Denial didn’t meet duty to accommodate
A British Columbia company’s new policy on temporary accommodation discriminated against a worker with a permanent disability.
Rio Tinto Alcan is an aluminum manufacturer based in Montreal. The company hired Corene Rolfe in February 1997 as a temporary employee at its Kitimat, B.C. operation and she became a full-time employee for its janitor building service two years later.
Rolfe injured her neck and shoulder in 2000 and had to take time off work, receiving disability indemnity plan (DIP) benefits until June 2001. She began a graduated return to work in March 2002, staying limited to four days per week until May 2003, when Rio Tinto’s doctor determined Rolfe would not be able to return to her regular janitor position because of her physical disability — she had limits on lifting and shift length as well as restrictions on carrying, pushing, pulling, repetitive upper-body movements, overhead work, and awkward positions.
In late 2004, Rio Tinto accommodated Rolfe in an office administration position at its power operations, where she worked for 12 years.
In December 2015, Rolfe had to go off work for cancer surgery. Her scheduled return date was March 29, 2016 but five days prior to that date, Rio Tinto’s employment and return-to-work coordinator informed Rolfe that the office administration position she had been accommodated in was no longer available. Rolfe soon suffered a breakdown, was diagnosed with a panic disorder, and deemed not fit to return to any work. She was placed on DIP benefits — and later LTD benefits — and was eventually cleared to return to work on Dec. 5, but there was no available work compatible with her permanent restrictions stemming from her neck and shoulder injury.
Rio Tinto accommodated Rolfe in a temporary position performing plant services support functions on Aug. 28, 2017. It was originally a three-month placement but was renewed until Aug. 3, 2018, when the work was concluded and the company transitioned into leaner operations. The company then told Rolfe of a new policy that employees with permanent restrictions would only be considered for permanent accommodation positions, not temporary ones. A new application for DIP benefits was also denied.
The worker’s LTD benefits ceased in May 2019 as she was deemed ineligible for a benefits extension.
The union filed a grievance arguing that Rio Tinto discriminated against Rolfe and failed in its duty to accommodate her by not considering her for temporary accommodations based solely on the fact that she had permanent medical restrictions. It also claimed the company violated the collective agreement by denying DIP benefits.
The arbitrator found that Rio Tinto’s blanket policy denying temporary positions violated the accommodation rights of Rolfe and any other employee with a permanent disability. However, there was no evidence Rio Tinto’s new policy actually denied Rolfe work because of her qualifications and restrictions — there was no job for her to take in Rio Tinto’s reduced operations and she wasn’t singled out. Rather, all employees with permanent restrictions were barred from consideration for temporary accommodation, said the arbitrator.
As for DIP benefits, the arbitrator noted that their purpose was to “protect an employee from total loss of wages as the result of disabilities cause by non-industrial illness or injury.” Rolfe received DIP benefits twice before when she had become permanently disabled. The collective agreement stipulated DIP entitlement came “for each disability,” but in Rolfe’s case it was the same permanent disability that made her unable to work in any available position in August 2018, said the arbitrator. The collective agreement didn’t indicate an intention to cover multiple continuing absences due to continuation of a permanent condition.
The arbitrator determined that Rolfe wasn’t entitled to additional DIP or LTD benefits but ordered Rio Tinto to pay her $5,000 for injury to dignity arising from its discriminatory new policy.
Reference: Rio Tinto Alcan and Unifor, Local 2301. Christopher Sullivan — arbitrator. Stephanie Gutierrez for employer. Christopher Foy for employee. March 5, 2020. 2020 CarswellBC 812
