Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on August 22, 2019 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 judge found that an employer does not discriminate by failing to provide the added benefits to which a full-time employee is entitled to a person working part-time hours, even if the person is working part-time because of disability.

Legal Citation 

City of Toronto v. Canadian Union of Public Employees, Local 79, 2019 ONSC 4045; Ontario Superior Court of Justice (Divisional Court) (Katherine E. Swinton), July 19, 2019.

Facts

The grievor was hired by the City of Toronto in 1991. 

He worked as a Caseworker for the Toronto’s Employment and Social Services Division in a full-time position and was a member of the full-time bargaining unit.  Full-time employees normally work 35 or 40 hours per week. 

There are also part-time bargaining units for employees who work less than full-time hours.  

In general, full-time employees receive greater benefits than employees in the part-time units. 

In 1999, the grievor was no longer able to work full-time because of his disabilities.  He began to work a four-day week, but remained in the full-time bargaining unit.  The sick-plan (then in effect) allowed him to draw one day a week from his sick bank as income replacement for the day he did not work.  After he depleted his sick bank, the grievor was not paid for the day he did not work. 

In July 2009, the employer and the union entered into a new collective agreement that included a new Illness or Injury Plan (IIP) for employees hired after July 31, 2009.  Employees hired prior to this date, and who had been subject to the previous sick plan, were allowed to opt into the IIP.  
 
The grievor opted into the IIP, which allowed him to receive pay for 26 weeks a year when he was absent for health reasons.  This resulted in him being paid for five days a week when he was working fewer days because of his disabilities. 

In February 2010, the grievor needed further accommodation, and he began to work three days a week.  He continued to be in the full-time bargaining unit.  Medical documentation confirmed that the grievor needed permanent accommodation that allowed him to work three days a week. 

In January 2016, after the expiry of the collective agreement with the union, the employer put the union on notice that it was discontinuing its practice of permitting part-time employees, who had no reasonable expectation of returning to full-time hours, to work within the full-time unit.  After a new collective agreement was signed in September 2016, the employer provided a two-year transitional period during which an employee could work part-time while remaining in the full-time unit.

The grievor was placed in the part-time program for two years.  While in that program, he was required to pay a pro-rated portion of his extended health care and dental benefit coverage.  In addition, his vacation pay, IIP sick days and pensionable service was pro-rated. 
In response, the grievor filed a grievance.  

The arbitrator allowed the grievance, ordering the employer to return the grievor to his status in the full-time unit with full compensation.  The arbitrator held that the city could not alter the grievor’s existing accommodation without demonstrating a change in circumstances and without proof that continuation of the accommodation would amount to undue hardship. 

The employer applied for judicial review to the Ontario Divisional Court. 

Analysis

The issue before the Court was whether the arbitrator’s decision fell within a range of reasonable, acceptable outcomes, given the facts and the applicable law.

Swinton J cited jurisprudence from the Ontario Court of Appeal in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital (1999), 1999 CanLII 3687 (Ont. CA) which held that: 

[20] … the Code does not require an employer to make contributions to benefit programs for a disabled employee who is off work, since contributions to benefit programs are a form of compensation…

[21] … The duty is on the employer to take all steps short of undue hardship to accommodate the needs of the person discriminated against so that they can compete equally with the other employees. 

Further, Swinton J cited the Supreme Court of Canada’s decision, Hydro-Québec v SCFP-FTQ, [2008] 2 SCR 561, where it observed that:

[28]…the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.

Based on the forgoing jurisprudence, Swinton J held that:

[23] … the employer does not discriminate by failing to provide the added benefits to which a full-time employee is entitled to a person working part-time hours, even if the person is working part-time because of disability. The difference in treatment with respect to compensation and benefits is because of the number of hours worked, not because of disability, and the employer is not required to compensate the disabled employee for time not worked 

Swinton J concluded that the arbitrator’s decision was unreasonable because transferring the grievor to the part-time unit was not discriminatory.  Rather, it was due to the employee not fulfilling the job requirements of a full-time employee.  The Court dismissed the grievance.

Implications for Unions

This case demonstrates that, where a disability prevents an employee from working full-time hours, the employer does not discriminate by paying less than full-time remuneration.  The Ontario Human Rights Code requires employers to ensure employees with disabilities are accommodated so that they can compete equally with the other employees.  It does not entitle employees to full-time remuneration for part-time work.  In this case, the employer changed the grievor’s status (after giving sufficient notice) from full-time to part-time because the grievor was not able to work full-time hours, even with accommodation.  This does not constitute discrimination.

Implications for Employers

The employer took two important steps before altering the grievor’s status to part-time.  First, it put the union on notice during collective bargaining that its practice of allowing employees to remain on full-time status was going to change.  Second, it provided a generous transition period for the affected employees.  This eliminated any estoppel arguments and also allowed for a reasonable period of adjustment.