Canadian Employment Law Today

6 | September 2, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Cases and Trends certified by a medical doctor to be in good physical health with a certain minimum vi- sion level, able to perceive "normal" colours, and have normal hearing. Garda was re- quired to ensure all its staff were trained and certified according to the CATSA training and certification program. Garda's collective agreement with the union for the screening officers provided for a duty to accommodate to the point of undue hardship any officers who were at a disadvantage due to various grounds, in- cluding disability. Garda was responsible for accommodation in certain areas such as scheduling, hiring, and employment-relat- ed policies, while CATSA was responsible for accommodation relating to training, 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 co- lours, so he reported this to the site security manager at the under Bay airport and asked for a review of Ciccone's last medical report. Ciccone's most recent medical report showed that he had a colour vision defi- ciency, so Ciccone was told that he needed a new medical report and have his doctor fill out a blank medical form. Until that was done, Ciccone was prohibited from work- ing on the X-ray machine, which used co- lours. Soon after, Ciccone provided a new medi- cal report that showed he didn't have normal colour vision — his ability to discern certain shades of red and green were deficient. e regional HR manager sent a request for ac- commodation 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 accommoda- tion process, which would involve a perma- nent ban on working the X-ray units. Cic- cone asked for and was granted an extension to May 17 so he could consider the accom- modation form, though his union represen- tative advised him to sign the form and fight it later. Employee denied condition affected his ability to do job On May 17, Ciccone emailed the general manager and told him that CATSA had been aware of his colour vision deficiency since 2002 and he had passed all official tests provided by CATSA and the various 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 and he had always been able to perform his job, as well as that one of the X-ray units displayed the primary image in black and white. Ciccone denied that the accommodation proposed — which meant exempting Ciccone from working the X-ray units — wasn't necessary and he was being discriminated against based on his disability of being colour blind. Ciccone felt his colour vision problem was being used against him because of his refusal to enter a scanning machine to test it 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. He 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 the status of his employment was and who would be a respondent in a human rights violation — CATSA or Garda. Ciccone was once again told that to participate in the ac- commodation process, he needed to sign the accommodation form. Ciccone responded by stated Garda had wrongfully removed him from his job duties. He insisted his colour vision deficiency didn't affect his performance on the X-ray function nor 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 accommodation form, which he felt would be an admission to CATSA that he needed to be removed permanently from X-ray functions that he felt were "the best parts of my job." After receiving this email, Garda prepared a termination letter that indicated Ciccone was being terminated from his employment because he was unable to maintain his cer- tification as a screening officer due to his refusal to participate in the accommodation process. ough Ciccone had been previ- ously certified despite his previous medical report showing his vision problem, Garda believed this was negligence on the part of the former screening point manager, who had approved Ciconne's certification dates despite being told of the colour vision prob- lem on the medical report. e arbitrator found that it was clear Cic- cone felt the accommodation demands Gar- da was putting on him were related to his refusal to test the scanning machine and his health and safety complaint. It was unlikely CATSA was aware of his colour blindness previously as the government agency would probably act immediately upon learning a certified screening officer was colour blind, said the arbitrator. Employer acted once it found out about disability e arbitrator noted that Ciccone's abil- ity to perform his job was not under ques- tion. However, this ability was not at issue but rather what could happen if Ciccone was allowed to continue working the X-ray machines once Garda became aware of his vision deficiency. It was contrary to certifi- cation criteria for someone who could not see normal colours to operate the X-ray machines, and once Garda became aware of Ciccone's limitation it acted quickly, said the arbitrator. e arbitrator also found Ciccone's employment wasn't threatened because of his disability, nor was he discriminated against. Instead, he was simply removed from working at the X-ray function of the screening officer job, according to CATSA policy. "What needs to be made perfectly clear at this juncture is that (Ciccone) was not discharged because he was colour blind. Rather, the evidence revealed that every attempt was made to involve him in an accommodation process," said the arbitrator. e arbitrator found the removal of Cic- cone from X-ray functions created a dis- tinction between him and other employees based on his personal characteristic of co- lour blindness. However, this distinction didn't impose a burden or disadvantage as he was "denied nothing that would be ap- plicable to other screening officers other than that he would no longer be required to work the X-ray machine." He was still able to perform numerous other duties. As a re- sult, Garda's removal of Ciccone from X-ray functions was not discriminatory, said the arbitrator. In addition, the reason for removing Cic- cone from X-ray functions was related to public safety and related to a bona fide job requirement — the ability to see normal co- lours — which Ciccone didn't have, said the arbitrator. e arbitrator also found Ciccone's ter- mination of employment was not discrimi- natory because it wasn't because of his co- lour vision deficit, but rather his refusal to co-operate in the accommodation process that left Garda with no choice. e dismissal was upheld but Garda was ordered to pay Ciccone for one month he had remaining on his certification at the time he was not permitted to work any lon- ger when he could have worked all duties except for X-rays. For more information see: • Garda Security Screening Inc. and UFCW, Local 175 (Ciccone), Re, 2015 CarswellOnt 9906 (Ont. Arb.). « from DISMISSAL on page 1 Officer worked for years with condition

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