Employer focused on worker's efforts rather than its own obligations: arbitrator
A railway company that simply looked for and recommended potential positions to a worker with significant mental restrictions did not fulfill its duty to accommodate, an arbitrator has ruled.
The worker was a rail traffic controller for Canadian Pacific Railway (CPR) beginning in 2007. In 2011, he was injured outside of work, leaving him with permanent work restrictions, including both physical and cognitive limitations and no driving.
CPR accommodated the worker’s restrictions for five years until the Fall of 2016, when the worker refused a short-term accommodation. As a result, CPR terminated his employment for not co-operating in the accommodation process.
The union filed a grievance and an arbitrator agreed that CPR had met its duty to accommodate, but ordered the railway to reinstate the worker on the basis that the dismissal was discriminatory. CPR reinstated the worker and began the accommodation process again.
Accommodation process restarted
CPR requested updated medical information to ensure there had been no changes in his restrictions since his dismissal. The worker provided the information and CPR began looking for accommodation in May 2017. His restrictions included no safety-sensitive or safety-critical positions, no night shifts, a break mid-shift, no driving company vehicles, limited walking and lifting, and no concentration at an intense level.
The disability management department contacted the operations centre about any positions for the worker, but the operations centre said that hit had no work available for him at that time. There was no further follow-up.
In mid-June, CPR considered the worker for a position with the facilities department, but he was disqualified due to his physical restrictions.
At a return-to-work meeting on June 27, CPR told the worker that he would be sent job opportunities for which he could apply as they arose. Once he applied, he would have to interview for the position.
In late October, CPR arranged for temporary modified duties for the worker in the labour relations department that would last for one week.
Temporary duties became permanent
On Jan. 27, 2018, the worker was reviewed for temporary duties in the PTC department and it eventually offered him a position there on March 28. It became a permanent job offer on Jan. 28, 2019.
The union filed a grievance alleging that CPR failed to meet its duty to accommodate after the worker’s reinstatement by requiring the worker to apply to job positions “as is” with no discussion of modifications to those jobs to meet his restrictions or bundling together duties that fell within his restrictions. It also questioned why the worker wasn’t accommodated in the PTC department earlier.
CPR countered that the railway industry was safety-sensitive and the worker’s restrictions were significant, preventing him from working in safety-sensitive positions and limiting his options.
After the grievance was filed, the disability management department wanted to accommodate the worker in a crew dispatcher position, but was unable to because the position required working night shifts.
The arbitrator stated that the duty to accommodate involved both procedural and substantive components, and an employer is required to take steps to understand the employee’s disability needs and to undertake an individualized assessment of potential accommodation measures based on those needs. This assessment may require more than just balancing the worker’s restrictions and the position requirements, including looking at modified duties and bundling duties together, the arbitrator said, adding that the employee and union should be involved.
The arbitrator found that it was reasonable for CPR to seek updated medical information after the worker was reinstated before proceeding with the accommodation process, as it was necessary to ensure that his restrictions hadn’t changed before assessing the situation as part of the procedural component of accommodation.
Safety-sensitive workplace
The arbitrator agreed with CPR that accommodating the worker was challenging given the safety-sensitive workplace and the worker’s significant restrictions and the number of potential positions were identified for the worker to apply to. However, the reality was that the worker was disqualified from most of them due to his restrictions, said the arbitrator.
The arbitrator found that CPR’s duty to accommodate included assessing whether the worker’s existing role could be modified or if any of the other potential position could be modified – for example, it didn’t investigate as to whether crew dispatcher duties could be performed with an exclusion from night shifts. However, it didn’t do this and was unable to show if such a modification created an undue hardship, said the arbitrator.
The arbitrator also found that the operation centre’s response that there were no available jobs wasn’t sufficient and the disability management department should have followed up.
“[CPR] failed to recognize that it was not up to the [worker] to find a role that suited him; it was up to the company to accommodate him in a role that suited him,” said the arbitrator.
The arbitrator found that CPR emphasized the worker’s efforts to find a job rather than its own obligations, which failed to meet both the procedural and substantive components of the duty to accommodate. As a result, CPR did not adequately accommodate the worker after his reinstatement, the arbitrator said in allowing the grievance. See Teamsters Canada Rail Conference and Canadian Pacific Railway (Chute), Re, 2023 CarswellNat 2975.
