Union's duty
By only partially recognizing a disabled union members’ seniority, a union breached its duty to accommodate. In Bubb-Clarke v. Toronto Transit Commission (2002) O.H.R.B.I.D. No. 6 (Ont. Bd. Inq.), the complainant claimed his union, the Amalgamated Transit Union, violated his human rights when it refused to allow him to transfer all of his seniority when he took a new position as part of the employer’s accommodation efforts. A board of inquiry found that because the union was able to recognize half of his total seniority in the new department, it could not argue that recognizing all of his seniority would constitute an undue hardship. Though, in theory, the rights of other employees might be affected, there was no evidence any employee would be seriously prejudiced if the complainant transfered all of his seniority.
Accommodation for depression
In Ontario (Human Rights Commission) v. Falconbridge Ltd. (2001), 8 C.C.E.L. (3d) 120 (Ont. Bd. Inq.), an employee suffering from depression complained her employer had not made sufficient accommodation efforts. The company had hired other former employees on contract, and the board found the employer did not establish that it could not have accommodated the complainant in one of those positions without incurring undue hardship. The employer could not point to any concrete evidence of the actual costs it would have incurred. Nor did the employer consider whether accommodation was possible.
What's considered being reasonable
In two recent arbitration cases, arbitrators found employers are not required to provide the perfect accommodation, only to make all reasonable efforts. In Re CANPAR and United Steelworkers of America, Local 1976 (2000), 93 L.A.C. (4th) 208 (M.G. Picher), the employer made it easier for an employee who had converted to the Seventh Day Adventist faith to be replaced on Friday afternoons when he had to leave work early to observe the Sabbath.
The employee was unhappy with this, but the employer’s choice of accommodation options was ruled reasonable given that it alleviated possibly discriminatory effects without negatively affecting the employee’s earnings or seriously disrupting operations.
Similarly, in Re NAV Canada and International Brotherhood of Electrical Workers (2001), 101 L.A.C. (4th) 158 (Chertkow), the arbitrator found the decision to deny the transfer of an employee who was afraid of flying to a position requiring frequent helicopter trips was not in breach of human rights. The employee’s fear of flying had already been accommodated in his current position.
Modified duties
Though an employer need not destroy the essential character of an existing job, it must offer a bundle of tasks that are within the employee’s capabilities. In Essex Police Services Board and Essex Police Association (2002) 105 L.A.C. (4th) 193 (Goodfellow) it was ruled the employer must consider the possibility of “cobbling together” such a position only if there is sufficient work to justify this measure. Where the police had work to keep the employee productive, it should have bundled those tasks.
In Sidhu v. Broadway Gallery (c.o.b. Takamatsu Bonsai Design), [2002] B.C.H.R.T.D. No. 9 (B.C. H.R.T.), a tribunal was not satisfied the employer, which grew and sold Bonsai trees, had made all reasonable efforts to accommodate a pregnant employee. Though the complainant could only do the heavy work in the nursery two days a week, there was sufficient lighter work to provide three days’ work. The employer failed to pay attention to requests for accommodation, and in particular did not consider methods of reorganizing work.
Failure to consider alternatives
The duty to accommodate extends beyond providing short-term modified duties, and includes the obligation to consider permanently modifying a position. In Community Lifecare Inc. and Ontario Nurses’ Association (2001), 101 L.A.C.(4th) 87 (Howe), the board of arbitration concluded an employer’s determination that an employee could not perform the duties of her former job was a violation of her human rights. While the employer’s return-to-work program was laudable, it should have gone further and considered permanently modifying a position or rebundling light duties from a number of positions into a job the employee could perform.
Danger claim must be proven
If an employer claims modifying duties to accommodate an employee is dangerous to other staff, it will have to provide clear evidence to support that contention. In O.P.S.E.U. v. Hotel Dieu Hospital [2001] L.V.I. 3240-6 (Chapman), the arbitrator found the employer’s assertions regarding risking the health of other nurses and patients were not substantiated. The hospital’s insistence that any nurse be capable of performing all tasks associated with the job was not in compliance with the duty to accommodate. The employee could have been assigned less demanding patients and given some minor assistance by other nurses.
Licence to accommodate
The fact that an employer may be subject to government regulation requiring certain qualifications does not absolve it of its duty to accommodate an employee or a candidate for full-time employment. In Jeppesen v. Ancaster (Town) Fire & Emergency Services (2001) 39 C.H.R.R. D/177 (Ont. Bd. Inq.), the complainant was a part-time firefighter who suffered a visual problem that prevented him from getting the necessary licence to drive an ambulance. The town was found to have failed to accommodate in not considering whether the employee could be accommodated by alleviating the need for him to drive the ambulance. When circumstances changed and more firefighters were hired, the town still did not consider the complainant’s requests for accommodation.
By only partially recognizing a disabled union members’ seniority, a union breached its duty to accommodate. In Bubb-Clarke v. Toronto Transit Commission (2002) O.H.R.B.I.D. No. 6 (Ont. Bd. Inq.), the complainant claimed his union, the Amalgamated Transit Union, violated his human rights when it refused to allow him to transfer all of his seniority when he took a new position as part of the employer’s accommodation efforts. A board of inquiry found that because the union was able to recognize half of his total seniority in the new department, it could not argue that recognizing all of his seniority would constitute an undue hardship. Though, in theory, the rights of other employees might be affected, there was no evidence any employee would be seriously prejudiced if the complainant transfered all of his seniority.
Accommodation for depression
In Ontario (Human Rights Commission) v. Falconbridge Ltd. (2001), 8 C.C.E.L. (3d) 120 (Ont. Bd. Inq.), an employee suffering from depression complained her employer had not made sufficient accommodation efforts. The company had hired other former employees on contract, and the board found the employer did not establish that it could not have accommodated the complainant in one of those positions without incurring undue hardship. The employer could not point to any concrete evidence of the actual costs it would have incurred. Nor did the employer consider whether accommodation was possible.
What's considered being reasonable
In two recent arbitration cases, arbitrators found employers are not required to provide the perfect accommodation, only to make all reasonable efforts. In Re CANPAR and United Steelworkers of America, Local 1976 (2000), 93 L.A.C. (4th) 208 (M.G. Picher), the employer made it easier for an employee who had converted to the Seventh Day Adventist faith to be replaced on Friday afternoons when he had to leave work early to observe the Sabbath.
The employee was unhappy with this, but the employer’s choice of accommodation options was ruled reasonable given that it alleviated possibly discriminatory effects without negatively affecting the employee’s earnings or seriously disrupting operations.
Similarly, in Re NAV Canada and International Brotherhood of Electrical Workers (2001), 101 L.A.C. (4th) 158 (Chertkow), the arbitrator found the decision to deny the transfer of an employee who was afraid of flying to a position requiring frequent helicopter trips was not in breach of human rights. The employee’s fear of flying had already been accommodated in his current position.
Modified duties
Though an employer need not destroy the essential character of an existing job, it must offer a bundle of tasks that are within the employee’s capabilities. In Essex Police Services Board and Essex Police Association (2002) 105 L.A.C. (4th) 193 (Goodfellow) it was ruled the employer must consider the possibility of “cobbling together” such a position only if there is sufficient work to justify this measure. Where the police had work to keep the employee productive, it should have bundled those tasks.
In Sidhu v. Broadway Gallery (c.o.b. Takamatsu Bonsai Design), [2002] B.C.H.R.T.D. No. 9 (B.C. H.R.T.), a tribunal was not satisfied the employer, which grew and sold Bonsai trees, had made all reasonable efforts to accommodate a pregnant employee. Though the complainant could only do the heavy work in the nursery two days a week, there was sufficient lighter work to provide three days’ work. The employer failed to pay attention to requests for accommodation, and in particular did not consider methods of reorganizing work.
Failure to consider alternatives
The duty to accommodate extends beyond providing short-term modified duties, and includes the obligation to consider permanently modifying a position. In Community Lifecare Inc. and Ontario Nurses’ Association (2001), 101 L.A.C.(4th) 87 (Howe), the board of arbitration concluded an employer’s determination that an employee could not perform the duties of her former job was a violation of her human rights. While the employer’s return-to-work program was laudable, it should have gone further and considered permanently modifying a position or rebundling light duties from a number of positions into a job the employee could perform.
Danger claim must be proven
If an employer claims modifying duties to accommodate an employee is dangerous to other staff, it will have to provide clear evidence to support that contention. In O.P.S.E.U. v. Hotel Dieu Hospital [2001] L.V.I. 3240-6 (Chapman), the arbitrator found the employer’s assertions regarding risking the health of other nurses and patients were not substantiated. The hospital’s insistence that any nurse be capable of performing all tasks associated with the job was not in compliance with the duty to accommodate. The employee could have been assigned less demanding patients and given some minor assistance by other nurses.
Licence to accommodate
The fact that an employer may be subject to government regulation requiring certain qualifications does not absolve it of its duty to accommodate an employee or a candidate for full-time employment. In Jeppesen v. Ancaster (Town) Fire & Emergency Services (2001) 39 C.H.R.R. D/177 (Ont. Bd. Inq.), the complainant was a part-time firefighter who suffered a visual problem that prevented him from getting the necessary licence to drive an ambulance. The town was found to have failed to accommodate in not considering whether the employee could be accommodated by alleviating the need for him to drive the ambulance. When circumstances changed and more firefighters were hired, the town still did not consider the complainant’s requests for accommodation.
