Canadian Employment Law Today

November 26, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2014 City of Winnipeg falls short on accommodation of injured worker City offered worker modified duties but walked away from the table when he couldn't attend training due to university obligations By JEffrEy r. SmiTh The CiTy of Winnipeg didn't try enough to accommodate an injured worker when the worker couldn't attend training for a new position, an arbitrator has ruled. Kyle Derbitsky was an instructor/guard in the City of Winnipeg's Department of Com- munity Services (Aquatics Branch), provid- ing swimming lessons. He had worked for the city since 2009 with no performance is- sues and was also a student at the University of Winnipeg. Many other city workers in the aquatics department were university stu- dents as well. In January 2013, Derbitsky injured his knee while skiing in Alberta. He was diag- nosed with a partially torn medial collateral ligament and sent his medical restrictions on Jan. 5, which indicated he could only do an office job. Derbitsky also provided a func- tional abilities form completed by his doctor on Jan. 21, which said he couldn't do life- guard duties and he could only work "strictly sedentary type duties." Another functional abilities form dated Feb. 15 indicated he could not work at all until his next examina- tion on March 15. Accommodation requested when sick leave benefits ran out Derbitsky received income protection through sick leave benefits for a period of time, but by early March his benefits were running out and he sought accommodation through a more sedentary job until his in- jury healed. On March 13, the city found a more seden- tary position for Derbitsky – that of a clerk/ cashier. Derbitsky had some experience in the job filling in during lunch breaks, but the full-time duties of the position required him to take a computer course as he would be re- sponsible for functions such as registration that he wasn't responsible for in a relief ca- pacity. However, the training dates were on March 19 and 21, when Derbitsky had three presentations and an exam at the university on those days. Derbitsky advised he couldn't attend the training because of his university obliga- tions. He didn't try to make arrangements with the university to change his assign- ments because university policy stated dates could only be changed because of ill- ness – with a doctor's note – or a funeral. e city told him he would not be accom- modated further, since it was advised by its corporate diversity and human rights ad- visor that attending school was not a pro- tected ground under the Manitoba Human Rights Code. e union filed a grievance, claiming Der- bitsky wasn't given enough time – less than a week – to make arrangements to attend. It also said the city didn't consider another po- sition for Derbitsky or alternate training ses- sions, which were also scheduled for April. e city argued Derbitsky had an obliga- tion to participate in the accommodation process and, by refusing to attend "the train- ing session which would provide him with the skills for placement into a position that fit within his restrictions," he didn't live up to his part of the process. It also pointed out that Derbitsky's job was never in danger, and when he wasn't able to attend the training for the alternate job, it reverted to the earlier ac- commodation – the sick leave he had been on for two months. e arbitrator noted that it can be difficult to sort out accommodation if both parties aren't participating fully. "e accommodation process can be chal- lenging. Above all, it requires collaboration between the employer, the union, and the (employee). It is essential to the process that there be open and frank discussions to reach a fair and reasonable solution. Patience and compromise is often required," said the ar- bitrator. e arbitrator found that the City of Win- nipeg's policies incorporated the legal prin- ciples of accommodation, but in practice the city didn't adequately follow those policies and principles when it came to Derbitsky's accommodation. It should have known March was "a busy time for university tests and presentations" and it wasn't surprising Derbitsky couldn't attend the training on such short notice due to his educational ob- ligations. When Derbitsky indicated he couldn't at- tend the training, the city dismissed accom- modation "in a summary fashion" but "the process should not have ended there," said the arbitrator. More options should have been explored Given the circumstances, the arbitrator found the city should have explored other accommodation options, as it wasn't at the point of undue hardship. Options such as another training date or looking for other positions were not even considered as the city adopted a "rigid and inflexible" posi- tion, said the arbitrator. e arbitrator found Derbitsky was a good employee, acted in good faith and fully co- operated in the accommodation process. ough he didn't attempt to change the dates of his university assignments, it was reasonable for him not to do so because he was aware of the policy for changing dates. Also, some of his presentations were group presentations and involved others, making it harder to reschedule. In addition, the city's justification that Derbitsky's reason for not attending the training wasn't a protected ground under the code was too narrow and didn't consider its overall obligation under the code and in its policy, said the arbitrator. e arbitrator found the City of Winni- peg did not fulfill its duty to accommodate Derbitsky by investigating all reasonable ac- commodation options. e city was liable for a financial reimbursement to be decided between the parties, with the time Derbitsky would be off work due to exams and presen- tations taken into account. "(Derbitsky) had a valid and reasonable excuse for not being able to attend the train- ing," said the arbitrator. "He is a long service employee with seniority and a good work re- cord. He deserved the change to train on an- other date or to be accommodated in some other fashion." For more information see: • Winnipeg (City) and CUPE, Local 500 (Derbitsky), Re, 2014 CarswellMan 603 (Man. Arb.). The arbitrator noted accommodation can be difficult if both parties aren't participating fully.

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