Skip to Main Content

Arbitrator finds employer breached duty to accommodate worker with disability

August 22, 2021

Arbitrator orders reinstatement and damages for employer’s failure to accommodate


Pursuant to the settlement of an earlier grievance, the grievor began work in the role of Lead Hand on a trial basis. Under the settlement terms, the City could remove the grievor from the Lead Hand role if, at any point during the year following her return to full duties, it determined that she could not perform the role’s “essential duties.”

During the trial period, the grievor’s doctor indicated that she had a new medical restriction related to her previous injury. The City responded by placing the grievor on a medical leave of absence, claiming that because of the new restrictions, she could not perform the essential duties of the Lead Hand role. The Union grieved the City’s decision to place the grievor on medical leave and, as per the earlier Minutes of Settlement, the matter was put back before Arbitrator McLean for determination.

The Arbitrator’s Decision

The City argued that the grievor was not capable of performing the essential duties of a Lead Hand, nor those of her former position as a Service Person. The City argued that it was not obligated to modify or reassign essential job duties in order to accommodate the grievor, and that there were no vacant positions that would fit her medical restrictions. The Union argued that the grievor was medically fit to perform the work of a Lead Hand and, in the alternative, that the City breached its duty to accommodate her under the Human Rights Code.

Arbitrator McLean accepted the Union’s argument. In his view, in order to fulfill its obligations, the City was required to determine which of the Lead Hand duties were truly “essential,” identify which of those the grievor could not perform, and determine whether accommodation could allow her to perform them. Instead, the City only considered the grievor’s ability to perform all of the Lead Hand duties, essential or not. The arbitrator ultimately determined that the City could have accommodated the grievor without significantly modifying the Lead Hand working conditions, and without undue hardship.

By failing to consider potential accommodations and give the grievor a chance to work in the role with those accommodations, the City breached the collective agreement, the earlier settlement, and the Human Rights Code.  By way of remedy, the arbitrator ordered the City to immediately reinstate the grievor to the Lead Hand position with full compensation for time missed, pending a medical assessment clearing her to return to work, plus $15,000.00 in damages under the Human Rights Code.  The City was also ordered to discuss potential accommodations with the grievor and Union to permit her safe return to work following the medical assessment.


Ryan Newell

Practice Areas

Human Rights Law, Labour Law