Accommodation would have resulted in undue hardship

Employee developed injury at workplace

Harjit Brar was denied a transfer to a preferred day shift because of her need for accommodation.

Brar worked as a general warehouse associate in department 1005 of an Ontario-based Winners. As a result of a disability she developed in the workplace, Brar received permanent accommodation working primarily on the control desk.

Brar was cautioned about sustaining grips and pinches. She was also cautioned not to lift objects weighing more than five pounds. Frequent task rotation was recommended.

Brar applied to transfer to a preferred day shift in department 1080 but her request was denied and an employee with less seniority was given the position.

The Workers United Canada Council Local 152 filed a grievance on her behalf, arguing the employer failed in the procedural duty element of its duty to accommodate. The union emphasized the parties’ collective agreement states employees on modified duties are eligible for transfer "if able to perform the job duties."

The union further argued the employer’s duty to accommodate was a continuing duty.

The employer, however, argued Brar was not capable of performing the essential duties of the general warehouse associate in department 1080 during the afternoon shift.

To accommodate Brar in that position would constitute undue hardship, the employer said. The tasks performed at the control desk in department 1080 were similar to those in department 1005 but the volume of work during the afternoon shift was much greater.

In department 1080, employees are required to perform layups, ticketing and packing. Because of Brar’s restrictions, she would be unable to perform layups or packing. Due to the nature of the afternoon shift in department 1080, there was no other work for Brar to perform when she was unable to do layups or packing.

As a result, Brar would have required assistance throughout the day and two people would be needed to perform the work normally performed by a single person, said the employer.

Arbitrator James Hayes agreed the employer failed to discharge its process obligation to Brar considering its duty to accommodate is a continuing obligation. However, Hayes also found the accommodation required to support Brar’s transfer to an afternoon shift in department 1080 would constitute undue hardship.

"Any immediate accommodation of her in department 1080 would require the employer to bear the financial burden of employing an additional employee," Hayes said.

"An employer is not required to carry a surplus employee to satisfy its duty to accommodate."

Given Brar’s medical restrictions and the requirements of the afternoon shift in department 1080, Hayes ruled the employer was not required to approve Brar’s application for transfer and the grievance was dismissed.

Reference: Winners Merchants International and the Workers United Canada Council. James Hayes — arbitrator. Robert Little for the employer, Steven G. Bosnick for the union. Sept. 22, 2015.

Latest stories