The type of work that the grievor was able to perform did not always justify a full-time position, but neither the employer nor the grievor himself made sufficient efforts to find him the work he could do and was entitled to.
Having worked with restrictions for years following an injury to his knee, a worker grieved when his temporary layoff became permanent while workers with less seniority were returning to work and doing his job.
Hired in 1998, D.J. worked as a general labourer for a manufacturer of pre-cast concrete products.
In 1999, he sustained a work-related injury to his knee. Following surgery and a period of time on modified duties, D.J. returned to his job.
In 2001, the compensation board found that D.J. was capable of performing the job of “pipe patcher.” The job entailed patching cracked pipes produced at the plant and repairing pipes returned by customers. Also in 2001, permanent restrictions were identified for D.J.
In 2003, the compensation board reversed its earlier finding and said that D.J. was not capable of performing the job of pipe patcher. D.J. undertook other work for several months. He nevertheless returned to pipe patching, albeit on a reduced schedule.
An employer appeal followed the board’s reversal of its decision and in 2008 a tribunal ruled that D.J. was capable of pipe patching.
Business declined in December 2008. D.J. was invited to take an extended Christmas/New Year’s break. It was his understanding that he would be recalled to work early in January 2009. D.J. was not called in to work and instead was advised to pick up his Record of Employment. No severance was offered.
Less senior worker called back
D.J. became aware in June 2009 that a worker with less seniority had been recalled to do the pipe patching work.
The union grieved and letters were exchanged between the parties examining the availability of full-time jobs within D.J.’s restrictions. D.J. rejected an offer of three hours per day patching pipes. No other jobs were identified and the grievance went to arbitration.
Business had declined between 30 and 50 per cent, the employer said. Layoffs were necessary.
It was true that the worker who was recalled had less seniority than D.J., but the worker had other specialized skills.
The employer said that the collective agreement allowed the employer to exercise some discretion when it came to layoffs. Seniority was a factor in determining who would be retained or recalled, but it was not the only factor. The employer was allowed to consider who was “most capable of performing the work to be done.”
As well, in the intervening months, the employer had developed a new concrete mixture that resulted in a superior finished product that required less patching.
Pipe patching — the only work identified within D.J.’s restrictions — was conducted only on an ad hoc basis until February 2010, by which time D.J.’s recall rights under the collective agreement had expired.
Before the Arbitrator, the union argued that the employer had given no consideration to accommodating D.J. The evidence showed that pipe patching continued throughout D.J.’s layoff. That the employer would recall a junior employee to do D.J.’s work was evidence that the employer was acting in bad faith throughout.
While the union conceded that it was legitimate for the employer to place a premium on employee versatility, it made no real effort to systematically explore D.J.’s capabilities. Employer efforts in that regard did not approach the threshold of undue hardship and the employer was not relieved of its duty to accommodate D.J.
“Bundling” of job tasks
Despite the reduced demand for pipe patching, it remained open to the employer to consider “bundling” various job tasks to create meaningful employment for D.J. The employer failed to do so, the union said.
The Arbitrator accepted that the reduced volume of work and the new process meant there was, at least initially, less work patching pipes. There was no full-time job patching pipes prior to June 2009 and therefore the employer did not breach its duty to accommodate D.J. by failing to offer him a full-time job up until that point.
The Arbitrator said, however, that as work picked up after June 2009, there was full-time pipe patching work available prior to the expiry of D.J.’s recall rights.
“The employer should have offered [D.J.] the full-time pipe patching job when it became available, and the failure to do so constitutes a breach of the employer’s duty to accommodate,” the Arbitrator said.
While both the employer and D.J. were focused on the availability of full-time positions with predetermined duties, the parties would have done well to consider the possibility of creating a full-time job by bundling a number of duties.
Grievor intransigence a factor
Both parties failed in that regard, the Arbitrator said.
“The employer failed to make sufficient efforts to create a job for the grievor that would have allowed him to return to work at a time consistent with his seniority and his abilities. Part of that failure was that the employer failed to inform itself about what other duties the grievor could perform. On the other hand, the grievor rejected a part-time job offer, and there is no evidence that he suggested any other specific solution than a full-time job as pipe patcher. In my view, the fact that the grievor failed to return to work in a timely fashion had much to do with his intransigence, lack of flexibility and failure to respond to the employer’s invitation to provide input.”
The circumstances called for greater co-operation from D.J., the Arbitrator said.
Nevertheless, D.J.’s failure did not outweigh the employer’s obligation to accommodate him.
D.J. was to be reinstated retroactively to September 1 2009, but compensated only from December 1, 2009 in recognition of his part in delaying his return to work.
