You probably know that employers are required to accommodate a disability to the point of undue hardship. If you’ve ever been involved in a situation requiring accommodation, you probably also know that “undue hardship” is a very high standard. So it’s good to hear about arbitrators who also hold employees to their corresponding obligation to co-operate in their accommodation.
Felice Ciccone had worked as a screening officer at the Thunder Bay airport for 10 years when Garda took over the contract for security services. When Garda learned that Ciccone was colour-blind, they noted that screening officers were required to meet certain medical requirements, including “normal colour perception”.
As a result, Ciccone was removed from his duties on the X-ray machine and was asked to submit a request for accommodation form. He refused, claiming that he was being picked on and that his condition had been known for many years during which he had performed his duties without issue. Garda gave him many opportunities to change his mind, many extensions of deadlines and assurances that the only change to his job duties would be the removal of responsibility for X-ray screening. Ciccone still refused.
Ultimately, Ciccone’s employment was terminated on the grounds that he could not maintain his certification as a screening office because he refused to participate in the accommodation process. The Union filed a grievance, which was dismissed at arbitration. Arbitrator Baxter stated:
“In my opinion, Garda in its efforts to accommodate the Grievor, was clearly attempting to find a reasonable solution by balancing public safety with the Grievor’s right to accommodation. I am not persuaded by the Union’s argument that the Grievor’s job would have been severely diminished or that taking away the X-ray functions would leave a mere shadow of a job.
If Garda had revoked the Grievor’s certification and failed to initiate an accommodation process, the Grievor may well have had his Charter rights impugned. But such was not the case. Rather, the Grievor … should have taken the sound advice of his Union representative, signed the accommodation request form, under protest, and continued the fight if he was not satisfied with the outcome.”