Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on May 28, 2020 within the category "Compensation accommodation". 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.

An Ontario arbitrator awarded $8,000 in damages arising from the breach of the Human Rights Code for an employee with a disability.  The employee working for the City of Kingston was terminated because of her disability-related absences.  The employer failed to reasonably accommodate.  
Legal Citation 
Canadian Union of Public Employees, Local 109 v Corporation of the City of Kingston, 2020 CanLII 13172 (ON LA) (Ontario Labour Arbitration Awards, 20 February 2020) (Arbitrator: Eli A. Gedalof). 
In an earlier award involving the parties,¹ Arbitrator Eli Gedalof found that the City of Kingston had breached the governing collective agreement by failing to accommodate the grievor. 
He left the issue of compensation and damages for the parties to resolve, while remaining seized of the matter. 
When the parties could not agree on the question of the quantum of damages, the issue was returned to the arbitrator for final resolution.  
The grievor began working for the City of Kingston in the summer of 2002 as the secretary to the manager of parks and arenas. 
She was subsequently promoted to the assistant supervisor position with the Special Events office in 2010. 
The employer terminated the grievor in July 2018.  
It cited the grievor’s excessive innocent absenteeism stemming from a chronic disability, unfortunate accidents and medical issues as having frustrated the contract of employment.   However, at the time of termination, the grievor had resolved most of these medical issues, she had improved her attendance substantially, and her prognosis provided for acceptable attendance in the future.  Any absences that would arise due to her chronic conditions would be minimal and could be managed or accommodated.  
The employer argued that, although the test for frustration of contract may have not been met, its Attendance Management Plan (AMP) was not been applied in bad faith or meant to intentionally target the grievor.  In its view, the grievor had been disruptive in the workplace, and difficult to work with. 
In response, the union submitted that the employer mechanistically applied the AMP without regard to the grievor’s circumstances.  In particular, it had ignored its duties under the Human Rights Code as it related to her past attendance record.  Most importantly, the employer had failed to discharge the duty to accommodate her disability and improperly focused on performance issues that were improper grounds for her discharge. 
In his initial award in 2019, Arbitrator Gedalof found that the employer failed to meet the requirements for frustration of contract.  
The employer’s mechanistic application of the AMP and its reliance on the grievor’s performance issues were unjust, and contrary to the Code.  The AMP explicitly addressed Code-related absences and the employer had failed to properly consider the grievor’s human rights when terminating her for disability-related absences.  
Arbitrator Gedalof held that termination of employment constituted a breach of the grievor’s human rights and give rise to human rights damages.  
The parties agreed on the quantum of lost wages and benefits, but the quantum of damages arising from the breach of the Code was unresolved.  
The employer argued that a damage award of $2,000 would be appropriate, while the union submitted that an award in the $45,000 range would be suitable.  
The union argued that human rights damages are meant to compensate for the loss of the right to be free from discrimination and victimization.²  It maintained that, in assessing damages, the governing factors for a human rights award should be the nature of the employer’s offending conduct and the effect of the conduct on the grievor.³  The union also sought, for the first time, an order requiring the employer’s managers to participate in human rights training. 
In reply, the employer emphasized the broad discretion that arbitrators have in assessing damages.  The grievor was terminated in good faith and it was not a breach of the Code to terminate an employee for innocent absenteeism, provided the employer could meet the arbitral test.  The employer maintained that it acted in good faith, placing this fact situation on the less serious end of the spectrum.  The employer also objected the union’s request for managers to undergo human rights training. 
Arbitrator Gedalof reiterated the relevant factors from Strudwick when deciding upon damages awards.  The quantum of damages should reflect the objective seriousness of the discriminatory conduct and the effect of that conduct on the grievor.  Both cases involved a disability-related termination, the failure to accommodate, and a reliance on alleged performance issues.  However, he stated some differences between the facts of the cases:
[22]      Having reviewed the facts in Strudwick, however, I find that there are very substantial differences between these cases, and that consequently the instant case falls within a different range of damages. Most significantly, Strudwick involved a prolonged campaign of abuse by the employer that included publicly belittling, harassing and isolating the complainant… In short, the employer in Strudwick repeatedly acted with extreme bad faith over a prolonged period of time, systematically targeting the complainant’s particular vulnerability. This conduct had a “profound and prolonged” effect on her physical and mental well-being.  [Emphasis added.]
[23] … I have found that in the course of the grievor’s employment, the City acted in good faith and strove to accommodate her disability. At no time did the City engage in the kind of abusive behaviour described in Strudwick. Neither is there any evidence before me of the kind of profound harm that was caused to the complainant in Strudwick.
But, in turn, the arbitrator noted that the employer relied upon cases that also had distinguishing factors that were not relatable to the grievor’s case.  The employers in those cases had taken further steps to accommodate the grievor and the grievor failed to cooperate with the accommodation process.  Furthermore, the conduct was not objectively serious and had minimal to no effect on the grievor.  
After assessing and weighing the cases relied upon by both parties, Arbitrator Gedalof ultimately held: 
[32]   A damages award in the instant case should reflect both the isolated nature of the employer’s discriminatory conduct in the context of having otherwise properly accommodated the grievor’s disability throughout her employment, but also the serious nature of a discriminatory termination... She has not, however, and as the Court articulated in ADGA, been compensated for the “loss of the right to be free from discrimination”, or for the “victimization” resulting from this discriminatory treatment.  
Arbitrator Gedalof awarded the complainant $8,000 in damages for the employer’s breach of the Code, as the employer made unwarranted assumptions about the grievor’s disability and it had a profound effect on the grievor.
Implications for Employers
In this case, Arbitrator Gedalof accepted that the employer was genuinely concerned about the grievor’s performance and attendance.  However, the employer did not consider the progress and the prognosis that the grievor was likely to maintain acceptable attendance.  Employers must ensure that the disabilities of their employees are understood.  
Implications for Unions
This case illustrates the importance for unions and their members to be involved in the accommodation process.  The full extent and progress of the disability as it relates to the workplace should be disclosed to the employer.  It is imperative for unions and employees to be aware of treatment by an employer that amounts to discrimination under the Code.  When awarding damages, arbitrators, human rights tribunals, and courts will consider the nature of the employer’s conduct and the effect of the employer’s conduct on the complainant.  

¹  Canadian Union of Public Employees, Local 109 v City of Kingston (H.S.), 2019 CanLII 69279 (ON LA) (Gedalof).

²  ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC). 
³  Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (“Strudwick”).