It’s all in the wording (Arbitration column)

An LCA should include employer’s duty to accommodate.
By Lorna Harris
|Canadian HR Reporter|Last Updated: 07/02/2003

In dealing with a problem employee whose behaviour becomes more and more intractable, an employer often draws the line and warns the worker termination is being considered. But when is that line drawn and how is this message made clear to the employee?

One method is a Last Chance Agreement (LCA) whereby the employee acknowledges his job is on the line unless his behaviour improves. In most cases an LCA is relatively straightforward. (See the May 21 issue of

CHRR

for an introduction to LACs.) But, there are circumstances in which an employer must be careful not to run afoul of human rights legislation.

An employer must sometimes draft an agreement where the unacceptable behaviour of a long-standing employee is due to an underlying disability like mental illness or drug abuse.

This situation requires the employer’s acknowledgement and accommodation of the disability up to the point of undue hardship for the organization. As one recent arbitration case points out, an LCA in these cases must be well-written and well-thought-out.

An Ontario arbitration decision provides an excellent example of what provisions such an agreement might contain. The case deals with an employee with a history of substance abuse, which ultimately affected his work, so the arbitrator found. In this case, an airport authority terminated an apron operations officer, who then launched a grievance against his dismissal, as well as an earlier five-day suspension.

The grievor’s duties included safely directing pilots on the ground in berthing and de-berthing airplanes. At the time of his dismissal, he had contravened the terms of a discipline letter. The letter was written 18 months earlier when the employee was suspended following several instances of insubordination and, as the arbitrator observed, “downright rudeness.”

In its letter, the employer attested to previous attempts to deal with the employee “in a fair and patient manner, but to no avail.” The letter stated: “Be advised, therefore, that any further incident of this nature, or any type of misconduct on your part will be viewed as the culminating incident and your employment shall be terminated forthwith.”

The arbitrator pointed out several flaws in the letter. For one thing, by alluding to past attempts at fair treatment, the employer tacitly acknowledged an underlying problem affecting the employee’s behaviour. In addition, in saying any type of misconduct would result in termination, the employer not only abdicated its accommodation responsibilities, observed the arbitrator, but also hobbled its own freedom of action to deal with the next incident in respect to assigning appropriate consequences to misbehaviour.

That next — and culminating — incident occurred several months later when the employee decided to move the planned arrival gate of a flight and, as the arbitrator stated, caused “confusion somewhat short of pandemonium” and inconvenience for between 300 and 400 passengers. However, there was no evidence that the action of the employee was motivated by any desire to cause trouble for anyone in any way. In fact, the evidence presented by both the employer and the employee indicated that the employee had made an error of judgment, to which he had confessed and proposed a reasonable solution.

However, in his subsequent explanations with his acting supervisor and later with his immediate supervisor, the employee was inconsiderate and needlessly argumentative. This behaviour was similar to his past interpersonal relationships with other staff, which the arbitrator described as “not cordial.”

The principal cause for the employee’s difficulties was to be found in his substance abuse. In fact, he had been involved in various abuse recovery programs, including an employee assistance program. In his decision, the arbitrator noted the responsibility shared by both parties: “Management knew or ought to have known there was an accommodation issue woven in here and did not do enough about it, and the employee did not do enough help himself.”

What is the duty to accommodate and what are the limits of accommodation in an employment situation? How can these concerns be written effectively into an LCA?

According to the Ontario Human Rights Commission, the duty to accommodate means that employers are enjoined to make changes in the terms and conditions of the workplace or the functions of a job so that someone who has a disability (a condition which prevents him or her from being able to carry out life’s important functions) can work. Some examples of accommodation would be the physical adaptation of the workplace, elimination of nonessential duties from the position, obtaining the assistance of other employees and/or altering work schedules.

Undue hardship occurs when an employer has done enough to accommodate an employee with a disability. A serious drop in morale, for example, especially where seniority rights are concerned, would be considered undue hardship, as would compromising safety on the job.

An LCA written as part of an attempt to accommodate a disability must take into account the attempts the employer has made or could make in modifying the work expected from an employee with a disability. However, an employer is not expected to keep on the payroll someone who manifestly cannot do the duties of a job.

In this case, the arbitrator concurred with the employer’s description of the work of an apron operations officer as “safety sensitive in nature requiring the exercise of calm, rational and unimpaired judgment in a teamwork environment.” But, he ruled the employer had not properly accommodated the employee in respect to his substance abuse. As a result, the arbitrator laid down a clear point-by-point regimen — to all intents and purposes an LCA — which the employer was to provide and the employee was to acknowledge and abide by, in place of the summary dismissal.

The employer was to provide to the employee’s health professionals a current job description detailing duties and responsibilities, skills and efforts required for satisfactory performance and the pressures and working conditions of the job. If necessary, the employer was to supply an analysis from a kinesiology perspective. Furthermore, at its option, the employer could include a report on the grievor’s aberrant behaviours. In return, the employer could expect periodic progress reports.

For his part, the employee was to attend the employer’s chosen rehab clinic, sign consents as required, be referred to his own health professionals for diagnoses, follow prescribed treatments and supply reasonable evidence of his compliance.

The arbitrator ordered the grievor reinstated retroactively. Provided he complied with the conditions in the agreement, he would be on inactive service with compensation as provided by the appropriate terms of the collective agreement until he was deemed fit to resume work. The arbitrator emphasized his expectation that the employee would give his whole-hearted co-operation to the plan for the recovery of both his health and his employment.

For more information: Greater Toronto Airports Authority and The Public Service Alliance of Canada, Canada Arbitration Board, David Murray – Sole Arbitrator, March 21, 2001.

Lorna Harris is the assistant editor of CHRR’s companion publication CLV Reports, a newsletter that reports on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or lorna.harris@carswell.com.

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