No discrimination if accommodation options frustrated: Arbitrator (Legal View)

B.C. worker unable to continue working despite 2 separate return-to-work plans
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 04/18/2016

A British Columbia employer had the right to dismiss an employee who was no longer able to work because of a disability, an arbitrator has ruled.

Sun-Rype Products is a manufacturer of juice and other products based on fruits and vegetables based in Kelowna, B.C. Since 2002, Sun-Rype’s collective agreement with its union included an article covering employee absences that stipulated any employee absent from work for 12 continuous months would be moved to the bottom of the seniority list and categorized as inactive. 

If the employee was able to return to work, she would be returned to her old spot on the seniority list and keep her position.

The collective agreement also allowed employees receiving long-term disability benefits to continue to be eligible for health benefits and not be terminated. There was no definition of disability in the agreement, relying on the insurance provider’s group insurance policy. Employees became eligible for employer-paid coverage in its medical services plan after 62 shifts and remained eligible until employment ended. 

Forty-year-old Sun-Rype employee Carlo Pucci was injured in a motor vehicle accident in June  2013, when his vehicle was broadsided. He was unable to work and received short- and then long-term disability benefits.

The insurance provider set up a graduated return-to-work program in January 2014 after Pucci passed a physical assessment showing he could meet job demands for squatting, pushing, pulling, lifting and carrying. However, Pucci’s doctor did not approve of the program and said Pucci couldn’t return to work as there was no light duty available. 

Another return date was planned for March when Pucci indicated he wanted to return, but as the date approached, Pucci was still in pain and with no light duties available, couldn’t work.

On March 6, 2014, the insurance provider deemed Pucci was no longer disabled and should be working full-time. Pucci attempted to return to work twice under a graduated return-to-work program, but was unsuccessful. He appealed the ending of his benefits, but the insurance provider found that although he might still be experiencing symptoms, “the information on file does not support a condition of a severity to preclude you from performing the essential duties of your occupation.”

Another graduated return-to-work plan was developed in August 2014 that allowed Pucci to rotate his position and take breaks more frequently, step in and out of the production line and do less demanding tasks for as long as he chose. Pucci didn’t see the plan, but his doctor approved it.

Pucci returned under the graduated work plan and worked for four hours on Sept. 2 but he was afraid of re-injury and reluctant to do some tasks. He worked four hours on each of the next two days but reported back and shoulder pain.

His chiropractor provided a note saying he was unable to perform the activities he was previously doing at work and it may be between six and 18 months before he could work again, depending on treatment. Pucci’s doctor concurred.

Pucci continued with his graduated program but was unable to continue after Sept. 19 due to back and shoulder pain. He appealed again for reinstatement of his long-term disability benefits, but the insurance provider denied the appeal.

In December 2014, Pucci’s doctor wrote to Sun-Rype stating he was unable to do the type of work required at his previous occupation and would require retraining for alternate employment.

By March 2015, Sun-Rype concluded it was unlikely Pucci would be able to return to work in the foreseeable future. On March 10, the company terminated Pucci’s employment for non-culpable absenteeism.

Pucci grieved the dismissal, indicating his family doctor said he wasn’t able to return to work due to the fast-paced work environment that involved twisting, turning, bending and lifting above the shoulder — Pucci worked on the production line, where he rotated duties with other workers labelling boxes, pushing boxes on a conveyor to counting stations, stacking boxes on pallets and moving pallets. 

He also had a medical opinion that there was some improvement in his abilities, though there was no prognosis of when he would be able to work. 

Sun-Rype responded by saying Pucci’s employment contract was frustrated because it was unable to accommodate him after so long and there was no indication he could return to work “within a reasonable timeframe.”

The union grieved the termination, arguing Pucci was absent for 12 consecutive months and was, therefore, subject to the collective agreement provision placing him on the inactive list and protecting his employment. It claimed the provision ensured employees weren’t dismissed for reasons beyond their control.

Sun-Rype disagreed, arguing the provision didn’t necessarily preclude it from dismissing an employee on the inactive list any more than another employee on the regular seniority list.

The arbitrator found that a plain reading of the collective agreement provision covering the inactive seniority list led to the conclusion it had “a simple administrative purpose.” The list relieved Sun-Rype from having to continue to contact employees who were unable to work and not worry about scheduling them.

“The subject matter, language and placement of (the inactive list provision) in the collective agreement is not intended to create a category of employees immune to dismissal for innocent absenteeism,” said the arbitrator. “Such an extraordinary benefit would require much clearer language than identification of the placement of an employee within the seniority list.”

The placement of an employee on the inactive list after 12 months of absenteeism did not provide immunity or protection from termination if he wasn’t receiving long-term disability benefits, as Pucci wasn’t after March 6, 2014, said the arbitrator.

Sun-Rype also received conflicting messages from Pucci’s doctor throughout the process, as he initially approved return-to-work plans but then ended them once it became time to implement them. The latest information Sun-Rype had about Pucci’s status was first that he required six to 18 months of chiropractic treatments and then that he was unable to perform the duties of his old position. 

The company considered various options and decided there was nothing left that Pucci could do.

“It was clear from the failed graduated returns to work… and his physician’s statements in December 2015 that Mr. Pucci could not work a variable or lighter work schedule,” said the arbitrator. 

“There were no available additional measures to accommodate him and he was not going to be able to return to work in the foreseeable future, if ever. At this point, the employer had discharged its duty to accommodate Mr. Pucci, who could no longer provide any labour.”

The arbitrator determined Sun-Rype had reached the point of undue hardship and did not discriminate when it terminated Pucci’s employment for innocent absenteeism after an absence of more than two years.

For more information see:

• Sun-Rype Products Ltd. and TC, Local 213 (Pucci), Re, 2016 CarswellBC 485 (B.C. Arb.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit

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