Attempts at accommodation of Ottawa worker met with frustration

Third dismissal was reasonable, more should have been done

Attempts at accommodation of Ottawa worker met with frustration
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An Ontario worker who didn’t fully cooperate with her employer’s accommodation efforts didn’t receive the award she hoped for after being dismissed.

The worker was a part-time personal support worker at two Home for the Aged facilities run by the City of Ottawa. In 2006, the worker injured her shoulder while working for another employer. As a result, she had significant restrictions on what she could do at the workplace. In 2007, she began a leave of absence from her position with the city. The worker remained off work for the next couple of years.

In late 2008, the city tried to contact the worker to discuss her availability for work. However, it was unsuccessful and still couldn’t get ahold of the worker after several attempts. The city decided to terminate her employment effective March 23, 2009.

The city and the union reached an agreement for the worker to be reinstated with pay once she provided satisfactory medical documentation “identifying her current permanent limitations, restrictions, from a qualified treating physician.” The city would then consider the worker for “suitable employment opportunities, while respecting her limitations/restrictions, and within the city’s normal priority placement process to accommodate employees with documented disabilities.”

The city added the worker to its permanent accommodation database (PAD) and notified the worker with a letter stating that she should make herself available for any assessments and training and ensure the city had up-to-date information.

The worker didn’t respond to the letter or any subsequent phone calls, so the city put its accommodation efforts on hold. However, she remained an employee until Oct. 22, 2012, when her employment was terminated in “error.” After another grievance, the city reinstated her in April 2013.

The city found the worker a position as a part-time receptionist at a long-term care home in November 2013. After a seven-month trial period, the city determined it wasn’t a suitable accommodation.

The worker was unable to return to her personal support worker position due to her restrictions and the city was unsuccessful in finding another job for her over the next couple of years. As a result, it terminated her employment on June 13, 2016 for frustration of her employment contract.

The worker grieved this latest termination, arguing the city failed to “sufficiently discharge its duty to accommodate obligations,” as evidenced by the fact it had terminated her employment three times.

The arbitrator found that the worker had no entitlement to compensation for the 2016 termination as the worker didn’t co-operate with the accommodation process — she didn’t respond to the city’s attempts to get information and was difficult to contact. In addition, there was no success in finding the worker a suitable position in the three-year period from 2013 to 2016, despite the placement of the worker in a trial position.

The arbitrator also pointed out that the 2009 settlement required the worker to supply updated medical information — a point that was reinforced by the letter confirming the worker was on the PAD. Despite the dearth of direct contact, the worker would have been aware of the expectations and the accommodation process. The city made sufficient attempts to contact the worker and the worker never reached out to inquire about her employment status or her grievances.

However, during the period from the 2009 settlement to her second termination in 2012, the city should have made additional efforts to contact the worker and the union, rather than putting accommodation on hold after not receiving medical information, said the arbitrator.

The city was ordered to pay the worker $5,000 for not satisfying the duty to accommodate before the worker’s second termination in 2012. The grievance for the third termination was dismissed.

Reference: Ottawa (City) and Ottawa-Carleton Public Employees Union, Local 503 (Sismon). Brian Sheehan — arbitrator. Margaret-Marie Steele for employer. Dina Mashayekhi for employee. Sept. 11, 2019. 2019 CarswellOnt 17452

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