Failure to Accommodate Proves Costly

Written by Daniel Standing LL.B., Editor, First Reference Inc.

The employer’s duty to accommodate an employee was the central issue in the recent Alberta labour arbitration case, First Canada ULC and IUOE, Local 955 (Bartlett), Re, 2020 CarswellAlta 1154. The case pitted a bus driver’s claim of physical disability and request for a reduced workload against the employer’s relentless drive for cost efficiency and safety. The arbitrator’s acceptance of the employee’s grievance and human rights complaint is an instructive account of how employers should approach and deal with employees’ claims for accommodation.

Background

Mike Bartlett began working as a bus driver for First Canada in 2012. The large company operated a coach bus service that shuttled oil sands and construction workers between worksites and residential camps. Due to inner ear damage that he suffered while working as a paramedic long before, he began experiencing light-headedness and blurry vision. He became disabled from working in July 2013 and received disability benefits. After several medical opinions cleared him for a return to work, a split shift seemed to alleviate his fatigue. However, a series of schedule changes resulted in him working a 10-hour shift that could stretch to 11 hours, sometimes starting at 2:30 a.m. Mr. Bartlett believed that his demanding schedule and inadequate accommodation made his health problems worse. He told the Regional Safety Manager that he thought a split shift would be better, and, despite its requirement that all drivers be available to perform a variety of assignments, First Canada initially agreed to spare Mr. Bartlett some shifts.

One day in June 2016, Mr. Bartlett was reluctant to do his bus run. He told the employer that if he did the work and became fatigued, he would be sick and might suffer symptoms of vertigo while driving. He asked what could be done about his workload. The employer explained that its operations were extremely busy, and that Mr. Bartlett would be suspended from work pending an assessment of his fitness to be at work.

Following his return home to Calgary, Mr. Bartlett was assessed by several physicians who concurred with a physiotherapist who recommended that Mr. Bartlett’s symptoms could be avoided if he was placed on a split shift with an overall capacity of eight or nine hours per day. It was also recommended that Mr. Bartlett be allowed a four- or five-hour break between split shifts, and end work by 7:00 p.m. so that he could get enough rest before his next shift.

On receipt of this information, the employer emailed Mr. Bartlett explaining that it could not accommodate his restrictions. In response to a union request for an “accommodation of some kind,” First Canada was unwilling to alter Mr. Bartlett’s shifts or breaks, and unless he was able to return to full duties, it considered his health to be jeopardized by working.

In January 2017, Mr. Bartlett filed a grievance alleging the employer failed in its duty to accommodate his disability. Several months later, he filed a human rights complaint alleging discrimination based on physical disability in employment practices. Although the employer eventually agreed to reintegrate Mr. Bartlett in April 2017 when an eight-hour shift became available (some nine months after he had been out of work), this was only because the company’s business needs matched Mr. Bartlett’s restrictions. The employer offered Mr. Bartlett four weeks’ wages in full satisfaction of his claim, which Mr. Bartlett refused. The matter of the employer’s initial compliance with its duty to accommodate remained a live issue at arbitration.

The arbitrator’s decision

The arbitrator begins by providing a succinct overview of the key principles guiding the analysis of the duty to accommodate. These include the principles that the duty must be met to the point of undue hardship for the employer, and that it is a “multi-party inquiry” that requires the union and employee to co-operate with the employer as to how the employee might be accommodated. This will require the sharing of information about the medical condition to determine functional limitations which allow the employer to explore ways to accommodate the employee. The employee must work with the employer in this regard and cannot insist on what they believe to be a perfect accommodation.

The arbitrator recognized that the employer carried on business in a very demanding and stressful environment and its operations were motivated by cost efficiency and safety. He commended the employer for sending Mr. Bartlett for a comprehensive medical assessment after removing him from work for safety reasons. He noted that never once did First Canada question the legitimacy of the recommendation; it simply decided that it was unworkable and refused to accommodate Mr. Bartlett, while focusing exclusively on the needs of its clientele.

The arbitrator wrote that he would have expected the employer to show how it turned its mind to options that could result in a successful accommodation short of undue hardship. It could have presented evidence about whether it was possible for other drivers to make up the hours that Mr. Bartlett could not have worked. Similarly, questions about hiring another driver or added costs of accommodating Mr. Bartlett went unanswered on the evidence.

The arbitrator found that schedules are “malleable and open to adaptation,” and if the employer had tried, it could have accommodated Mr. Bartlett’s needs-likely without suffering undue hardship. By failing to explore this option, it failed in its duty and discriminated against Mr. Bartlett based on his disability. The human right to accommodation in the workplace, according to the arbitrator, “is not to be sacrificed on the altar of cost efficiency, customer need or ‘optimization’ initiatives.” Therefore, both the grievance and the human rights complaint were accepted.

As a remedy, the arbitrator held the employer liable for all wages that Mr. Bartlett would have earned had the employer considered accommodating the grievor two weeks after receipt of the medical information and recommendations. The arbitrator viewed that as a reasonable timeframe in which the employer could have analyzed its options and prepared an alternate schedule for Mr. Bartlett. Therefore, compensation was payable from that point until the date he was returned to active service, less any other earnings. Finally, the arbitrator awarded Mr. Bartlett damages in compensation for the injury he suffered to his dignity due to the discrimination. The arbitrator considered various factors, including the demeaning treatment Mr. Bartlett initially suffered, the union support he received and the need to deter employers from discriminatory practices. He also considered the employer’s referral of Mr. Bartlett to medical services and its eventual decision to return him to work as mitigating factors. If the mitigating factors had not been present, the arbitrator would have considered awarding damages in the realm of $25,000, but in the circumstances, he assessed general damages for injury to personal dignity at $10,000.

Takeaways

The duty to accommodate is not an all-or-nothing proposition. Employers cannot fulfil their duty to accommodate by simply assessing whether an employee with a disability can perform the full scope of the duties associated with their position. At a bare minimum, an employer will be required to make inquiries and show attempts to meet an accommodation request. If matters of workplace accommodation cannot be resolved amicably between the parties, a third-party decision maker will require some evidence of undue hardship, whether it is financial, tied to an inability to restructure operations or otherwise.

As in many cases of discrimination, this case also illustrates the potential for costly financial liability of employers who fail in their duty to accommodate. By ensuring timely and frequent communication between itself, the union, the employee, and any medical advisors involved in the file, employers will place themselves in the best position to succeed in the difficult endeavour of accommodating employees with disabilities.