Creating new positions to accommodate staff

Arbitrator rules police force should “cobble together” a new position to accommodate disabled officer

The duty to accommodate requires an employer to consider the creation of a position from tasks assembled from various sources. That’s the message the Essex Police Services Board received from an arbitrator in Re Essex Police Services Board and Essex Police Association when they attempted, without success, to argue the duty to accommodate did not require them to consider the creation of a first-class constable position for Constable Horoky.

At the time of the hearing Horoky was a veteran employee with 27 years of service. There was no dispute between the parties that he suffered from a degenerative disc disease and was disabled.

He last worked for the Essex Police Services Board in 1999. In January 2001, after his claim and subsequent appeal for long-term disability benefits were denied by the board’s insurance carrier, Horoky requested a return to work. The board took the position there was no other work available for him to perform and denied his request.

Horoky filed a grievance alleging the Essex Police Services Board discriminated against him on the basis of disability by failing to provide him with modified work. The Essex Police Association, on behalf of Horoky, argued he could perform three possible jobs.

The first two positions were in existence but were occupied by two other officers. While the third position did not exist at the time, the association argued it could be comprised of duties assembled from various sources. The board said Horoky could not perform the essential duties of the first two jobs without modification short of undue hardship.

They further argued he was not entitled to displace an incumbent employee. As for the third “cobbled-together” job, they argued they were not required to create such a position for Horoky.

Was the board required to create a light-duties police officer position, performed primarily in the office, as a form of permanent accommodation for the grievor? That was the central question before the arbitrator.

The board relied, without success, on a statement of another arbitrator who held the duty to accommodate does not require an employer to redesign its workplace. They argued, unsuccessfully, that since there were no existing positions Horoky was capable of performing, it was not obliged to reassign duties to create such a position.

The arbitrator concluded there was sufficient productive first-class constable work in this workplace that Horoky could perform on a full-time basis, therefore the board breached his right to equal treatment under the Ontario Human Rights Code by failing to provide him with such work.

The arbitrator found, while there is no requirement to create a job consisting of tasks not presently being performed, the board could not automatically refuse to reassign existing duties to create a position where it can be done without undue hardship. The arbitrator concluded, “the test is undue hardship and the fact that a particular set of duties may not yet exist as a position does not provide a legal obstacle to an accommodation in that form.”

The lesson for employers is that if the disabled employee is capable of performing a bundle of existing duties and these duties could be reassigned to create a position for the employee, without undue hardship to the employer, they should at least consider this option. While this decision may come as a surprise to many employers, they should be encouraged to know the decision communicates a clear expectation that employees must perform useful and productive work.

Where it can be shown accommodation will require an employer to create work of no real value, a refusal to accommodate will not be discriminatory. But if a position can be cobbled together from existing duties which the disabled employee can perform, without undue hardship to the employer, the employer may be expected to create a new position to accommodate the disabled employee.

For more information see:

Re Essex Police Services Board and Essex Police Association (2002) 105 L.A.C. (4th) 193

Michelle Johal is an employment law lawyer with Rubin Manning & Thomlinson in Toronto. She can be reached at michelle@rmtlaw.ca.

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