An arbitrator has upheld the dismissal of an Ontario employee who denied that he needed accommodation and refused to participate in an accommodation process.
Felice Ciccone was a screening officer at the Thunder Bay, Ont., airport for 10 years. His duties included screening passengers and their baggage before they boarded aircraft.
During his tenure, he was employed by three different private security companies who held the contract for security screening at the airport at various times. In 2011, the contract was assumed by Garda Security Screening, which became Ciccone’s employer.
The contract was with the Canadian Airport Transport Security Authority (CATSA), which oversaw security screening in airports across Canada.
Screening officers were required to be certified by a medical doctor to be in good physical health with a certain minimum vision level, able to perceive “normal” colours and have normal hearing. Garda was required to ensure all staff were trained and certified according to the CATSA training and certification program.
Duty to accommodate in collective agreement
Garda’s collective agreement with the union for the screening officers provided for a duty to accommodate, to the point of undue hardship, any officers who were at a disadvantage due to various grounds, including disability.
Garda was responsible for accommodation in certain areas such as scheduling, hiring and employment-related policies, while CATSA was responsible for accommodation relating to training, certification, uniforms and operations.
In April 2013, Garda’s general manager of operations became aware that Ciccone had colour blindness. He believed this was contrary to the requirement for screening officers to be able to perceive normal colours, so he reported this to the site security manager at the Thunder Bay airport and asked for a review of Ciccone’s last medical report.
Ciccone’s most recent report showed he had a colour vision deficiency, so Ciccone was told he needed a new medical report and to have his doctor fill out a blank medical form.
Until that was done, Ciccone was prohibited from working on the X-ray machine, which used colours.
Soon after, Ciccone provided a new medical report that showed he didn’t have normal colour vision — his ability to discern certain shades of red and green were deficient.
The regional HR manager sent a request for accommodation form for Ciccone to complete by May 15.
Ciccone asked why the form was needed and was told CATSA required his signature to proceed with the accommodation process, which would involve a permanent ban on working the X-ray units.
Ciccone asked for and was granted an extension to May 17 so he could consider the accommodation form, though his union representative advised him to sign the form and fight it later.
Employee denied condition affected ability to do job
On May 17, Ciccone emailed the general manager and told him CATSA had been aware of his colour vision deficiency since 2002 and he had passed all official tests provided by CATSA and the various security contractors for which he had worked. He noted he had also trained new recruits on the X-ray position and passed all X-ray requirements.
He argued his medical report didn’t expire for another year, he had always been able to perform his job and one of the X-ray units displayed the primary image in black and white.
Ciccone said the accommodation that was proposed — which exempted him from working the X-ray units — wasn’t necessary and he was being discriminated against based on his disability of being colourblind.
Ciccone felt his colour vision problem was being used against him because of his refusal to enter a scanning machine to test his vision during recertification for using it.
He had filed a health and safety concern with Health Canada based on potential radiation hazards he had heard about.
Ciccone received no response from the general manager and on May 21, the site security manager told him his shifts were to be given away.
He emailed her the next day to ask about the status of his employment and who would be a respondent in a human rights violation — CATSA or Garda. Ciccone was once again told to participate in the accommodation process and that he needed to sign the accommodation form.
Ciccone responded by stating Garda had wrongfully removed him from his job duties. He insisted his colour vision deficiency didn’t affect his performance on the X-ray function or any other job duty and disagreed with the statement on the form that “this screening officer cannot perform these positions.”
He considered himself to be spontaneously suspended and refused to sign the accommodation form, which he felt would be an admission to CATSA that he needed to be removed permanently from X-ray functions, which were “the best parts of my job.”
After receiving this email, Garda prepared a termination letter that indicated Ciccone was being terminated from his employment because he was unable to maintain his certification as a screening officer due to his refusal to participate in the accommodation process.
Though Ciccone had been previously certified — despite a previous medical report showing his vision problem — Garda believed this was negligence on the part of the former screening point manager, who had approved Ciccone’s certification dates despite being told of the colour vision problem on the medical report.
The arbitrator found it was clear Ciccone felt Garda’s accommodation demands were related to his refusal to test the scanning machine and his health and safety complaint. It was unlikely CATSA was aware of his colourblindness previously as the government agency would probably act immediately upon learning a certified screening officer was colourblind, said the arbitrator.
Employer acted once it found out about disability
The arbitrator noted that Ciccone’s ability to perform his job was not under question but rather what could happen if Ciccone was allowed to continue working the X-ray machines once Garda became aware of his vision deficiency.
It was contrary to certification criteria for someone who could not see normal colours to operate the X-ray machines, and once Garda became aware of Ciccone’s limitation, it acted quickly, said the arbitrator.
Ciccone’s employment wasn’t threatened because of his disability, nor was he discriminated against. Instead, he was simply removed from working at the X-ray function of the screening officer job, according to CATSA policy, said the arbitrator.
“What needs to be made perfectly clear at this juncture is that (Ciccone) was not discharged because he was colourblind. Rather, the evidence revealed that every attempt was made to involve him in an accommodation process.”
The removal of Ciccone from X-ray functions created a distinction between him and other employees based on his personal characteristic of colourblindness, said the arbitrator.
However, this distinction didn’t impose a burden or disadvantage as he was “denied nothing that would be applicable to other screening officers other than that he would no longer be required to work the X-ray machine.” He was still able to perform numerous other duties.
As a result, Garda’s removal of Ciccone from X-ray functions was not discriminatory, said the arbitrator.
In addition, the reason for removing Ciccone from X-ray functions was related to public safety and related to a bona fide job requirement — the ability to see normal colours — which Ciccone didn’t have, said the arbitrator.
Ciccone’s termination of employment was also not discriminatory because it wasn’t because of his colour vision deficit, but rather his refusal to co-operate in the accommodation process that left Garda with no choice, said the arbitrator.
The dismissal was upheld but Garda was ordered to pay Ciccone for the one month he had remaining on his certification at the time he was not permitted to work any longer when he could have worked all duties except for X-rays.
For more information see:
• Garda Security Screening Inc. and UFCW, Local 175 (Ciccone), Re, 2015 CarswellOnt 9906 (Ont. Arb.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.
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