In a recent case Toronto (City) v. Canadian Public Employees, Local 79, Arbitrator Gordon F. Luborsky ruled that the amount of time that the City of Toronto took to accommodate an employee was unreasonable, and that the employee’s own actions also contributed to delaying accommodation.
The case stresses the procedural role of all parties under the duty to accommodate by clarifying the different duties and responsibilities of the employer, the labour union and employees.
It follows Central Okanagan, where the Supreme Court of Canada established guidelines on the role that different parties should play in the process of accommodation.
Employers’ role
The role of the employer is to determine how best to accommodate the complainant without undue hardship on the business. This duty imposes on the employer a responsibility to control, manage and implement the accommodation process.
The employer also has an obligation to inform or explain what it requires from the employee in order to facilitate its search for a reasonable accommodation:
“…an employee cannot be expected to understand what is required of him or her in order for an employer to be able to address its duty to accommodate. An employee may be quite willing to actively cooperate in the accommodation process but be ignorant or misinformed as what to expect or what information is required of them…”
The employer must also fulfill its duty to accommodate in a timely manner. Previous decisions (such as Wilson) lay out a number of relevant factors that can be taken into account when determining if the employer has fulfilled its duty in a timely manner. These include:
· the nature of the job being performed by the grievor prior to the onset of her disability;
· the nature of the disability;
· the availability of information concerning work restrictions;
· the cooperativeness of the injured worker;
· the nature and size of the employer's business;
· the sophistication of the employer in dealing with accommodation issues;
· the availability of suitable accommodation; and
· the number of accommodations required.
In sum, it requires the employer to be “reasonable” based on the specific circumstances of the situation.
Employee’s role
The role of the complainant (employee or union acting on their behalf) is threefold:
1. to make suggestions that help the employer in the search for accommodation;
2. to facilitate the implementation of the accommodation proposal (if it is reasonable); and
3. to accept reasonable accommodation.
The employee is responsible for facilitating the process of identifying and implementing accommodation measures. They must provide sufficient information to the employer (either on their own or with the assistance of medical practitioners) since they are in a better position to identify the needs that must be accommodated. An employee cannot expect a perfect solution but one that is reasonable.
Optimal result for both employer and employee
While both the employer and employee have different responsibilities, the duty to accommodate is a “shared” responsibility in that they both must act reasonably and cooperatively.
Employers and employees must work together in order to achieve the best result and avoid unnecessary delays and protracted litigation that benefits neither party in the long term.