Canadian Labour Reporter

7 Canadian HR Reporter, a HAB Press business 2020 CANADIAN LABOUR REPORTER CANADIAN LABOUR REPORTER COLLECTIVE AGREEMENTS Video surveillance, witnesses place worker at scene of flood Denial of temporary job didn't meet duty to accommodate time off work, receiving disability indemnity plan (DIP) benefits un- til June 2001. She began a gradu- ated return to work in March 2002, staying limited to four days per week until May 2003, when Rio Tinto's doctor determined Rolfe would not be able to return to her regular janitor position because of her physical disability — she had limits on lifting and shift length as well as restrictions on carrying, pushing, pulling, repetitive upper- body movements, overhead work, and awkward positions. In late 2004, Rio Tinto accom- modated Rolfe in an office ad- ministration position at its power operations, where she worked for 12 years. In December 2015, Rolfe had to go off work for cancer surgery. Her scheduled return date was March 29, 2016 but five days prior to that date, Rio Tinto's employ- ment and return-to-work coor- dinator informed Rolfe that the office administration position she had been accommodated in was no longer available. Rolfe soon suffered a breakdown, was diag- nosed with a panic disorder, and deemed not fit to return to any work. She was placed on DIP ben- efits — and later LTD benefits — and was eventually cleared to re- turn to work on Dec. 5, but there was no available work compatible with her permanent restrictions stemming from her neck and shoulder injury. Rio Tinto accommodated Rolfe in a temporary position performing plant services sup- port functions on Aug. 28, 2017. It was originally a three-month placement but was renewed un- til Aug. 3, 2018, when the work was concluded and the company transitioned into leaner opera- tions. The company then told Rolfe of a new policy that em- ployees with permanent restric- tions would only be considered for permanent accommodation positions, not temporary ones. A new application for DIP benefits was also denied. The worker's LTD benefits ceased in May 2019 as she was deemed ineligible for a benefits extension. The union filed a grievance arguing that Rio Tinto discrimi- nated against Rolfe and failed in its duty to accommodate her by not considering her for tem- porary accommodations based solely on the fact that she had permanent medical restrictions. It also claimed the company vio- lated the collective agreement by denying DIP benefits. The arbitrator found that Rio Tinto's blanket policy denying temporary positions violated the accommodation rights of Rolfe and any other employee with a permanent disability. However, there was no evidence Rio Tinto's new policy actually denied Rolfe work because of her qualifica- tions and restrictions — there was no job for her to take in Rio Tinto's reduced operations and she wasn't singled out. Rather, all employees with permanent re- strictions were barred from con- sideration for temporary accom- modation, said the arbitrator. As for DIP benefits, the arbi- trator noted that their purpose was to "protect an employee from total loss of wages as the result of disabilities cause by non-industrial illness or injury." Rolfe received DIP benefits twice before when she had become permanently disabled. The col- lective agreement stipulated DIP entitlement came "for each dis- ability," but in Rolfe's case it was the same permanent disability that made her unable to work in any available position in August 2018, said the arbitrator. The col- lective agreement didn't indicate an intention to cover multiple continuing absences due to con- tinuation of a permanent condi- tion. The arbitrator determined that Rolfe wasn't entitled to ad- ditional DIP or LTD benefits but ordered Rio Tinto to pay her $5,000 for injury to dignity aris- ing from its discriminatory new policy. Reference: Rio Tinto Alcan and Unifor, Local 2301. Christopher Sullivan — arbitrator. Stephanie Gutierrez for employer. Christopher Foy for employee. March 5, 2020. 2020 CarswellBC 812

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