Accommodation a two-way street

B.C. guard lost baby but employer acted in good faith: Board

A pregnant British Columbia correctional officer didn’t fully co-operate with her employer’s accommodation efforts and the stress she experienced — which she said contributed to the loss of her baby — was not the result of workplace harassment, the Canadian Public Service Labour Relations Board has ruled.

The woman in Spooner v. Canada (Treasury Board — Correctional Services) was assigned to Fraser Valley Institution, a federal penitentiary in Abbotsford, B.C. She was on a team preparing a secure unit for maximum security inmates.

In 2006, a new team leader was hired for the secure unit. Tension between the team leader and the employee quickly developed when the team leader made changes to the policies and protocols the employee had developed and the employee joined the union executive.

In August 2006, the employee found out she was pregnant. With two previous miscarriages and a high-risk medical condition, she understood the risks. Knowing a dangerous offender would soon be coming to the unit, she requested to be accommodated by avoiding contact with inmates. Her doctor supplied a note indicating she had a high-risk pregnancy and should be given clerical work.

The employee didn’t expect any problems since she had been accommodated by the Correctional Service of Canada (CSC) during her last pregnancy. She was given duties in case management but, at her request, continued to do some documentation work for the secure unit.

However, the team leader modified protocol so inmates didn’t need restraints while inside the secure unit. Several staff members, including the employee, disagreed with the decision and some filed a complaint about unsafe work under the Canada Labour Code.

Assignment changed

On Aug. 30, 2006, the team leader told the employee her accommodation with case management was being revoked and her new assignment would be checking vehicles and screening people at the front entrance. The employee felt the new assignment didn’t match her accommodation needs and her workload would be too heavy. She felt the reassignment was punishment for her union involvement.

The employee obtained another medical note that specified she should not be exposed to “physical altercations.” Management gave her three choices: Work at the main control centre, work at the front entrance or go on medical leave with employment insurance. She felt none of the choices were appropriate.

The employee’s physician provided another note which specified duties that didn’t put her at risk for emotional stress or physical harm and listed several restrictions, including an avoidance of inmate contact and stressful or violent situations. CSC agreed to assign her to the mailroom.

But on a few occasions the employee was confined to an office while an inmate was taken through the area. She felt she was under scrutiny and the environment was stressful.

On Aug. 19, 2006, CSC placed the employee on paid leave because it was not “reasonably practical” to accommodate her, as was permitted in the collective agreement. On Sept. 25, she was reassigned to regional headquarters for office work.

Employee filed grievances

On Oct. 9, the employee gave birth to a stillborn baby. When she returned to work two weeks later, she filed a grievance, claiming CSC failed to properly accommodate her during her pregnancy, which led to her losing the fetus. She also said she was subjected to harassment and discrimination and requested she no longer be supervised by her team leader, who should be transferred elsewhere.

CSC couldn’t transfer the team leader so it offered the employee a position that wasn’t under her old supervisor. When she rejected it, CSC placed the employee on paid leave again. She filed a second grievance, claiming it was punitive because it denied her the chance to earn shift premiums or overtime.

CSC ended the employee’s assignment in case management because she was spending more time in the secure unit and occasionally performing tasks such as admitting inmates, which was contrary to her medical notes, found the board.

CSC showed it was willing to accommodate her by moving her when it saw the risk of contact with inmates and CSC offered her the option of clerical duties but the employee refused them, feeling they were beneath her position. The employee’s rejection of the various options was coloured by a preference to work from home, which she had done during her first pregnancy, found the board. However, that option was not available this time.

CSC made sufficient efforts to accommodate the employee that were not matched by an equal effort from the employee, found the board. In addition, workplace tension that resulted from the employee’s interaction with her team leader and those in other areas was not a basis for harassment.

Finally, CSC was acting in a good-faith attempt to find a solution when it placed the employee on leave while it tried to find her a position where she didn’t have to work with her team leader.

“The employer’s obligation does not extend to finding an accommodation that will meet the employee’s preferences,” said the board. “Efforts must be made to find a situation that permits the employee to continue working, but such a situation is expected to meet some operational need of the employer.”

Jeffrey R. Smith is editor of Canadian Employment Law Today, a sister publication to Canadian HR Reporter that looks at employment law from a business perspective. For more information, including a special introductory offer for new subscribers, visit employmentlawtoday.com.

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