Employer responsible for mistake, breached agreement: Arbitrator
An Ontario employer breached the collective agreement when it relied on a third-party benefits provider’s faulty information and failed to properly accommodate a worker with a medical disability, an arbitrator has ruled.
The worker was employed as a personal support worker with St. Joseph’s at Fleming, an elderly care home in Peterborough, Ont.
On Sept. 21, 2014, the worker was injured while in the workplace, hurting her lower back. The injury resulted in restrictions being put in place limiting her ability to lift, stand, sit, bend, twist, pull and push.
The worker’s medical restrictions prevented her from performing her normal duties as a personal support worker, so St. Joseph’s accommodated her by providing a position with modified duties supporting other personal support workers. She was able to work regular hours but only had to perform about five per cent of the duties normally performed by support workers.
The worker filed a claim for workers’ compensation benefits, but the Ontario Workplace Safety and Insurance Board (WSIB) rejected the claim, finding the worker’s injury wasn’t work-related. Soon after, St. Joseph’s learned of the rejected claim and, on Oct. 14, the worker’s unit manager informed her the home no longer had modified work for her and she should get in touch with St. Joseph’s third-party provider of disability benefits.
A few months later, on Feb. 10, 2015, the worker left a voicemail for her manager saying her doctor had cleared her for a return to work but she would need modified duties for two weeks. The manager responded that St. Joseph’s still had no modified work available.
Benefits provider didn’t provide doctor’s return-to-work date
The third-party benefits provider was in contact with the worker’s doctor and informed the manager that the worker’s progress was slow and her return to work couldn’t be determined. The benefits provider indicated that it supported the worker’s absence through March 31 based on the medical documentation it had. However, the worker’s doctor provided a report to the benefits provider saying basically the same thing the worker had — she was able to return to work with two weeks of modified duties to start, then full duties after that.
The worker saw her doctor on March 9, and he advised her she could return to work with regular duties one week after that. He contacted the benefits provider with that information and the worker returned to work on March 18.
The worker also appealed the rejection of her workers’ compensation claim and the WSIB subsequently found her injury was work-related.
The worker filed a grievance claiming St. Joseph’s violated both the collective agreement and the Ontario Human Rights Code by failing to accommodate her disability with respect to her desired return to work in February 2015.
The collective agreement had a provision on modified work that said, “Where an employee requires modified work or accommodation for a reason mandated by the Human Rights Act, the employer may modify the hours or duties of the employee’s current job or otherwise. The parties shall meet to decide an appropriate course of action.”
The Canadian Union of Public Employees (CUPE) argued that St. Joseph’s had relevant information that indicated the worker could return to work and the third-party benefits provider’s opinion that her progress was slow and her return couldn’t be determined was in error.
It also argued that St. Joseph’s should have provided the worker with the same modified duties it did in the fall of 2014 for two weeks rather than delaying her return to work. By not doing so, it discriminated against the worker, said CUPE.
CUPE also said St. Joseph’s violated the collective agreement by not involving it in the accommodation process, as required by the modified work provision.
Arbitrator Jasbir Parmar found the benefits provider’s conclusion in February 2015 that the worker’s return to work couldn’t be determined was incorrect, since it had a medical report indicating the worker could return with two weeks of modified duties, then move to full duties.
Even though the mistake was on the part of the benefits provider, the employer was still responsible for accommodation. Though it was understandable and reasonable St. Joseph’s relied on the benefits provider’s advice, it was responsible for the provider’s error “in the same manner it would be if it had made the error itself.”
Parmar found there was an assessment of the worker’s situation, but it was just wrong. As a result, there was a failure to accommodate the worker.
Parmar ruled that St. Joseph’s legitimately couldn’t have accommodated the worker with modified duties without essentially creating a new position for her, which would constitute undue hardship. Though the worker performed modified duties in the fall of 2014, this was for a limited time and St. Joseph’s eventually ran out of work for her. Things hadn’t changed a few months later.
However, the benefits provider had a medical report indicating the worker would be able to return to full duties two weeks after modified duties. So even though St. Joseph’s couldn’t return the worker under modified duties, it could have returned her to full duties after that two-week period, which was March 1 — two weeks before when she actually returned.
As for the collective agreement, Parmar found that while the term “parties” wasn’t defined, in such agreements it generally refers to the union and the employer. Since St. Joseph’s only communicated with the worker and didn’t meet with CUPE to discuss the worker’s accommodation, it violated the collective agreement provision.
Parbar ordered St. Joseph’s to compensate the worker for lost wages and benefits between March 1, 2015, and her actual return to work on March 18, and declared St. Joseph’s breached the collective agreement.
For more information see:
• St. Joseph’s at Fleming and CUPE, Local 2280 (Brindle-Smith), Re, 2016 CarswellOnt 16375 (Ont. Arb.).
