Thursday, December 13, 2012

Interesting arbitrations with a human rights angle by Diane MacLean

Arbitration Summaries (Human Rights Issues: disabilities)

A union can be involved in an employment dispute that involves (or potentially involves) human rights issues. If so, the dispute can lead to grievance arbitration. Arbitrators have the right to consider human rights issues because:

• The collective agreement explicitly includes human rights protections; or

• The collective agreement is deemed to include human rights protection due to the operation of section 89(g) of the B.C. Labour Relations Code which provides:

For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may ….

(g) interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, … and

The Supreme Court of Canada’s decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157 confirmed that such sections in labour legislation gives an arbitrator the jurisdiction to apply the Human Rights Code. In Parry Sound, the grievor was a probationary employee who went on maternity leave prior to the expiry of her probationary term. Within a few days of returning to work, the employer discharged her and she filed a grievance. The arbitration panel held that it was entitled to consider whether the grievor had been a victim of discrimination under the Human Rights Code. The employer appealed this finding to the courts. When the case reached the Supreme Court of Canada, the Court held that the arbitration panel:

... was correct to conclude that the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which an arbitrator has jurisdiction. Because of this interpretation, an alleged violation of the Human Rights Code constitutes an alleged violation of the collective agreement, and falls squarely within the Board’s jurisdiction. Accordingly, there is no reason to interfere with the Board’s finding that the subject matter of [the] grievance is arbitrable. The Board’s finding that the discriminatory discharge of a probationary employee is arbitrable is not patently unreasonable.

[Note: The union can be involved in a human rights dispute directly under the Human Rights Code as well. That will be dealt with in future posts. In this post, and the next two to follow, I will be reporting on disputes with human rights overtones that lead to an arbitration decision.]

In this post, I have summarized some 2012 arbitration decisions dealing with the issue of accommodating a disabled employee. In most cases, the employer will know that the employee is suffering from a disability -- a workplace injury or an extended absence from work due to illness. There are also occasions where an employer must be sensitive to the possibility that an employee, who is under performing or misbehaving, has a mental or physical disability.

If an employee is disabled, then an employer has a duty to accommodate that employee. This duty is not absolute, for example, an employer does not have to create a position for a disabled employee. The limit to the duty to accommodate is undue hardship. Sometimes the required accommodation can interfere with seniority or require a placement in a different bargaining unit. Therefore, unions also have a duty to co-operate in the search for appropriate accommodation. Finally, it should be noted that the disabled employee has a duty to consider a reasonable, but not necessarily perfect, accommodation.

The issues of interest in the summaries to follow are:

• Riverview Hospital: reinstatement was ordered enabling the grievor to access benefits under the collective agreement. However, this does not mean that the grievor is entitled to return to work until the employer is satisfied that the grievor is fit to return to work;

• Argus Carriers: the employer tried to accommodate the grievor’s disability but reached the point where it could no longer do so;

• X v. Y: this is an example where the arbitrator considered evidence of a possible disability before concluding there was just cause for dismissal; and

• Victoria Symphony Society: in this case, there was an extreme lack of trust between the parties and the grievor was reluctant to provide medical information. The Board found that the grievor’s dismissal was premature, causing the loss of an opportunity to explore accommodation possibilities.

I. British Columbia (Riverview Hospital) v. British Columbia Nurses’ Union, 2012 CanLII 24876 (BC LA)

Date: February 14, 2012 Arbitrator: Emily M. Burke

Grievance: reinstatement (clarification of December 2011 order that the grievor is to be reinstated; grievance allowed and grievor ordered reinstated.)



The grievor had been dismissed as a result of an incident. In an arbitration decision issued in December 2011, the arbitrator concluded that the doctor’s opinion regarding the grievor’s PTSD:

… establishes the Grievor’s actions in this case to be non-culpable behaviour. Similarly the Grievor’s judgement in this case was impaired such that the decision to leave the patient by herself in North Vancouver and return to Riverview without her was for non-culpable reasons. This leads to the conclusion there was no just cause for the discipline and resulting termination of the Grievor.

The arbitrator had ordered reinstatement and left it to the parties to determine other kinds of remedies. The union sought immediate reinstatement. The employer sought additional medical information from various sources. The union told the employer that the grievor was able to return to work without restrictions or limitations. The union then forwarded medical information regarding the need for accommodation and a graduated return to work. For a variety of reasons, the employer had not reinstated the grievor.

Analysis and Decision

The arbitrator noted that the question of the grievor’s ability to return to work was not relevant to the issue of his reinstatement, and stated that:

…the Grievor’s reinstatement to employment is not conditional on establishing his fitness to return to work”. Rather, once reinstated to employment status, rights and obligations flow to both the Grievor and the Employer from that employment status. The grievor is able to access appropriate rights under the collective agreement as an employee and the Employer can exercise its rights to ascertain whether the Grievor is able to return to active employment and provide direct care.

The arbitrator agreed that the employer is entitled to satisfy itself that the employee seeking to return to work is fit to return to work. However, the arbitrator also found that the employer had not to date reinstated the grievor to employment status as it was ordered to do. (It appears that the need for this clarification was so that the grievor could obtain things like short-term disability benefits under the collective agreement.)

II. Sykes v Argus Carriers Ltd., 2012 CanLII 51400 (BC LA)

Date: June 14, 2012 Arbitrator: James E. Dorsey, Q.C.

Grievance: dismissal (this was a non-union situation; the employee complained about his dismissal under Part III, Division XIV of the Canada Labour Code. This decision was reported by CanLII as an arbitration decision. The complaint was dismissed because the employer had exhausted all reasonable accommodations.)



This decision shows that there is a limit to the employer’s obligation to accommodate a disabled employee. The employee was hired in May 2001 and worked as a truck driver. He was viewed by the employer as “one of its most valuable drivers and a stellar employee”. Over the years, the employee required treatment and surgery for a pre-existing shoulder injury. The employer supported his various returns to work with modified work and lighter duties. However, the employee required more and more accommodations which restricted the trucks he could drive. He eventually was restricted to lifting and carrying less than 20 pounds. The employer dismissed the employee in June 2011.

Analysis and Decision

The employee felt that he should have been reassigned to a particular route. However, the arbitrator found that the employee could not do all of the essential duties on that route and stated:

For, the employer, the added cost of hiring or assigning another employee to do the local relief work Mr. Sykes could not do made that assignment and modification an undue hardship for the employer…. It was an undue hardship for the employer to assign him its Kelowna route within its operation. I find the employer’s non-culpable termination of employment of Mr. Sykes, after exhausting all reasonably available accommodations for him with the increasing limitations resulting from his should disability, was a justified dismissal. The complaint is dismissed.

III. X v Y, 2012 CanLII 42426 (BC LA)

Date: July 23, 2007 Arbitrator: John P. Sanderson, Q.C.

Grievance: Termination of employment (grievance dismissed)



The grievor was a 23-year employee who worked as a janitor in the bakery department. He had a relatively clean record (some verbal warnings and one written warning, but none after 2000). Close to the production area of the bakery is a small room which has articles used by the janitor for cleaning. There is a sink used by the janitor to drain away paints, etc. Usually only the janitor uses this room. In July 2011, a female employee had reason to go to the room and discovered the grievor standing in front of the sink urinating. The employer conducted an interview. The grievor ultimately admitted (after being told there was a possibility of video evidence) that he had urinated in the sink and had done so three or four times in the preceding months. The employer asked if he had any medical issues that required accommodation and the grievor produced a doctor’s note. The employer ultimately concluded that the grievor had no medical condition that justified his behaviour and he was dismissed on September 20, 2011.

Analysis and Decision

At the hearing, the grievor explained the he had an urgent need to urinate and he didn’t think he could make it to the washroom. This was the same issue on other occasions when this happened.

The employer testified that store cleanliness and hygiene is of extreme importance to the employer and it provides extensive training on this subject. The note provided by the grievor’s doctor read “For medical reasons requires regular bathroom breaks” and the employer felt that the note did not identify any medical problem which might have affected this particular situation. Therefore, there was no medical justification for the conduct, which was a serious breach of the store’s rules regarding cleanliness.

After the grievor was dismissed, he went to a urologist who provided a report which identified “some nonspecific prostate firmness at [sic] significant urinary tract symptoms”. The grievor also testified that he saw his doctor regularly throughout the summer of 2011 but never mentioned the problem and he could not explain why he did not do so. As well, he could not recall having similar difficulties outside the workplace.

The arbitrator said his first task was to determine the reason for the grievor’s behaviour. The arbitrator also stated:

What are the employment consequences of such acts? In my view, this form of misconduct is so serious in an employment setting where proper hygiene is of such significance, that it undermines the viability of the employment relationship. This is not a new or abstract arbitral determination. In the food industry, the issue has had to be addressed in a remarkable number of occasions by arbitrators, including in this province, where an employee has chosen to ignore the basic standards of civilized behaviour in their workplace. The arbitral response to such misconduct has been consistent and in my view, entirely appropriate. In the food industry it is viewed as misconduct of a particularly serious nature.

The arbitrator noted the grievor’s long service and positive employment record, but did not feel they were sufficient, given the seriousness of the offence. As well, he noted the union’s arguments that the grievor had an unspecified medical condition that caused the urgency. However, the arbitrator held there was no objective medical evidence of such a condition. As well, the grievor did not raise the subject with his doctor or have the problem anywhere else but at work. The arbitrator concluded:

After a careful consideration of all of the evidence and in particular, the testimony of the grievor, I conclude that while he might have had urinary discomfort, that does not mean he had no choice but to urinate in the janitor’s room rather than get himself to the washroom. To the contrary; it is clear the grievor had a choice but he made the wrong choice, not once, but at least four or five times before he was found out.

In my view, the grievor’s choice was deliberate and reckless. He selfishly ignored the interests of his employer and his co-workers. He does not seem to understand the gravity of his actions. Other than saying he was sorry, he has not expressed remorse or acknowledged that his choice, as has termed it, may have been the wrong choice. His disregard of the rights of his employer and his co-workers to maintain the most basic standards of decency and respectful conduct in the workplace is disturbing. When he was discovered by Ms. A, instead of apologizing to her on the spot, he made a smart-ass remark about the “boys”. As for the legitimate interests of his employer, his misconduct put at serious risk the business of the organization had a customer passed by the open door and looked in while he was urinating. The impact on the welfare of the employer and his co-workers could have been devastating.

In the result, for the reasons noted above, I find no proper basis to interfere with the penalty imposed by the employer. The grievance is hereby dismissed.

IV. Musicians’ Association of Victoria and the Islands, Local 247 v. Victoria Symphony Society, 2012 CanLII 51817 and 2012 CanLII 51417 (BC LA)

Date: May 11, 2012, August 9, 2012 Arbitrator: James e. Dorsey, Q.C.

Grievance: dismissal (grievance allowed; compensation ordered but no reinstatement)



The grievor had been a principal trumpet player for twenty-five years. He started experiencing some discontent with his employment causing him to take counselling and a sabbatical leave for one seaons. Then he required dental surgery which caused him to miss another season. Then he injured his hearing on the job. The grievor was initially turned down for WCB benefits and received sick leave benefits from his employer. He appealed the WCB decision and received benefits but did not reimburse the employer for his sick leave benefits. He was slow in providing medical information to his employer which raised some suspicions. As well, it made it difficult for the employer to plan staffing for each season. The employer’s director, stating that the grievor was the most uncooperative musician he ever met, dismissed the grievor in September 2009.

Analysis and Decision

The arbitration panel recognized the employer’s frustration with the grievor, stating:

He was taking every entitlement and benefit from their relationship, but not behaving as a cooperative team member of the orchestra and employee of the Symphony. In response to his injury and illness and the Symphony’s right and responsibility to monitor his absence, [the grievor] was pursuing a path of confrontation, not co-operation, utilizing the services of both his union and a privately retained lawyer.

That being said, the arbitration panel found that the dismissal was premature, stating:

The Symphony acted precipitously, prematurely and mistakenly when it decided it would deny sick leave because proof of illness was not provided and then dismiss [the grievor] for being absent without written permission. [The grievor] did not require the Symphony’s permission. As was well-known to the Symphony, he was absent due to a work-related injury and in receipt of workers’ compensation benefits and long-term disability benefits. This was his entitlement to be absent from work.

The employer did not have just a reasonable cause to dismiss the grievor. Due to his permanent disability, the grievor cannot be restored to his former position. The arbitration panel referred the matter back to the parties to determine “whether, on what basis and to what extent” the grievor is to be accommodated or compensated for the dismissal while absent from work due to a disability.

The parties were very far apart and could not agree on a remedy and the matter went back to the arbitration panel, which concluded that, although the dismissal was premature, it was not done in bad faith or in any manner that would justify an award for punitive damages. The grievor was unable to perform as a musician for three seasons prior to the dismissal and no loss of wages was caused by the employer’s decision to dismiss him. As a result, the grievor was not entitled to any further pension contributions or paid sick leave.

The arbitrators concluded that the loss to the grievor was “the loss of the opportunity to explore accommodation possibilities and possibly retain continuity of service and some benefits under the Master Agreement.” While the union had proposed a non-musical role for the grievor, the arbitration board found that there was not the requisite trust for such a role to be successful. The arbitration panel also noted that, although the premature dismissal was discriminatory, at some point, with the grievor being unable to perform as an orchestra musician and no other available employment, the employer could terminate the grievor for non-culpable absenteeism.

The arbitrators ordered $18,000 in compensation, less $4,104 in reimbursement to the employer.

1 comment:

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