Canadian Safety Reporter

canadian SAFETY reporter Duty to accommodate has its limits Ontario ruling indicates the extent to which employers must go to accommodate workers | By Pamela Hofman and Madeleine Loewenberg | In a recent Ontario case, three propositions were reinforced that favour 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 her position to accommodate a disabled employee • an employer can expect a grievor will be able to perform the core duties of her job — accommodating permanent restrictions does not require an employer to remove these core duties permanently • 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 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 more than eight months. Upon returning, he was offered full-time accommodated employment. Shortly thereafter it was determined he was no longer able to work overtime. He made a claim to the Workplace Safety and Insurance Board (WSIB) 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 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 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 dismissed the grievor on the basis the employment relationship had been frustrated. Purina took the position that the termination was appropriate due to the fol- Purina was not required to indefinitely provide the grievor with light duties taken from other positions. lowing: • 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 re-organized • the grievor continued to injure himself despite performing accommodated work • 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 argued the following: • 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 • there were other positions the employee could be placed into in order to continue his employment. Decision The arbitrator concluded the employer Canadian HR Reporter, a Thomson Reuters business 2013 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 — 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 judgment 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 Purina 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. The arbitrator distinguished the grievor's case from the case of an employee who could not temporarily perform 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 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 was justified in ending the employment relationship. It was 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 vaContinued on page 8 7

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