Canadian HR Reporter

CANADIAN HR REPORTER September 7, 2015 EMPLOYMENT LAW 5 Jeffrey Smith Legal View You are invited to a free HR Seminar Tel 416.603.0700 | 24 Hour 416.420.0738 | Fax 416.603.6035 | www.sherrardkuzz.com DATE: Thursday October 1, 2015; 7:30 – 9:30 a.m. (breakfast at 7:30 a.m.; program at 8:00 a.m.) VENUE: Hilton Garden Inn Toronto Vaughan 3201 Hwy 7 West, Vaughan ON COST: Complimentary RSVP: By Friday September 18, 2015 at www.sherrardkuzz.com/seminars.php presented by *** Law Society of Upper Canada CPD Hours: This seminar may be applied toward general CPD hours. *** HRPA CHRP designated members should inquire at www.hrpa.ca for eligibility guidelines regarding this HReview Seminar. Drugs and Alcohol in the Workplace The fact that some employees misuse alcohol or drugs is not news and, generally speaking, what happens outside of the workplace is of no concern to an employer. However, all bets are off when substance abuse spills into the workplace. Not only can impairment on the job cause a serious workplace accident but it can negatively impact productivity, damage workplace morale, and hurt the corporate brand. Join us as we discuss the following topics and more: Ranked In Leading Firm CHAMBERS GLOBAL 2015 2013 RANKED 1) Understanding Drug and Alcohol Testing • For what are we testing? • Is employee consent required? • Types of testing: pre-employment; pre-access; random; post-incident; return to work • New developments in the law 2) Responding to a Workplace Incident Involving Drugs or Alcohol • Post-incident impairment testing • Duty to accommodate 3) Discipline for Drug or Alcohol-Related Misconduct • Last Chance Agreement – when and how? 4) Drug and Alcohol Policies Dismissal of colourblind security officer not discriminatory: Arbitrator Worker's refusal to participate in accommodation process left employer with no choice An arbitrator has upheld the dismissal of an Ontario employee who denied that he needed accommodation and refused to participate in an accommodation process. Felice Ciccone was a screening officer at the under Bay, Ont., airport for 10 years. His duties in- cluded screening passengers and their baggage before they boarded aircraft. During his tenure, he was em- ployed by three different private security companies who held the contract for security screening at the airport at various times. In 2011, the contract was assumed by Garda Security Screening, which became Ciccone's employer. e contract was with the Ca- nadian Airport Transport Secu- rity Authority (CATSA), which oversaw security screening in air- ports across Canada. Screening officers were re- quired to be certified by a medi- cal doctor to be in good physical health with a certain minimum vision level, able to perceive "nor- mal" colours and have normal hearing. Garda was required to ensure all staff were trained and certified according to the CAT- SA training and certification program. Duty to accommodate in collective agreement Garda's collective agreement with the union for the screening officers provided for a duty to ac- commodate, to the point of undue hardship, any officers who were at a disadvantage due to various grounds, including disability. Garda was responsible for ac- commodation in certain areas such as scheduling, hiring and employment-related policies, while CATSA was responsible for accommodation relating to train- ing, certification, uniforms and operations. In April 2013, Garda's general manager of operations became aware that Ciccone had colour blindness. He believed this was contrary to the requirement for screening officers to be able to perceive normal colours, so he reported this to the site security manager at the under Bay air- port and asked for a review of Cic- cone's last medical report. Ciccone's most recent report showed he had a colour vision de- ficiency, so Ciccone was told he needed a new medical report and to have his doctor fill out a blank medical form. Until that was done, Ciccone was prohibited from working on the X-ray machine, which used colours. Soon after, Ciccone provided a new medical report that showed he didn't have normal colour vi- sion — his ability to discern cer- tain shades of red and green were deficient. e regional HR manager sent a request for accommodation form for Ciccone to complete by May 15. Ciccone asked why the form was needed and was told CATSA required his signature to proceed with the accommodation process, which would involve a permanent ban on working the X-ray units. Ciccone asked for and was granted an extension to May 17 so he could consider the accom- modation form, though his union representative advised him to sign the form and fight it later. Employee denied condition affected ability to do job On May 17, Ciccone emailed the general manager and told him CATSA had been aware of his co- lour vision deficiency since 2002 and he had passed all official tests provided by CATSA and the vari- ous security contractors for which he had worked. He noted he had also trained new recruits on the X- ray position and passed all X-ray requirements. He argued his medical report didn't expire for another year, he had always been able to perform his job and one of the X-ray units displayed the primary image in black and white. Ciccone said the accommoda- tion that was proposed — which exempted him from working the X-ray units — wasn't necessary and he was being discriminated against based on his disability of being colourblind. Ciccone felt his colour vision problem was being used against him because of his refusal to en- ter a scanning machine to test his vision during recertification for using it. He had filed a health and safety concern with Health Canada based on potential radiation haz- ards he had heard about. Ciccone received no response from the general manager and on May 21, the site security manager told him his shifts were to be given away. He emailed her the next day to ask about the status of his employ- ment and who would be a respon- dent in a human rights violation — CATSA or Garda. Ciccone was once again told to participate in the accommodation process and that he needed to sign the accom- modation form. Ciccone responded by stating Garda had wrongfully removed him from his job duties. He in- sisted his colour vision deficiency didn't affect his performance on the X-ray function or any other job duty and disagreed with the statement on the form that "this screening officer cannot perform these positions." He considered himself to be spontaneously suspended and refused to sign the accommoda- tion form, which he felt would be an admission to CATSA that he needed to be removed per- manently from X-ray functions, which were "the best parts of my job." After receiving this email, Gar- da prepared a termination letter that indicated Ciccone was being terminated from his employment because he was unable to main- tain his certification as a screen- ing officer due to his refusal to participate in the accommodation process. ough Ciccone had been pre- viously certified — despite a pre- vious medical report showing his vision problem — Garda believed this was negligence on the part of the former screening point man- ager, who had approved Ciccone's certification dates despite being told of the colour vision problem on the medical report. Arbitrator rules e arbitrator found it was clear Ciccone felt Garda's accommo- dation demands were related to his refusal to test the scanning Credit: Aaron Harris (Reuters) Airport screening officers in Canada are required to be certified by a medical doctor to perceive "normal" colours. Ciccone said the accommodation — which would exempt him from working the X-ray units — wasn't necessary and was discriminatory. JOB > pg. 8

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