Court Quashes Arbitrators Ruling On A Failure To Accommodate An Employee feature image

Court Quashes Arbitrators Ruling On A Failure To Accommodate An Employee

The duty to accommodate is an obligation employers have to all of their employees to accommodate all reasonable requests that relate to protected grounds under the Alberta Human Rights Act. A failure for an employer to accommodate an employee without demonstrating that doing so would result in undue hardship for the employer may lead to a human rights violation. A simple example of this would be that if an office was not wheelchair accessible and an employee came into circumstances requiring them to use a wheelchair, an employee would in all likelihood be required to make their office wheelchair accessible rather than firing the employee. However, not all duty to accommodate cases are so cut and dry. Take for example a recent decision issued by the Ontario Superior Court of Justice.

The background

The employee had been employed by the City of Toronto (“the employer”) in a full-time capacity since 1991. As a full-time employee, he normally worked 25-40 hours per week. He was part of a full-time bargaining unit, while part-time employees had their own. Full-time employees were granted up to 26 weeks of sick time per year, while part-time employees had pro-rated sick time.

In 1999 the employee’s disabilities resulted in him not being able to work full-time. His accommodation included being able to work a reduced schedule, at first working four days per week, and then working three. The employer kept the employee in the full-tie bargaining unit because his move to part-time was based on the accommodation.

A change in policy

In 106 the employer changed its policy as it related to part-time employees being able to remain in the full-time bargaining unit. The policy now stated that if an employee did not have a reasonable expectation of returning to full-time work, they would no longer be able to stay in the full-time bargaining unit. This meant the employee involved in this case moved to the part-time bargaining unit and saw a reduction in available sick days. The employee grieved this move and the matter went to arbitration.

The arbitrator’s decision and the appeal

The arbitrator sided with the employee in finding the employer had breached its duty to accommodate by failing to demonstrate that it would suffer any undue hardship as a result of keeping the employee in the full-time bargaining unit. The ruling issued by the arbitrator called for the employee to be reinstated to the full-time bargaining unit.

On appeal. The court called out the arbitrator for failing to consider case law that states it is reasonable and bona fide for employees to only provide compensation, including sick days, in exchange for work performed. In the case at hand, the court found that the sick day policy was tied to the number of days worked by employees, not by their inability to work based on disability. The court said “  The City here did not engage in misconduct.  Rather it went beyond its legal duty to accommodate the grievor for a long period of time, as the arbitrator acknowledged.  In doing so, it provided a gratuitous benefit to him throughout that period.”

The court quashed the arbitrator’s decision and ruled the employer had not violated its duty to accommodate.

At HMC Lawyers, we have over 130 years of cumulative litigation experience and offer insightful legal advice to employers and employees about matters relating to employment standards, human rights and requests for accommodation. To make an appointment with one of our Employment Team members, call 1-800-480-3534 or contact us online. We represent employers and employees in Calgary, throughout Alberta, and across Western Canada.




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