Union alleged duty to accommodate wasn't fulfilled; worker refused to relocate
A railway company met its duty to accommodate when it offered multiple positions that met a disabled worker’s restrictions that the worker rejected before eventually retraining for another occupation, an arbitrator has ruled.
The worker was employed as a conductor with Canadian Pacific Kansas City Railway (CPR) in Kenora, Ont., since 2007. The Kenora terminal was a small one in the company’s operations.
In March 2016, the worker injured his back at work. He had to undergo decompression and fusion surgery, which left him with permanent restrictions requiring more sedentary work. Due to these restrictions, the worker couldn’t perform his existing conductor job.
After the worker recovered, he was able to perform sedentary work that wasn’t safety-sensitive. CPR accommodated him with work on a temporary project from Aug. 9 to Nov. 6, 2018. The company searched for a more permanent position that was within the worker’s restrictions, but most sedentary administrative jobs were in larger cities. In December, the worker indicated that he wasn’t willing to relocate from Kenora because his wife had a good job.
He was off work for two months until the project resumed on Jan.15, 2019.
Worker declined accommodation options requiring relocation
On July 15, CPR sent the worker a list of open positions in case there was one that interested him. The worker responded that there “isn’t much for Kenora area that accommodates restrictions.”
The project work finished on May 29, 2020, and the company met with the worker to tell him that all the non-safety-sensitive positions it had were “office-type positions” in either Winnipeg or Calgary. It asked him again if he was willing to relocate, but the worker confirmed that he didn’t want to be accommodated outside of Kenora. CPR replied that there was nothing that provided the opportunity for him to work remotely from a small terminal like Kenora.
CPR also told the worker that if he wasn’t working, he wouldn’t receive his full pay and instead would only be getting his workers’ compensation partial loss-of-earnings benefits, the amount of which would be decided by the Ontario Workplace Safety and Insurance Board (WSIB). However, the company would continue to look for suitable accommodation and it encouraged him to look for jobs himself and tell the company if he saw anything that interested him.
If the worker applied for any positions within the company, he was to let the Disability Management department know so it could work with the hiring manager on accommodating the worker in the role.
On June 5, CPR sent the worker a list of permanent positions available in case he was interested, highlighting one in Winnipeg that it felt was a good fit. It also reminded him to inform Disability Management if he applied.
The worker applied for the position in Winnipeg, but he didn’t inform Disability Management. He didn’t get the job.
CPR sent another list of open positions on Aug. 27 and the worker asked if any of them could be done in Kenora. The response was negative. He otherwise didn’t indicate any interest.
Occupational retraining
Shortly thereafter, the worker decided to participate in a retraining program for another occupation through the WSIB, during which he would receive full workers’ compensation benefits. He initially trained for social work, but later chose to be retrained for a retail clerk position.
Over the next three years, the WSIB kept CPR updated with the worker’s progress in the retraining program. Eventually, the worker found a job as a retail clerk. CPR then closed his employment file on July 16, 2023.
The union filed a grievance alleging that CPR failed to meet its duty to accommodate the worker and it shouldn’t have closed his employment file without further assessment of accommodation options.
The arbitrator was satisfied that the evidence showed that the only permanent employment options were elsewhere, as Kenora was too small. The worker made it clear in his communications that he was unwilling to relocate to be accommodated, so it was reasonable for CPR to conclude as such, said the arbitrator, noting that the company still passed along lists of open positions elsewhere in case he changed his mind.
The arbitrator also found that CPR initially accommodated the worker with temporary project work, but it wasn’t required to create a new position after the project ended. The company continued to seek suitable accommodation and encouraged the worker to apply for positions, offering to support his applications with hiring managers – although when the worker did apply to one, he didn’t inform the company of his application, the arbitrator said.
Accommodation a co-operative process
Noting that the duty to accommodate is a “tripartite” process involving the employer, the union, and the employee, the arbitrator said that an employee has an obligation to co-operate in the accommodation process and to accept reasonable accommodation, even if it doesn’t meet the employee’s every preference.
With his initial refusal to relocate and then not follow instructions when he applied for a job, the worker frustrated CPR’s efforts to accommodate him, said the arbitrator in finding that the company’s duty to accommodate was discharged by June 2020 after the project work ended and the worker rejected suggestions of permanent positions that met his restrictions.
What really helped CPR establish that it met the duty to accommodate was its assessment of the worker’s restrictions and continued offers of possible positions over a period of time, according to Michael Horvat, a labour and employment lawyer at Aird and Berlis in Toronto.
“[The worker] was in a small location, so there wasn’t a lot of alternate work that could be provided to him at that location, and if he wasn't prepared to travel, the other opportunities weren’t available to him,” says Horvat. “[CPR] was able to, in the short term, provide accommodated duties that sustained him for a reasonable period of time, and when those duties naturally went away, it continued to seek alternate options over a multi-year period - ultimately it was the worker's refusal to extend his geographic scope that led to the frustration of the contract.”
In addition, the arbitrator found that, even if CPR still had a duty to accommodate, this ended by the fall of 2020 when the worker decided to retrain with the WSIB program and pursue employment outside of CPR – showing an intention not to return to work with CPR in the foreseeable future.
“If a worker undertakes labour market re-entry training, it’s a determination that they’re not going to return to their pre-injury position,” says Horvat. “Once they enter that process under the WSIB, then it’s a de facto situation – it’s policy driven and not quite a legislative determination, but it's effectively a determination that the worker won’t be returning to their pre-injury position or employer.”
Employer satisfied procedural, substantive components of duty to accommodate
The arbitrator determined that CPR had satisfied both the procedural and substantive components of its duty to accommodate, including making an individualized assessment of the worker’s restrictions and seeking appropriate positions. The company wasn’t required to create new positions or maintain the temporary project work solely for the purpose of accommodation, the arbitrator said in dismissing the grievance.
The passage of time before claiming frustration of employment is key in circumstances like this, as is the employer’s documentation of the entire process, says Horvat.
“You need to document and demonstrate a clear period of time in which the employee is absent from work, during which you are reviewing and presenting potential accommodation that isn’t being accepted by the employee or that they’re in no position to accept,” he says. “And it's only after a sufficient, reasonable period of time that you are asserting that there's been a frustration of employment – it’s not the first opportunity offered or crossing some determined threshold of absence, it’s a combination of opportunity, unsuccessful accommodation options, and time.”
