Both sides share blame in failure to accommodate employee
After a serious auto crash left her off work for more than a year, an education assistant (EA) with the West Vancouver school board grieved the choices of jobs offered to her.
Clare Broomfield had worked full-time for the employer since 2009 but in January 2014, her vehicle was rear-ended by a truck, which resulted in her being off the job for one-and-a-half years.
When she did return, Broomfield was not able to engage in “impact activities such as running and jumping, [or] overly stressful or threatening situations,” and she was restricted to “light duties and to performing any medium duties on a rare basis.”
As well, no heavy duties were permitted, and this meant Broomfield couldn’t do student transfers without assistance, for example.
Broomfield contacted administrator David Platt to arrange a return-to-work plan and he advised her that the board could not create a new, customized position for her, and she should be prepared for the “possibility of being whacked by a student or having to chase a child.”
Eventually, a plan was created due to the makeup of that year’s student body but “her inability to perform the full scope/duties set out as an EA poses safety concerns for other employees and the students she works with,” said Amy Yu, HR advisor, in an email.
“We will need to consider the permanent accommodation will be in another position in the school district that is more suitable given her permanent medical limitations.” Broomfield returned to work on Sept. 6, 2016 and completed a full year. However, on March 8, 2017, her doctor advised that Broomfield would need further accommodations for a successful return. As well, she missed the 2017 year due to surgery.
On Sept. 4, 2018, another graduated return-to-work plan was scheduled for Broomfield to begin on a four-day work schedule. The board was firm that she would have to work as an EA and be able to fully handle the duties including dealing with special needs students.
Eventually, a position was identified but it was for one hour per day and Broomfield declined. “It simply doesn’t work for me to drive into West Vancouver to work for one hour a day at Rockridge as a lunch-time supervisor.”
The possibility of clerical work was discussed but Broomfield failed two tests on Microsoft Word and Excel. An attempt was made to access Learning Improvement Fund (LIF) funding but it was rejected by management.
On Oct. 19, the West Vancouver Municipal Employees’ Association (WVMEA) filed a grievance that alleged the employer failed to properly accommodate Broomfield and it asked for damages.
But in the meantime, Broomfield agreed to work at a position that mostly met her needs.
Arbitrator Dalton Larson ruled against the damages and assigned blame to both sides in the grievance.
“While I accept that [Broomfield] in this case suffered hardship because she was without gainful work, it cannot be laid entirely at the feet of the employer. All the parties bear some responsibility for the time that it took. The notice that [Broomfield] gave that she was ready to return to work did not recognize the complexity of fitting her back into the workforce and that she bore a considerable part of the responsibility to reach a reasonable accommodation. In the end, the job found for her required the cooperation of everyone which cannot justifiably trigger the damages sought by the union under the circumstances.”
More planning should be done, said Larson, to ensure a situation like this doesn’t arise in the future. “Most certainly, there were ways in which the matter could have been better handled by the employer. The fact that it does not have a policy that sets out a protocol by which discrimination cases should be processed is of considerable concern. It is a prescription for further disputes.”
Reference: British Columbia Public School Employers’ Association (Board of Education of School District No. 45 West Vancouver) and West Vancouver Municipal Employees’ Association. Dalton Larson — arbitrator. Jessica Fairbairn for the employer. Theodore Arsenault for the employee. July 2, 2019.