Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 cluding osteoarthritis in his knee and pain in his neck and spine, that CPR's occupational health and safety department was aware of but didn't affect his ability to work as a lo- comotive engineer on unassigned service. However, in 2010, Waddle began having dif- ficulty sleeping and increased anxiety while waiting to be called for a shift. is led to him being reported as medically unfit for work 59 times in 2010 and 33 times in the first half of 2011, and two occasions when he fell asleep while driving a train. Waddle saw a sleep medicine specialist, whom he asked to recommend a call-out win- dow restricted to between 5 a.m. and 5 p.m. e specialist made the recommendation to CPR, though she didn't know this would still require Waddle to drive a train overnight. Waddle also didn't tell her the specific hours of his unassigned service. She also indicated she suspected Waddle suffered from circa- dian sleep rhythm disorder. After receiving the recommendation, CPR's occupational health and safety depart- ment created a fitness to work assessment form for Waddle that confirmed he could work in a safety critical position such as lo- comotive engineer with a call-out window between 5 a.m. and 5 p.m., 12-hour shifts, and lifting restrictions. is led to a return- to-work meeting. At the meeting, Waddle said he wanted his position based in Lethbridge, but CPR rejected this proposal because it couldn't apply the restrictions at away terminals and such schedules didn't exist in Lethbridge. e limited call-out window also would cause problems with other employees and safety concerns. Other accommodation options were discussed, such as office work — which Waddle rejected because he couldn't read well — relocation — Waddle was unwilling to move because he said he cared for his el- derly parents in Lethbridge — mechanical engineering positions — Waddle would have to displace a more senior employee — and modified duties in his regular job — rejected because Waddle's medical restrictions made it difficult to manage the call-out window. Eventually, Waddle got the sleep specialist to approve having the call-out window re- stricted only at his home terminal. However, CPR put him in assigned service at the Leth- bridge yard and, if necessary, a more senior employee would be bumped to allow Waddle to work those shifts. Worker disagreed with accommodation options Waddle called an OHS nurse at the railway and said that he couldn't work overnight in assigned service at the yard, though he had been open to overnight work at away termi- nals. His sleep specialist updated his restric- tions to allow him to work in the yard with a regular start time with no overnight shifts. CPR crafted a second return-to-work agreement that limited Waddle to morning and afternoon shifts. It asked Waddle to up- date his bid-card — which contained infor- mation on his seniority and restrictions — to ensure he would get the shifts to which he was entitled, but Waddle failed to do so. In the fall of 2011, Waddle sought further accommodation including a return to un- assigned service. is created difficulty for CPR and the union, as Waddle's restrictions included his sleep disorder, knee condition, and lifting restrictions because of his back problems. ey continued to discuss other accommodation proposals. In late 2011, the union reviewed Waddle's medical records and determined his sleep is- sues were all self-reported to his doctor. It no- tified Waddle that it couldn't modify any po- sition in Lethbridge or adjust his seniority "on the basis of your self-reporting of a condition" and suggested he move to Calgary — which Waddle had said wasn't a possibility because of his obligation to care for his parents. Waddle filed human rights complaints alleging CPR and the union discriminated against him because of his disability and family status. e tribunal first addressed Waddle's claim of discrimination based on family sta- tus. While Waddle told CPR and the union that he was responsible for caring for his el- derly parents, he didn't provide any details on what disabilities they had and how much care they needed. He also didn't provide any evi- dence as to the nature of the care he provided and whether had investigated alternative care options. As a result, the tribunal determined that Waddle had failed to prove he had a legal responsibility based on his family status and therefore was not discriminated against be- cause of it. e tribunal then found that Waddle did face prima facie discrimination, as CPR barred him from working in unassigned service because of his disability. In addition, the union discriminated against him when it refused to consider an option of adjusting Waddle's seniority so he could perform mod- ified work or displace a more senior employee based on its view that his disability didn't re- quire that accommodation, the tribunal said. e onus then shifted to both CPR and the union to prove there was a bona fide occu- pational requirement to support the adverse differential treatment suffered by Waddle. e locomotive engineer position was a safety critical condition that required a level of alertness and cognitive functioning that would be difficult to maintain for someone with a sleep disorder. Waddle's sleep special- ist initially confirmed that he couldn't operate trains overnight, so CPR's decision to prohibit Waddle from working on overnight unas- signed service was rationally connected to the requirements of the job, said the tribunal. e tribunal also noted that CPR made extensive efforts at accommodation, which showed it was acting with honesty and good faith, but it could only take it so far given the limitations of the Lethbridge terminal and the potential effects on other employees. "(Waddle) could not, given the safety criti- cal nature of his work in unassigned services as a locomotive engineer, and given his medi- cal disability, continue to work as an LE in unassigned services from the Lethbridge terminal," said the tribunal. "e modifica- tion of his job as an LE in unassigned service, by adding a 5 a.m. to 5 p.m. call-out window, was inconsistent with the medical restric- tions to which he was subjected by his sleep specialist, once he had provided her with all the information she needed to assess the ac- commodation." e tribunal also noted that Waddle failed to facilitate the accommodation process by not providing all the necessary medical in- formation and failing to update his bid-card. He also didn't initially provide his sleep spe- cialist with all the information about his job. As for the union, while the tribunal found its attitude towards Waddle was questionable and based on assumptions, it had no liability because Waddle was fully accommodated by CPR. e tribunal determined there was no dis- crimination based on Waddle's disability or family status and dismissed his complaints. For more information see: • Waddle v. Canadian Pacific Railway & Teamsters Canada Rail Conference, 2017 CarswellNat 5517 (Can. Human Rights Trib.). Canadian Employment Law Today | 7 More Cases Employee didn't provide all information for accommodation « from WORKER DOESN'T on page 1 For more information see: · British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Hu- man Rights), 1999 CarswellBC 2730 (S.C.C.). · Seaspan ULC and ILWU Canada, Local 400 (H. (G.)), Re, 2014 CarswellNat 4087 (Can. Arb.). · Syndicat des employé-e-s de techniques pro- fessionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.). Tim Mitchell practices management-side la- bour and employment law with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrose- fulbright.com « from ASK AN EXPERT on page 2

• Cover