Duty to accommodate didn’t stop after employee’s refusal

Arbitrator ruled employer should have waited for new medical information before terminating employee

The efforts of a Newfoundland and Labrador company to get an employee on leave back to work were significant but not to the point of undue hardship, the Newfoundland and Labrador Arbitration Board has ruled.

Barbara Ivany, 50, was an operator in St. John’s for Aliant Telecom, a communications company, since 1986. In 1995, she began experiencing pain in her neck and shoulders. She went on short-term sickness benefits from April 2001 to April 2002 before returning to work on a graduated work program.

When she came back to work, Ivany still was in pain. Even though she was easing back into work with fewer hours, she still had to get up and move around frequently. Her supervisor met with her about her frequent breaks and she underwent a medical review that led to a recommendation that she take more time off work or work fewer hours. After Aliant’s records showed Ivany was only working five to six hours per day instead of the required seven, it informed her she would only be paid for actual hours worked on her headset.

The union filed a grievance and Aliant agreed to try to find a job for Ivany in the clerical unit, which would be easier on her condition. However, the number of clerical jobs in the company had been reduced so it was difficult to find an opening.

Ivany went on unpaid personal leave on Sept. 10, 2002, with an expected return date of Dec. 16. However, Aliant didn’t find a clerical position until early 2003. Ivany said it was not sufficient for her to do on a daily basis and didn’t allow her to move around or take breaks. On the advice of an occupational therapist, Aliant acquired ergonomic equipment to make the job better suited to her. A return-to-work plan was implemented with a start date of March 24, 2003. However she didn’t report to work and asked for a different job.

On Oct. 27, 2003, Aliant again offered the clerical position to Ivany and said if she didn’t respond with either an answer or new medical information, she would be terminated. The union responded by saying she had another medical evaluation scheduled in early 2004 that would allow a return-to-work discussion.

After some back-and-forth between Aliant and the union, Ivany was still on unpaid leave in 2006. There was still no indication she could return to work, so on Aug. 24, Aliant decided to terminate her employment for failing to return to work following her leave of absence. It said it had tried to accommodate her condition by offering her a different job more than once but she continued to refuse. Her lack of co-operation left the company with no other options.

The arbitrator found Ivany’s condition was a disability that required accommodation, borne out by a medical examination in December 2006 that diagnosed her with fibromyalgia, which gave her chronic pain. It also found Aliant made a reasonable effort to accommodate her in 2003 when it tried to find her an alternative position. Even though Ivany didn’t provide a legitimate reason not to take the positions offered her, the arbitrator said the duty to accommodate continued with the expectation of additional medical information. Aliant shouldn’t have terminated Ivany in August 2006 without updated information to facilitate accommodation, which it would have received in December.

The arbitrator ordered Aliant to reinstate Ivany to her status before her termination — unpaid personal leave — while it investigated possible accommodation. See C.E.P., Local 410 v. Aliant Telecom Inc., 2010 CarswellNfld 133 (N.L. Arb. Bd.).

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