Duty to accommodate discharged after worker declines lower-level position

“The [accommodation] efforts of the employer need to be sincere, and a good way of demonstrating that is by thoroughly canvassing what opportunities may exist and augment that by being creative – and if the employee doesn’t show a similar commitment, they’re going to be the ones that will be scrutinized.”

So says labour and employment lawyer Michael Penner of Kent Employment Law in Victoria, after the Federal Public Sector Labour Relations and Employment Board ruled that an employer reached undue hardship when an employee declined a lower-level position following years of accommodation efforts.

The worker was a parole officer with the Correctional Service of Canada (CSC) in Kingston, Ont. In 2008, she was assaulted by an inmate at CSC’s regional treatment centre (RTC). She was assigned to another institution for three years.

In October 2011, the worker was preparing to return to her parole officer position at the RTC and provided information from her doctor stating that she could have no interpersonal contact with inmates or review inmate case information. CSC assigned her to its regional staff college.

Two months later, the worker’s doctor confirmed that the limitations and restrictions were permanent and needed accommodation, so she wouldn’t be able to return to the parole officer job. The worker returned to the RTC but on a temporary assignment.

Accommodation plan

In December, CSC referred the worker to its internal priority referral committee and the worker signed an accommodation plan with the goal of finding a suitable permanent position that met her restrictions.

The worker moved between various temporary accommodated positions while CSC continued to search for appropriate positions, although some it suggested didn’t meet her restrictions. At one point, she went on leave with income averaging while CSC searched for positions on the same level as her parole officer job.

CSC suggested a potential permanent position of regional offender management system (OMS) data quality and training officer. The worker submitted her resumé in September 2013, although she didn’t meet all the essential qualifications. The hiring manager provided a training plan for the worker, but it would take 1.5 years. The RTC considered this too long and requested an assessment of the worker’s abilities.

CSC’s regional duty-to-accommodate officer inquired about positions at the worker’s level at the RTC, but they were all either eliminated, unfunded, or occupied. Two lower-level positions were identified, but one didn’t meet the worker’s restrictions and the other was eliminated.

More positions were discussed over the next several months, but they usually didn’t meet the worker’s restrictions or were filled by someone whose position had been eliminated in restructuring.

External positions considered

In January 2014, the worker was told of a job advertisement in the Department of National Defence. CSC wasn’t able to refer her, but she could self-refer. However, there was no evidence that she did.

In February, the RTC determined that it would only pursue positions at the regional headquarters, the regional staff college, or CSC’s national headquarters. In March, it determined that all options equivalent to the worker’s parole officer position in the Kingston area had been explored. It started considering lower-level positions as well as positions at the national headquarters.

Over the next few months, the worker was provided with a job advertisement for the Treasury Board for which she could self-refer and a list of positions at the national headquarters.  However, the worker didn’t pursue the former and all the latter positions were declared not vacant. In the meantime, the worker continued to receive temporary assignments.

“This employer had the benefit of all of the positions within the organization being categorized and quantified, so every position had a value so you have a very quantifiable grid of options that you can exhaust,” says Penner. “They looked at everything that was lateral, then they looked at lateral across other organizations under the bigger umbrella of the Canadian government, then went to a lesser tier that might have opportunities.

“And, while they were doing that, they were also finding short-term assignments to accommodate while they were accommodating and red-circling her salary, even if the even if the temporary jobs were of a lesser value.”

Lower-level position offered

In August, CSC offered the worker a permanent district manager position at regional headquarters. However, it was a level below the worker’s regular job and CSC advised that there would be no further salary protection.

The CSC also advised that if this position didn’t fit, then she would be offered an indeterminate administrative assistant position that was also lower-level. If she declined, she would be placed on unpaid leave until another option was found.

On Oct. 17, CSC determined that all permanent placement options at the level of the worker’s original position had been exhausted but the district manager position remained available. CSC presented an offer letter giving her five working days to consider it.

The worker said that she was unwilling to accept a demotion, but she could continue with temporary assignments until August 2016, when she would have 25 years of service. She said she was prepared to consider positions at national headquarters in Ottawa.

CSC searched for any available permanent positions at national headquarters at the worker’s desired level, but there were none within the bargaining unit. The search continued until February 2015, when CSC informed the worker that the district manager position was the only reasonable position available.

“They finally recognized that the only job they could give her for an indeterminate position was going to be of a lesser value,” says Penner. “They exhausted all of the lateral moves and the lesser position became the most reasonable of what was left, and they had spent years to get to that point.”

Unpaid leave

The worker declined the offer and was placed on unpaid leave March 2. She filed two grievances alleging that CSC failed to accommodate her to the point of undue hardship by offering her a job that was a “significant demotion” and placing her on unpaid leave when she had been successfully performing temporary assignments.

CSC continued to explore vacancies and provided the worker with job advertisements in other departments while she remained on unpaid leave, but nothing worked out.

In April 2016, the worker provided updated medical information indicating that she could tolerate brief contact with an inmate. CSC offered her a regional co-ordinator position on May 27, but the worker submitted two letters of resignation.

The board noted that the CSC spent four years looking for a permanent position that respected the worker’s limitations and restrictions, and during that time provided numerous temporary assignments to keep her working. In addition, they engaged the worker in an active and ongoing dialogue until it found an available position, the board said.

The board also found that the worker didn’t specifically identify any instance where the CSC overlooked an available, funded position in favour of a lower-level position; nor did she suggest that the district manager position was unsuitable for any reason other than salary. The evidence indicated that only the district manager position remained after “a significant search,” the board said.

What worked in the CSC’s favour was that there was plenty of evidence showing that they worked in earnest to accommodate the worker, says Penner.

“It helped them when the evidence buttressed their claim that they had exhausted all of the options,” he says. “And they tried to engage with [the worker] all along, saying ‘Here’s an opportunity, we would like you to confer with your treating physician to see if this might be a viable opportunity’ – they engaged her at every turn to be a participant in the process.”

Duty to facilitate accommodation

As a result, the worker didn’t live up to her own duty to facilitate accommodation by refusing the position, which undermined the search to find a job that met her limitations and restrictions, said the board.

The board determined that the job offer met the necessary level of accommodation and, when the worker refused it, she discharged the CSC from its duty of accommodation.

“This wasn’t a situation that could go on in perpetuity, giving her part-time jobs with her salary being red-circled so they weren’t getting the same value for the expense that they would normally be with regular circumstances,” says Penner. “The only other option would be for this employer to reorganize its entire workforce to create something out of nothing, and that pushes you past the undue hardship threshold.”

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