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Accommodating Disabilities in The Canadian Workplace

Editor's Note: Editor's Note: Michael Lynk is a professor of law at the University of Western Ontario. The article set out below is a summary of information presented by Professor Lynk at his presentation given to the Public Service Alliance of Canada in September, 1999. The footnotes from Professor Lynk's article have been removed from this publication.

I. The Employer's Duty to Accommodate

The essence of the duty is simple to state: Employers in Canada are required to make every reasonable effort, short of an undue hardship, to find an accommodation for an employee with a disability. Its outer boundaries, however, are much harder to determine. But this much is clear to date: The duty requires more from the employer than simply investigating whether any existing job might be suitable for a disabled employee. Rather, the employer is expected to determine whether other positions in the workplace are suitable for the employee or if existing positions can be adjusted, adapted or modified for the employee.

This responsibility requires the employer to look at all other possible positions. Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts". Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability.

To prove that its accommodation efforts were serious and conscientious, an employer by law is required to engage in a three step process:

First, determine if the employee can perform his or her existing job as it is. If the employee cannot, then determine if he or she can perform his or her existing job with modifications. If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form.

A. The Extent of the Employer's Duty

The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta. In Calgary District Hospital Group, a nurse with a back-related injury was preparing to return to work. Her back injury had left her unable to perform several key aspects of her regular position, including the lifting and transferring of patients. The employer had determined that because of her physical limitations, it was unable to place her into another nursing position. The union maintained that the hospital had not examined ways to re-arrange the nursing positions in order to find an accommodation.

The arbitration board agreed with the union. It found that although the nurse was unable to perform the duties of any of the nursing positions as they were currently structured, the employer had not taken the additional step of determining whether any nursing position could be modified to accommodate her. In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions. It must also be able to show that the job descriptions cannot be altered without undue hardship:

"The duty to accommodate requires more than determining that an employee cannot perform existing jobs. Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations."

As part of the remedy, the board ordered the hospital to "conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the grievor's physical disability can be accommodated."

Other recent labour arbitration awards have reinforced this point. In Re Greater Niagara General Hospital, the arbitration board ordered the employer to re-examine existing positions in a nursing unit to determine if they could be re-structured into a new "bundle of duties" that would allow the grievor, a nurse, to work within the limitations of her permanent back injury. That is, the hospital was required to determine if those lighter duties performed by all nurses in the unit could be re-assembled into a specific light-duty position for the grievor. As the board acknowledged, this form of accommodation could only work in a larger workplace, where there are enough employees to allow such a re-bundling and yet, not unduly burden these other employees with only heavy tasks in their own re-assembled positions.

The particular obligation of employers who operate larger workplaces is illustrated in Re T.T.C. Bottling Ltd. The employee, a quality control inspector who worked with acids and caustics, suffered from severe epileptic seizures. Several had occurred in close succession at work. With the available medical evidence indicating that future severe seizures were unavoidable, the employer terminated the employee for safety reasons. The arbitrator accepted that the continued employment of the employee in his regular position created an unacceptable safety risk to the grievor and to other employees as well. Nevertheless, the arbitrator was satisfied that the size of the operations would allow the grievor to be accommodated in a different, re-designed job, with a regular rather than a rotating shift, and special training arrangements for other employees to work around the employee, among other conditions.

The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship. In Re York County Hospital, the grievor, a nurse, was unable to return to her full nursing duties after suffering a work-related injury. The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training. The arbitration board ruled for the union, deciding that the clerical position was not the only available accommodation possible for the employee:

"We accept that the grievor received very little, if any, training. In retrospect, and in view of the grievor's present career goals, it would have been prudent for the employer to have arranged for training in the education department."

Arbitrator Richard Brown, in Re Mount Sinai Hospital, has laid out the governing principles of the employer's duty to accommodate. These principles re-state, in a more concise form, the essence of the recent Supreme Court judgements:

"The duty to accommodate derives from the right to equal treatment under the Ontario Human Rights Code. That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee."

The undue hardship test, which, if applicable, relieves the employer from accommodation requirements, requires the employer to do more than bear trivial or de minimus costs to accommodate the needs of a disabled employee.

Whether accommodation would amount to undue hardship entails a spectrum of considerations, including, but not limited to: (i) financial cost, (ii) disruption of a collective agreement, (iii) problems of morale of other employees, (iv) the interchangeability of the workforce and facilities, (v) safety, and (vi) the size of the operations.

The costs of accommodation should be compared with the resulting benefits in deciding whether the hardship caused by accommodation is "undue". The results of this comparison will vary from case to case.

The employer bears the burden of proving that the accommodative measures would amount to undue hardship.

B. Boundaries on the Employer's Duty to Accommodate

The duty to accommodate in Canadian labour law is not limitless. Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace. The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position. In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.

This was illustrated in the recent decision of the Federal Court of Appeal (FCA) in Holmes v. Attorney General of Canada. A pay clerk working for the federal government developed severe numbness and pain in her right shoulder, making it difficult to perform her duties. Other assignments as a receptionist and a special project clerk proved to be too demanding for her physical limitations. All of the other positions that the employer identified within her skill level required the use of the same, damaged muscles. It eventually determined that she could not perform the essential components of her job duties, nor could she be retrained. Consequently, the employer released her. The arbitration tribunal denied the grievance, and the FCA upheld the release on judicial review. In its award, it stated that the undue hardship standard:

"does not require that an employer act as a placement officer or create a new position expressly for the disabled employee comprising new duties that were previously non-existent and that do not suit its need."

The Federal Court of Appeal went on to say: "The employer's obligation is to make a genuine effort to accommodate an employee, efforts that are consistent with the type of work for which the worker was hired."

Other recent decisions have illustrated the underlying rule of preserving the employer's ability to operate a productive workplace. In Re Greater Niagara General Hospital, the arbitration board ruled that while the employer had to consider the accommodation of an employee with a disability in another position other than her or his former duties, this did not entail the creation of an entirely new position. Similarly, in Re Maple Leaf Foods Inc., it was held that, while employers must try to accommodate employees, this does not mean the work place must be fundamentally changed. The employer is not required to maintain a disabled employee in a position that is not useful or productive in the context of its operations.

Arbitrator Allan Hope in Re Alcan Smelters and Chemicals Ltd. clarified the right of an employer to discharge an employee for innocent absenteeism, in light of the new accommodation duty. He stated that an employer is entitled to terminate where the evidence demonstrates that at the time of her or his dismissal, the employee was: (i) unable to meet her or his employment obligations; (ii) unable to offer any persuasive medical assurance that s/he would be able to meet these obligations at some predictable point in the near future, and (iii) no accommodation short of undue hardship was possible in any other position in the employer's operations. In Re Canada Post Corp., the arbitration board ruled that the duty might require an employer to offer modified duties (i.e., part-time or light duties) as part of a rehabilitation or work-hardening program. However, depending on the undue hardship factors, it might not be required to offer these same duties where it is a matter of accommodating an employee on a permanent basis. And in Re Ontario English Catholic Teachers' Association, the issue was whether the employer could place the employee in a lower-paid position as part of the accommodation. Arbitrator Kevin Burkett decided that an employee who cannot perform the essential duties of his or her job, even with accommodation, can be properly placed into a lower-classified and more poorly paid position, as long as it is consistent with the employee's medical restrictions and the employer's operational needs. Employees with a long-term disability present the most challenging accommodation problems. But arbitrators in Canada have been clear that employers are not required to provide an accommodation to an employee who cannot perform the essential duties of an available position and whose disability offers no foreseeable improvement. In Re Calgary Herald a maintenance technician suffering from a chronic fatigue syndrome was unable to return to full-time work. The employer had arranged for the employee to work on modified duties on a part-time basis. He was unable to work beyond 3 hours a day, he was unable to train for another position, stress aggravated his condition, and he was unable to meet the physical requirements of pulling cable, an essential feature of his duties. The available medical evidence indicated that he would not be able to perform the duties of even a part-time maintenance technician on a reliable basis, and there was no reasonable likelihood of improvement. In dismissing the union grievance, the arbitration board held that:

"The duty to accommodate does not require an employer to create a new job or one that is not productive or one that has the core duties removed."

Is an employer required to accommodate an employee whose disability has led to a major workplace incident? Arbitrator Owen Shime has recently said no. In Toronto Transit Commission, a bus driver consumed several beers shortly before resuming a shift. He subsequently drove the bus into the back of a garbage truck, injuring himself and several bus passengers. After the accident, the driver revealed that he was an alcoholic. Alcoholism is recognised as a handicap under the Human Rights Code. Nevertheless, Arbitrator Shime ultimately dismissed the driver's grievance, ruling that the Code is not intended as a protective device for employees who commit major employment offences:

"While there is an obligation, under the Human Rights Code, to accommodate employees who suffer from an illness, clearly such an accommodation does not mandate that such an employee be protected or be absolved from major employment offences merely because of that illness. The grievor, because of his illness, cannot be placed in a better position than other employees who commit similar offences."

(C) Some Specific Circumstances

(i) Automatic Termination Provisions: Are They Consistent With Human Rights Legislation?

The answer from arbitrators and the reviewing courts has been pre-dominantly no. This issue arises in situations where a collective agreement or an employment contract provision provides that an employee loses her or his job, even if for non-blameworthy reasons, if they are absent for a pre-established period (usually 12 or 24 months). These provisions have regularly been found to be a form of indirect discrimination (a workplace rule that is neutral on its face, but has a discriminatory effect).

The Ontario Court, General Division ruled in 1997 in Toronto Star Ltd. v. CEP and Backhouse on a judicial review of an arbitration award that an automatic termination provision (in this case, a 2- year clause) was ineffectual as it pertained to disabled employees because it conflicted with the Ontario Human Rights Code. It noted that the provision made no reference as to whether the employee could perform any other job that may be available aside from her or his former position. Nor did it require the employer to consider whether any action short of termination was possible. The Court upheld the arbitrator's ruling that the disabled employee had been treated differently than other employees, and that the difference was based solely upon his disability, a protected ground under the Code:

"Those other employees are entitled to the benefit of the standard of "just cause" for termination, which entitles an employee to test the employer's application of that standard at arbitration, bringing to bear all of the established principles and policies applicable to innocent absenteeism in general."

The grievor, on the other hand, was subject to automatic termination due to his innocent absence as a result of a handicap. Accordingly, under the automatic termination provisions, he does not have the same right as other employees to challenge his termination within the standard of proper cause. In my view, that must be deemed unequal or different treatment from that of the majority of the bargaining unit employees with respect to his employment.

Similarly, in Re Toronto Hospital, the arbitration board nullified the effect of an automatic termination provision in circumstances involving an employee who was off work with a disability. In its judgement, the board wrote:

"... where the very reason why the grievor was absent, and thus the very reason why the grievor was subject to automatic termination under art. 10.05(h) is because she suffered a work-related injury. She was absent from work because she had a work-related injury. She was terminated because she was absent from work."

This approach, however, is not without controversy. Several recent arbitration decisions have held that a release from employment based upon an automatic termination clause, where the grievor was unable to perform the essential duties at the trigger moment of the clause, is valid. In Re Uniroyal Goodrich Canada Inc., the arbitrator disagreed with the trend expressed in Re Toronto Hospital, stating that:

"The foundation of the company's case is that there is no longer an employment relationship because the grievor is not fulfilling his part of the employment contract which is to attend for work. In that context, there is no logic or reason to require the standard of just cause because it is simply inapplicable."

However, as the case law on this issue accumulates, the direction taken in Uniroyal Goodrich looks increasingly anomalous. The prevailing approach has been to strike down the mechanistic application of automatic termination provisions in disability cases, because they are deemed to treat employees with disabilities differently from other employees in the bargaining unit who have recourse to the grievance procedure to challenge a termination on "just cause" grounds.

(ii) Accommodation and the Calculation of Seniority

Recent decisions have grappled with the difficult balance between disability and seniority rights. On the one hand, the reviewing courts, labour arbitrators and human rights tribunals have all regularly ruled that a disabled employee must not be disadvantaged in the calculation of seniority because of her or his absence from work due to illness or injury. On the other hand, arbitrators have not generally granted "super-seniority" rights to disabled employees, so as to allow them a greater claim to work than more senior employees. In other words, an employee with a disability must be accorded equal treatment despite her or his condition, not superior treatment because of the condition.

(ii)(a) Service Calculation and Indirect Discrimination

The law on the eligibility of an employee's entitlement to accrue both seniority rights and benefit rights while off work because of a disability is presently in a state of flux. A number of decisions over the past five years by the courts, labour arbitrators and human rights tribunals have come to different, and sometimes quite opposite, conclusions. However, the thrust of the most recent decisions suggests that two rules are in operation: (i) that an employee's seniority accumulates during time away from work because of a disability; while (ii) an employee off work as a result of a disability does not have entitlement to employment benefits (unless the collective agreement or company policy otherwise provides for this).

A number of earlier decisions ruled that work days lost because of a disability cannot adversely affect an employee's benefit rights that accumulate with growing seniority, despite the limiting language in a collective agreement. In Re Riverdale Hospital, the grievor suffered a work-related injury and missed 9 weeks of work. The collective agreement stated that seniority would not accrue if the employee was on an unpaid leave for more than 30 consecutive calendar days. When the grievor returned to work, the employer informed him that his seniority date would be negatively adjusted by 38 calendar days as a result of his absence. Consequently, it took him a year of service longer to qualify for an additional year of vacation, and he grieved the employer's application of the collective agreement provision.

The arbitration board applied its authority to interpret the Ontario Human Rights Code, as provided for in section 48(12)(j) of the Labour Relations Act, 1995. After examining the seniority provisions of the collective agreement, it concluded that the denial of seniority accumulation while off work for disability reasons was a form of indirect discrimination, and therefore a breach of the Code. Since the grievor's absence was due to a disability, he was being treated differently, and adversely, in comparison to other, non-disabled employees. Thus, the seniority provisions "constituted inequality in treatment with respect to employment." The grievor's seniority was ordered to be re-adjusted, and his vacation entitlement was enhanced. In reaching its decision, the arbitration board adopted the reasoning of an earlier award on the same issue:

"The employer's policy on attendance could be said to be neutral on its face in that it does not take into account the reason for absence. Its concern is the absence per se. However, in its application it is not neutral because it has an adverse impact on a group protected by the Code, i.e., those who suffer compensable injuries or disabilities. The result of the rule is that such persons are denied rights which they otherwise would have enjoyed."

This became the ascendant view among some labour arbitrators and human rights tribunals. In Thompson v. Fleetwood Ambulance Service, an explicit collective agreement provision that pro-rated the vacation entitlement of employees based on work attendance was nullified in cases where it reduced the vacations of employees absent from work due to a disability. Similarly, an Ontario human rights board of inquiry ruled in Thorne v. Emerson Electric Canada Ltd. that a collective agreement provision which froze seniority accumulation during a disability-caused absence was a violation of the Human Rights Code. And discrimination has been found in a number of recent decisions involving disabled employees whose employment benefits such as vacation pay, severance pay, or seniority entitlement were reduced because of collective agreement requirements for work attendance to earn the entitlements.

However, the courts and some arbitrators have more recently drawn a line between a disabled employee's ability to accrue seniority while off work, and the employer's obligation to pay for benefit premiums while an employee is on disability leave. In two important arbitration decisions, Versa Services Ltd. and Soldier's Memorial Hospital, arbitration boards have taken a more cautious approach to applying the Human Rights Code to employment benefits. In both cases, the boards ruled that access to employment benefits while on sick leave is earned by service and negotiations. Denial of these benefits while on disability leave is not discriminatory, unless employees on other forms of leave such as an educational leave or a secondment are also entitled to these benefits. There is still no legal consensus on this issue, and it will likely remain contentious for some time to come.

(ii) (b) Accommodation, Seniority and Bumping

Recent awards have stated that a disability does not entitle an employee with an illness or injury to displace an incumbent, despite having greater seniority, unless the collective agreement specifically permits such bumping. On the issue of whether the seniority provisions of a collective agreement can be overridden so as to give a disabled employee a greater claim to work than more senior employees, the dust is still settling. However, the prevailing view is that seniority is a cornerstone of any collective agreement, and cannot be interfered with lightly.

In Re National Steel Car Ltd. the issue was whether the grievor, a steel fabricator, was unjustly laid off as a result of the employer's failure to accommodate him. After suffering from a serious injury to his elbow and unable to work as a fabricator, the grievor was permanently accommodated in a janitorial position. Subsequently, he was laid off by seniority during a major company downsizing. The union argued that the employer failed to provide the grievor with modified jobs out of seniority.

The arbitrator found no discrimination. He noted that the employer had determined that the grievor was in the only job he was capable of performing. More importantly for our purposes, he ruled that the duty to accommodate does not require the employer to displace an incumbent employee. "A disabled employee is entitled to equal treatment, despite the disability, not better treatment because of it."

Similarly in Re Royal Oak Mines Inc., a case involving an injured employee's attempt to find an alternative to his former position that he could no longer perform, the arbitrator ruled that:

"I do not believe that the parties intended to give incapacitated employees the right to exercise seniority to bump junior employees from their jobs which they acquired through the posting system."

Nor have arbitrators allowed grievances where employees seeking an accommodation have requested the opportunity to bump more senior employees. Seniority is considered a prized employee right and only very clear collective agreement language would permit an override. In Re Metropolitan Toronto, the arbitration board held that the duty to accommodate does not provide an injured employee with super seniority. As well, in Re Greater Niagara Regional Hospital, a union successfully argued that, while a disabled employee from another bargaining unit could fill a vacancy in its unit, she could not carry over her competitive seniority and thereby gain greater job security than other employees in the unit. And in Re Bayer Rubber Inc., a junior disabled employee could not bump a more senior employee from his position, unless the employer had first conducted a thorough review of the workplace and could come up with no other reasonable accommodations.

In sum, the duty to accommodate does not usually extend to permitting an employee with a disability to bump an incumbent from her or his position, but it could allow a disabled employee to be placed in a vacant position, even though she or he had less seniority, skill and ability than another employee.

(iii) Does an Employer Have to Provide a Full-time, Light Duties Position to a Disabled Employee?

The best answer to this is: it depends upon how much undue hardship would result. If the employer runs a large enough operation that it could "re-bundle" or re-structure the existing jobs to create a permanent accommodation of non-demanding duties to an employee, without causing exorbitant costs or a disruption to its workplace operations, then the duty would require this to be done.

However, where the employer is small and can demonstrate that it has explored every available, reasonable step, and there were no full-time, permanent positions either existing or restructured that would provide an accommodation for the employee within her or his limitations short of undue hardship, then the duty will usually demand no more. In Edgell v. Board of School Trustees, District No. 11, the employer had accepted the grievor's lengthy medical absences without prejudice to her job status or seniority; requested information from her doctor regarding her capacities; modified her job duties; met with the grievor and the union to discuss options; allowed her to work a temporary 4-hour modified shift; hired extra people to fulfil the duties that the grievor was unable to perform; permitted her to work 8 hours of light duty during the summer months; investigated the possibility of restructuring the custodial duties; and considered the grievor for other jobs. The employer did not unilaterally restructure the custodial duties to provide the grievor with 8 hours of light work because this would have meant, in light of the small custodial staff, that some other employee would have had to perform nearly 8 hours of heavy duties. In the circumstances, the British Columbia Council of Human Rights found that this would amount to a "significant interference" with the rights of other employees, and held that the employer had met its accommodation duty.

Similarly, in Community Unemployed Help Centre, an employee was terminated because of her ongoing absences due to illness. The employer was small, its resources were limited and the lengthy and frequent absences had caused a serious negative impact upon the other staff. Arbitrator Freedman found that the point of undue hardship had been reached, and the employee's dismissal was upheld at arbitration.

(iv) Counselling for Attendance

What are the employer's obligations regarding the counselling of an employee with a disability about attendance requirements? The law clearly requires employers to counsel and warn employees that their level of absenteeism is reaching a point where non-culpable dismissal is a possibility. The failure by an employer to warn an employee that her or his absence was excessive nullified a termination in a recent case, even though the grievor had no reasonable prospects for a return to active employment in the foreseeable future.

When an employer warns an employee at an early stage about innocent absenteeism, does that constitute discrimination or discipline? Recent awards say no. In Re City of Oshawa, the issue was whether an initial counselling letter bringing the attendance concerns of the employer to the employee's attention was justified under the collective agreement. The employer's letter focused upon the high number of work days that the employee had missed due to a WCB injury. The arbitrator said that such counselling is non-disciplinary, and cannot be challenged under the "just cause" provisions. Furthermore, the counselling would not offend the Ontario Human Rights Code, where it was coupled with an exploration for whether accommodation was required. In such circumstances, the arbitrator said, a counselling letter may be of assistance in encouraging an employee to take greater precautions with respect to disabling injuries or to develop a greater tolerance for minor pain.

(v) Disability Discovered Only After Termination

On occasion, an employer, and even an employee, will be unaware of the prevalence of a disability until after the employee's termination for apparently culpable reasons. While the duty upon an employer to accommodate is not triggered until the employee notifies the employer of the need, the duty remains alive even if the notification does not occur until after the termination.

In Re Ottawa Civic Hospital, the employer only learned of the grievor's drug and alcohol dependency after terminating her for excessive absenteeism. The arbitration board ruled that: "Even if the [Human Rights] Code does not apply to a dismissal which occurred before a handicap is known, this legislation would apply to a refusal to reinstate the complainant once the disability has been revealed." Similarly, in Re Canada Safeway Ltd., medical information about the mental disability of a terminated employee was provided to the employer only after the dismissal. He had been fired following a long history of poor performance, lack of response to criticism, and baffling behaviour. Just before the commencement of the arbitration hearing, almost two years later, the employee was diagnosed as suffering from controllable schizophrenia. In its award, the arbitration board ruled that the employer had cause at the time of the termination to suspect a mental illness. Since the illness was controllable, it directed that the employee be reinstated, subject to specific conditions, and without back pay:

"We believe that it would be unjust to allow an employer to dismiss a blameless employee who has the capacity to do some bargaining unit job. As we see it, this work rule will not jeopardise the productive capabilities of the workplace. At the same time, it recognises that an employee whose shortcomings are not attributable to unsatisfactory work choices will have employment tenure of a kind different from those who intentionally or carelessly harm employer interests."

In 1995, the Supreme Court of Canada ruled unanimously in Cie Miniere Quebec Cartier v. Quebec that a Quebec arbitrator had exceeded his jurisdiction by admitting post-discharge evidence in the course of annulling the dismissal of an employee with an alcohol abuse problem. The initial reaction among Canadian labour arbitrators was that Quebec Cartier had overturned two decades of arbitral case law which had allowed post-discharge evidence to be considered in appropriate cases. However, most arbitrators faced with the issue after Quebec Cartier have distinguished the Supreme Court's judgement as being confined to the particular wording of Quebec labour legislation. Thus, the availability of post-discharge evidence in alcohol and drug abuse cases, as well as in the post-termination revelation of a disability, appears to remain in place.

(vi) What Kind of Medical Evidence Can an Employer Require?

When an employee requests an accommodation, the adequacy of the medical diagnosis is sometimes in question. The employer is entitled to request, and receive, an adequate diagnosis concerning the employee's fitness from his or her physician. Otherwise, the employer is not in a position to assess the employee's accommodation needs.

When an employee returns to the workplace after an injury or illness, s/he bears the initial onus to prove that s/he is medically fit to perform. Once this has been provided, the onus shifts to the employer to establish that the employee is not medically fit. In Kautex Corp., Arbitrator Brent stated that if the employer has legitimate concerns about the medical evidence presented by the employee, it is entitled to require further and better diagnosis.

In Brimacombe v. Northland Road Services Ltd., a heavy equipment mechanic experienced dizziness and fatigue. The employer did not have a light-duty position to offer him, no conclusive diagnosis was made about his condition and he spent 20 months off work. The mechanic eventually filed a human rights complaint, arguing that the company had discriminated against him for the 20 month period. The British Columbia Human Rights Council dismissed the complaint. It ruled that in the absence of a conclusive diagnosis, it would have been too difficult for the employer to accommodate him to suit his medical condition. Without knowing the nature of his illness, the employer could not properly assess his capabilities and limitations.

If an employee wishes to call psychiatric evidence in support of his or her reliance on mental illness, a recent arbitration ruling has stated that the employer is entitled to have the employee also examined by a psychiatrist of its choosing. In Canada Post, Arbitrator Burkett stated that in order to allow a fair hearing to the employer, it must be able to present its own informed medical expert. Otherwise, the employee's psychiatric evidence could go untested because of the employer's inability to effectively cross-examine or to call contrary evidence.

However, employees with psychiatric illnesses may have a lesser obligation to provide a medical diagnosis, at least at the most acute phases of his or her disability. Because the mental disability sometimes interferes with the employee's ability to comprehend instructions and situations, arbitrators and human rights tribunals have ruled that the failure to provide medical diagnosis in these circumstances would not disentitle the employee to accommodation or the protection of human rights legislation.

(vii) Last-Chance Agreements

When employees are exhibiting problematic work behaviour such as serious absenteeism, or drug or alcohol use, unions and employers will sometimes sign a "last-chance agreement". These agreements take many shapes, but they usually state that if there is any repetition of the problematic behaviour, the employee is automatically dismissed and there is no right to grieve or arbitrate the firing.

In light of the coverage by human rights legislation of employees who suffer from depression or substance abuse, and whose problematic behaviour can be linked to their disability, are these last-chance agreements always valid? Recent decisions state that accommodation concerns will sometimes override last-chance agreements.

In Fantom Technologies Inc., an employee with a drug and alcohol addiction was required to take substance abuse treatment under a last-chance agreement. As well, any further lateness or absences would be grounds for termination, without any right to grieve. The employee was subsequently late and absent on several occasions, and, pursuant to the agreement, he was fired. Arbitrator Beck held that both the last-chance condition and the cannot-grieve clause were discriminatory, and therefore invalid:

"... a condition was imposed upon [the employee] because of his handicap, which subjected him to a review process particular to him, and not imposed upon his fellow employees. And the fact that he agreed to it, and was advised by his union in doing so, does not render the [last-chance] Agreement any less unenforceable." The employee was ordered to be returned to work. The arbitrator noted that the employer had not presented any evidence that the employee's absenteeism was so bad that it could no longer be tolerated, short of undue hardship, by the employer.

In AFG Industries Ltd., an earlier decision by Arbitrator Beck on the same issue, he ruled that, to establish evidence of undue hardship, the employer would have to show that the employee's absences were costly, were disruptive to its schedule, had a significant impact upon other employees, or otherwise created legitimate safety concerns.

The decision in Fantom Technologies Inc. follows several recent decisions by the Ontario Divisional Court. In both Gaines Pet Foods and O.P.E.S.U. v. Ontario (Ministry of Community and Social Services), the Court refused to enforce last-chance agreements involving employees with disabilities, where the employer had not otherwise proven that it could not accommodate the employee short of undue hardship.

Two key points emerge from these cases. First, neither employers nor unions can contract out of human rights legislation. A last-chance agreement that requires a right conferred by a human rights code to be abandoned will be unenforceable. And second, an employee with both a disability and with an absenteeism problem may still be released from work, if (a) the absenteeism causes undue hardship to the employer and (b) there is no reasonable prospect for reliable attendance at work in the future.

(viii) Mental and Psychological Disabilities

Mental disabilities present among the greatest accommodation challenges to both employers and unions. These disabilities come in many varieties, they are often difficult to detect and assess and employees are usually reluctant to reveal them because of the enormous social stigma.

Where an employee's capacity for rational judgement is impaired by a mental disability, human rights tribunals and arbitrators have placed a higher onus on employers and unions to accommodate the employee. The fact that the employee did not disclose the mental disability when s/he was hired, did not provide the employer with a medical diagnosis while in the throes of the illness, or did not disclose the mental illness until two years after being terminated does not necessarily disentitle him or her to an accommodation. Where the illness causes erratic behaviour at work, recent rulings have said that the employer in some cases ought to have been aware of a link between the work problems and the employee's condition. In Allbright Cleaners Ltd., the employee had been hospitalised for depression, and a distinct change in her behaviour had been observed by the employer. The human rights tribunal found that it was already apparent to the employer, when it dismissed her, that she was suffering from a mental disability. Instead of firing her, the employer should have sought to accommodate her. The tribunal upheld the employee's complaint.

Unions also face a particular responsibility when representing employees who suffer from a mental disability: K.H. v. CEP, Local 1-S and Sasktel. This is discussed in the next section.

In a related case, where an employee's uncooperative work attitude is directly linked to a disability, a human rights tribunal has upheld her complaint that her firing was a discriminatory act. In Keeping v. Royal City Jewellers & Loans Ltd., the employee had requested frequent rest breaks because of her back pain, and to take her medication. Her doctor had confirmed her back problems in a note, but had not clarified her need for particular rest periods. The employer refused one of her rest requests because the store was busy. When she repeated her request, the employer fired her. The human rights tribunal ruled that her poor attitude and ordinary work record did not remove her from the protection of the Human Rights Code. Her back problems were a disability, and the employer failed to accommodate this impairment. However, because her lacklustre work performance would have soon caused her dismissal in any event, the tribunal only granted her a small monetary remedy.

II. The Role of the Union

In Renaud, the Supreme Court of Canada clearly stated that a union has a joint responsibility with an employer to accommodate those employees protected by human rights legislation. Like an employer, a union cannot rely upon a collective agreement provision to escape its accommodation responsibilities. However, also like an employer, a union can refuse a proposed accommodation if the consequences would result in an undue hardship.

(A) Liability for Discriminatory Provisions

A recent labour arbitration award has stated that if a collective agreement provision unreasonably blocks an accommodation, the agreement might have to be modified. However, a union may not share the employer's liability if it can show that it had opposed the inclusion of the disputed provision during negotiations. In Re Ministry of Health and OPSEU (Pazuk), the collective agreement expressly provided that, for the purpose of determining severance pay entitlement, an employee's continuous service was not to include any period when an employee was receiving long-term disability payments. (The grievor had been on long-term disability for almost 10 years, and sought to have this time credited as service for the purposes of severance pay).

In its decision, the Ontario Grievance Settlement Board found that this provision constituted indirect discrimination, and the employer was directed to include the grievor's Ltd. period for the purpose of severance pay calculation. A unique feature of this case was that, because the union had attempted in bargaining to amend the provision in order to comply with human rights legislation, the arbitration board did not find the union was jointly liable for the grievor's loss, even though the union was a signatory to the offending clause. This case suggests a move away from a strict determination in earlier decisions that a union's agreement to an offending provision will invariably result in a joint finding of liability against the union for losses suffered by the complaining employee. However, if a union has displayed an unwillingness to change the offending collective agreement provision despite the employer's urgings, it may still be found jointly liable.

Other decisions have stated that a union clears itself of human rights liability where it can show that it had taken the initiative to propose alternative solutions to a difficult accommodation, and would be willing to waive parts of the collective agreement in ways that would not disrupt the rights of other employees. In Drager v. IAM, a human rights tribunal ruled that although a union had participated in the formulation of a discriminatory clause in the collective agreement, it would not find it liable because the union had shown flexibility regarding seniority and shift rights. Similarly, in Thompson v. Fleetwood Ambulance Service, a human rights board held that the union's efforts over the years to remove the discriminatory provisions (concerning restrictions on vacation pay entitlement) were sufficient to absolve it of any liability.

However, a recent ruling indicates that a union's representation responsibilities towards a member with a disability may well be more onerous than under the conventional application of a union's duty for fair representation. In K.H. v. CEP, Local 1-S and Sasktel, a union member suffering from a depression was fired for his inability to follow management orders and to get along with his fellow employees. The union filed a number of grievances on his behalf, but dropped the matter before going to arbitration. K.H. claimed that the union breached its duty to fairly represent him, and the Saskatchewan Labour Relations Board upheld the complaint. While the Board found that the union may have handled the grievances diligently "from the point of view of the normal operation of the grievance procedure", it concluded that, overall, the union had:

"... failed to take sufficient account of the [mental] disability experienced by K.H., and that they therefore discriminated against him in handling his grievance." The Saskatchewan Board emphasised that, while representing members with a mental disability may present a particular challenge to a union, it also placed a higher onus upon the union to ensure that the unique features of these members' disabilities are not disregarded through inadvertent workplace discrimination.

(B) Seniority

What accommodation must a union provide when its seniority provisions are under review? While the law is not consistent in this area, the majority view of labour arbitrators is that seniority is an important job interest. Accordingly, the seniority rights in a collective agreement can only be overridden where no other accommodation option, short of undue hardship, was possible.

In Re Greater Niagara Regional Hospital, a registered practical nurse whose back disability prevented her from resuming her essential duties required a less physically demanding position that could only be found in another bargaining unit. The hospital trained her as a clerk, and assigned her to a vacancy in the clerical bargaining unit. This unit had a separate collective agreement and a separate seniority list from the practical nursing unit. While the union local representing the clerical unit did not object to her assignment, it did protest against the full transfer of her accumulated seniority from the nursing unit. The arbitration board upheld the union's protest, ruling that the transfer of the disabled employee's full seniority would adversely affect the seniority and job security of the other clerical employees at a time of impending lay-offs in the health sector. This, it stated, would amount to a "significant interference" in their rights, the standard set by the Supreme Court of Canada in Renaud.

A second, more recent arbitration decision has endorsed this approach. In Re Bayer Rubber Inc., a senior employee claimed that he was improperly removed from his machinist position, while a more junior employee who required an accommodation because of a disability was permitted to stay in his job. The union argued that, before interfering with the grievor's seniority rights, the employer had to make all reasonable efforts to scan the workplace for positions or work which might satisfy the disabled employee's need for accommodation. The arbitrator agreed. In his ruling, Arbitrator Watters stated that:

"... an Employer, after considering the full range of options and balancing the respective interests, may reasonably determine that the 'most sensible' accommodation is one which does affect the contractual rights of other employees, including seniority. In my view, however, an Employer should first strive to avoid any significant interference with seniority rights, to the extent that is possible, given the importance of seniority to the workforce."

Given that other reasonable accommodations were available that did not intrude into existing seniority rights, the arbitrator found that the employer's selected accommodation in this case amounted to a significant, rather than a slight, interference.

Similarly, in Overwaitea Food Group, the employer had denied an employee a shift-change premium, because the shift change was necessary to accommodate the scheduling needs of an employee with a disability. The union accepted that, as a general rule, it had a duty to cooperate with the company to accommodate such an employee. However, the arbitrator found that, in this case, the company could have accommodated the disabled employee without breaching the collective agreement rights of the grievor:

"It is clear on the evidence that had [the manager] adopted a different set of priorities, he could have given an effective 24-hour notice and complied with the duty to accommodate. In these circumstances it is clear that there was no conflict between the collective agreement and the duty to accommodate [the grievor]. The duty to accommodate is not an eraser with which an employer can rub out inconvenient provisions of a collective agreement. The duty to accommodate only overrides a provision of the collective agreement where, as in Renaud, the provision conflicts with the duty to accommodate."

(C) Collective Agreement Rights Outside the Bargaining Unit

If the only reasonable accommodation for a disabled employee is a placement in a non-bargaining unit position, is an employee entitled to request this? And if she or he is entitled to the position, do the employee's collective agreement rights and benefits follow them? The present indication is that an employer cannot automatically exclude a position from an accommodation consideration merely because it is not in the bargaining unit. However, the ability to export rights and benefits outside of the bargaining unit is limited. Nevertheless, the cases also recognise that loss of bargaining unit status can constitute indirect discrimination because of the loss of just cause protection, the loss of union representation and the loss of economic benefits that come with a collective agreement.

In several recent decisions, arbitration boards have ruled that non-unit positions should be among the list of potential accommodations, if no position within the bargaining unit would satisfy the duty. In Re Riverdale Hospital and Re Municipality of Metropolitan Toronto, the arbitration boards both held that bargaining unit boundaries may amount to a discriminatory barrier under the human rights legislation.

However, collective agreement rights and benefits have not passed so easily through the bargaining unit walls. In Re Interlink Freight Services, the injured employee, a truck driver, was temporarily placed in a security guard position as part of a "work-hardening" program while he was recovering from a disability. The guard position was not covered by the collective agreement. Subsequently, the employer removed him from that position because of work performance concerns. The union grieved against the removal, and the employer argued that the union had no right to grieve under the agreement because the employee was not a member of the bargaining unit when working as a security guard. The arbitrator agreed with the company. He stated that the employee retains his right under the collective agreement to return to his driver's position when he becomes physically fit. However, the arbitrator went on to say that:

"... the duty to accommodate [does not] extend to exporting or expanding the terms and conditions of the collective agreement so as to apply them to non-bargaining unit positions. [This] would overstep the line which properly protects equal treatment and non-discrimination, and would effectively confer upon the grievor rights beyond those enjoyed by his peers in the bargaining unit, or his peers in the non-bargaining unit position of security guard."

In another recent decision involving similar issues, the arbitration board in Re West Park Hospital was faced with a grievance from a disabled nurse who had been transferred to a position outside of the bargaining unit. The employer had determined that this was the only way to properly accommodate her back injury. The union argued that the transfer constituted indirect discrimination, since the nurse would be unable to retain her collective agreement benefits and rights. The arbitrator concluded that an employer's primary obligation is to attempt to accommodate an employee in her or his own job. However, if such accommodation within the bargaining unit is not possible, the duty requires an offer of suitable work elsewhere as a last measure, and that may not necessarily be in a bargaining unit position.

The most recent word on the subject strongly suggests that a bargaining unit position, because of the collective agreement protection it offers, is an important job benefit, and is not to be lightly interfered with. In Re Mount Sinai Hospital, the grievor was a nurse with a permanent partial injury to her back, which restricted her ability to lift and to be on her feet for an extended time. The hospital eventually found her a part-time position outside of the bargaining unit as a ward clerk. The grievor's union protested, arguing that the hospital had ignored other feasible accommodations that would have kept the nurse within the bargaining unit. The arbitration board found that the hospital's search was inadequate. It also pointed out that the ward clerk position entailed a substantial reduction in pay and benefits for the grievor, placed her outside the scope of any union representation, and stranded her in work outside of the nursing profession. The loss of pay, professional status and union representation was a critical factor in the board's eyes:

"The adverse effect and costs of the [employer's] proposal were largely borne by the grievor. The proposal did not respect the grievor's preference to remain within the field of nursing and strips her of bargaining unit affiliation. Given that disabled employees face restrictions in the variety and amount of work that they can perform attributable to the nature of their handicap, they may be more vulnerable than able-bodied members of the employer's workforce to the efforts of downsizing and elimination of positions. It is a significant bulwark against such vulnerability to be able to avail oneself of the assistance of a bargaining agent to advocate accommodation proposals with the employer, to utilise seniority rights in the event of lay-off and to have just cause protection against discharge, with rights to grieve and access to arbitration." Thus, the test as to whether an employee can be compelled to accept an accommodation position outside the bargaining unit depends on if there are other, less drastic accommodations available within the unit. An assignment outside the bargaining unit would in most circumstances be acceptable only after all other possibilities of an accommodation within the unit have been exhausted.

III. The Responsibilities of a Disabled Employee

The Supreme Court of Canada in Renaud wrote that the search for accommodation in the workplace is a multi-party responsibility. Along with the employer and the union, the individual employee must also actively participate in finding an appropriate accommodation. When an employer, or an employer and a union together, have come up with a reasonable proposal, the employee has a duty by law to facilitate the implementation of the proposal. "The [employee] cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged."

The requirement upon an employee seeking an accommodation is well illustrated in Re GSW Heating Products Ltd. In this case, an employee was unable to return to his work as a stuffer operator for a chimney insulation manufacturer as a result of a variety of ailments that included a serious back injury. The employer eventually terminated him for excessive innocent absenteeism. Before doing that, the employer had selected several jobs which met the restrictions set out by the employee's doctor. The employer then allowed him to choose the one he liked best. The employee found the standing and bending painful, but made no effort to identify the problem or seek assistance for a solution. The arbitrator found that the grievor could have solved both problems by using his own initiative to adopt the use of a chair and to ask that his raw materials be placed on a table. He apparently had never identified these problems to his supervisor. Nor had he accurately described his job to his doctors so that they could suggest modifications. On these facts, the arbitrator ruled that, in light of the grievor's lack of cooperation, the employer had satisfied its duty to accommodate.

Other recent rulings have reinforced the dictum from Renaud on the scope of the employee's responsibility. The Federal Court of Canada, in Guibord v. The Queen, ruled on a judicial review application that when a disabled employee refuses an accommodation offer of alternative employment at another location, she or he must provide a reasonable explanation for the refusal. This refusal must be based upon more than a mere reluctance to accept a job that was not her old position. Furthermore, the Federal Court stated, the employer was entitled to reject the suggestions for accommodation offered by the employee and her doctor, where these suggestions did not meet the employer's operational requirements. In Re T.T.C. Bottling Ltd., as part of the conditions that the arbitrator designed for the grievor's accommodation in his new position, he had to accept the lower rate of pay that went with the new position, he could not operate motorised vehicles or handle dangerous materials, and he had to wear personal protective clothing at all times. And in Re Canadian Pacific Ltd., the arbitrator ruled that an employee seeking an accommodation, in circumstances where there were no available permanent positions, must be prepared to accept retraining and offers of temporary work, or risk exhausting the opportunity to be accommodated.

The employee bears the initial onus of proving that she or he is medically fit to return to work. If the employer has reasonable concerns about the adequacy of the medical evidence, it can legitimately request further and better evidence from the employee.

IV. Conclusion

Accommodation is now a deeply entrenched feature in Canadian labour law. It has only been actively applied since the beginning of this decade, but it has already spawned or accelerated three remarkable trends in the arbitration system that are changing the very face of labour adjudication in Canada.

First, where the jurisdiction of arbitrators was once closely bound by the four corners of the collective agreement, the introduction and rapid growth of the accommodation duty has seen the arbitral authority to interpret and apply external laws enlarged significantly. Whatever remaining pull had been exerted by the traditional "residual rights" approach to arbitration that collective agreements are to be interpreted restrictively, and any term or condition that had not been specifically acquired in negotiations by the union belonged to management has now been almost entirely extinguished with this infusion of equality values into the process.

Second, labour arbitration, once deemed to be a private dispute arrangement to determine private rights, is now acquiring a considerable public rights responsibility. While traditional contract analysis will surely remain an important arrow in the arbitrator's quiver, it will no longer be the only, or on many occasions even the principal, method of analysis. The scope of remedial authority, the infusion of human rights standards into the interpretative analysis, the reading of public statutes alongside collective agreements: all of these concepts and more are rapidly changing the character of what was until recently a relatively discrete and insular area of private law.

And third, in its detail, the duty is often complex to interpret and difficult to apply. Consequently, lengthy arbitration hearings on disability and equality issues are increasingly commonplace, and are invariably law driven and lawyer dominated. Canadian labour law, already perhaps the world's most juridified industrial relations system, is becoming even more so.

Beyond these institutional changes to the Canadian labour arbitration system, the practical effect of the emergence of the accommodation duty has meant dramatically enhanced employment rights for employees with disabilities. For persons with disabilities who, according to a recent federal government study, are dramatically over-represented among the poor, the unemployed and those without a post-secondary education, and who are frequently frustrated in their search for a viable accommodation in the workplace, the arrival of the duty means a greater opportunity to participate on an equal footing in the new Canadian workplace.

For employers and unions, the duty to accommodate has required a new approach to their legal responsibilities in the changing workplace. The emerging law on human rights and accommodation are not always easy to understand and apply, but the courts, labour arbitrators and human rights tribunals are very clear that there is no turning back.


Oh, thank you Martin...I did not know this....I will look into it now....

My problem is till looks like I am going to run of sick time that I have saved for the past 32 years....then they will lay me off....

Nice Corporate company eh....after 32 years, they see you cannot perform you job duties....rather than help and advise me....they just want to get rid of me....

This not right, and I wish I could do something about it...the lawyers are too expensive...and I have not much time left...I guess I will have to look for some sort of job and go bankrupt...give it all up and go on welfare...nice way to end a career.....

Government is the one supports this activity.....I have been a faithful, hard working Federal employee for 32 years....and now they are going to get rid of me...shame, shame...
Harper;s new Government....don’t care about people....just budgeting and getting rid of all debts....
We are all doomed....God help us all....

Hi Carmine! Nice to hear from you. I'm never quite sure who I'm replying to with this layout :)

I take it the union hasn't put you in touch with one of their lawyers yet? Not okay. You've paid dues for how long? Add it up and remind them of the total if they try and palm you off.

Is your union ignoring you? Mine did too. You'd think they'd be all over these types of injustice, but you have to work to find someone with the willpower and pull to work for you.

I assume you're part of cupe?

2. Purposes of the committee

This Committee has the mandate to:

Promote and defend the rights of all persons with disabilities;
Promote and defend the principles of the Canadian Union of Public Employees;
Improve the working conditions of persons with disabilities in the workplace;

And here's the email for the head of that group:

I did something similar in my union, went to the head of the human rights division, local stewards are only familiar with concepts, not how to make things happen for issues like this.

Start jumping over heads.... 'my local steward can't help me with this, I'm hoping someone with real life experience can help me navigate this' blah blah 'if that isn't you, who should I speak to, who is the lawyer for the union'.

Another tip - go see your doctor and ask for a psychiatric assessment. If you're anything like me, this is upsetting you greatly. You need to quantify it, and help yourself get better. I say quantify, because you will need to show in the near future that this isn't just a work issue, this is a quality of life issue and you're incurring real damages to your mental health, family relations, social life etc.

Later on you'll wish you had done this, and it's very nice to have someone really listen to you. go.

Have you filed an internal human rights grievance? As you are federally regulated, you cannot go directly to the human rights commission and have to exhaust the internal process first.

Oh yeah, and the person of the similar group in my union that I spoke to was thrilled to hear from me.

They join these 'working groups' thinking they're going to do big important things and it's just drudgery. Then along comes me or you into their world and they're just waiting for something they can really do. It's why they join these things, to help us. so let them.

ps stay away from a career in the public service if you experience disability. They're just awful.

Hello Miranda,

This is all very worrying isn't it?

What I would do is contact the human rights commission in your province and speak to them about this. It's confidential and they will be able to answer your questions.

In the meantime, my understanding is 'no'. No, they cannot end your employment because of a physical restriction. (terminate always sounds like killing to me :)

What should happen is they should work WITH you to find something you can do that meets your restrictions. They have to try to find you a position or a collection of duties you can do. The collection of duties is referred to as 'job bundling'. If the bundle is comprised of duties at a lower pay scale they can pay you less.

Job bundling and accommodations can be short term, or long term. If short term... ie if you think you just need more time to get back to being able to do everything, but can do somethings now - then you can have an accommodation or bundle until you are re-evaluated.

No one will tell you this officially, but... if you think they are going to try and fire you because there is no other work you can do, if you are really really sure this is how it's going to go down, then you can get a few more months but returning to work at partial duties while you wait to be re-evaluated. During that time you can earn a proper income and try and get a job you can do. Just do not hurt yourself more.

Now IF you employer is large enough, and they have work you could do, then you enter the realm of their needing to work with you to accommodate you back into the workplace.

If you are on disability leave through an insurance company they do offer some 'return to work' services.

Now, the bad news is if you work in a place where every job and every employee needs to lift heavy boxes, and that's ALL the company does, then I'm sorry but yes they can end your employment because in that situation they cannot 'reasonably' accommodate you.

I'm just some random person on the internet. I have a significant disability and have gone through every possible stage of this, so I'm familiar with the process. I'm happy to help, but what may prove even more helpful is speaking with someone.

Call the human rights commission - your employer will never know you called.

There should be a umbrella disability support organization for your province, region or town. Call them and ask for guidance. This is what they do. No, you are not severely disabled or in a wheelchair, but as you've realized you do have restrictions and that makes you part of our club. You get to come into our clubhouse and learn the secrets. All you have to do is call.

I just had a quick look and there is a Scleroderma association of Canada - call them first.

Demand help, this is what these orgs are paid to do. Don't be afraid to self-advocate.

Good luck and please let us know how you make out or if you need help.

I am a Canada Post employee, with 32 years experience has a letter carrier.....
I recently had a slip and fall accident fractured my elbow, sprained ankle, and bruised knee. The year before I had a bad knee sprain at work and had to get knee surgery to repair torn muscles. My Doctor also found that I have osteoarthritis on my both knees the left one more severe.
The Slip and fall accident was on Sept. / 2012 and still off work Jan / 2013...I was ready to go back to work in Dec. 2012. WSIB covered me till October / 2012.
I was informed by my Bone and knee specialist that I would have to be on permanent modified duties for return back to work. I am having a lot of trouble getting back to work...Management say’s there is no modified work. And will not hire me back. I am willing to try anything for RTW program, even getting knee braces or other support. They do not acknowledge any help or advice.
I have been in conference with doctor’s and my phisotharpsy than I can return to work. Filled out many reports, and worked with my union to get me back to work. They are denying me any resolution.
I would like to know if this falls in physical discrimination to return back to work. It has exhausted my sick time which I have saved up for many years.
Do I have some rights on RTW Values?

Thank you so much Martin...I am working hard with my Union rep. I hope to resolve this soon, and get me back to work. If not I am going to talk to lawyer for help in this most important matter. Will I have the right to sue the Corporation. I feel they will not hire me back because of my osteoarthritis condition, and what to get rid of me because of my age too. My retirement time will be in the year 2016.


CP is a federal employer, I am 99% sure you have to go through the union grievance process when filing a human rights complaint - you cannot file directly with the human rights commission. I assume this is what you meant by 'sue them'?

This is why I think you should speak with a union lawyer. There aren't too many lawyers who specialize in human rights - there's no money in it for them. Lawyers fees are not included in settlements... but I digress.

If I ran the world, the moment you gave the employer advance notice they should have been looking for something you could do based upon your abilities. And the moment you were able to return you should have started collecting salary and benefits including contributions to your pension. If THAT was the law, there would be a lot more workplace accommodations, and a lot quicker too!

They wait us out and wear us down.

You have 3 more years of work before pension? I am not familiar with pension rules, but here's what I'm wondering. Given their reluctance thus far, it doesn't sound like a very nice place to work. Would you want to wake up every day for the next three years and go to work - at a potentially reduced salary - at a place that treats you like this? If you don't already know, the employer does NOT have to pay you your current salary, if they find a job that pays you less, you have to take it or get fired because they will have met the duty to accommodate. Nasty eh?

Maybe talk to your union rep about putting together an offer for you to retire early or however it works with pensions. Figure out - with a union lawyer - how much you could win if your case went to arbitration. Sweeten the deal for you, don't forget they get to escape the costs associated with going to court. Sick time, vacation time, pension contributions, payment for lost training and development the whole magilla.

Then with those three years of early pension/paid time off you could return to school or open a business or do something YOU want to do with the rest of your life and escape them. You wouldn't be giving in, you'd be winning.

Interesting tidbit - the federal public service has not been hiring persons with disabilities, their number of pwd come from employees who become disabled while employed. Have a look at the employee survey results for the feds for pwd to see how they feel about working there. It's heartbreaking stuff. Get out if you can! The public service should be a safe haven for pwd and other equity groups. The truth is it's the worst employer around for us.

Thank you so much for your comment and advice....

Yes, I agree with all you say....It would be nice if I can get a buy-out and go on Pension....I will ask my union rep...

We are going to be in conference next week....The job they will offer me will be a little lower paying but still better than pension....I will have to take it if they offer me this job...
I am hoping that we can resolve this and get me back to work......running out of sick time to cover my living expenses...

If it ends bad with no solution.....I will have to seek a lawyer.....hope the union and I can make a deal for retirement, or get a job back...

It is a bad place to work...You must know how I feel after giving them 32 good years of my life devoted to them...

Wish me luck...and again I would like to thank you for your wise advice....

Best Regards



Very best of luck!

The time to speak with a lawyer is before you run into problems, not after. A mistake I have made myself :) Union reps mean well, but they are rarely well trained or knowledgeable on the intricacies of return to work and disability in the workplace. Ask for the name of a union lawyer. They will try to discourage you, don't let them. The time to speak with a lawyer is BEFORE you speak with the employer, not after. If the union rep keeps insisting they are the best person for you to deal with - ask them the percentage of pwd the union employs... if any, then ask again to speak with a lawyer (my bet is zero pwd). If you keep hitting dead ends ask to speak with the equity /human rights union person or disabled advocate if they have one.

I would not walk into this meeting without a solid understanding of your rights, what you can expect under the law, and your rights.

If they're going to offer you a job, that changes a lot. Did they consult you about your preferences? Your skills and interests? Or is this just some job they found lying around that no one wanted?

I'd ask them the following about this new job.
~Is it a real job with meaningful work, or is it a make work exercise to meet the duty to accommodate?
~What are the career paths associated with this position?
~What is the career growth with this position and what training and development will be made available to you?
~You should get preference for promotions, training and transfers as a person with a disability - how are they going to facilitate that for you in this position? (if you don't like it you'll need to know how hard it will be to leave and transfer somewhere)
~ how many grievances and human rights related grievances does this new workgroup have? (you don't want to walk into a toxic work environment)
~ does the supervisor in this new job have any training on working with pwd and their responsibilities?
~ and most importantly, how will they work WITH you to help you obtain employment at your old salary or better?

These are valid questions if you have 3 years or 30 years left to work. Shouldn't make a lick of difference.

The universal declaration of human rights was signed by Canada in 1948. The employers AND unions should have gotten this right by now.

Don't be passive - they know you are vulnerable and in a weakened state of mind/health and will take advantage if you let them.

OMG>>>>.You are so right...I am going to make a good effort to get a lawyer's thoughts so I know what my rights are....

This is a real bad situation my employer has put me on....I need to know all the right facts now!

Thank you so have loosen some heavy thoughts that is damaging my health.......I have to overcome and work out all details....

Thank you again...

Best Regards


Yes you have rights. Your union should be all over this. Ask the union about getting on a priority hiring list, retraining - what the employer will pay for and how long. How does the hiring process work for someone in your situation, always ask how you can help and offer ideas etc. You need to be collaborative - that is expected under human rights law. If this goes to arbitration you need to show that you were really trying.

RTW for your situation can work, but you need to be relentless if you have an employer who is dragging their feet. Ask for meetings. If meetings aren't resulting in action, go to that persons supervisor etc. Hell, call you MLA and MP. Read the United Nations Convention on the Rights of Persons with Disabilities! Canada ratified it 2 years ago.

If I may be so bold, it sounds to me, given your injuries, that you may be looking at a new career within CP. If your employer has a 'Employee and Family Assistance' type service, they may offer career counselling/advice and legal advice.

I am not familiar with WSIB. I imagine they are similar to an insurance company, which does provide some return to work planning. Aren't you getting any advice or direction?

Unions can be dammed lazy (personal experience). Find out if there is a disabled advocate in your union and speak to them. They could be a good way to light a fire under their butts.

I would demand to speak with a union lawyer. This is out of scope for your average steward, no matter how many courses they've taken or how well meaning.

I'm in a similar situation, and am tempted to just start showing up and sitting in HR's offices each day. They are playing the waiting game... wait until you run out of banked time and savings and go away.

I'm very sorry you're in this situation. It is unfair, it is unjust, and it is unkind.

Challenge authority, do not be afraid to assert your rights as a Canadian in the workplace. You are not complaining - you are self advocating!

(I'm not sure why this is on the alliance site, but this is a good discussion to have :)

You should consult with a lawyer to determine your potential rights. Since you are part of a union, however, the onus falls squarely on them to work on the matter and resolve it. But really, the best advice I can give you is to get some professional legal advice. It will be well worth the time and expense.

Thank you atibbs I am looking to talk to lawyer, however, I am hoping to resolve this and get me back to work. I need to work soon or I will be in a lot of bad finical state.

I am suffering from rheumathoid arthritis in my toes,ankles and knees.My right leg toes are deformed and twisted and at times very painful. I am also having a heart condition,
having suffered from two heart attacks. All this has not hindered my job performance,and I have also been recognized by my manager for getting the highest number in sales at my work place at Costco,at the membership desk. Since I have to do a standing job for eight hours,my Doctor has instructed me and has put it in writing to my employer that I need to sit and perform my duties. I need to know my rights and options. Can you please advice me.

Alex Dias

I am sorry that your employer wasn't thoughtful enough to have offered you a seat considering your challenges.

Employers do not like to be told the law or have employees assert their rights. I think they view it as a challenge.

Having gone through this many times I would suggest speaking with your supervisor, explaining the pain and discomfort you're experiencing and that your doctor recommends that you can still do you job with a stool. I would also say that your doctor wrote this up in the hopes that it would make the request easier. Then hand them the note.

If they come back with 'we'll see what we can do, offer to bring in a stool until they can find one for you. (otherwise you may be waiting a long time, have to escalate - this could shame them into acting quicker).

If you run into any problems, or objections go speak to a lawyer immediately.

Good luck and please post back what happens


Of all the literature I've read on the DTA this is by far one of the best presentations of summary and details.

I wish I had read this years ago.

Please do keep this updated in the future with any significant changes such as the recent Mowat ruling.

Thank you very much!


ZZ - Disregard this link; it is used to trick spammers.