B.C. company didn’t fully investigate accommodation
A British Columbia employer should have investigated other accommodation options before putting a worker into a lower-paid job, an arbitrator has ruled.
Zellstoff Celgar operates a pulp mill in Castlegar, B.C. The worker was a lubrication mechanic in the mill’s oiling department — a physically demanding job that involved workers being in hot and enclosed areas.
The worker had to take two weeks off in April 2015 due to anxiety. When he returned, his anxiety was triggered by getting overheated. He provided a medical certificate stating that he was “unable to tolerate warm/hot environments” and he would have to remove himself to cool off at times.
On June 17, the worker felt overheated and had an anxiety attack. He took more time off and provided a doctor’s note recommending a graduated return to work in temperature-controlled environments along with a return-to-work assessment that said he should avoid hot areas. The worker told the company that he didn’t want to return to the oiling department because it was “full of triggers.”
Zellstoff temporarily assigned the worker to its relief pool, although he continued to hold the classification — and higher wage rate — of lubrication mechanic.
In October, the worker was diagnosed with anxiety and agoraphobia and provided medical information stating that “if he is forced to return to his previous job… his current return to work will fail.”
In 2017, the worker provided a return-to-work report listing agoraphobia, heat intolerance, and fear of heights that constituted “a lifelong chronic condition that will likely not improve further.” This was the first time Zellstroff learned that the worker required permanent accommodation and had a fear of heights.
In December, a medium equipment operator (MEO) position became available that was within the worker’s restrictions, but it was a lower-paying job. Zellstroff offered to accommodate the worker in the MEO job with the lubrication mechanic wage rate for six months, a blended rate for another six months, and then the regular MEO rate.
However, the worker felt blindsided by the pay cut. The company agreed to extend the higher wage rate for another six months.
In May 2019, a log yard operator position that was within his restrictions became available with a higher wage than the MEO position, but the worker didn’t apply.
The union filed a grievance, claiming the wage reduction was a breach of the duty to accommodate.
The arbitrator found that while it was possible to accommodate an employee with a disability in a lower-paid job, it was only appropriate if it was the only suitable position in which accommodation was available. In this case, the medical information indicated that the worker couldn’t return to normal duties and the worker himself didn’t want to return to the lubrication mechanic position.
The arbitrator also found that the worker and the union didn’t inquire about modified lubrication mechanic duties until after the wage reduction proposal. However, Zellstoff didn’t consider the possibility either.
“The concern, from an accommodation perspective, is that the employer ruled out the possibility of modifying the duties of a lubrication mechanic to meet the [worker’s] restrictions without ever obtaining or requesting any medical information that expressly addressed and considered whether the duties could be so modified,” said the arbitrator.
The arbitrator determined that Zellstoff breached its duty to accommodate when it assigned the worker to the lower-paid position without first considering accommodation with modified duties or a similar position in the oiling department.
Zellstoff was ordered to pay the worker compensation for the pay reduction, but only until the date the log yard operator position became available — when the worker didn’t apply for it, he didn’t live up to his part of the accommodation process — plus $2,500 in damages for injury to dignity, feelings and self-respect.
Reference: Zellstoff Celgar Partnership and Public and Private Workers of Canada, Local 1. Koml Kandola — arbitrator. Nazeer Mitha. for employer. William Clements for union. July 23, 2020. 2020 CarswellBC 1916
