For many employers, particularly those in unionized settings, finding appropriate work for employees requiring medical accommodation can be challenging. This is particularly the case where a position that may address an employee’s accommodation needs is occupied by another employee. However, a recent case provides clear guidance to employers that employees need not bear unfair financial costs associated with accommodating another employee.
The Chatham Kent Case
In Chatham-Kent Children’s Services v. Ontario Public Service Employees’ Union, Local 148, (Unreported decision of Arbitrator Brain Sheehan dated September 11, 2014) (“Chatham-Kent”), the employer was faced with a request by an employee, “E”, to displace (or “bump”), another employee, “B”, from her position as a result of E being given a notice of layoff. Beth Traynor of Siskinds’ Labour and Employment Group represented the employer in the case.
However, a complication arose as a result of the fact that B held her position, in part, in order to accommodate medical restrictions she held due to a visual impairment. If E were permitted to bump B out of the position, the employer expressed serious reservations that B would be able to perform the work of any other positions in the organization. As a result, the issue before the arbitrator was whether E should be allowed to exercise her seniority rights and displace B, despite the fact that doing so may result in B being unable to perform other work and potentially being permanently laid off as a result.
The arbitrator began by noting the special place that an employee’s ability to exercise his or her seniority rights holds in a unionized environment. Considering this, he then went on to find that an employee’s quasi-constitutional right to the accommodation of his or her disability “does not necessarily trump the rights, under the collective agreement, of the other employees”, such as to the benefit of seniority (at page 6). As accommodation need only be made to the point of undue hardship, the arbitrator extrapolated from case law stemming from the Supreme Court of Canada that, where an interference with employees’ collective agreement rights is significant, the proposed accommodation measure may be viewed as constituting an undue hardship for the other employees.
Concluding that denying E the right to bump into B’s position would result in E experiencing a significant reduction in pay, the arbitrator held (at page 9) that “[t]here is no support in the jurisprudence for the proposition that an employee has to directly suffer a significant reduction in pay to facilitate the accommodation needs of another employee”. Accordingly, the arbitrator permitted E to exercise her seniority rights and bump B, despite the fact that doing so “could potentially lead to serious adverse financial consequences for [B] and her family” (at page 11).
Take Home Lessons
The Chatham-Kent case provides useful guidance for unionized employers attempting to balance the rights of employees that require accommodation with those that may be affected by such accommodation efforts. Although the case law remains murky in some areas—for example, arbitrators remain divided over whether placing a disabled employee in a position without posting it constitutes undue interference with the rights of other employees—the Chatham-Kent case clearly articulates that employees should not be required to experience a significant reduction in pay in order to allow the employer to accommodate another employee. This is an important factor that unionized employers should now consider when evaluating potential accommodation options with their bargaining unit members and the union.