mçäáåé=i~ï= [ LABOUR LAW ISSUES OF INTEREST TO POLICE ASSOCIATIONS AND THEIR MEMBERS ]

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1 mçäáåé=i~ï= [ LABOUR LAW ISSUES OF INTEREST TO POLICE ASSOCIATIONS AND THEIR MEMBERS ] Volume 5, No. 1 Summer 2003 Pages IS THE EMPLOYER OBLIGATED TO CONSIDER TRANSFERRING AN INCUMBENT TO ACCOMMODATE A DISABILITY? Does the employer have an obligation to consider transferring a police constable out of a position to make room for another constable who requires accommodation? An Ontario arbitrator recently said yes. The parties to the grievance, the Ahkwesahsne Police Association (Association) and the Mohawk Council of Akwesasne (the Council) agreed that Arbitrator Chapman would address a preliminary question in the arbitration proceeding: In the absence of evidence as to the other methods of accommodation available to the principal parties, if any, does the employer have a duty to accommodate that includes transferring the incumbent out of his position so as to open a position for the grievor? In concluding that the employer s obligation to provide accommodation may include transferring an incumbent out of his/her position, Arbitrator Chapman sets out, in great detail, the evolution of the law of accommodation. The Facts: The Council hired Constable Robert White on October 16, 1989, as a member of the Akwesasne Mohawk Police Service on the Akwesasne Reserve. The Akwesasne Territory is situated along the St. Lawrence Seaway near Cornwall, Ontario, and includes areas within the Provinces of Quebec and Ontario, and New York State. In March 1999, Constable White injured his right shoulder and neck while on duty. As a result of these injuries he was unable to continue as a patrol officer. The Council accommodated Constable White as an assistant dispatcher between his return to work in July 1999 and April In March 2000, while off duty due to another injury, Council advised him that it could no longer provide accommodation that was consistent with his permanent medical restrictions. He was advised not to return to work. Constable White grieved the Council s decision arguing that another position in the bargaining unit, the Court Officer position, was suitable given his accommodation needs. Constable Kevin Nanticoke, a member of the same bargaining unit, occupied the Court Officer position since The Chief of Police assigns police constables to any of four regular positions; patrol officer, court officer, community service officer, or 27

2 investigator. There is also a maritime patrol position during the summer months. The parties did not dispute the employer s unilateral authority to transfer a constable from one position to another within the same classification. The assignment of work is normally done in one of three ways: it was either posted through competition, unilaterally assigned by the employer, or may have predated the signing of the first collective agreement (which happened in 1999). While there had never been an example of removing an officer from a position to satisfy an obligation to provide accommodation, the employer had unilaterally transferred members to satisfy operational requirements. There was at least one example of a member being permanently accommodated in a position that was assigned rebundled duties that had previously been done by a number of other members. Legal Framework: First Nations policing falls under federal jurisdiction, making Constable White s grievance a matter arising under the Canadian Human Rights Act (Act). The Act sets out the following relevant provisions: 15(1) It is not a discriminatory practice if, (a) Any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; 15(2) For any practice mentioned in paragraph 1(a) to be considered to be based on a bona fide occupational requirement it must be established that accommodation of the needs of an individual or class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. 53(2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, 28 subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: (b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileged that are being or were denied the victim as a result of the practice; 54(2) No order under subsection 53(2) may contain a term: (a) requiring the removal of an individual from a position if that individual accepted employment in that position in good faith; The Arguments: The employer argued that transferring a member out of a position to which he had been assigned constituted undue hardship. The employer had a number of concerns. It argued that recruitment would be compromised when candidates could not be certain of the stability of assignments due to the needs of other disabled members. It also argued that there were difficulties in recruitment with the competition for candidates with surrounding departments (including the Ontario Provincial Police, the Sureté du Quebec, the RCMP and other local police services). The employer also argued that the incumbent Court Officer had made significant contributions to the position, and in particular had enhanced the reputation of the Police Service with the many other bordering police services and other court agencies. The employer noted the difficulty in policing the reserve and the many competing jurisdictions. Finally the employer relied on that the serious and negative impact that would be shouldered by Constable Nanticoke should he be removed from a position that he wished to remain in.

3 The Association, on behalf of Constable White, argued that the Act requires the employer to take meaningful steps to accommodate an employee with a disability. This includes, when there are no other alternatives, considering an accommodation that removes a member from a position where that member would suffer no loss as a result. In this case there would be no loss of pay or seniority should Constable White be transferred into the court officer position. The Association argued that the Act stipulated the three grounds on which an undue hardship argument could be advanced: health, safety and cost. The Decision: Arbitrator Chapman provided detailed reasons for her decision. Subdividing each factor in accommodation, Chapman summarizes the existing law and distinguishes the arguments advanced by the employer. She makes the following general observations. Undue hardship infers that some hardship is acceptable. The Supreme Court of Canada has determined that the undue hardship threshold is extremely high. Undue hardship must be assessed on a case-by-case basis involving consultations with the individual member involved. The procedure used to assess the accommodation is as important as the substantive content of the accommodation. This includes asking the question has the employer thoroughly investigated all possible accommodations? Morale or the threat of grievances from other bargaining unit members is not an adequate undue hardship defense to alleviate an employer of its accommodation obligations. The onus to establish hardship falls clearly on the person responsible for making the accommodation, which in this case in the employer. Arbitrator Chapman noted that this onus must be met with clear, objective, direct, and in the case of cost, quantifiable evidence... a mere statement, without supporting evidence, that the cost of risk is too high based on 29 impressionistic views of stereotypes will not be sufficient to meet the standard of undue hardship Arbitrator Chapman devoted considerable time to the analysis of the final two questions; the employer s duty to reorganize jobs/workplace; and the duty to consider transferring an incumbent out of an existing job. Duty to Reorganize Jobs/Workplace: There was no dispute between the parties as to the inability of Constable White to perform his pre-injury duties as a patrol officer. Arbitrator Chapman noted that the law was clear as to the obligation of an employer to place a disabled employee into a vacant position that the employee can perform without modification. It also requires the employer to consider making modifications to existing positions as long as those changes do not constitute undue hardship. She found: the cases on the scope of the employer s obligation to accommodate an employee permanently in alternative work now seem to acknowledge that the duty may require significant workplace reorganization. The only clear limit to such efforts is that the employee must be able to perform a useful and productive job for the employer. Duty to Consider Transferring Incumbent out of Existing Job: The employer relied on a series of cases that found that there was no obligation to transfer an incumbent out of an existing position to satisfy its accommodation obligation. It argued that a disabled employee should not have access to an occupied position, since no other employees in the workplace would have access. Put another way the employer argued that a disabled employee should not receive superior treatment as a result of his/her disability, over other employees. In dismissing the employer s argument Arbitrator Chapman noted that the employer relied upon cases which pre-dated a number of

4 significant statutory amendments and developments that resulted from recent Supreme Court of Canada s jurisprudence. As a result many of the comments respecting workplace reorganization were no longer consistent with the current approaches to accommodation (in fact during the period between the hearings and the release of this award a number of key decisions by the Ontario Divisional Court further clarified issues involving accommodation). After considering a number of supportive arbitration decisions Arbitrator Chapman concluded that: It is fair to note that in the present case the intervenor (Constable Nanticoke) isn t being denied access to a new job, but faces the potential removal from a job that he currently holds, which is clearly a more serious impact, but it is still not as severe as being unemployed, which is the implication of a disabled employee unable to be accommodated. Arbitrator Chapman noted two police decisions that are of some significance to the issue of accommodation. In Orangeville Police Services Board Arbitrator Paula Knopf rejected the employer s suggestion that accommodation could not be provided to two female constables who were pregnant at the same time. Arbitrator Knopf found that the two constables should have been transferred into other positions and the incumbents could have assumed their regular duties. In the other case, Essex Police Services Board, Arbitrator Goodfellow similarly rejected the employer s argument that an incumbent officer should not be transferred to satisfy the employer s need to provide accommodation. Arbitrator Goodfellow rejected, the notion that the duty to accommodate a disabled employee can never include displacing another employee from his or her position seems to me to be entirely inconsistent with the broad sweep given to human rights legislation in general, and the duty to accommodate in particular. In the end, however, Arbitrator Goodfellow found that the employer could 30 provide a suitable accommodation without making such a transfer since the employer had failed to thoroughly canvas the workplace to find other potential modified positions. Arbitrator Chapman concluded that the Council breached its obligations under the Canadian Human Rights Act in not properly assessing whether it could accommodate Constable White. She found that the Council was wrong for never having considered the transfer of the incumbent Court Officer to fulfill its accommodation obligations. She concluded: undue hardship has not been established. Having regard to the legal framework explored in some detail above, I cannot conclude that the reasons put forward for the employer s objections reach what is admittedly a very high standard, far above mere inconvenience, and required to be established on very clear and not speculative evidence. I am also concerned that none of the evidence put forward in support of a finding of undue hardship relates to the factors enumerated in the statute, except in the very general sense that any operational challenge can be said to impose a cost on the employer. The very vague evidence called about the potential impact on the employer s ability to recruit new constables, and its reputation with the courts and other police agencies, has simply not met the requirement of clear and tangible evidence of very high costs which would be borne as a result of a proposed accommodation. Arbitrator Chapman continued: The issue of morale, for existing and potential employees, is also not persuasive on the issue of undue hardship. While the employer appears to endorse a view that employees should be able to count on an assignment to a particular job, and that such an expectation is required in order for it to recruit and keep good employees, its own actions in the past conflict with that claim, as it has been willing to change assignments to meet other needs as reviewed above. In any event, it is not clear to me why employees would perceive a

5 workplace where the rights of disabled employees and the human rights obligations of the employer are taken seriously and made a priority as a less attractive employment opportunity A different question would be whether an employee with a significant investment in a position, perhaps aging and therefore experiencing an increased vulnerability to workplace injury or poor health, would want to know that his or her employer would take all steps legally required to ensure that the worker was able to continue with productive employment, including effecting whatever transfers might be required in order to ensure that accommodated employment was made available. While Arbitrator Chapman clearly decided that it may be necessary to transfer an incumbent in order to make room for a disabled employee, she didn t reach a final finding on whether Constable Nanticoke had to be transferred to provide a position for the disabled Constable White. Since the question before the Arbitrator was simply whether there was an obligation to consider a transfer (to which she answered yes), she did not hear specific evidence as to the need to transfer in this specific case. This decision was reserved to the second part of the grievance process, if necessary, where Arbitrator Chapman will hear specific evidence about the suitability of this particular accommodation situation, as well as other possible accommodation available to the parties. Conclusion: Arbitrator Chapman lays to rest the question of whether an employer must consider transferring an incumbent out of a position to provide a position for a disabled employee in the same classification. In this case, the incumbent Court Officer would suffer no loss of salary or seniority if it was necessary that he be transferred, while the disabled constable would suffer a loss of employment is the transfer did not take place. Chapman is careful to note that each case must be determined on its own merits, and only after the employer has conducted a thorough and careful analysis of the workplace for other suitable accommodations. Nelligan O Brien Payne s Steven Welchner represented the Ahkwesahsne Police Association in this matter. Nelligan O Brien Payne is a 45-lawyer, multi-service law firm, with 12 lawyers practicing union-side labour law. Allan O Brien, Sean McGee, Steven Welchner, and Christopher Rootham practice labour law in the police community. Nelligan O Brien Payne has offices in Ottawa, Kingston and Edmonton. In addition, Nelligan O Brien Payne s Union Consulting Group offers high-quality services that let you maximize your effectiveness to your union membership. We have assembled a team of highly qualified experts to provide deeper, broader focus on your unique daily requirements for less. Our lawyers and consultants are available to speak to any police association and their members concerning any of the issues raised in this newsletter as well as a variety of other issues. Questions and comments concerning materials in this newsletter are welcome, and should be directed to Steve Welchner at (613) To obtain copies of this publication, or to be added to our mailing list, please contact Glen Ashworth at glen.ashworth@nelligan.ca. This publication is intended to provide general information only and the determinations are subject to change. Readers should not attempt to apply the information provided therein to their circumstances without seeking legal advice. The publication is not intended to provide legal advice or opinion as neither can be given without reference to the specific facts, events and situations of individual circumstances. Copies of this newsletter are also posted on our Website:. Copyright 2003 by Nelligan O'Brien Payne LLP 31