City of Winnipeg falls short on accommodation of injured worker

City offered worker modified duties but walked away from the table when he couldn’t attend training due to university obligations

The City of Winnipeg didn’t try enough to accommodate an injured worker when the worker couldn’t attend training for a new position, an arbitrator has ruled.

Kyle Derbitsky was an instructor/guard in the City of Winnipeg’s Department of Community Services (Aquatics Branch), providing swimming lessons. He had worked for the city since 2009 with no performance issues and was also a student at the University of Winnipeg. Many other city workers in the aquatics department were university students as well.

In January 2013, Derbitsky injured his knee while skiing in Alberta. He was diagnosed with a partially torn medial collateral ligament and sent his medical restrictions on Jan. 5, which indicated he could only do an office job. Derbitsky also provided a functional abilities form completed by his doctor on Jan. 21, which said he couldn’t do lifeguard duties and he could only work “strictly sedentary type duties.” Another functional abilities form dated Feb. 15 indicated he could not work at all until his next examination on March 15.

Accommodation requested when sick leave benefits ran out

Derbitsky received income protection through sick leave benefits for a period of time, but by early March his benefits were running out and he sought accommodation through a more sedentary job until his injury healed.

On March 13, the city found a more sedentary position for Derbitsky – that of a clerk/cashier. Derbitsky had some experience in the job filling in during lunch breaks, but the full-time duties of the position required him to take a computer course as he would be responsible for functions such as registration that he wasn't responsible for in a relief capacity. However, the training dates were on March 19 and 21, when Derbitsky had three presentations and an exam at the university on those days.

Derbitsky advised he couldn’t attend the training because of his university obligations. He didn’t try to make arrangements with the university to change his assignments because university policy stated dates could only be changed because of illness – with a doctor’s note – or a funeral. The city told him he would not be accommodated further, since it was advised by its corporate diversity and human rights advisor that attending school was not a protected ground under the Manitoba Human Rights Code.

The union filed a grievance, claiming Derbitsky wasn’t given enough time – less than a week – to make arrangements to attend. It also said the city didn’t consider another position for Derbitsky or alternate training sessions, which were also scheduled for April.

The city argued Derbitsky had an obligation to participate in the accommodation process and, by refusing to attend “the training session which would provide him with the skills for placement into a position that fit within his restrictions,” he didn’t live up to his part of the process. It also pointed out that Derbitsky’s job was never in danger, and when he wasn’t able to attend the training for the alternate job, it reverted to the earlier accommodation – the sick leave he had been on for two months.

The arbitrator noted that it can be difficult to sort out accommodation if both parties aren’t participating fully.

“The accommodation process can be challenging. Above all, it requires collaboration between the employer, the union, and the (employee). It is essential to the process that there be open and frank discussions to reach a fair and reasonable solution. Patience and compromise is often required,” said the arbitrator.

The arbitrator found that the City of Winnipeg’s policies incorporated the legal principles of accommodation, but in practice the city didn’t adequately follow those policies and principles when it came to Derbitsky’s accommodation. It should have known March was “a busy time for university tests and presentations” and it wasn’t surprising Derbitsky couldn’t attend the training on such short notice due to his educational obligations.

When Derbitsky indicated he couldn’t attend the training, the city dismissed accommodation “in a summary fashion” but “the process should not have ended there,” said the arbitrator.

More options should have been explored

Given the circumstances, the arbitrator found the city should have explored other accommodation options, as it wasn’t at the point of undue hardship. Options such as another training date or looking for other positions were not even considered as the city adopted a “rigid and inflexible” position, said the arbitrator.

The arbitrator found Derbitsky was a good employee, acted in good faith and fully co-operated in the accommodation process. Though he didn’t attempt to change the dates of his university assignments, it was reasonable for him not to do so because he was aware of the policy for changing dates. Also, some of his presentations were group presentations and involved others, making it harder to reschedule.

In addition, the city’s justification that Derbitsky’s reason for not attending the training wasn’t a protected ground under the code was too narrow and didn’t consider its overall obligation under the code and in its policy, said the arbitrator.

The arbitrator found the City of Winnipeg did not fulfill its duty to accommodate Derbitsky by investigating all reasonable accommodation options. The city was liable for a financial reimbursement to be decided between the parties, with the time Derbitsky would be off work due to exams and presentations taken into account.

“(Derbitsky) had a valid and reasonable excuse for not being able to attend the training,” said the arbitrator. “He is a long service employee with seniority and a good work record. He deserved the change to train on another date or to be accommodated in some other fashion.”

For more information see:

Winnipeg (City) and CUPE, Local 500 (Derbitsky), Re, 2014 CarswellMan 603 (Man. Arb.).

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