Sample Accommodation E-Lert
This sample Accommodation E-Lert was posted on July 30, 2020 within the category "The legal duty on employers". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
A nursing aide working in several homes for the aged was terminated after the employer could not find a suitable accommodation for her injured shoulder. The employee was found to have abused the accommodation process by not attending health assessments. However, the employer had allowed the employee to “slip through the cracks” by not contacting her for three years. Ultimately, the employee lost her bid to be reinstated, but was awarded $5,000 because the employer had breached her procedural duty to a fair accommodation process.
Ottawa (City) v Ottawa–Carleton Public Employees Union, Local 503, 2019 CanLII 103859 (ON LA) (Brian Sheehan) (September 11, 2019)
The grievor started working for the employer in 1993 as a part-time nursing aide at two of the employer’s Home for the Aged facilities in Ottawa.
In 2006, the grievor injured her shoulder at another workplace and required an accommodation to modify her duties.
She subsequently left on a disability leave of absence in January 2007.
The employer terminated the grievor’s employment in late March 2009 (termination #1) after they made numerous unsuccessful attempts to contact the grievor regarding her work availability.
The grievor filed a grievance challenging her termination in mid-April 2009.
Subsequently, the employer and the union negotiated to settle the grievance. Part of this 2009 settlement was that the grievor was to produce updated medical documentation no later than September 11, 2009 in exchange for the grievor being reinstated.
The grievor did not provide updated medicals and later claimed she did not authorize the settlement, nor was she aware of it until April 2013.
Despite not receiving updated medical documentation from the grievor, the employer added her to their Permanent Accommodation Database (PAD) in September 2009.
Over the next year, the employer made several further attempts to contact the grievor, to no avail.
In December 2010, the employer sought advice on whether they could terminate the grievor, but did not follow through.
After this, there was no communication between the grievor or employer for another two years until she was terminated in error (termination #2).
The grievor was not notified of the termination and only learned about it when she received a letter from OMERS.
Recognizing its error, the employer reinstated the grievor in April 2013 and placed her back on the PAD. Nonetheless, the union grieved this second termination on June 7, 2013.
Subsequently, the employer went to extensive lengths to find a suitable position for the grievor. Ultimately, it could not locate a suitable accommodation position, and terminated the grievor’s employment on June 13, 2016 (termination #3).
The union grieved this third termination on June 15, 2016.
On November 27, 2017, Arbitrator Brian Sheehan issued an interim order which provided the grievor with one final assessment with respect to available positions based on her restrictions.
The grievor did not attend the assessment, nor did she appear at the subsequent arbitration that was scheduled to address any residual issues to be addressed.
A hearing then took place in late April 2019 to address an employer motion that the matter be dismissed because the grievor had abused the process.
In early June 2019, Arbitrator Sheehan issued an interim award, concluding that, although the behaviour of the grievor constituted an abuse of process, the union still had carriage of the grievance.
Since the union wanted to litigate the grievance, the arbitrator found no basis to dismiss the grievance.
The award also determined that the only issue left to be resolved was the residual matter from the November 2019 interim order.
Since the grievor had failed to attend the assessment, her opportunity for reinstatement had been completely defeated, leaving only a claim for damages remaining to be determined. This was the focus of the current award, issued in September 2019.
Arbitrator Brian Sheehan began his analysis by considering the inactivity of the grievor in the employer’s attempt to accommodate her:
A fundamental principle associated with the duty to accommodate is an obligation upon the employee seeking accommodation to actively participate and/or cooperate with the accommodation process; and a failure to do so will justifiably result in the complaint of the employee being dismissed. [Emphasis added]
He also addressed the grievor’s silence in correspondence when the employer was trying to find her a new position:
…there was the failure of the grievor to respond to the request of Ms. Peppy set out in her November 2, 2009 letter to contact her and arrange for a meeting so that she could review the grievor’s resume and skills in furtherance of assessing potentially suitable positions. This failure of the grievor to “do her part” weighs significantly against the claim for compensation advanced by the Union on the grievor’s behalf [Emphasis added]
Arbitrator Sheehan expressed that, based on the culminating behaviour from the grievor:
The combination of the silence of the grievor and the Union, and the reality of the distinct possibility that there would not have been a suitable position for the grievor are significant factors arguing against the grievor being compensated in relation to the circumstances underlying the June 7, 2013 grievance [Emphasis added]
The arbitrator also agreed that the employer initially satisfied its duty to accommodate by reaching out to the grievor. However, it subsequently failed to maintain contact with her:
…the ongoing lack of action by the Employer, by not making any further efforts whatsoever to contact the grievor or the Union over the following three-year period cannot be excused. At a minimum, in keeping with the analysis of Arbitrator Waddingham in Region of Peel, supra, the Employer, before terminating the employment relationship, should have reached out to the grievor to inquire as to whether there was any change in her circumstances that would be relevant with respect to the ability to accommodate her disability. By failing to make such follow- up efforts, the Employer, in my view, breached its procedural duty to accommodate obligations. [Emphasis added]
Ultimately, Arbitrator Sheehan decided that a monetary award to the grievor would be an appropriate remedy for the employer’s inaction for such a long period:
…there is no basis for a finding of bad faith on the part of the Employer, and it may just be a case of the grievor “falling through the cracks,” however, the issuance of only a declaration is not, in my view, a sufficient remedial response […]. Given the length of time without any follow-up by the Employer, the failure to advise the grievor of her termination, in combination with the grievor’s seniority, it is my determination that the grievor should be awarded $5,000 as general damages for the infringement of her rights under the Code. [Emphasis added]
Implications for Employers
Because the accommodation duty is a human right, the employer bears a significant responsibility to ensure that it not only searches diligently for suitable accommodation positions, but that it also maintains regular contact with the employee. This procedural duty on the employer does not necessarily end just because the employee fails to cooperate with the process. A failure to regularly stay in touch with employees seeking an accommodation can lead to an order to pay monetary damages.
Implications for Unions
One of the greatest challenges facing unions in the accommodation process is an uncooperative employee. Like employers, unions must nevertheless ensure that they take all the necessary procedural steps in their representation of the employee: corresponding regularly with the employee; pointing out the importance of attending health consultations and arbitration hearings; encouraging her or him to engage with all reasonable requests; and clearly explaining the consequences of a failure to cooperate. Because the accommodation duty is a human right, unions have an elevated duty to fairly represent their members who are seeking an accommodation.