Miscommunication during accommodation process leads to wrongful dismissal

“It’s important to involve all parties in the accommodation process and make sure communications with an employee are clear and well documented - whenever there's uncertainty about an employee’s status or the possibility of a miscommunication, it's very important to have a documentary trail to support any action that the company is going to take.”

So says labour and employment lawyer Nathanael Bowles of McLennan Ross in Calgary, after an arbitrator found that both an employer and a dismissed employee failed to live up to their obligations in the accommodation process, leading to reinstatement of the worker without damages.

The worker was a locomotive engineer hired by Canadian Pacific Kansas City Railway (CPR) in 2004.

The worker was a single mother of a young son who had a disability requiring extensive care. For a time, the child was cared for by his father, but in August 2021 the father developed health issues that forced the worker to take over primary care. There were no other child-care options for the worker.

The worker informed CPR of her need to pick up her child from the father and initially filed an “unfit” notice with the company. Local management later changed this to unpaid personal leave.

Accommodation request

The worker filed several accommodation requests in the past and CPR granted all of them. The worker requested new accommodation for her child-care needs in September 2021 after taking over primary care, proposing that she work five hours per day at a small station so she could care for her son after he finished school. CPR turned down the request without discussing it with the worker or the union because the minimum number of daily hours for a locomotive engineer was eight and there wasn’t sufficient non-locomotive engineer work for five hours a day at the small station. The worker had turned down an option of working at a different station.

The worker also proposed working from home full-time, but CPR didn’t accept this option either.

Local management recommended that the worker apply for compassionate leave, so the worker did so in December. However, CPR didn’t respond to the application. According to the company, the request was never forwarded to the appropriate managers.

Also in December, CPR sent the worker a notice of investigation, but she didn’t respond. The worker’s manager also made several attempts to call her, but they were unable to reach her.

In January 2022, the worker filed a functional abilities form (FAF) indicating that she was suffering from long COVID and was unfit for work until May. She later provided additional medical documentation.

Employment terminated

The company sent two more notices of investigation, but the worker still didn’t respond, seek an alternate date, or attend the investigation meeting. Without any communication from the worker, CPR decided to close the worker’s employment file.

On Feb. 1, CPR sent the worker a letter noting that she hadn’t attempted to reschedule the investigations or find alternate means of attending. It stated that “the company can only assume that you are no longer interested in maintaining your employment with Canadian Pacific Railway.”

The union filed a grievance alleging that CPR failed to properly accommodate the worker and that the decision to close her employment file was arbitrary and unreasonable. It argued that CPR was aware of the worker’s family situation and didn’t respond to the request for compassionate leave.

The arbitrator found that CPR had granted accommodation to the worker in the past, so there didn’t appear to be any opposition by CPR to the idea of considering accommodation. However, the company erred when it didn’t involve the worker or the union when it reviewed accommodation options and determined there was no option that could meet the worker’s restrictions, the arbitrator said.

The arbitrator noted that the option of working from home wasn’t actively considered, despite the “considerable changes caused by the pandemic” that may have created work across Canada that the worker could have done online. CPR only seemed to consider the worker’s role of locomotive engineer and didn’t discuss other options with the worker and the union, said the arbitrator, adding that the company couldn’t argue undue hardship without exhausting those options.

Accommodation options

As for the worker’s application for compassionate leave, the company had notice of the request and didn’t respond due to apparent communications issues. Since local management had suggested that the worker make the application, it was likely that the request would have been approved as a form of accommodation, said the arbitrator.

“It was particularly relevant that the local management had communicated with this employee, separate from the overarching management in the company, and encouraged her to submit a request for compassionate leave, which the worker actually submitted but somehow failed to make its way up the chain,” says Bowles. “So the fact that the possibility had been explored with the worker on the local management level suggested that the company hadn't done enough to incorporate the worker within its discussions about accommodation.”

The arbitrator agreed with the union that CPR was “well aware of the difficult family situation faced by the [worker]” and had accommodated her previously. CPR initially took steps to accommodate the worker again by accepting the “fit” notice and then granting her unpaid personal leave, and it was clearly interested in finding out whether the child-care issue was going to be resolved and whether the worker could return to work by holding an investigation and notifying the worker, the arbitrator said.

The arbitrator found that CPR likely lost patience with the worker’s lack of communication decided to close her employment file. However, the company’s assumption that the worker wasn’t interested in maintaining her employment was “both arbitrary and erroneous,” the arbitrator said, adding that the notices of investigation didn’t indicate that her employment would be terminated if she didn’t attend or respond.

Miscommunication with accommodations

CPR initially had the right idea of trying to find a way to accommodate the worker, but its mistake was not involving the worker or the union, says Bowles.

“Besides providing a notice of investigation, [CPR] never clearly indicated to either the union or the worker that a failure to respond to those notices would result in a finding that the worker had abandoned her employment,” he says. “They basically jumped to the assumption that the worker had abandoned her employment because she didn't respond to the notices for investigation, but those notices had not said that they would jump to that conclusion.”

“Besides the obligation to actually make the right decisions about employees, there's also an obligation to communicate with employees in relation to those decisions,” adds Bowles.

Although the worker’s compassionate leave request didn’t make it to upper management, local management was aware of it and it was evidence that the worker still wanted to work for CPR, the arbitrator found. Add in the FAF that the worker submitted in January 2022 and it was clear that the worker had no intention of abandoning her employment, said the arbitrator.

CPR was ordered to reinstate the worker to her position without any loss of seniority. The issue of proper accommodation from September 2021 to the January 2022 FAF that indicated that the worker was unfit for work was remitted back to the parties, as was the issue of compensation for the lack of accommodation during that period.

Multi-party process

The arbitrator also determined that the worker should have made greater efforts to keep CPR informed of her health, evolving child-care responsibilities, and ability to perform her job duties. As a result, no damages for the company’s failure to accommodate were appropriate, said the arbitrator.

The fact that the arbitrator awarded no damages to the worker emphasizes that accommodation is a multi-party process where each of the parties involved - in this case the union, the worker, and the employer - all have responsibilities, says Bowles.

“While CPR didn’t necessarily meet its responsibilities with prospective accommodation, the fact that the worker hadn't made additional efforts to communicate her needs directly to management meant that the arbitrator couldn’t find that she was entitled to additional damages,” he says. “Because she hadn’t communicated with the employer very clearly, the company wasn’t responsible for general, punitive, or some other form of damages for violating [the worker’s] human rights.”

See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (Ryles), Re (Feb. 20, 2024), Docket No. 4893, J. Cameron – arb (Can. Railway Office of Arb. & Dispute Res.).