Arbitrator finds Halifax Water breached collective agreement
Guy MacDonald accused the Halifax Regional Water Commission of failing to accommodate his disability and then firing him after he suffered a workplace injury.
MacDonald suffered a back injury while working as a burner technician in 2007 and was subsequently diagnosed with a lumbar disc herniation.
Following the injury, he underwent physiotherapy and chiropractic treatments, but found he was unable to continue working as a burner technician.
MacDonald moved in and out of the province, working in several different positions. Eventually, he contacted the Workers’ Compensation Board and reported an L4-five disc herniation relating to his previous lumbar disc herniation. MacDonald described himself as "very disabled."
A workers’ compensation caseworker assisted MacDonald in his job searching for several weeks, eventually connecting him with Halifax Regional Water Commission after the employer posted the position of wastewater maintainer. MacDonald was hired for the position and completed his probationary period in February 2012 without incident.
A few months into his work, however, MacDonald wrenched his back and went on unpaid leave. He remained on unpaid leave until January 2013, when his employment was terminated.
MacDonald testified he informed Halifax Regional Water Commission of his injury and resulting limitations during the interview process.
The employer, however, argued MacDonald did not disclose any physical limitations and that if he had, he would not have been hired as his limitations prevented him from performing the majority of work done by a wastewater maintainer.
Following evaluation by the Workers’ Compensation Board, MacDonald’s file was transferred back to his 2007 claim, when he originally injured his back working as a burner technician. The file indicated MacDonald was not a proper match for the position with Halifax Regional Water Commission based on the previous injury, and that it would be unsafe to employ him because of his inability to perform the required work.
Because there was no claim with the employer, it argued it had no duty to re-employ MacDonald under the Workers’ Compensation Act.
MacDonald’s union, the Canadian Union of Public Employees (CUPE) Local 227 was made aware of his termination. The union filed a grievance, arguing the employer had a duty to accommodate. The union requested MacDonald be reinstated to his former position or be accommodated into a more suitable position.
The union also requested the recovery of any lost monies, seniority, damages or other redress that would make MacDonald whole.
Arbitrator William Kydd found the employer breached the parties’ collective agreement by failing to accommodate the grievor’s disability up to the point of undue hardship. Kydd also found the employer breached the collective agreement in failing to consult with the union prior to unilaterally deciding to end MacDonald’s employment.
Kydd ordered the employer provide a position to MacDonald the next time it hired to fill a vacancy for work, leaving it to the parties to decide on the precise nature of the job MacDonald would perform.
Kydd also ordered MacDonald be awarded damages to the extent of the difference between the wages and benefits he would have received at Halifax Regional Water Commission and the wages and benefits he in fact earned in the time after his termination.
Reference: Halifax Regional Water Commission and the Canadian Union of Public Employees (CUPE) Local 227. William H. Kydd — arbitrator. John MacPherson for the employer, Karen MacKenzie for the union. Sept. 29, 2015.
