Read the facts of this case and decide for yourself: Was CNR justified in ending its accommodation of this worker?
This instalment of “You Make the Call” looks at a case involving a Canadian National Railway (CNR) worker with multiple sclerosis and whether or not the employer accommodated the worker’s disability to the point of “undue hardship.”
For a number of years, CNR accommodated Todd Kilba of Kamloops, B.C., because of his disability. Because of his MS, Kilba was progressively forced to do less demanding tasks. By 2002 his work was essentially restricted to sedentary duties at the Kamloops administration building. Between 2002 and 2004, Kilba worked more and more hours from home, apparently using a computer provided for that purpose by CNR. Kilba also apparently suffered from fatigue which required him to take breaks from his work to rest. As a result, while it appeared he was able to complete the work assigned to him, he did so over a period of more than eight hours.
In July 2004 the company decided it could no longer accommodate him. CNR told him his accommodation would come to an end in 30 days and that he should explore the option of short-term and long-term disability benefits. Kilba did so reluctantly, but he maintained there was no deterioration in his condition which would justify the termination of the accommodation.
The employer never asked Kilba to undergo a functional abilities assessment to establish whether there had been any deterioration in his condition that would affect his ability to perform the tasks that were being assigned to him.
There also was a change in the person who Kilba reported to and CNR also decided to move its administrative operation to a building that did not contain a wheelchair accessible office or work station for Kilba.
You make the call
Was CNR justified in ending the accommodation?
OR
Should it have continued to accommodate his disability?
If you said CNR did not prove it had attempted to accommodate Kilba to the point of undue hardship, you’re right.
The arbitrator in this case said there was no doubt CNR failed to take the appropriate steps to prove it had attempted to accommodate the worker’s disability to the point of undue hardship. The Canadian Arbitration Board said it had “some difficulty” with the employer’s position in this case. The fact the employer never asked him to undergo an assessment hurt its case.
“There is, in addition, no evidence to indicate that (Kilba) was ever told that he was not performing the work assigned to him in a satisfactory and productive way,” the arbitrator said. “Lastly, there is no evidence presented to confirm that there has, in fact, been any deterioration in (his) physical condition which might have impacted his accommodation.”
The arbitrator said the fact the company was moving offices might have made it harder to accommodate Kilba. But CNR failed to make an extensive argument to substantiate that fact or suggest it as an explanation.
Therefore, the arbitrator said the employer had to reinstate Kilba with full compensation for all wages and benefits lost. But the arbitrator left the door open for the company to prove it had met its burden of accommodation to the point of undue hardship.
“Nothing in this award should be seen as limiting the company’s ability to obtain the necessary medical or other information as may be appropriate to properly assess the feasibility of accommodating (his) condition on an ongoing basis,” the arbitrator said. “Nor is the company precluded from monitoring the value of the work that can be done by (Kilba).”
The arbitrator also refused a request by the union for punitive damages because there was no reckless or wilful disregard of Kilba’s rights.
For more information see:
• Canadian National Railway v. U.T.U., 2005 CarswellNat 4962, [2006] L.V.I. 3620-4 (Can. Arb. Bd.)
For a number of years, CNR accommodated Todd Kilba of Kamloops, B.C., because of his disability. Because of his MS, Kilba was progressively forced to do less demanding tasks. By 2002 his work was essentially restricted to sedentary duties at the Kamloops administration building. Between 2002 and 2004, Kilba worked more and more hours from home, apparently using a computer provided for that purpose by CNR. Kilba also apparently suffered from fatigue which required him to take breaks from his work to rest. As a result, while it appeared he was able to complete the work assigned to him, he did so over a period of more than eight hours.
In July 2004 the company decided it could no longer accommodate him. CNR told him his accommodation would come to an end in 30 days and that he should explore the option of short-term and long-term disability benefits. Kilba did so reluctantly, but he maintained there was no deterioration in his condition which would justify the termination of the accommodation.
The employer never asked Kilba to undergo a functional abilities assessment to establish whether there had been any deterioration in his condition that would affect his ability to perform the tasks that were being assigned to him.
There also was a change in the person who Kilba reported to and CNR also decided to move its administrative operation to a building that did not contain a wheelchair accessible office or work station for Kilba.
You make the call
Was CNR justified in ending the accommodation?
OR
Should it have continued to accommodate his disability?
If you said CNR did not prove it had attempted to accommodate Kilba to the point of undue hardship, you’re right.
The arbitrator in this case said there was no doubt CNR failed to take the appropriate steps to prove it had attempted to accommodate the worker’s disability to the point of undue hardship. The Canadian Arbitration Board said it had “some difficulty” with the employer’s position in this case. The fact the employer never asked him to undergo an assessment hurt its case.
“There is, in addition, no evidence to indicate that (Kilba) was ever told that he was not performing the work assigned to him in a satisfactory and productive way,” the arbitrator said. “Lastly, there is no evidence presented to confirm that there has, in fact, been any deterioration in (his) physical condition which might have impacted his accommodation.”
The arbitrator said the fact the company was moving offices might have made it harder to accommodate Kilba. But CNR failed to make an extensive argument to substantiate that fact or suggest it as an explanation.
Therefore, the arbitrator said the employer had to reinstate Kilba with full compensation for all wages and benefits lost. But the arbitrator left the door open for the company to prove it had met its burden of accommodation to the point of undue hardship.
“Nothing in this award should be seen as limiting the company’s ability to obtain the necessary medical or other information as may be appropriate to properly assess the feasibility of accommodating (his) condition on an ongoing basis,” the arbitrator said. “Nor is the company precluded from monitoring the value of the work that can be done by (Kilba).”
The arbitrator also refused a request by the union for punitive damages because there was no reckless or wilful disregard of Kilba’s rights.
For more information see:
• Canadian National Railway v. U.T.U., 2005 CarswellNat 4962, [2006] L.V.I. 3620-4 (Can. Arb. Bd.)
