Single email didn't constitute 'thorough review': Arbitrator
When an employer changed its schedule to become a 24-7 operation, it neglected to fully accommodate an employee who couldn’t work nights, ruled an arbitrator.
The worker, a pharmacy technician at the Foothills Medical Centre (FMC) in Calgary, had worked with the employer, Alberta Health Services, since 2002. But on April 1, 2015, management switched workers’ schedules to account for round-the-clock coverage at the hospital’s busy pharmacy.
In November, the worker advised the hospital that due to medical reasons, he was unable to work any night shifts. Under the new 21-week schedule, the worker would have been required to work eight night shifts.
Following a cursory search to accommodate his schedule at FMC, the worker was transferred on Feb. 24, 2016, to the Rockyview General Hospital, also in Calgary. He accepted the transfer and started working there on March 10.
The union, Health Sciences Association of Alberta (HSAA), grieved the decision and argued the employer didn’t do enough to accommodate the worker at FMC. The grievance was amended on April 4 to add the fact that: “As well, as a result of the move to (Rockyview), I lost my permanent onsite parking.”
The worker said he was placed at the bottom of a six-year parking waiting list at Rockyview and he could not afford to pay the estimated $10 to $15 per day parking fees.
The hospital argued it properly accommodated the worker by transferring him to an operation that doesn’t have 24-7 hours.
The manager testified she was responsible for scheduling 28 technicians on day shifts, five on evening shifts and two for the night shift, when the change was made, and it took her several months to do so.
Finally, the manager arrived at a schedule that would achieve the goal of full-time operation and it was approved by a majority of employees, who voted on the new schedule.
On Nov. 23, the manager sent an email to all pharmacy technicians to “to see if there is anyone that has a burning desire to work nights,” to accommodate the worker’s scheduling requirements. She received positive indications from two staff members, but one later rescinded her wish to work nights, leaving only one worker to fill the night shifts.
The manager testified she was ultimately unable to come up with a schedule that would prevent the worker from working any night shifts.
After a discussion with the human resources department, it was decided to offer the worker a transfer, which he accepted.
Arbitrator John Moreau upheld the grievance and ordered both sides to work out an acceptable accommodation.
“I accept the manager's testimony that the scheduling obligations under the collective agreement, coupled with the reality of ongoing shift trades and limited staff interest in working nights, was an impediment to accommodating (the worker) at the FMC,” said Moreau. “In my view, the manager did not go far enough in determining whether (the worker) could be accommodated.”
The lone message to staff sent by the manager did not constitute a “thorough review,” according to Moreau.
“Her email to the full-time staff of Nov. 23, 2015, did not have the tone one would expect under the circumstances. An inquiry (as to) whether anyone had ‘a burning desire to work nights’ suggests that the accommodation request was not being taken seriously by her to begin with, given the unspoken presumption that nobody generally likes to work nights,” said Moreau.
It would have been better if the manager had further probed the staff members to see if something could have been worked out with respect to the new schedule, he said.
“To simply stop at the point she did, without taking any further steps to see if there was something more that could be done for (the worker) , short of a transfer to another site like the Rockyview, does not in my view satisfy the accommodation to point of undue hardship test,” said Moreau.
Reference: Health Sciences Association of Alberta and Alberta Health Services. John Moreau — arbitrator. Erin Ludwig for the employer. Karen Scott for the employee. Jan. 17, 2018. 2018 CarswellAlta 72
