Special needs assistant awarded general damages for discrimination, humiliation

Employer found to have failed to meet its duty to accommodate

Karen Morrissey had worked for the Toronto District School Board for more than 27 years, spending more than 15 years as a special needs assistant.

In August 2013, she was found to have permanent restrictions, including an inability to walk long distances, kneel or crouch. Morrissey was accommodated for two years, given access to an electric lift when supporting students in wheelchairs and trading duties with other special needs assistants when the demands of the position exceeded her limitations.

On April 30, 2015, Morrissey submitted an updated list of restricted activities that included any bending or twisting of her knees. In June 2015, the employer indicated Morrissey would need to be moved to another assignment as the incoming class of students included “runners” and those with “toileting issues.” Morrissey’s restrictions could create safety concerns with these new students.

No changes were made, however, and in the new school year Morrissey continued to be accommodated.

On Sept. 28, 2015, Morrissey was asked to clarify her restrictions after she asked to be relieved of two excursions with the students. She clarified she could not walk more than two blocks at her own pace and required a resting period of 10-15 minutes. Additionally, she was restricted to standing for less than 30 minutes.

Following these clarifications, the employer advised Morrissey she could no longer be accommodated due to her inability to provide support for "DF," a “high needs” student under her supervision. Morrissey was required to remain off work until a temporary alternative accommodation could be found that would not compromise her restrictions.

On Oct. 19, 2015, the employer placed Morrissey on sick leave. Her union, the Canadian Union of Public Employees (CUPE) Local 4400, filed a grievance on her behalf. Accommodation must be provided, the union argued, unless this would cause undue hardship. Previous efforts to accommodate Morrissey — such as trading responsibilities beyond her abilities with other special needs assistants — had been working well previous to her removal from the workplace.

The employer voiced concerns about Morrissey’s ability to provide support for students considered to be “runners” but did not address the issue with her or the union.

“The Toronto District School Board had to demonstrate it was impossible to accommodate the grievor without unreasonably risking safety — demonstrating undue hardship,” said arbitrator Tanja Wacyk.

“While the employer can rely on their common sense and knowledge of the work at issue to inform their assessments, assertions of undue hardship will not be sustained if based only on speculative or unsubstantiated concerns regarding possible negative impacts resulting from accommodation.”

In failing to meet the procedural dimensions of its duty to accommodate, Wacyk found the employer discriminated against Morrissey. Further, Morrissey suffered humiliation, pain and suffering as a result of the employer’s actions, she said.

Accordingly, the grievances were allowed and Wacyk ordered the employer to compensate Morrissey for lost wages and benefits, including the top-up between her sick leave pay and regular wages. The employer was also ordered to pay $5,000 in general damages.

Reference: Toronto District School Board and the Canadian Union of Public Employees (CUPE) Local 4400. Tanja Wacyk — arbitrator. Simon Mortimer for the employer, Megan Reid for the union. May 11, 2016.

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