Employer fails to accommodate forklift operator

An arbitrator has found Winners Merchants to be in breach of its duty to accommodate Prakash Sandhu. However, arbitrator James Hayes also found that the outcome would not have been much different if that obligation had been satisfied.

Sandhu’s union — the Workers United Canada Council Local 152 — filed a grievance on her behalf after the employer denied her request for transfer to a forklift position on a preferred day shift.

At the time of Sandhu’s request, she was employed as a forklift driver on modified duties on the midnight shift in one of the company’s Ontario locations. As part of her accommodation, Sandhu operates only one of four types of forklifts. Additionally, Sandhu needs assistance when required to move individual boxes before continuing her work with the forklift.

The union alleged the employer failed to conduct an individual assessment of the viability of Sandhu’s request as required by the duty to accommodate. According to the union, the same modified duties should be made available to her on the day shift as were being applied to her on the midnight shift. The employer, however, said the differences between forklift operations during the day and midnight shifts are significant.

The employer testified as many as 400 employees are required during the day, while only about 80 employees work on the midnight shift. Because of the nature of the workplace, the employer said, having more employees in the warehouse actually makes accommodation more difficult.

Any employee must be certified and prepared to take on work using any of the four types of forklifts available, the employer said, in order to maintain the flow of work. Creating a separate schedule for Sandhu that would allow her to only operate one type of forklift and make other employees available when she required assistance moving individual boxes would constitute undue hardship, the employer argued.

Sandhu testified she was told her transfer was denied because of her need for accommodation. The union argued this constituted a complete failure of process. An individual assessment of her circumstances was necessary, the union said, arguing the employer successfully accommodated Sandhu in her work on the midnight shift.

The union requested Sandhu be awarded the transfer to the day shift and be compensated for any lost income.

Arbitrator James Hayes agreed the employer had an obligation to accommodate but it was not required to change working conditions in a fundamental way or past the point of undue hardship.

"The grievor had the legal right to have her transfer request considered in a timely fashion on an individual basis from an accommodation perspective," Hayes said. "In this respect, therefore, the employer breached its obligations."

In many such situations, Hayes said, it would be appropriate to direct the parties to consider the issue of accommodation as it should have been considered in the first place. He did not believe that would be appropriate in this case, however.

"The likelihood of Winners adopting another conclusion, even assuming the utmost of good faith, is remote in my estimation," Hayes said.

Considering the amount of work done during the afternoon shift, and considering the number of employees required to accomplish that work, Hayes found the assignment of Sandhu to the afternoon shift would have been like requiring the employer to assign two people for the same job.

"To accommodate the grievor on the day shift," Hayes said, "the employer would be required to provide her with frequent but irregular assistance. In the alternative, the employer would be required to reconfigure its system of… driver deployment to incorporate a unique role for her."

Because he found the accommodation sought would impose an unwarranted alteration of working conditions at a significant cost to the employer, Hayes ruled the accommodation would reach beyond "due" hardship.