What the grievor returned to work after an injury, she required accommodation under a Functional Capabilities Evaluation. As she was working fewer hours per week than the full-time threshold, the employer reclassified her as part-time with a lower salary. This was consistent with the collective agreement, the arbitrator ruled, but violated her rights.
Following a return to work after a work-related injury, a Postmaster grieved the employer’s proposed workplace accommodations, which included reduced hours, a lesser wage and part-time status. The union charged that the employer was failing in its duty to accommodate.
A.R. began working for the post office in 1981. She worked as a Postmaster in a number of locations before taking a new post in 2004.
A.R. sustained a workplace injury in January 2006. However, she continued working until May 2006 when she filed a claim with the provincial compensation board.
A.R. was off work until January 2007 when she returned to her pre-injury job with functional restrictions under the Board’s Early and Safe Return to Work (ESRTW) program. A third-party provider conducted a Functional Capacities Evaluation (FCE) and A.R. was limited to four hours of work per day, four days a week.
Some workplace modifications made
Some — but not all — of the modifications recommended for the workplace had been made in an effort to accommodate A.R.’s restrictions.
A.R. was informed in May 2008 that a stand-alone position had been developed for her based on the status quo of 16 hours per week as a part-timer. Referencing her restrictions, the letter said there would be no opportunity for additional hours and that there would be changes to her benefits.
The union protested that it was inappropriate for the employer to limit A.R.’s hours and make permanent judgments about her functional capacities before she had been properly accommodated in the workplace.
Shifted to part-time status
A.R. was placed in the part-time position on Aug. 25, 2008 and her pay grade was reduced from level 4 to level 2.
The union grieved.
A.R.’s limitation to four hours per day, four days per week was based on the conditions at the post office as it was without all the required modifications, the union said. To accommodate A.R., the employer was obliged to leave A.R. in her original position, complete the modifications as required, and then conduct an FCE. Instead, the employer reduced her hours, her pay and changed her status to part-time. The employer had failed in its duty to accommodate, the union said.
The employer said it had made reasonable efforts to accommodate A.R, including making modifications to the workplace.
The employer followed the Board’s ESRTW program. The limitations on her hours of work were consistent with medical assessments provided, the FCE that was conducted and the opinion of the Board. She had not demonstrated the capability to work more hours with or without modifications to the workplace.
A.R. was not being treated any differently than any other worker who worked the same number of hours, the employer said. In this case, the employer alleged that it had reached the threshold of undue hardship in its attempts to accommodate A.R.
The Arbitrator disagreed.
In this case there was a duty on the employer to allow A.R. to retain full-time status even though she was not working full-time hours, the Arbitrator said.
There is a distinction between full-time status and full-time hours. Where full-time status is required to access benefits, an employer may violate its duty to accommodate by changing an employee’s status to part-time. That was the case here.
Human rights prevails over contract
The fact that the collective agreement defined a full-time employee as one who worked 40 hours per week was no help to the employer.
“Modification of a collective agreement provision may be required to meet the duty to accommodate. Human Rights legislation prevails over the collective agreement. Therefore, I do not accept the Employer’s submission that it can deny the Grievor’s request to retain full-time status, and claim that it has met its duty to accommodate, on the basis of the collective agreement …,” the Arbitrator said.
The employer made some modifications to the workplace but it made no commitment to completing all the recommended modifications before it changed A.R.’s status to part-time. Whether or not the additional modifications would have increased A.R.’s capacity to work, it was the employer’s duty to complete the modifications, the Arbitrator said.
“The Employer did not comply with its duty to accommodate the Grievor without undue hardship, the particulars of which include the failure to complete the recommended modifications to the post office, to permit the Grievor to retain the Postmaster position pending the completion of modifications, and to allow the Grievor to retain full-time status.”
The grievance was allowed. The employer was ordered to reinstate A.R.’s full-time status and make accommodation arrangements, including modifications to the post office, necessary to comply with its duty to accommodate A.R. up to the point of undue hardship.
Reference: Canadian Postmasters and Assistants Association and Canada Post Corporation. James C. Oakley — Sole Arbitrator. Sean T. McGee for the Union. Twila Reid for the Employer. January 17, 2011. 31 pp.
