy occurs in area A for instance,
it is only posted in area A and only those employed in area A
are eligible to apply. Similarly posting is restricted by
location for vacancies in warehouses and head office. For
example, if a vacancy arises within the Durham warehouse, it is
posted only for employees at Durham warehouse. Ms. MacPhail
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testified that this posting protocol is in compliance with
article 21.4 of the collective agreement.
Under cross-examination Ms. MacPhail agreed ultimately
that the requirement that an employee seeking accommodation must
be able to work at least 4 hours was a general rule which was
applied to the grievor. She stated that the rule came from
above her and she was not aware who established the rule. She
stated that the rule was created for operational and scheduling
reasons. When asked to elaborate she stated “My understanding
is that an employee reporting to work for less than 4 hours is
not sufficient to establish any productivity”. She proceeded to
explain that “it is also tied in with what the employee could or
could not do. Because it is not like he was coming in from
11:00 a.m. to 1:00 p.m. and work on cash. He is working only
non-peak periods”. She agreed that there was no hardship to the
employer where an employee can work less than 4 hours as far as
costs, health and safety and outside sources of funding were
concerned. The only hardship was “its less productivity or no
productivity.”
Ms. MacPhail also confirmed that there was a policy that
the employer will not look for accommodations outside the
Division where the disabled employee was employed, whether it be
the retail system (Stores), warehouse or head office, and that
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consistent with that policy no attempt was made to inquire
whether the grievor could be accommodated outside the store
system. She stated that the justification for the policy was
the constraints in article 24.1 of the collective agreement that
posting be done by geographic area. Ms. MacPhail also confirmed
that the employer did not at any time request the union to waive
the posting constraints in the collective agreement to enable
the grievor to be accommodated. Ms. MacPhail was asked whether
she would look for office work for the grievor as an
accommodation, if his doctors had stated that his restrictions
are permanent and will not change. She stated that she would
have to explore that issue with her superiors, Mr. Murray Kane
(VP/Human Resources) and Mr. Peter Buck (Director/Human
Resources). When asked what her recommendation would be, she
replied that if there was other suitable work in the
organization, within or outside the bargaining unit, the grievor
would have to be considered for that work.
Ms. MacPhail agreed that until the grievor went off in
April 2003, for a considerable period the grievor had done no
cashiering and only 10 percent of stocking shelves at eye level
on day shift. He did 90 percent of the office work. The
employer provided this work as accommodation for the grievor.
When on night shift the grievor performed tasks he was not
supposed to do because office work was limited at night. She
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agreed that in 2003 the grievor was seeking the same
accommodated work that he had been previously provided on day
shift. When asked why the grievor was denied that same
accommodation which he had been previously provided, Ms.
MacPhail testified that Mr. Tymochko, who assumed duties as
District Manager in October 2003, had become aware that the
grievor was not performing productive work. She confirmed,
however that all of the duties the grievor had previously done,
and was seeking in 2003, including the office work, were part
of the regular duties of a CSR. Ms. MacPhail agreed that the
offer of accommodation made to the grievor on July 23, 2003 and
subsequently repeated, was contrary to the medical information
in the employer’s possession, although consistent with the FAE
report made by a physiotherapist and a kinesiologist.
Testifying in chief, Mr. Tymochko, reviewed in detail each
duty of a CSR as set out in the job description. When asked
what the most important duties of a CSR are, he replied
“cashiering, stocking, customer service and some house-keeping
duties.” When asked whether customer service is separate from
the other duties, Mr. Tymochko replied that it was part and
parcel of cashiering and stocking. He testified that on an
average day 60 to 65 percent of a CSR’s time is spent on
cashiering and that the bulk of the balance time is spent on
stocking. He testified that unless something unusual occurred,
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a CSR would spend only 45 minutes on office duties. He went on
to explain how the volume of office and clerical work had
declined over the years with the advent of electronic
technology. Mr. Tymochko testified that in any event it did not
make sense to assign all the available office work to one
employee because that work is not a job by itself but part of a
bigger job. He said that office tasks are done by whoever is
available. Some of it is done by the store manager, although he
may from time to time assign such work to an assistant manager
or a CSR.
Mr. Tymochko testified that around Christmas 2002 on a
visit to the grievor’s store, he learned that the grievor was on
a modified work plan under which he was unable to do
“Cashiering, facing the store or help in stocking”. Following a
further conversation with the store manager, Mr. Tymochko
concluded that “not a lot of productive or meaningful work was
being done” by the grievor. The manager had indicated that
because of the grievor’s limitations, at times he had to go in
outside work hours to get his management tasks done, because
during store hours he had to run the cash. Mr. Tymochko decided
to obtain an updated medical report from the grievor’s doctor.
That report indicated that the grievor could do even less than
before.
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Mr. Tymochko testified that in his offer of accommodation
dated July 23, 2003, he had the grievor transferring to Store
No: 1 because it was a large store, which had a clearance
centre. He felt that the modified work plan would be easier to
administer there. He testified that upon receiving medical
clearance that effective October 20, 2003 the grievor could
return to work starting with two hours a day on alternate days
during non-peak hours, he concluded that the grievor was unable
to do any meaningful or productive work. He could do some of
the tasks identified in the offer of accommodation, but not any
cashiering, stocking or facing shelves. He stated that allowing
the grievor to do only those tasks he could do would not be
productive.
Employer counsel pointed out that at the meeting on May
31, 2003 the grievor had indicated that he could perform 10 to
12 of the duties of a CSR listed and asked whether it was not
possible to accommodate the grievor with those duties. Mr.
Tymochko’s response was; “We could have. But this doesn’t
constitute a job. There’s not a job specific here. It’s a lot
of clerical work. It’s a very small part of the job”. He
stated that in his opinion those duties on their own would not
amount to meaningful and productive work.
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Mr. Tymochko was asked what positions other than CSR were
available in the store system; he listed the positions of
manager, assistant manager, product consultant and special
events coordinator. When asked whether any of these positions
were considered for the grievor, Mr. Tymochko explained that
the manager positions are outside the bargaining unit, and that
when vacancies are posted, those eligible can apply. He stated
that the other positions are posted as per the collective
agreement and an employee must apply before he can consider the
position for him. He confirmed that the grievor had not
expressed to him any interest in any of these positions.
Mr. Tymochko also confirmed that he did not consider any
positions outside the store system for the grievor. When asked
why not, he replied: “I have no jurisdiction outside the stores.
They are in their own silos. The head office, warehouse and
stores are all separate entities”. He testified that the
grievor or the union had not at any time suggested that he be
considered for a non-store position. Mr. Tymochko testified
that to be “meaningful and productive”, a CSR must be able to do
“some form of cash or stocking”. When asked what he meant by
“some form” he replied”:for example facing up, stock from a
prepared cart, relief cashiering.”
25
Under cross-examination Mr. Tymochko described the
organization structure of the LCBO. He explained that non-store
positions are outside his jurisdiction because they are under
different divisions of the LCBO. However, he conceded that the
employees in stores, head-office and warehouse are all employees
of one employer, the LCBO. He testified that if he had to look
for work for the grievor outside the store system, he would have
to discuss it with someone in the division or silo in question.
He confirmed that he made no inquiry whatsoever whether the
grievor could be accommodated in a non-store position, because
he had “never seen an employee move from one division to
another”. His failure to inquire had nothing to do with
considerations of costs, health and safety or outside sources of
funding.
Union counsel suggested to Mr. Tymochko that in the
building where his office is located, there was a LCBO Call
Centre, which came under the stores silo, and was covered by a
letter of agreement. Mr. Tymochko agreed. He also confirmed
that he did not consider accommodating the grievor at the Call
Centre or even inquire whether suitable work was available
there. When asked why not, he explained that the Call Centre
was in posting area G, while the grievor was employed in posting
area A. He agreed, however, that the collective agreement would
not have been an impediment if a waiver had been obtained from
26
the union. He added, however, that any request to move from one
posting area to another must be initiated by the employee to the
Regional V.P. He agreed that the union was not approached to
obtain a waiver of the requirement of posting by geographic
area.
Union counsel took Mr. Tymochko through the duties listed
in the CSR job description, and which of those the grievor was
able or not able to do. At the end of the review counsel asked,
“Do you therefore agree that while the job description is in
general terms, Mr. Di Caro can do, or has the knowledge to do,
the majority of the duties in the CSR job description?” Mr.
Tymochko agreed.
Union counsel had Mr. Tymochko confirm that the Manager’s
Assessment Form filled out at the meeting with the grievor on
May 31, 2003, included all duties normally performed by a CSR.
Then the following ensued.
Q. These are all real duties - not fictional
ones.
A. Yes.
Q. These are all duties that must be
performed?
A. Yes.
Q. And expected to be performed - if they
don’t they will be in trouble?
A. Yes. In their appraisals.
27
Q. Each duty therefore contributes to a
successful retail operation?
A. Yes. Some more than others. But all of
them contribute. Yes.
Q. Based on that, therefore, each is a
meaningful task?
A. They all contribute.
Q. Each is a meaningful task?
A. Yes.
Q. Each task contributes to the productivity
of the store?
A. To different degrees, but yes.
Under further cross-examination, Mr. Tymochko agreed that
the grievor as well as his doctor had made it clear that he
could not do any cash or stocking duties and that the
restriction was permanent. He was asked, given his position
that there is no accommodation possible if the grievor could not
do any cashiering or stocking, why he continued to inquire from
the doctor how many hours a day the grievor could work. At this
point, Mr. Tymochko responded that he had not really accepted
that the grievor was incapable of doing any cash or stocking
because the FAE report had concluded that he could do some
cashiering and stocking duties. He conceded that he accepted
the FAE report over the medical reports of the grievor’s doctor
and based his offer of accommodation to the grievor on the FAE
report. He agreed that despite the apparent inconsistency
between the doctor’s reports and the FAE report, he did not
28
consider requiring the grievor to undergo an Independent Medical
Examination, as he was entitled to do.
It was pointed out to Mr. Tymochko that he had agreed that
each individual duty listed in the Manager’s Assessment Form was
meaningful and contributed to the productivity of the store.
Counsel suggested that despite this, he did not consider
allowing the grievor to do the customer service, office work and
other duties he was able to do because Mr. Tymochko had decided,
“if he cannot do cash or stock, you won’t accommodate him.” Mr.
Tymochko replied, “Yes. Some cash or stock”. Counsel suggested
that when Mr. Tymochko was stating that individual duties which
are meaningful and productive, are not meaningful and productive
when grouped together, what he really means is that “there isn’t
a full days work for him?” Mr. Tymochko agreed. When asked
whether he was basing that on anything beyond his impression and
whether he did a study, Mr. Tymochko replied that no study was
done, that it was based on his knowledge of the CSR job.
Mr. Tymochko testified that he would not require any
particular minimum number of hours of cashiering or stocking
duties as a condition for accommodation. He testified that he
needed “some cash or stocking” or “some form of cash or
stocking”. When asked whether five minutes a day of cash or
stock would satisfy him, Mr. Tymochko responded that “it will be
29
a start” and that he would have then considered accommodating
the grievor. Counsel suggested that this indicated that for Mr.
Tymochko it was a matter of principle, which had nothing to do
with productivity, that he will not accommodate a CSR if he or
she could not do any cashiering or stocking. Mr. Tymochko
disagreed. He agreed that if the grievor had been able to do
the stocking and facing up of the mini and 200ML bottles, that
would have given him the “some stocking” he was looking for.
However, he agreed that at the meeting on May 31, 2003 he did
not ask the grievor whether he could do that. Nor did he make
that inquiry from the doctor. Mr. Tymochko agreed that until
November 2002 the grievor had been accommodated performing no
cashiering duties and only 10 percent stocking and that there
was nothing to indicate that the grievor was not doing a full
days work.
Mr. Tymochko stated that the requirement that an employee
must be able to work at least 4 hours a day in order to be
accommodated, was not a rule, but a practice he adopted on
advise from Ms. MacPhail. When asked what scheduling problems
would be caused if the grievor could only work 2 hours, Mr.
Tymochko replied “There are no 2 hour shifts. We can’t replace
an employee for half a shift”. When asked what prevents the
employer from calling in another CSR on overtime for the other 2
hours, Mr. Tymochko did not respond. He agreed that his concern
30
was that the grievor did not fit into the existing shift
schedule.
With regard to operational problems that may be caused as
a result of accommodating the grievor for 2 hours a day, Mr.
Tymochko stated that he did not think that office and customer
service functions can be done in 2 hour blocks, that they are
“best utilized in larger blocks”. He agreed that what he means
again is that the grievor did not fit within the existing
practice. He agreed, however, that altering the existing
practice to accommodate the grievor would not “bring the store
to its knees”.
Submissions
Employer counsel relied on a principle which he called
“The Illusion of the incremental change”. He illustrated with
the example of a 50 pound block of ice at -60 degrees which is
used to keep food fresh. If the ice is heated gradually, after
some time, one will be left with a mass of water at + 100
degrees. The former block of ice is now no longer able to do
the job of keeping food fresh. While you do not see much change
minute by minute, at the end you are left with boiling water
which is very different from a block of ice. He submitted that
the situation is the same with an employee who is hired as a
CSR. Once the essential duties of a CSR are taken away
31
gradually, you end up at some point with a completely different
job.
Counsel submitted that the employer is not obligated to
accommodate an employee who was hired as a CSR with other work,
when he cannot perform the essential functions of a CSR.
Counsel referred to the following provisions in the
Ontario 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.
17(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.
Counsel submitted that the right under S. 5(1) is only to
“equal” treatment and not better treatment. He argued that
given the language in S. 17(1) once it is determined that an
employee is incapable of performing the essential duties of the
32
job he was hired for, the inquiry into accommodation ends. In
those circumstances, S. 17(1) makes it legal to discriminate.
Employer counsel’s argument was four fold. His first
proposition was that an employer can legally discriminate
against an employee such as the grievor, who cannot perform the
essential duties of the job he was hired for, even with
modifications. Bonner v. Minister of Health (Ont.), (1992) 92
CLLC 16.161 (Ont. HRC); Re Board of Education for the City of
Toronto, (1994) 39 L.A.C. (4th) 137 (Brent); Re Canada Post
Corp., (Godbout grievance) (1993), 32 L.A.C. (4th) 289
(Jolliffe); Re Hamilton Civic Hospitals, (1995), 44 L.A.C. (4th)
31 (Kennedy); Re Community Nursing Home Port Hope, (1996), 60
L.A.C. (4th) 35 (Gorsky); Re Nippising-Parry Sound Catholic
District School Board, (2001) O.L.A.A. No. 793 (Marcotte); Re
Stelco Inc., (1995)50 L.A.C. (4th) 301 (Marcotte); Re Stelco
Inc., (2001) 99 L.A.C. (4th) 230 (Carrier); Re Ontario English
Catholic Teachers’ Association, (1997), 61 L.A.C. (4th) 109
(Burkett); Re Cargill Foods, unreported May 7, 2002 (Hinnegan).
Secondly, he argued that any modified work performed by
the accommodated employee must be productive and of value to the
employer and the employer does not have to create or bundle
together a job. Re Canada Post Corp. (Godbout grievance)
(supra); Re Nippissing - Parry Sound Catholic District School
33
Board, (supra); Re Calgary Herald, (1995), 52 L.A.C. (4th) 393
(Tettensor); Re Better Beef Ltd., (1994), 42 L.A.C. (4th) 244
(Welling); Re Canada post Corp, (Yeo grievance), (1997) C.L.A.D.
No. 98 (Ponak); Re Cargill Foods, (supra); Re Community Nursing
Home, Port Hope, (supra); Re Bonner v. Ministry of Health(Ont)
(supra).
Thirdly, a disabled employee is not entitled to be treated
better than if he was not disabled. Re Better Beef Ltd.
(Supra).
Fourthly considering the way the LCBO is structured the
duty to accommodate does not oblige the employer to look beyond
the CSR job. Re Better Beef Ltd. (supra).
Having made those propositions in support of a very
limited scope for the duty to accommodate, counsel acknowledged
that there are authorities to the effect that the duty to
accommodate may require an employer to look beyond the disabled
employees pre-injury job. However, he argued that considering
the particular workplace, the LCBO’s obligation does not go so
far. He gave an illustration as follows. The disabled employee
is working in a warehouse which employs workers in different
positions. His pre-injury job was as a labourer lifting 80
pound boxes. If the employee’s injury prevents him from lifting
34
80 pounds, but he can drive a fork lift or perform in another
position in the warehouse, the employer will be required to
consider accommodating him in those positions. However, in LCBO
stores there are no other jobs except CSR. The Manager,
Assistant Manager, Product Consultant and Special Event
Coordinator positions are all higher rated jobs. There is only
one position in the stores, that of a CSR. Counsel submitted
that the LCBO is organized into geographic areas. The grievor
was employed in area A, and in area A the only operation is
stores. The head office and warehouses come under different
geographic areas.
Counsel argued that the LCBO is divided into distinct
silos. Therefore, at the most, the employer’s search for
accommodation extends to the store system within the grievor’s
own geographic area. Counsel submitted that the judgement of
the Supreme Court of Canada in Central Okanagan School District
No. 23 v. Renaud, (1992) 2 S.C.R. 970 has no application to the
facts here. While the court in that case recognized that the
duty to accommodate may require minor interference with the
collective agreement, the interference with article 21.4 in this
case would be substantial in that it will run counter to the
seniority rights of LCBO’s warehouse and office employees.
Renaud does not stand for a proposition that the duty may
substantially interfere with the collective agreement. Counsel
35
argued that nothing in the collective agreement gives a CSR
access to any position outside the store system.
In his submissions, counsel for the union submitted that
the employer had utterly failed to comply with the duty to
accommodate the grievor. He suggested that the failure had five
elements. First, it followed a rule that the grievor could not
be accommodated unless he was able to work at least 4 hours a
day. Second, it took the position that the grievor was not
entitled to be considered for accommodation as long as he could
not do any cashiering or stocking duties. Third, the employer
absolutely refused to consider bundling together a job
consisting of CSR duties which were within the grievor’s
restrictions. Fourth, the employer enforced a corporate policy
of not moving a disabled employee from the retail silo to the
warehouse or head office. Finally, the employer did not
consider accommodating the grievor in any position outside the
bargaining unit.
Counsel referred me to the following authorities: British
Columbia (Public Service Employee Relations Commission) v.
British Columbia Government and Service Employees’ Union
(B.C.G.S.E.U.) (Meiorin Grievance), [1999] 3 S.C.R.; Entrop v.
Imperial Oil Ltd. (2000) 50 O.R. (3d) 18; Ontario (Human Rights
Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536; Central
36
Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970;
Ontario Public Service Employees Union v. Ontario (Ministry of
Community and Social Services) [1996] O.J. No. 608; Ontario
Public Service Employees Union v. Ontario (Human Rights
Commission) (Kerna Grievance) [2003] O.G.S.B.A. No. 33; Re Mount
Sinai Hospital and Ontario Nurses’ Association (1996) 54 L.A.C.
(4th) 261; Canadian Union of Public Employees, Local 4400 v.
Toronto District School Board (September 12, 2003) (unreported
decision of Robert D. Howe); Re Essex Police Services Board and
Essex Police Association (2002), 105 L.A.C. (4th) 193; Re Calgary
District Hospital Group and United Nurses of Alberta, Local 121-
R, (1995), 41 L.A.C. (4th) 319; Re Greater Niagara General
Hospital and Ontario Nurses’ Association (1996) 50 L.A.C. (4th)
34; Re McMaster University and Service Employees International
Union, Local 532 (1993), 31 L.A.C. (4th) 257; Re York County
Hospital and Ontario Nurses’ Association (1992), 26 L.A.C. (4th)
384; Re Mohawk Council of Akwesasne and Ahkwesahsne Police
Association (2004), 122 L.A.C. (4th) 161; Re Hamilton Police
Services Board and Hamilton Police Association (2004), 124
L.A.C. (4th) 116. In addition counsel drew my attention to a
very recent decision of this Board in Re Sanfilippo 2003-1194
etc. (Watters). He pointed out that that case was between these
same parties, the facts and issues raised were identical and the
Board dealt with the same arguments the employer made in this
case, and rejected every one of them. Counsel submitted that
37
unless I am of the view that Vice-Chair Watters was manifestly
wrong, there was really nothing for me to decide, and that I
should follow Re Sanfilippo.
In his reply, employer counsel submitted that the issue
was not what else the employer could have done, but what it was
legally obligated to do. He pointed out that many of the cases
relied on by the union make “speculative pronouncements” in the
sense of stating that an employer may be required to do this or
that. Counsel agreed that the duty to accommodate is an onerous
duty on the employer and that each case is fact specific. He
submitted that in each case there is a limit to the duty and
that limit must be determined on a case by case basis. Counsel
submitted that many of the cases relied upon by the union are
flawed in that they ignore that the effect of the particular
language used in SS. 5 and 17(1) of the Code is to limit a
disabled employee’s right to equal treatment and not better
treatment. In his view, as for the grievor, that right to equal
treatment is a right to a CSR job and nothing else.
During his submissions in reply, employer counsel conceded
that in applying a blanket requirement of at least 4 hours of
work a day as a condition for accommodation the employer was
“wrong”. However, he submitted that that “wrong” was moot in
the particular circumstances because in any event the grievor
38
was unable to perform the essential duties of cashiering or
stocking to any extent. He contended that despite applying an
improper 4 hours requirement, ultimately the employer’s decision
was correct.
Counsel urged me to disregard the decision in Re
Sanfilippo, because it overlooks many of the arguments the
employer has made in this case. Counsel pointed out that in his
analysis Vice-Chair Watters relies on three sources, the article
by Prof. Link; the Guidelines issued by the Human Rights
Commission; and an excerpt from Canadian Labour Arbitration by
Brown and Beatty. He pointed out that none of these sources are
binding authorities.
With regard to accommodation outside the grievor’s silo of
the stores system, employer counsel submitted “the issue is not
whether it is undue hardship to go outside the silo. The issue
is whether the employee has a right to a job outside his silo.
If the employee has no such right, the employer has no
obligation to look for accommodation outside the silo”. He
submitted that to hold otherwise, as Vice-Chair Watters did, is
to ignore that the S. 5 right is limited to equal treatment and
not better treatment. That is tantamount to amending the
collective agreement as well as the Human Rights Code. He
submitted that it was my duty to decide the case before me on
39
the particular evidence adduced. In his view, in the instant
case compelling evidence was presented that cash and stocking
are the essential duties of a CSR. As he put it “if the grievor
cannot do those essential duties even with any modification,
that ends the matter”. He urged me to reject the case law that
“talk about undue hardship” because that ignores the language in
S. 5 and S. 17(1) of the Code.
DECISION
I will not review the many cases referred to me by the
parties. The significant case law relied on by counsel has been
reviewed and analysed in detail by Vice-Chair Watters. I agree
with his analysis, and do not agree with employer counsel that
Mr. Watters had read those authorities too broadly. Similarly,
Mr. Watters has reviewed and relied upon scholarly publications
by Prof. Link and Brown and Beatty. While I agree that those
publications by themselves are not binding, they cannot be
dismissed as counsel suggests. The authors are not giving their
opinions of what the duty of accommodation ought to be. Rather,
they have interpreted the case law and extracted principles
which in their view represent the state of the law currently. I
completely agree, as did Vice-Chair Watters, that the duty to
accommodate has evolved and expanded to such an extent that
today the law requires an employer to look far beyond the
disabled employee’s own position as a means of accommodation.
40
Of course, employer counsel is correct that the duty has its
limits. That limit is the point at which the accommodation
results in undue hardship to the employer. The employer must
incrementally broaden the scope of its search until the point of
undue hardship is reached. When that point is reached will of
course depend on the facts and circumstances of the particular
case.
A comparison of the decision in Re Sanfilippo, with the
evidence before me (which for most part is not in dispute)
convinces me that the facts before me are remarkably similar to
those in Re Sanfilippo. Both grievors had been employed as
CSR’s. In both cases, the grievor came within the definition of
“disabled” under the Code. In both cases the medical evidence
was that the grievor was permanently incapacitated from
performing cashiering or stocking duties. In both cases, the
issue was how far the employer had to go, in order to comply
with the duty to accommodate in those circumstances.
The arguments made by counsel for the LCBO in the two
cases are almost an echo of each other. Counsel in Re
Sanfilippo, described cashiering and stocking as the essential
or core duties of the CSR position and noted that no amount of
accommodation would have enabled the grievor to perform those
duties. As noted at p. 48, the Board was “asked to conclude
41
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.”
At p. 48-49, it was submitted by counsel in that case,
as was done here, as follows:
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 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 case 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.
42
If the facts in Re Sanfilippo differed from the facts
before me, it is to the effect that the employer went further in
that case than here, in searching for an accommodation. Thus,
while taking the position that it had no obligation to bundle
CSR duties the grievor was able to perform, in that case the
employer actually tried out exactly such a bundling of duties,
although that trial and the conclusions based on it, were found
to be flawed. Here, no trial was done. Instead, the grievor
was asked at a meeting what CSR duties he felt he could do.
Although he indicated that he could perform many CSR functions
outside cashiering and stocking, without any further study, Mr.
Tymochko made an impressionistic conclusion that those duties
would not provide a full days work.
Also in Re Sanfilippo the evidence was that Mr. Wagner
did consider two positions outside the stores silo for the
grievor, i.e. two clerical type positions in the Logistics
Division, although the Board held that the inquiry was too
cursory. In the present case in contrast, the employer lived
strictly by its position that it had no obligation to look
outside the grievor’s silo of the retail system within his
geographical posting area, and did not look beyond that silo.
For example, there was evidence that within the retail system
itself there was a call centre operation where CSR’s were
employed performing substantial office type work. No
43
consideration was given to the possibility of accommodating the
grievor in that operation, because it was outside the grievor’s
posting area.
On the main issue in contention, I agree with Vice-Chair
Watters’ conclusion at p. 67, which he made following a detailed
review of the case law presented to him:
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.
At p. 71, Vice-Chair Watters went on:
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
44
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.
I too accept the employer’s submission, as Vice-Chair
Watters did, “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”. (P.73) However, the
evidence is not to the effect that the customer service and
other office/clerical duties that the grievor could perform were
unproductive make-work tasks. On the contrary, under cross-
examination Mr. Tymochko admitted that each of those tasks were
part of the regular CSR function which had to done. He agreed
that each of those tasks was of value to the employer and
contributed to the productivity of the store. Other than Mr.
Tymochko stating that those duties, when separated from
cashiering and stocking, was not meaningful or productive work,
no rational explanation was provided as to why individual duties
which are admittedly productive CSR functions, become
unproductive when bundled together.
45
The most recent pronouncement of the scope and nature of
the duty to accommodate by the Supreme Court of Canada is its
judgement in British Columbia v. British Columbia Government and
Service Employees’ Union, [1999] 3 S.C.R. 3, commonly referred
to as “the Meiorin Case”. When the employer asserts that a
disabled employee, to be entitled to accommodation, must be able
to perform the essential duties of the job he was hired for,
that in effect is an assertion that such ability to perform the
essential duties of his position is a bona fide occupational
requirement for continued employment. The employer is in effect
stating that the discrimination in those circumstances is legal
because the ability to perform the essential duties of his job
is a bona fide occupational requirement. In Meiorin, the Court
stated as follows at p. 32-33:
54 Having considered the various
alternatives, I propose the following
three-step test for determining whether a
prima facie discriminatory standard is a
BFOR. An employer may justify the
impugned standard by establishing on the
balance of probabilities:
(1) that the employer adopted the
standard for a purpose
rationally connected to the
performance of the job;
(2) that the employer adopted the
particular standard in an honest
46
and good faith belief that it
was necessary to the fulfilment
of that legitimate work-related
purpose; and
(3) that the standard is reasonably
necessary to the accomplishment
of that legitimate work-related3
purpose. To show that the
standard is reasonably
necessary, it must be
demonstrated that it is
impossible to accommodate
individual employees sharing the
characteristics of the claimant
without imposing undue hardship
upon the employer.
55 This approach is premised on the need to
develop standards that accommodate the
potential contributions of all employees
in so far as this can be done without
undue hardship to the employer.
Standards may adversely affect members of
a particular group, to be sure. But as
Wilson J. Noted in Central Alberta Dairy
Pool, supra, at p. 518, “[i]f a
reasonable alternative exists to
burdening members of a group with a given
rule, that rule will not be [a BFOR]”.
It follows that a rule or standard must
accommodate individual differences to the
point of undue hardship if it is to be
found reasonably necessary. Unless no
further accommodation is possible without
imposing undue hardship, the standard is
not a BFOR in its existing form and the
47
prima facie case of discrimination
stands.
Step two of the above test is about the employer’s
subjective belief. The LCBO management’s honest and good faith
belief is not in issue. However, the reference in Step one to
“purpose rationally connected” and in Step three to “reasonably
necessary” imposes objective tests which must be met.
Counsel for the employer submitted that the reference to
“impossible to accommodate” in step three of the test should be
read not literally, but in the context of the particular case.
I agree. An employer is not required to accommodate even though
it is “possible” if doing so would result in undue hardship to
it. The measurement of what is possible or impossible in each
case would be the point of undue hardship. In one case the
point of “impossibility” or undue hardship may be reached
earlier than in other cases.
The court also clearly indicated that accommodation must
be considered with individual capabilities in mind. At p. 37 it
wrote:
64 Courts and tribunals should be sensitive
to the various ways in which individual
capabilities may be accommodated. Apart
from individual testing to determine
whether the person has the aptitude or
48
qualification that is necessary to
perform the work, the possibility that
there may be different ways to perform
the job while still accomplishing the
employer’s legitimate work-related
purpose should be considered in
appropriate cases. The skills,
capabilities and potential contributions
of the individual claimant and others
like him or her must be respected as much
a possible. Employers, courts and
tribunals should be innovative yet
practical when considering how this may
best be done in particular circumstances.
65 Some of the important questions that may
be asked in the course of the analysis
include:
(a) Has the employer investigated
alternative approaches that do
not have a discriminatory
effect, such as individual
testing against a more
individually sensitive standard?
(b) If alternative standards were
investigated and found to be
capable of fulfilling the
employer’s purpose, why were
they not implemented?
(c) Is it necessary to have all
employees meet the single
standard for the employer to
accomplish its legitimate
49
purpose or could standards
reflective of group or
individual differences and
capabilities be established?
(d) Is there a way to do the job
that is less discriminatory
while still accomplishing the
employer’s legitimate purpose?
(e) Is the standard properly
designed to ensure that the
desired qualification is met
without placing an undue burden
on those to whom the standard
applies?
(f) Have other parties who are
obliged to assist in the search
for possible accommodation
fulfilled their roles? As
Sopinka J. noted in Renaud,
supra, at pp. 992-96, the task
of determining how to
accommodate individual
differences may also place
burdens on the employee and, if
there is a collective agreement,
a union.
In my view, in answering each of these questions, the
limit of the employer’s obligation to accommodate is the point
of undue hardship. In other words, each question must be
qualified by the limitation “short of undue hardship”.
50
I agree that the starting point for an employer is to
attempt to accommodate the disabled employee by enabling him,
with modifications as necessary, to perform his own job. If he
cannot do that, the employer is obligated to consider whether
the employee can be allowed to perform parts of his job, with or
without modification, avoiding those tasks which are beyond his
restrictions. If this option is not available, the employer is
required to consider other positions, first within the grievor’s
own division or silo, and if that is not possible, in other
areas within the bargaining unit gradually expanding the area of
search. It will be only as a last resort that the employer will
be called upon to look for accommodation outside the bargaining
unit. This is in accord with what I have called the employer’s
duty to incrementally broaden the scope of its search for
accommodation.
It is critical to note that in every case employers may
not be required to go through the whole process set out above.
Depending on a number factors, a particular employer at a
particular workplace may reach the point of undue hardship at
some point in the search process. In some extreme
circumstances, accommodating outside the employee’s own job may
result in undue hardship. In other cases, that point may be
reached if the employer was to accommodate outside the disabled
51
employee’s silo. In cases at the other extreme, the point of
undue hardship may not be reached even if the employee was to be
accommodated in a position outside the bargaining unit. An
important factor which will influence the extent of the search
required will be the size of the employer’s operation and the
extent of flexibility it affords.
In the present case it was clear that the employer did
not even turn its mind to whether or not undue hardship would
result if it were to accommodate the grievor in any position
which did not include cashiering and stocking. This is not
surprising because the employer’s position , which was
maintained even at arbitration, was that it had no duty to
accommodate the grievor as long as he was unable to perform
cashiering and stocking even with modifications. As counsel put
it “that ends the matter” and undue hardship had nothing to do
with it. I find that to be wrong in law. The duty to
accommodate persists as long as the employer is able to achieve
it short of undue hardship. Contrary to the employer’s belief,
undue hardship has everything to do with it. The Supreme Court
of Canada makes that clear in Meiorin.
The employer’s erroneous understanding of the nature of
its duty was reflected in the evidence. It took the position
that as long as the grievor was unable to do at least 4 hours of
52
work a day, he could not be accommodated. Similarly, no
accommodation was considered if it would involve moving the
grievor outside his own silo of posting area A in the retail
division. During cross-examination Mr. Tymochko agreed that
what he was really saying in both situations, is that the
grievor did not fit within the existing practice. That is,
normally there were no shifts of less than 4 hours, and usually
employees did not transfer across different silos. Since the
grievor did not fit within the existing practices, according to
the employer, he was not entitled to accommodation. This, in my
view is not the law. If the grievor does not fit existing or
usual practices and arrangements, the inquiry cannot end there.
The employer must proceed to consider whether it is possible,
without suffering undue hardship, to amend the practice, or if
necessary to excuse the grievor from the practice. Merely
stating that existing or usual practices do not allow an
accommodation falls far short of the employer’s obligation.
The employer also argued that article 21.4 was an
impediment to accommodating the grievor outside his geographical
posting area. On the question of whether the duty to
accommodate requires interference with collective agreement
rights, the oft-cited authority is Central Okanagan School
District No. 23 v. Renaud [1992] 2 S.C.R. 970 (S.C.C.).
Sopinka J. writing for the court rejected the de minimis test
53
applied in the U.S., stating that such a test “virtually removes
the duty to accommodate and seems particularly inappropriate in
the Canadian context.” Then Sopinka J. Wrote:
More than mere negligible effort is required
to satisfy the duty to accommodate. The use of
the term “undue” infers that some hardship is
acceptable; it is only “undue” hardship that
satisfies this test. The extent to which the
discriminator must go to accommodate is limited
by the words “reasonable’ and “short of undue
hardship”. These are not independent criteria
but are alternate ways of expressing the same
concept. What constitutes reasonable measures
is a question of fact and will vary with the
circumstances of the case.
In the very next paragraph he went on:
The concern for the impact on other employees
which prompted the court in Hardison to adopt
the de minimis test is a factor to be considered
in determining whether the interference with the
operation of the employer’s business would be
undue. However, more than minor inconvenience
must be shown before the complainant’s right to
accommodation can be defeated. The employer
must establish that actual interference with the
rights of other employees, which is not trivial
but substantial, will result from the adoption
of the accommodating measures. Minor
interference or inconvenience is the price to be
paid for religious freedom in a multicultural
society.
54
Citing the foregoing, employer counsel submitted that
interference with article 21.4 would be substantial, not
trivial, interference with other employees’ rights and that the
employer did not have to go that far. In my view the only way
to give meaning to the terms “trivial” as compared to
“substantial” in the legal context is by having resort, once
again, to the concept of undue hardship. In other words, when
the interference reaches the point of undue hardship, it ceases
to be trivial, and becomes substantial. The employer, the union
and other employees are expected to “pay the price” of
interference with their collective agreement rights up to the
point of undue hardship.
In the present case, it is unnecessary to determine the
point at which the line of undue hardship would be crossed,
because the employer did not at any time turn its mind to
whether accommodating the grievor outside his geographic posting
area would result in undue hardship, and if so, whether steps
could be taken to alleviate or reduce that hardship. The
uncontradicted evidence is that the employer did not at any time
approach the employees’ bargaining agent, to inquire whether it
was prepared to either waive any impediment in the collective
agreement or to come to a lesser disruptive arrangement which
will enable the grievor’s accommodation.
55
My understanding of the law as pronounced by the highest
court is that undue hardship is the determinative factor. When
deciding whether the duty to accommodate requires interference
with collective agreement rights where accommodation is
otherwise not possible short of undue hardship, the employer is
certainly entitled to start its search for accommodation with
the option which is least disruptive of collective agreement
rights. If that does not facilitate accommodation of the
disabled employee, the employer must broaden its search to
options that are incrementally more disruptive of collective
agreement rights. That process of broadening the scope of the
search may only end when the interference with collective
agreement rights become that substantial that it would amount to
undue hardship. It must be noted that in this process, the
union also has a duty to facilitate and cooperate with the
employer. It cannot block the employer’s efforts by raising
technical or minor interference with collective agreement
rights. As the Supreme Court of Canada held in Renaud, enduring
such interference is a price other employees are expected to
pay. In other words, the union and other employees are also
expected to sacrifice their rights up to a point of undue
hardship. When this point is reached depends on all of the
circumstances of a case, including the importance of the
collective agreement rights affected.
56
In this regard, the employer witnesses, as well as
counsel during submissions, stated that the union nor the
grievor had sought accommodation other than in the CSR position.
However, it is to be noted that once the grievor sought to
return to work with restrictions, the primary responsibility
rested with the employer to engage in a search for accommodation
to the extent that the law requires. In the present case the
employer chose not to involve the union in that process. When
an employer choses not to consult with the union it does so at
its peril. While there appeared to be some conflict in the
evidence, the employer conceded at least that, the union made a
general suggestion (the union witness testified that the
suggestion was specific to the grievor’s accommodation) that the
employer’s search should extend beyond the CSR job. Even if it
was made, and understood, as a general suggestion, there was no
explanation why that general suggestion would not also include
this grievor’s case.
Although I received detailed testimony and diverse
argument from the employer, at the end of the process, I am
driven to the conclusion that the employer did not engage in any
form of incremental broadening of its search for accommodation
as it was required to do by law. On the contrary it stopped at
the very first step, as soon as it was determined that the
57
grievor could not perform any cashiering or stocking duties.
The employer was under a misapprehension that that was the
extent of its legal obligation, and acted upon it.
For all of the foregoing reasons I declare that the
employer contravened the collective agreement, as well as the
Human Rights Code, by not accommodating the grievor following
his request to return to work effective October 20, 2003. I
order that the employer reinstate the grievor forthwith on an
accommodated basis in accordance with its obligation as
described in this decision. As agreed to between the parties, I
leave it to the parties to initially attempt to agree upon any
additional remedies for the grievor, resulting from the
employer’s violation. I remain seized in the event the parties
are unable to reach such agreement in the implementation of this
decision.
Dated this 7thday of April 2005 at Toronto, Ontario
Nimal V. Dissanayake
Vice-Chairperson