Perfection Not the Proper Standard for Accommodation

Seeking the same workplace accommodation arranged for her previous pregnancy, a paramedic grieved after being informed by her employer that the 12-hour, rotating shift she applied for in the Logistics department would no longer be available.

Some of the work performed by Emergency Supply Technicians in the Logistics section of the municipality’s Technical Services Department was suitable for accommodated work assignments for workers with medical restrictions. And, beginning in 2005, it was common for workers on modified assignments to work either eight- or 8.4-hour, day shift assignments in Logistics, refitting and reconditioning the equipment and bags in ambulances. In some cases, 12-hour shifts were available.

Accommodated during her pregnancy in 2006, paramedic M.B. stayed on her 12-hour rotating shift schedule and took an assignment in Logistics. M.B. sought the same accommodation when she became pregnant in 2008. However, while the 12-hour, rotating shift was desirable for M.B. because it paid a shift premium and because it allowed her to more easily co-ordinate childcare needs with her partner — who also worked a 12-hour rotating shift — the municipality had eliminated the 12-hour shift in Logistics.

Inadequate supervision

Management had come to the view that overnight supervision in a 100,000 square-foot building where Logistics was housed was inadequate. The employer had determined that the level of activity in general did not justify staffing the overnight shift where productivity was also demonstrably lower. Citing operational reasons, the employer cancelled the shift.

The union grieved on behalf of M.B. and another grievor. By failing to allow the grievors to maintain their 12-hour rotating shifts, the employer was failing in its duty to accommodate, the union said. Providing the preferred shift as requested would not cause the employer undue hardship as it had made such accommodations previously. It was incumbent on the employer, the union said, to tailor accommodations to individual needs.

Referencing the employer’s duty to accommodate up to the point of undue hardship was misplaced in this case, the employer said, because it implied that the employer had discriminated against the grievors when it had not. They had not been treated any differently than other employees who had been reassigned to Logistics in order to accommodate medical restrictions.

For the union to propose that the grievors’ requests for relief from active duty translate into an active duty on the employer to maintain the grievors’ pre-accommodation schedules or create new shift schedules according to their individual preferences up to the point of undue hardship was to suggest a quantum leap that the law does not support, the employer said.

Management rights

The employer conceded that, prior to 2008, some employees had been accommodated in the Logistics department on 12-hour shifts. However, circumstances had changed and the employer asserted that it had the right to direct its workforce and address concerns it had about supervision and productivity.

The union had overstated the employer’s duty in this case, the Arbitrator said.

“It is not incumbent on the City to establish that it would have resulted in undue hardship were it to accede to the grievors’ requests that they work either a 12-hour rotating shift or a shift of their preference based on individual personal considerations in what the parties agree was an appropriate alternative and temporary work accommodation.”

It is incumbent on employees to accept an offer of reasonable accommodation even if it is not exactly what they wanted. Accommodation is about compromise, the Arbitrator said and, where an offer of accommodation is reasonable, the issue of undue hardship does not arise.

“In my view, the City has exercised its managerial right in assigning the grievors to a shift schedule created as early as 2005 (without any union concern) to facilitate its acknowledged duty to accommodate employees in the workplace. While the evidence was that up until the winter of 2009, several employees in need of accommodation, including pregnant paramedics, were assigned their pre-accommodation shift schedule or their preferred shift schedule based on individual personal considerations, this does not translate into a Code obligation to implement that preference. There is no suggestion in this case that management’s decision to cease acceding to those shift schedule preferences was done in bad faith. Rather, in so doing, management exercised its right to manage the workplace based on operational considerations.”

The grievances were dismissed.

Reference: Ottawa-Carleton Public Employees’ Union and The City of Ottawa. Christine Schmidt — Sole Arbitrator. Dina Mashayekhi for the Union and Christine Enta for the Employer. June 7, 2010. 15 pp.

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