No discrimination when accommodation options are frustrated: Arbitrator

Worker was unable to continue with two separate return-to-work plans; information indicated old job duties weren’t feasible

A British Columbia employer had the right to dismiss an employee who was no longer able to work her regular job because of a disability, an arbitrator has ruled.

Sun-Rype products is a Kelowna, B.C.-based manufacturer of juice and other products based on fruits and vegetables. Since 2002, Sun-Rype’s collective agreement with its union included an article covering employee absences that stipulated any employee absent from work for 12 months continuously would be moved to the bottom of the seniority list and categorized as inactive. If the employee was able to return to work, she would be returned to her old spot on the seniority list and keep her position.

The collective agreement also allowed employees receiving long-term disability benefits to continue to be eligible for health benefits and would not be terminated. There was no definition of disability in the agreement, relying on the insurance provider’s group insurance policy. Employees became eligible for employer-paid coverage in its medical services plan after 62 shifts and remained eligible until termination of employment.

A 45-year-old Sun-Rype employee, Carlo Pucci, was injured in a motor vehicle accident on June 23, 2013, when his vehicle was broadsided on the driver’s side. He was unable to work due to his injuries and received first short-term, then long-term disability benefits.

The insurance provider set up a graduated return-to-work program in January 2014 after Pucci passed a physical assessment showing he could meet job demands for squatting, pushing, pulling, lifting, and carrying. However, Pucci’s doctor didn’t approve and said Pucci couldn’t return as there was no light duty available. Another return date was planned for early March when Pucci indicated he wanted to return, but as the date approached Pucci was still in pain and without light duties available, he couldn’t work.

On March 6, 2014, the insurance provider deemed Pucci was no longer disabled and should be working full-time. Pucci attempted to return to work twice under a graduated return-to-work program, but each time he was unsuccessful. He appealed the ending of his benefits, but the insurance provider found that although he might still be experiencing symptoms from his injuries, “the information on file does not support a condition of a severity to preclude you from performing the essential duties of your occupation.”

Return to work plan unsuccessful

Another graduated return-to-work plan was developed in August 2014 that allowed Pucci to rotate his position and take breaks more frequently, step in and out of the production line for whatever time he could tolerate, and do less demanding tasks for as long as he chose. Pucci didn’t see the plan, but Sun-Rype ran it by Pucci's doctor, who approved it.

Pucci returned under the graduated work plan and worked for four hours on Sept. 2. He tried as much as he could, but he was afraid of re-injury and was reluctant to do some tasks. He worked four hours on each of the next two days but reported back and shoulder pain His chiropractor provided a note saying Pucci was unable to perform the activities he was previously doing at work and it may be between six and 18 months before he could work again, depending on how his treatment went. Pucci’s doctor concurred with the amount of time indicated before another return to work was contemplated.

Pucci continued with his graduated program but was unable to continue after Sept. 19 due to back and shoulder pain. He appealed again for reinstatement of his long-term disability benefits, but the insurance provider denied the appeal.

In December 2014, Pucci’s doctor wrote to Sun-Rype stating that Pucci was unable to do the type of work required at his previous occupation on the production line and would require retraining for alternate employment that didn’t require activities such as rapid bending and lifting.

By March 2015, Sun-Rype concluded that at this point, it was unlikely Pucci would be able to return to work in the foreseeable future. On March 10, the company terminated Pucci’s employment for non-culpable absenteeism.

Pucci grieved the dismissal, indicating that his family doctor said he wasn’t able to return to work due to the fast-paced work environment that involved twisting, turning, bending, and lifting above the shoulder — Pucci's job on the production line involved rotating duties with other workers labelling boxes, pushing boxes on a conveyor to counting stations, stacking boxes on pallets, and moving pallets. Pucci also had a medical opinion that while there was some improvement in his abilities, there was no prognosis of when he would eventually be able to work.

Sun-Rype responded by saying Pucci’s employment contract was frustrated because it was unable to accommodate him after so long and there was no indication he could return to work “within a reasonable timeframe.”

The union grieved the termination, arguing Pucci was absent for 12 consecutive months and was therefore subject to the collective agreement provision placing him on the inactive list and protecting his employment. It claimed the provision ensured employees weren’t dismissed for reasons beyond their control.

Sun-Rype disagreed, arguing the provision didn’t necessarily preclude it from dismissing an employee on the inactive list any more than another employee on the regular seniority list.

The arbitrator found that a plain reading of the collective agreement provision covering the inactive seniority list led to the conclusion that it had “a simple administrative purpose.” It relieved Sun-Rype from having to continue to contact employees who were unable to work and not worry about scheduling them.

“The subject matter, language and placement of (the inactive list provision) in the collective agreement is not intended to create a category of employees immune to dismissal for innocent absenteeism,” said the arbitrator. “Such an extraordinary benefit would require much clearer language than identification of the placement of an employee within the seniority list.”

The arbitrator found the placement of an employee such as Pucci on the inactive list after 12 months of absenteeism did not provide immunity or protection from termination if the employee wasn’t receiving long-term disability benefits, as Pucci wasn’t after March 6, 2014.

The arbitrator also found that Sun-Rype received conflicting messages from Pucci’s doctor throughout the process, as the doctor initially approved return-to-work plans but then put the kibosh on them when it became time to implement. The latest information Sun-Rype had about Pucci’s status was that he required six to 18 months of chiropractic treatments and then that he was unable to perform the duties of his old position. The company considered various options and concluded there was nothing left Pucci could do.

“It was clear from the failed graduated returns to work …and his physician’s statements in December 2015 that Mr. Pucci could not work a variable or lighter work schedule,” said the arbitrator. “There were no available additional measures to accommodate him and he was not going to be able to return to work in the foreseeable future, if ever. At this point, the employer had discharged its duty to accommodate Mr. Pucci, who could no longer provide any labour.”

The arbitrator determined Sun-Rype had sufficiently explored accommodation options and reached the point of undue hardship. It did not discriminate when it terminated Pucci’s employment after an absence of more than two years.

For more information see:

Sun-Rype Products Ltd. and TC, Local 213 (Pucci), Re, 2016 CarswellBC 485 (B.C. Arb.).

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