What is an employer to do with an employee who demands changes
to a job, without ever having done the job? A recent arbitration
decision, Child Development Institute and the Canadian Union of
Public Employees, local 2132 (June 21, 2012), unrep.
(Charney), considered this issue.
The grievor succeeded in her application for a full-time family
violence clinician position. Prior to being awarding the job, the
grievor had worked for the employer in a part-time capacity. She
expressed great enthusiasm and no reservations when she accepted
the job. Almost immediately thereafter though, she requested
changes to the job's design. These changes initially were
expressed as a preference and were not supported by medical
documentation. The grievor seemed to think her changes would be a
better way to run the program. The employer disagreed.
Shortly before commencing the job, the grievor raised a concern
as to trauma and then provided documentation that she was suffering
from serious depression. Her psychiatrist recommended that the
employer implement all of the job design changes identified by the
Although the arbitrator queried, "why one would apply for a
job and then without ever trying to do it, decide that it needs to
be accommodated", given the psychiatric evidence that doing
the work, as constituted, would either continue or worsen the
grievor's depression, the arbitrator found that she required
accommodation. After a few months – which the arbitrator
excused as a reasonable period of time – the employer
offered the grievor her choice of two possible reintegration plans.
The grievor refused both on the basis they did not exactly fit with
the accommodation she required. The employer's third offer of
accommodation also was refused.
The arbitrator was critical of the grievor's intransigence
finding that she had a duty to explore the possibilities of the
accommodation offered by the employer. According to the arbitrator,
"What works and what doesn't work is an inexact science
and to be able to forecast that nothing will work except the exact
accommodation that the grievor has sought is a difficult
proposition .... It would be more understandable to me that if she
attempted the work hardening process and then if it didn't work
she continued to be unable to function, that could be dealt
Given the employer's limited funding and the funding
required to achieve the grievor's preferred accommodation, the
arbitrator found "a classic example of undue hardship".
He also concluded that the employment relationship had completely
broken down and it was inconceivable she could return to work.
Accordingly, the arbitrator dismissed the grievance.
This decision is a good reminder that there, in fact, are limits
to the duty to accommodate and that employees must work with their
employers as part of the accommodation process, not simply make
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