After 16 years of employment that included 696 absences due to illness or injury and 18 modified work programs, a hospital worker was told by her employer that it could no longer continue to make the accommodations that were necessary to render her job as a porter sustainable.
G.S. began as a part-time housekeeping aide at the hospital in 1992. Some 10 months after starting at the hospital, G.S. reported a work-related musculoskeletal injury that caused her to take time off. She reported another injury in 1995 and was absent from work for lengthy periods of time due to severe back pain between 1996 and 1999.
Diagnosed in 1999 with degenerative disc disease, G.S. cycled through periods of convalescence and return to work followed by re-injury.
Job changes — from general housekeeper to lighter duties as lab housekeeper and then to porter — followed. Functional abilities evaluations were performed and G.S. was provided with work restrictions on lifting and carrying (25 pounds), pushing and pulling (30 pounds) and on climbing, bending and repetitive movements.
While working as a porter, G.S. sustained another injury in June 2007 that kept her off work for the better part of a year. When she attempted to return to modified work as a porter with physical restrictions, the employer informed her that it could not accommodate her in that position and offered instead to accommodate her in a clerical position.
Refused offer of clerical job
G.S. refused that offer and the union grieved. The union said that in failing to accommodate G.S. in her job as a porter, the employer was in violation of the collective agreement and the Ontario Human Rights Code.
The employer was not living up to its obligation to accommodate G.S. up to the point of undue hardship, the union contended. Permanent job modifications to the porter position were possible in order to deal with the heavy lifting requirements and her other job restrictions, the union said.
The employer disagreed. Given her history of absenteeism due to injury followed by modified work and then re-injury, a return to the porter position would simply lead to more of the same. It was important to note, the employer said, that heavy lifting was not the only problem. G.S. had sustained an injury while working in the lab as a result of bending over the sink. Given her age and the degenerative nature of her disease, the many demands of the porter job were not a good fit for G.S., the employer said.
The arbitrator agreed. The union’s proposed job modifications were not practical. The solutions offered to get around the weight restrictions would require either adding steps that would impede the timeliness of medication and sample deliveries or hiring another worker to work alongside G.S.
Moreover, G.S.’s restrictions were not just on lifting but also on bending, pushing, pulling and repetitive motions. Even the light-duty porter position proposed by the union would be problematic, the arbitrator said. “I believe that these restrictions make it very likely that not only regular porter positions, but also the [light-duty] porter position … would result in [G.S] being re-injured and going off work again for extended periods of time due to injury.”
G.S.’s safety and the safety of patients were legitimate employer concerns that had to be factored into the consideration of undue hardship, the arbitrator said.
In view of the evidence, the arbitrator came to the conclusion that G.S. was seeking “reinstatement to a position that she, through no fault of her own, is not currently capable of performing and is unlikely to be capable of performing in the foreseeable future. Even more unfortunate … is the fact that the employer has demonstrated that there is no other position available at the hospital in which [G.S.’s] disability could be accommodated without causing undue hardship in the form of risk of injury to the grievor or patients, or in the form of cost or health and safety concerns for the employer.”
The employer, said the arbitrator, “has done a great deal to assist this employee to remain in the workplace, despite extensive absences due to physical disability over many years. It has clearly acted in good faith and satisfied its obligations under the Human Rights Code.”
The grievance was dismissed.
Reference: Canadian Union of Public Employees, Local 1487 and The Scarborough Hospital. Brian Etherington — Sole Arbitrator. Susan Ballantyne for the Union and Rob Weir for the Employer. December 30, 2009. 39 pp.