Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on September 16, 2021 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.


The employer and the union agreed to a rotational system of work for a complex manufacturing process.  Grievances were brought by the union after the layoff of several employees with disabilities who were not capable of rotating through machines and stations.  The union alleged that the employer made no effort to meet its duty to accommodate.  The arbitrator determined that the employer established that the capacity for employees to rotate through its different machinery was an essential duty of the manufacturing process.  

Legal Citation

Scepter Canada v Unifor, Local 303, 2021 CanLii 11847 (22 February 2021), (James Hayes, Arbitrator). 

Facts

Scepter Canada operated a plastic fabrication plant in Toronto whose production employees were represented by Unifor, Local 303. 

The employer maintained two levels of operational job classifications: 

  1. Level 1, where employees worked on simple products requiring only minor trimming; and
  2. Level 2, where employees worked on more complex products such as marine tanks and military shell cases. 

Level 1 products were deemed to be low margin and the manufacturing of these products had largely ceased.

In 2019, the employer’s plans to eliminate the Level 1 classification and focus on manufacturing more complex goods by Level 2 workers became an important issue during collective bargaining.  

The employer and the union reached an agreement that, as the Level 1 work was being discontinued, the employer would provide cross-training for Level 1 employees to enable them to rotate through all of the cells and machines effectively and efficiently in the Level 2 production process. 

The employer’s operational system for Level 2 work required regular rotation by employees on the different machines used in this more complex manufacturing process. 

In the employer’s view, the operational advantages of the rotation system – as opposed to keeping employees at one machine or cell – included:

  1. Better health and safety outcomes (fewer repetitive strain injuries); 
  2. Better employee morale through the sharing of heavier and lighter work; 
  3. Enhanced employee skills; and 
  4. Improved product quality and productivity.  

Several of the Level 1 employees had permanent disabilities and were unable to effectively operate all of the relevant Level 2 machines cells as required by the rotation process.  As a result, they were permanently laid off. 

The employer maintained that the rotation system – and the ability of every employee to work on every machine and cell – was an essential aspect of the Level 2 work process. 

The union grieved the permanent layoffs of the employees with disabilities.

Analysis 

At arbitration, the union argued that the employer had not sufficiently accommodated the employees with disabilities, and the undue hardship standard was not satisfied.  In particular, it maintained that the rotation system used by the employer was too rigid and inflexible, and that it was not essential that all employees be able to perform every aspect of the rotational system.

In reply, the employer asserted that its rotational system was operationally necessary for product control and employee satisfaction, and the system’s advantages of efficiency and effectiveness could not be met if simple tasks and light duties were carved out and provided indefinitely to these employees with permanent disabilities.  

Arbitrator James Hayes focused his analysis on whether the ability to rotate was an “essential” requirement of the Level 2 classification within the meaning of section 17(1) of the Human Rights Code

He first held that the collective agreement contained relatively standard management rights clauses, including a specific right to determine the direction of the workforce, the work to be done, performance standards, work schedules, the methods, processes and means of performing work, job content and requirements and the qualifications the employees.  As a result, the arbitrator found that the language provided the employer with the right to eliminate the Level 1 classification and to implement a rotation system for Level 2 work, subject to any restrictions which were not found in the collective agreement. 

Then, Arbitrator Hayes considered the arbitral case regarding the elimination of job classifications: 

28. Second, the general arbitral case law. Arbitrators have accepted, now for decades, that the existence of job classifications does not prevent companies from both adding and abolishing existing job classifications and to create new ones or to distribute job duties over surviving classifications. See Windsor Public Utilities Commission at paras. 30-31, a decision widely regarded as seminal. The only limitation implied by arbitrators, in the absence of explicit language, is that the employer be motivated by a valid business purpose, and not act in a manner that is arbitrary, discriminatory or otherwise in bad faith. See: Auto Haulaway at para. 2. [Emphasis added]

He ruled that, in this case, the employer had both a contractual right and a valid business purpose to make these changes.  As well, there was no allegation of bad faith by the union, and both it and the employer had reached an agreement about the rotation system during the 2019 round of collective bargaining. 

Next, the arbitrator determined whether the ability to rotate was an essential requirement of the Level 2 classification. 

He accepted the evidence of a senior manager that the rotational system had a legitimate purpose and was necessary to maintain its core internal coherence. 

Turning to the arbitral case law regarding essential duties in accommodation cases, Arbitrator Hayes stated:  

33. Several arbitrators have variously explained a fundamental threshold point. Accommodation is required if assistance is needed for an employee to perform the essential duties of the position. But, if a disabled employee is unable to perform the essential or core duties of his/her position, regardless of whatever attempts might be made at accommodation, that is the end of the matter. [Emphasis added] 

Turning to the evidence, he held that the employer’s operational requirement that all employees were required to perform all of the Level 2 duties on a rotational basis met the high standard of an “essential” duty:

38. In the case here, the parties agreed in collective bargaining to eliminate the Level 1 classification with the related intention of transitioning employees to a Level 2 rotation system that was both preferred by employees and recognized by the Employer as superior from a manufacturing point of view. The interests of both Scepter and Union-represented employees were taken into account. Agreed-upon rotational training was provided to former Level 1 workers and all existing Level 2 personnel who required it. As previously noted, Mr. Desai outlined the advantages of rotation and explained the BM18 and BM1 exceptions. In the result, on the facts, I reach the same conclusion as did the arbitrator in Stelco. I accept that the capacity to rotate through machines is an “essential” duty of the Level 2 classification. On the evidence before me, I am satisfied that rotation remains “essential” within the meaning of ss.17(1) of the Code although it may not be practically possible to maintain it without exception at all times. [Emphasis added]

Arbitrator Hayes concluded that it would cause undue hardship for the employer to make the significant changes to its rotational system that the union grievances were seeking. 

The grievances were dismissed. 

Implications for Employers 

The arbitrator’s decision made a clear statement that an employer is not required to accommodate employees with disabilities who would be unable to perform the essential duties of a position, regardless of accommodation.  Cases will often turn on whether a particular duty is “essential” or “core” to the performance of the work, which requires employers to provide persuasive evidence about its operational needs.  Where there are sound business objectives, no evidence of bad faith and no feasible alternatives to providing an accommodation, then an employer would usually have satisfied the human rights criteria for the accommodation duty. 

Implications for Unions 

Unions have an exacting human rights legal duty to defend employee accommodation rights and to ensure that employees with disabilities are appropriately accommodated by employers.  The union in this case took the required steps to ensure that the employer’s explanations met the legal standard.  Unions should always be actively probing an employer’s position as to whether the “essential duties” of a position actually prevent it from accommodating employees with a disability.  In this case, the union was unable to pierce the employer’s stance that its particular rotational system was essential to its operational needs.