Canadian Employment Law Today

Cases and Trends Cases and Trends Canadian HR Reporter, 2020 6 | | June 3, 2020 June 3, 2020 some of the employees work on snow remov- al from tracks and switches. There were only a certain number of winter jobs available each year and employees bid on winter work based on seniority when CPR posted them. CPR used four different types of machines for track work. Certain machines that were classified as Group 1 machines — where the operator may take responsibility for direct- ing or protecting others from train move- ments — required the operator to have either an E rules card or a D rules card. Employees had to take tests to qualify for the cards — the E card required knowledge of CPRs rules and the Canadian Railroad Operating Rules (CROR), while the D card had a higher stan- dard of being able to interpret and apply the rules on the job, including track protection. The railway's qualifications manual, pub- lished in 1991, required individuals to pass written examinations at prescribed intervals to work in positions involved with railway maintenance. The manual provided an ex- ception for incumbents of positions with a minimum E level of certification who couldn't pass the written examination due to literacy problems, saying they must pass an oral examination instead. Kelsh was permanently functionally illit- erate due to cognitive impairments, which caused problems with reading words and sentences, a condition he had had for his en- tire life. He usually was able to pass tests by memorizing and taking oral tests, which he did for his driver's licence. When he started working for CPR, the railway doctor who conducted his pre-employment medical exam helped him fill out the medical form, noting that Kelsh "has difficulty reading." Failed written tests Kelsh started as a labourer for CPR, but he eventually became a Group 2 machine op- erator, which didn't require a D card. He re- ceived training from CPR and then learned to operate the machines with the help of co-workers. In 2002, took a D card course and said he needed an oral test in order to pass. However, the tests were in writing and required written answers, so he failed. The instructor asked Kelsh questions about the CROR to see if he knew enough to qualify for an E card and Kelsh was successful in getting that card. Kelsh took the E card written test in 2005 to renew the card, but he failed on three at- tempts. He asked for oral tests, but he wasn't granted one as CPR no longer permitted oral testing on any rules card. However, CPR ac- commodated him by allowing him to op- erate Group 1 machines without a card for three-and-a-half years. In 2007, CPR revised its testing standards again, permitted oral testing for the E card but not the D card — and only for the former if the employee had obtained rules qualifica- tion already and could demonstrate compe- tency in the field. CPR decided it needed a better under- standing of Kelsh's limitations in reading and writing, so it arranged a psychoeducational assessment. A psychologist determined that a written test wouldn't demonstrate if Kelsh knew the railway rules and having him re- spond to verbal questions would give him a better opportunity to show his knowledge and comprehension. CPR arranged for an oral test for the E card and Kelsh passed it on Oct. 22, 2008. Around this time, Kelsh also started op- erating a stake truck — a flatbed truck with removable sides. He took the test for D card certification in 2011, but it was written and he didn't pass. CPR soon after imposed a D card requirement for the operation of stake trucks and removed such duties from Kelsh's job. Kelsh filed a human rights complaint al- leging that CPR's requirement that the D card testing be in writing only discriminated against him on the basis of a disability — his low literacy level — and both the removal of stake truck operation from his duties and the institution of a computer-based system for bidding for jobs was also discriminatory. The Canadian Human Rights Tribunal found that Kelsh's illiteracy from cognitive impairments was a disability under the Ca- nadian Human Rights Act and his inability to obtain a D card had an adverse impact from fewer job choices as the holder of an E card instead as well as a decreased "sense of self-worth and confidence." The tribunal also found that there was a nexus between Kelsh's disability and the adverse impact, as it was his disability that made him unable to pass the D card written test. Since he was able to easily pass the E card oral test, it was likely he had the ability to pass the D card test if administered orally, said the tribunal. Occupational requirement for written test However, the evidence showed that holders of D cards were expected to perform func- tions related to the safety of individuals working on tracks and reading and writing forms related to track occupancy permits. They must be aware of such permits and train traffic as crews perform trackwork, and the D card exam "is a facsimile of the reading and writing functions required in field opera- tions." As a result, CPR adopted its standard of no oral exams for D cards in good faith and the standard was rationally connected to the function being performed, said the tribunal. The tribunal noted that CPR accommo- dated Kelsh by assessing his disability, allow- ing him to continue to operate machines af- ter his E card expired and arranging for him to take his E card exam orally. However, the tribunal found that CPR also accommodated Kelsh by allowing him to op- erate a stake truck for several years when he didn't have a D card and this didn't cause un- due hardship. This proved that Kelsh could perform such duties without a risk to safety and CPR's unilateral decision to implement its standards without investigating whether further accommodation could be done was discriminatory. As for CPR's computer-based bidding pro- cess, there was no evidence that Kelsh lost any jobs or had bids delayed. In fact, CPR made efforts to fix any problems or delays Kelsh experienced. As a result, there was no discrimination from this process, said the tribunal. CPR was ordered to allow Kelsh to bid on a stake truck job the next time such a posi- tion becomes available and thereafter, where the possession of a D rules card would be the only factor not qualifying Kelsh. The railway was also ordered to compensate Kelsh for lost regular and overtime wages from the de- nial of stake truck duties, along with $12,500 as compensation for pain and suffering from the discrimination in this regard. Kelsh's claim related to the D card written test re- quirements was dismissed. For more information, see: • Ken Kelsh v. Canadian Pacific Railway, 2019 CHRT 51 (Can. Human Rights Tribunal). « from DISCRIMINATION on page 1 The worker failed every time he took a written test Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as cutting pay during the COVID-19 crisis, when accommodation is too difficult and legal considerations for returning employees to the workplace. You can view the blog at www.employmentlawtoday.com.

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