Canada: The Duty To Accommodate Is Not Unlimited

The decision in Purina Petcare1 reinforces three propositions that favour Ontario employers faced with the prospect of providing permanent workplace accommodations:

  • While every case will be fact specific, an employer is generally not required to create a new job or remove another employee from his or her position to accommodate a disabled employee;
  • An employer can expect that a grievor will be able to perform the core duties of his or her job. Accommodating permanent restrictions does not require an employer to remove these core duties permanently; and
  • It may not be a violation of the Ontario Human Rights Code (OHRC) to take the position that employment has been frustrated if the employer no longer has sufficient job duties available within the grievor's restrictions.

Background

The grievor had been employed at Nestlé Purina Petcare (Purina Petcare) as a millwright. In 2004, he experienced a workplace injury that aggravated a pre-existing condition. Initially, the grievor was away from the workplace for 8.5 months. When he returned to work, he was offered full-time accommodated employment. Shortly thereafter it was determined that he was no longer able to work overtime. He made a claim to the Workplace Safety and Insurance Board (WSIB) claim for loss of earnings (LOE) benefits.

In the following years, the grievor's condition deteriorated after he suffered a variety of further injuries. By 2008, the WSIB had concluded the grievor was entitled to receive an LOE award and also a non-economic loss award. The WSIB premised its decision, in part, on the grievor's evidence that he had received extensive accommodation from the employer yet had difficulty maintaining his level of work, even with the assistance of his co-workers.

Following an injury in 2008, the grievor was required to be away from work for two weeks and was unable to return to full-time duties for six weeks. The employer was extremely cautious in the nature of work it assigned to the grievor upon his return, reading the grievor's workplace restrictions very narrowly.

In 2009, following another injury, the grievor's restrictions were amended, further restricting the type of work he could perform. The employer concluded it could not accommodate the grievor's extensive restrictions any further due to a lack of available work within his restrictions and the grievor's limited ability to perform the work available. In January 2010, Purina Petcare dismissed the grievor on the basis that the employment relationship had been frustrated.

Purina Petcare took the position that the termination was appropriate because:

  • it had only limited work the grievor could perform based on his restrictions;
  • much of the work the grievor could perform was done only sporadically or was being reorganized;
  • the grievor continued to injure himself despite performing accommodated work; and
  • the employer had accommodated the grievor to the point of undue hardship.

The union grieved the dismissal, arguing the employer breached the OHRC by not accommodating the grievor to the point of undue hardship. The union maintained that the grievor was able to perform certain light-duty tasks that the employer ought to have allowed him to continue to perform, the employer was interpreting the employee's restrictions too narrowly, and there were other positions the employee could be placed into in order to continue his employment.

Decision

The employer successfully established that the grievor's employment was frustrated.

Arbitrator Jesin concluded that the employer had fulfilled its duty to accommodate the grievor over the course of four years, but since there were not sufficient duties available within the grievor's restrictions, the employer was justified in ending the employment relationship. The arbitrator found the WSIB decision instructive in that it concluded, based on the employee's own evidence, that the grievor was having difficulty maintaining his level of work even with extensive accommodations and the assistance of co-workers. The grievor had also acknowledged he was often in pain when performing his duties.

The employer's narrow interpretation of the grievor's workplace restrictions was also found to be appropriate in the circumstances. Arbitrator Jesin found the grievor's frequent injuries, reported pain and increasing restrictions caused the employer to exercise its judgement reasonably when it took a cautious approach with respect to the appropriate allocation of work.

In respect of the grievor's ongoing accommodation, the arbitrator concluded that Purina Petcare was not required to indefinitely provide the grievor with light duties taken from other positions when the grievor was permanently unable to perform the core duties of his position.

Arbitrator Jesin distinguished the grievor's case from the case of an employee who could not temporarily perform his or her core duties. In such a case, an employer may still be required to assign an employee light duties gathered from other job positions when an employee is temporarily unable to perform the core duties of his or her position. As the grievor was an employee who would not be able to perform the core duties of his position on a permanent basis, Purina Petcare was justified in ending the employment relationship.

Arbitrator Jesin also held that the employer was not required to create a new job to accommodate the grievor or give the grievor a position other than a maintenance mechanic, as there were no vacant positions in which to place him. Purina Petcare was not required to displace another employee to fulfill the duty to accommodate.

Conclusion

The Purina Petcare decision stands as a reminder that the duty to accommodate has limits. While these limits will not be reached in every case, the following steps should be taken by employers to increase the likelihood that a termination for frustration of contract will be upheld as reasonable:

  • An analysis should be undertaken of the employee's ability to perform the core duties of his or her position, with reference to the medical information provided by the employee and an objective analysis of the work that has to be performed.
  • Records should be kept of the employer's efforts to find safe work that accommodates an employee's abilities and restrictions.
  • Up-to-date medical information should be requested from employees asserting an ongoing need for workplace accommodations. This information will confirm the scope of the employee's restrictions, facilitate the employer's continued search for workplace accommodation, and support any assertion by the employer that there are no further workplace accommodations that can be provided.
  • The employee's doctor should be asked to provide a prognosis for recovery, including the time it would take the employee to return to his or her core duties (whether or not on an accommodated basis).
  • Employers should consider involving workplace ergonomists and other specialists in the search for appropriate workplace accommodations. These specialists may be able to confirm or refute an employee's ability to perform accommodated work that has been offered or requested.

Norton Rose Fulbright Canada LLP

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Footnote

1 2012 CanLII 65216 (Communications, Energy and Paperworkers Union of Canada, Local 41-O v Nestle Purina Petcare).

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