Employer could have done more: Arbitrator
For a lifeguard with the City of Winnipeg, a little policy education can mean the difference between work and no work.
Kyle Derbitsky — a post-secondary student and instructor with the city’s aquatics department — learned this lesson following a ski-related knee injury that rendered him unable to work.
The dispute arose when Derbitsky, whose sick leave benefits were running thin, sought accommodation to work in a sedentary job pending his recovery. There was a job available, however, he was required to take a two-day training course, for which Derbitsky said he could not get time off from an important class at the University of Winnipeg.
As such, the Canadian Union of Public Employees filed a grievance, arguing the city did not do its part to inform Derbitsky of the options available to him. The city argued it was the union that failed the employee, in the same regard.
The union described that, typically, when an employee’s income protection runs out, they seek accommodation assistance. When the aquatics department became aware of the available position, Derbitsky was informed of the required training dates.
When he said he could not attend, the city informed Derbitsky he would no longer be considered for the position. As his managers saw it, Derbitsky chose to go to school and not work.
That Derbitsky was unable to attend was not indicative of the fact he was unwilling to attend, the union said.
No one informed the grievor of alternative training dates, which could have taken place as early as one month later. The union argued it was not informed of such a date, and Derbitsky testified at the hearing that that was the first time he was made aware of a potential alternative.
The responsibility lies with the city, the union argued, adding, "The grievor should not be expected to be an expert in these matters and... he did all he could have been expected to do."
In making his decision, arbitrator Michael Werier sought to determine whether the employer had accommodated the grievor to the point of undue hardship.
Because the accommodation process is a unique one requiring collaboration between the employer, union and grievor, Werier noted open and frank communication is necessary.
"Patience and compromise is often required," he explained.
"The concept of undue hardship is sometimes difficult to define. However, it is clear that for an employer to establish undue hardship, they must show that they had made genuine bona fide efforts to explore options and alternatives to facilitate the accommodation process."
In this case, the city’s policy incorporated that requirement, but it failed to comply with its own obligation.
"The process ended too quickly," Werier added.
Reference: City of Winnipeg and the Canadian Union of Public Employees (CUPE) Local 500. Michael D. Werier — arbitrator. John D. Jacobs for the employer, Kathy McIlroy for the union. Sept. 3, 2014.
