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After a lengthy period of time off work, a school board
failed to accommodate a teacher with their return to work within a
suitable time. An arbitrator found the school board to be 80%
liable for the delay in returning the grievor to work. The grievor
was also entitled to damages in the amount of $7,500 for injury to
dignity, feelings and self-respect.
PA, a teacher, was on medical leave from 2000 to 2007, at which
point he was approved for a gradual return to work in a
low-stimulation and low-stress environment with low student
numbers. Over the next 2 years, further medical reports and tests
were required and further recommendations were made as to ongoing
accommodation of his limitations.
At a return to work meeting in January 2009, the recommendations
as to further accommodation were approved but the employer had not
searched for any suitable positions. In March 2009, the school
board informed the union that there were no suitable positions
available. The union and PA filed a grievance and Human Rights
Complaint. In April and June 2009, much to PA's upset,
non-academic positions were discussed, such as a janitorial
position. An offer was eventually made to place PA in a position at
another facility.
Negotiations unexpectedly halted in May 2010, when the union
wanted the human rights complaint covered by the Memorandum of
Agreement ("MOA") being negotiated, and $200,000 in lost
income to settle the complaint. On June 15, 2010, unilaterally and
without a formal MOA, PA was placed in a one-third workload
role.
Over the next few years, PA incrementally increased his
workload. The school board sought further medical information that
was eventually received after great delay from the union. When PA
later requested full-time employment, the school board stated that
it could not operationally accommodate the request, and wanted to
first assess PA's performance at his current capacity. There
was a further delay in providing medical information by the
union.
As a result, the union brought another grievance alleging the
school board had discriminated against PA and sought compensation
for lost earning, pensions accrual between 2009 and 2012, $20,000
in damages for injury and loss of dignity, and $10,000 in punitive
damages.
As it was undisputed that the grievor was disabled, the
arbitrator stated that the "sole issue before [him] is whether
the grievor was accommodated as and when required" [para 125].
Amongst other duties, it was highlighted that the duty to
accommodate rests primarily on the employer but the union also has
a duty not to impede resolution, and to facilitate implementation
of reasonable accommodation such as providing the necessary
information.
Contrary to its protestations in this instance, it was
highlighted that the employer had a long history of accommodating
employees in above-complement positions, and the onus was on the
employer to demonstrate undue hardship. They did not present
evidence establishing undue hardship. Further, the option of an
accommodated position was not even initially considered by the
board. The employer failed to accommodate the grievor during this
period.
With regard to the period of protracted negotiations, it was the
union who delayed the finalization of the matter. The school board
was negotiating in good faith.
Both sides were found at fault for the delay in providing and
assessing the updated medical information. The arbitrator also
highlighted other areas of fault by the board such as a failure to
properly oversee the return to work.
The grievor was awarded $7,500 in damages for injury to dignity,
feelings and self-respect and an award of loss of wages from
February 2009 to October 31, 2012, less one month for the
negotiating of the Memorandum of Agreement. The employer was found
80% responsible for the delay in returning the grievor to full-time
appointment.
Takeaway
When an employee is on a return-to-work, the employer must act
sincerely, in good faith and in a timely manner to accommodate the
employee's needs. However, accommodation requires cooperation
between parties in order to find an appropriate resolution. The
arbitrator's decision to apportion liability in recognition of
the union's delay is a good reminder that either side's
contribution to a failure in accommodation can lead to enhanced
liability or a reduction in damages. There are many ways that the
various considerations in accommodation cases can be advanced in a
timely way, keeping the other party engaged so that timely steps
and resolutions are achievable. The lawyers in Field's Labour
and Employment Practice Group is experienced and ready to assist in
development and implementation of various strategies to accomplish
these goals.
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.
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