Employer accommodated worker with disability, but staff cuts changed what duties were available
A New Brunswick employer’s decision to move a worker with medical restrictions from a day shift to an evening shift, was necessary to accommodate her after staff downsizing limited what was available during the day, an arbitrator has ruled.
Colleen Trynor was employed by NB Power — New Brunswick’s electricity provider — as a cleaner at the Point Lepreau Generating Station.
Hired in 1992, Trynor had mixed shifts early on but soon worked only on the day shift. She was considered a hard worker and didn’t have any disciplinary action on her record.
In 2003, Trynor injured her ankle, leading to surgery that fused it. This led to restrictions on what she could do at work, including an inability to scrub or buff floors.
She also avoided using stairs and used the elevators to get to different levels at the generating station.
When doing tasks where she knelt in the past, she would bend. When a heavy load of recycling or garbage needed to be carried, she would get someone to help her.
To accommodate Trynor’s disability, NB Power paired her with another employee who could do the floor buffing while Trynor did light-duty work such as dusting and scrubbing. She worked with one particular partner for five years and then another for almost five years after the first was injured at work.
After her second partner was injured and assigned to light duties, Trynor was assigned to light work in the cafeteria on her own.
In early 2014, Trynor was at a meeting with other cleaners when she made a comment about some of them taking longer breaks in the cafeteria. One of the other cleaners took offence and complained to the supervisor, who spoke to Trynor about it.
A short time later, on Jan. 20, NB Power informed Trynor that she was being moved to an evening shift to accommodate her disability.
The utility said that the number of cleaners on day shift had been cut in half due to downsizing and the cleaning work in the day shift was heavy-duty work, such as clearing garbage, moving large bins and buffing floors.
Employer could not appoint fellow worker for heavy work
Since the number of cleaners had been reduced, NB Power was unable to assign a partner to work with Trynor who could handle the heavier duties during the day.
Lighter duties such as office cleaning, dusting, and emptying wastebaskets were available in the evening.
The union — International Brotherhood of Electrical Workers (IBEW) — filed a grievance over the shift change, as Trynor didn’t want it and felt the change was made because of her disagreements with other cleaners over their breaks.
Trynor said the change from days to evenings “has resulted in personal hardship and has disrupted my home life immensely.” Because of the negative impact on Trynor, the move was a demotion and was discriminatory as it was made because of her disability, argued IBEW.
Trynor and IBEW said the change constituted unwarranted discipline, which was contrary to the collective agreement, which stated disciplinary action could only be for “just and sufficient cause.”
NB Power had accommodated Trynor on the day shift for 10 years and there was no change in her medical condition, they said.
NB Power denied the shift change was disciplinary and claimed the decision was made before the incident took place.
The employer also claimed the supervisor tried to find alternate work for Trynor on the day shift, but she wasn’t interested in doing anything other than cleaning, which wasn’t available to her on the day shift because of her restrictions.
Arbitrator Douglas Stanley found that Trynor sincerely believed that the incident with her co-workers over the length of their breaks led to the decision to transfer her to the evening shift.
However, he felt the evidence supported the notion that this was “simply coincidental with a management decision that was being made for legitimate reasons related to the reorganization of the cleaning routines and consideration of (Trynor’s) work restrictions.”
Stanley noted that NB Power tried to find work for Trynor during the day, but she wasn’t open to anything other than cleaning duties, which weren’t available for someone with her restrictions.
Though Trynor’s medical conditions hadn’t changed, the cleaning routines on the day shift had because of the staff cuts, leading to more heavy work for the day-shift cleaners.
Other employees injured after doing excess heavy work
In addition, the original solution to accommodating Trynor on the day shift was no longer practical, as evidenced by the fact two employees who had been paired with Trynor were injured because of all the heavy work they were doing.
Stanley also said that “accommodation starts with the employee’s job, and only when she cannot be accommodated in her own job are alternatives looked at.”
Trynor’s job was that of a cleaner but she had no claim to a particular shift without such specification in the collective agreement.
Stanley determined that NB Power’s decision to move Trynor to an evening shift was “a legitimate accommodation” to her work restrictions and it was a reasonable decision based on the new reality of staffing the day shift.
As a result, it wasn’t a disciplinary move under the collective agreement, and in fact the employer’s willingness to look at light-duty work in other job classifications for the day shift was evidence of good faith, even if Trynor refused anything other than cleaner duties.
The grievance was dismissed.
For more information see:
• NB Power Inc. and IBEW, Local 37 (Trynor), Re, 2016 CarswellNB 531 (N.B. Arb.).
