Canadian HR Reporter

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Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation (416) 498-7800 ext. 1 www.resourcecorporation.com COMPENSATION CONSULTING No discrimination if accommodation options frustrated: Arbitrator B.C. worker unable to continue working despite 2 separate return-to-work plans A British Columbia employer had the right to dismiss an employee who was no longer able to work because of a disability, an ar- bitrator has ruled. Sun-Rype Products is a manufac- turer of juice and other products based on fruits and vegetables based in Kelowna, B.C. Since 2002, Sun-Rype's collective agree- ment with its union included an article covering employee absenc- es that stipulated any employee absent from work for 12 continu- ous months would be moved to the bottom of the seniority list and categorized as inactive. If the employee was able to return to work, she would be re- turned to her old spot on the se- niority list and keep her position. e collective agreement also allowed employees receiving long-term disability benefits to continue to be eligible for health benefits and not be terminated. ere was no definition of dis- ability in the agreement, relying on the insurance provider's group insurance policy. Employees be- came eligible for employer-paid coverage in its medical services plan after 62 shifts and remained eligible until employment ended. Forty-year-old Sun-Rype em- ployee Carlo Pucci was injured in a motor vehicle accident in June 2013, when his vehicle was broad- sided. He was unable to work and received short- and then long- term disability benefits. The insurance provider set up a graduated return-to-work program in January 2014 after Pucci passed a physical assess- ment showing he could meet job demands for squatting, push- ing, pulling, lifting and carrying. However, Pucci's doctor did not approve of the program and said Pucci couldn't return to work as there was no light duty available. Another return date was planned for March when Pucci indicated he wanted to return, but as the date approached, Pucci was still in pain and with no light du- ties available, couldn't work. On March 6, 2014, the insur- ance provider deemed Pucci was no longer disabled and should be working full-time. Pucci attempt- ed to return to work twice under a graduated return-to-work pro- gram, but was unsuccessful. He appealed the ending of his ben- efits, but the insurance provider found that although he might still be experiencing symptoms, "the information on file does not support a condition of a severity to preclude you from perform- ing the essential duties of your occupation." Another graduated return-to- work plan was developed in Au- gust 2014 that allowed Pucci to rotate his position and take breaks more frequently, step in and out of the production line and do less demanding tasks for as long as he chose. Pucci didn't see the plan, but his doctor approved it. Pucci returned under the grad- uated work plan and worked for four hours on Sept. 2 but he was afraid of re-injury and reluctant to do some tasks. He worked four hours on each of the next two days but reported back and shoulder pain. His chiropractor provided a note saying he was unable to per- form the activities he was previ- ously doing at work and it may be between six and 18 months before he could work again, depend- ing on treatment. Pucci's doctor concurred. Pucci continued with his grad- uated program but was unable to continue after Sept. 19 due to back and shoulder pain. He ap- pealed again for reinstatement of his long-term disability benefits, but the insurance provider denied the appeal. In December 2014, Pucci's doc- tor wrote to Sun-Rype stating he was unable to do the type of work required at his previous occupa- tion and would require retraining for alternate employment. By March 2015, Sun-Rype con- cluded it was unlikely Pucci would be able to return to work in the foreseeable future. On March 10, the company terminated Pucci's employment for non-culpable absenteeism. Pucci grieved the dismissal, indicating his family doctor said he wasn't able to return to work due to the fast-paced work envi- ronment that involved twisting, turning, bending and lifting above the shoulder — Pucci worked on the production line, where he ro- tated duties with other workers labelling boxes, pushing boxes on a conveyor to counting stations, stacking boxes on pallets and moving pallets. He also had a medical opinion that there was some improvement in his abilities, though there was no prognosis of when he would be able to work. Sun-Rype responded by saying Pucci's employment contract was frustrated because it was unable to accommodate him after so long and there was no indication he could return to work "within a reasonable timeframe." e union grieved the termina- tion, arguing Pucci was absent for 12 consecutive months and was, therefore, subject to the collective agreement provision placing him on the inactive list and protect- ing his employment. It claimed the provision ensured employees weren't dismissed for reasons be- yond their control. Sun-Rype disagreed, arguing the provision didn't necessarily preclude it from dismissing an employee on the inactive list any more than another employee on the regular seniority list. The arbitrator found that a plain reading of the collective agreement provision covering the inactive seniority list led to the conclusion it had "a simple administrative purpose." e list relieved Sun-Rype from having to continue to contact employees who were unable to work and not worry about scheduling them. "e subject matter, language and placement of (the inactive list provision) in the collective agree- ment is not intended to create a category of employees immune to dismissal for innocent absen- teeism," said the arbitrator. "Such an extraordinary benefit would require much clearer language than identification of the place- ment of an employee within the seniority list." e placement of an employee on the inactive list after 12 months of absenteeism did not provide immunity or protection from termination if he wasn't receiving long-term disability benefits, as Pucci wasn't after March 6, 2014, said the arbitrator. Sun-Rype also received con- flicting messages from Pucci's doctor throughout the process, as he initially approved return-to- work plans but then ended them once it became time to imple- ment them. e latest informa- tion Sun-Rype had about Pucci's status was first that he required six to 18 months of chiropractic treatments and then that he was unable to perform the duties of his old position. e company considered vari- ous options and decided there was nothing left that Pucci could do. "It was clear from the failed graduated returns to work… and his physician's statements in De- cember 2015 that Mr. Pucci could not work a variable or lighter work schedule," said the arbitrator. "ere were no available ad- ditional measures to accommo- date him and he was not going to be able to return to work in the foreseeable future, if ever. At this point, the employer had dis- charged its duty to accommodate Mr. Pucci, who could no longer provide any labour." The arbitrator determined Sun-Rype had reached the point of undue hardship and did not discriminate when it terminated Pucci's employment for innocent absenteeism after an absence of more than two years. For more information see: • Sun-Rype Products Ltd. and TC, Local 213 (Pucci), Re, 2016 Car- swellBC 485 (B.C. Arb.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. "It was clear... Pucci could not work a variable or lighter work schedule."

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