Canadian Employment Law Today

Canadian HR Reporter, 2019 Canada Post worker gets $38,000 for pause in accommodation process Corporation made efforts to find modified work, but took 5-month break while waiting for information; Worker received no pay during break BY JEFFREY R. SMITH C anada Post must pay a former employee more than $38,000 for a gap in its accommodation efforts during which the injured employee received no work or pay, the Ca- nadian Human Rights Tribunal has ruled. Glenn Brunskill joined Canada Post Cor- poration (CPC) in 1992, filling various posi- tions including postal clerk and letter car- rier. At one point during his employment, Brunskill was working as a letter carrier when he fell down while carrying a heavy double bag of mail. e fall shocked his spine and the injury required a modification of his duties. CPC moved him into a clerk position at the CPC facility in Malton, Ont., which in - volved mostly sedentary work. Brunskill was eventually able to resume letter carrier duties when his back condition improved. On March 1, 2013, while employed as a letter carrier at CPC's facility in Brampton, Ont., CPC dismissed him. After the union grieved the dismissal, he reached a settle - ment with CPC that reinstated him to his position as of March 20. However, when he returned to work on that day, he informed CPC that a prior back injury had flared up and he was unable to perform the duties of a letter carrier. CPC provided temporary modified du - ties — which it made sure Brunskill could perform safely — while its third-party ben- efits provider determined Brunskill's medi- cal limitations. e role was the same one Brunskill had performed when he had been injured previously — a clerk at the Malton facility. Brunskill worked in the modified position for several months. CPC received his limi - tations on Aug. 21, which included restric- tions on the amount of time spent standing or sitting as well as pulling and pushing objects. Since the limitations were compa- table with the clerk position Brunskill was already performing, he continued to work in the clerk position. On Sept. 13, 2013, CPC closed the Malton facility due to restructuring and Brunskill's position was eliminated. It was unable to find another role compatible with Brunskill's limitations, so it recommended he claim short-term disability (STD) bene - fits) — the usual practice when an employee with medical restrictions can't be accom- modated. A couple of weeks later, CPC found a position with modified duties that fit with Brunskill's medical restrictions — video encoding system clerk. However, he had to successfully complete training in order to fill the position, which began on Sept. 30. Brunskill was unable to pass the first part of the training to improve his keyboarding skills, so CPC offered him additional train - ing. However, both CPC and Brunskill real- ized that he wasn't likely going to complete the training successfully, so CPC began searching for another position for him while he once again went on STD benefits. e third-party benefits provider con - tinued to approve Brunskill's STD ben- efits until his eligibility elapsed on April 13, 2014. At this point, it became evident that Brunskill hadn't received an application for long-term disability (LTD) benefits, which CPC had sent two months earlier. As a re - sult, Brunskill had no income when his STD benefits ended. STD benefits lapsed; LTD benefits denied Brunskill eventually completed an appli- cation for LTD benefits, but it was denied by the benefits provider. CPC requested an update to his medical restrictions so it could continue to search for modi- fied work for him, but Brunskill's doctor was away. Eventually, on July 13, 2014, Brunskill provided a note from another doctor that said he could return to work at either of his former positions of clerk or delivery driver until his regular doctor returned in mid-August. However, for CPC this wasn't an update of Brunskill's restrictions and neither of the stated positions were available. As a result, it was unable to provide work for Brunskill until his regular doctor provided an update on Aug. 26. ough CPC had been led to believe Brunskill's restrictions hadn't changed, they had in fact increased, with greater restric - tions on lifting and walking. CPC found a postal clerk position that met Brunskill's new restrictions, but it was a part-time role working four hours a day with an assistant for lifting heavier objects. Brunskill wasn't aware it was a part-time position until after he reported to work on Sept. 10. He was upset and felt CPC was try - ing to demote him. He sent several emails to his union and management, insisting CPC was required to accommodate him in a full-time position. He stopped working and used up all of his annual leave and top- up credits. When this ran out on Oct. 24, Brunskill decided to retire. Brunskill filed a human rights complaint claiming CPC failed to accommodate him and forced him to retire early, adversely af - fecting him in his employment because of his disability. e tribunal noted that the Canadian Hu- man Rights Act sets out the principle that "all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have." In this case, Brunskill wanted to continue working for CPC as he had be - fore his injury and as other CPC employees were able to do. Exclusion from workplace was adverse differentiation e tribunal found that CPC aversely dif- ferentiated Brunskill in his employment after it eliminated his modified position in September 2013 and put him on STD EMPLOYERS are legally obligated to accommodate an injured employee's medical restrictions whenever possible, such as with modified duties. It's not always easy, but if bumps are encountered during the accommodation process, the employer can't simply step back for awhile and wait for things to improve. 4 CASE IN POINT: ACCOMMODATION BACKGROUND

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