Monday, 28 April 2014

A Tale of Two Cities (in Alberta): The Good and Bad of Managing Human Rights in the Workplace

Two recent decisions from the Wild Rose province demonstrate the dangers an employer can face when confronted with human rights issues in the workplace, and how to appropriately address an employee’s request for medical accommodation.
In Robinson v. City of Edmonton, the complainant was a bus driver for the City who suffered from environmental ulticaria, a type of chemical sensitivity to things like diesel fumes and perfume.  For the first 8 - 9 years of her employment as a transit operator, the complainant was able to control her symptoms with over-the-counter medications, but her condition progressively worsened and she was prescribed a medication that had the side-effect of making her drowsy.  That being said, up until 2009, the City had consistently accommodated the complainant by allowing her periods of medical leave and by allowing her to trade or “sell” her shifts to other transit employees (including her husband, who was also a transit worker).  However, starting in August 2009, the complainant was off work on STD due to her medical condition.  She applied for LTD in the fall of 2009.

The complainant’s supervisor asked her to provide her LTD application and a resume in mid-October.  The City was contemplating whether there might be a different transit operator position – a Light Rail Transit (LRT) operator role – that would accommodate the complainant’s condition.  LRT operators drive from a self-contained booth, and are therefore separated from many of the irritants that would trigger the complainant’s sensitivities.  It was decided to offer this option to the complainant.  Based on this form of accommodation being made available (and confirmation from the complainant’s doctor that she was cleared to attempt a trial as an LRT operator), the LTD carrier found that she was not “totally disabled” from her own occupation, and denied her claim for benefits.
There was some dispute in the evidence about whether the complainant understood that she was being offered the LRT role as an accommodation for her return to work, but the Tribunal concluded that she was in fact aware that this alternative was being proposed.  Instead of accepting the LRT trial, however, the complainant tendered her resignation in December, stating that she did not believe she was cleared to return to work without restrictions as she still could not safely drive (while medicated) and no other options were open to her. 

After reviewing the evidence, the Tribunal concluded that the City had not discriminated against or failed to accommodate the complainant.  The complainant should have understood that she was being cleared to return to a ‘transit operator’ role in LRT and that the City was prepared to accommodate her in this position (at least on a trial basis).  Her doctor was on side with this option (as it would likely reduce her symptoms and lead to reduced medication usage) and there were no collective agreement impediments to this approach (i.e., she had sufficient seniority to sign up for LRT shifts, once she received required training).  The Tribunal held that “Accommodation is a two way street” and that the complainant had effectively ended the accommodation process by insisting that she could not drive safely and by resigning her job.  In the circumstances, the duty to accommodate did not require the City to decline the complainant’s resignation or offer her the job back.

On January 15, 2014, the Alberta Court of Queen’s Bench upheld the decision of the Tribunal, concluding that its decision was not only reasonable, but that it was “correct”.

The result in City of Calgary v. Canadian Union of Public Employees, Local 38, on the other hand, was not so favorable to the employer.  In that case, before Arbitrator Phyllis Smith, the issue was whether the employer had violated its obligations under the collective agreement in dealing with the sexual harassment complaint of the grievor, MP.  MP had been sexually assaulted by a foreman who worked for the City on a number of occasions in the fall of 2010.  Some incidents were caught on a spy camera that the grievor and her husband installed in the workplace after her initial complaints were not addressed effectively by her supervisor.  The foreman was ultimately suspended by the employer and an investigation was undertaken.  The grievor also brought criminal charges against the foreman.

Shortly after the foreman was suspended, the grievor came in to work to find what she thought was rat poison on her keyboard.  The incident was reviewed by management, but the investigation was never completed as the grievor was moved to another City facility temporarily.  When the grievor questioned what was being done about the incident, she was rebuked by her manager and warned about compliance with the Respectful Workplace Policy.  The grievor later alleged that her manager was following her home (which was found to be untrue), and so the employer determined that the grievor should attend a mandatory IME to clear her to return to work after a week of vacation.  The grievor did not attend the IME session, upon learning that the doctor was a psychiatrist whose report would be provided to the employer.  The grievor did, however, provide a note indicating that she was fit to be at work and returned to her original office location.  Upon her return, she was counselled on respectful interactions with co-workers and asked to return certain office keys that she’d had in her possession for a long time.

A grievance was filed on her behalf and she also made a complaint to the Alberta Human Rights Commission (which was held in abeyance pending the outcome of the grievance arbitration).  The foreman was permitted to take retirement, and the employer took the position in the grievance process that it had acted appropriately. 
In her decision, the Arbitrator concluded that “there was a total failure on the part of those responsible to meet the obligations under the Collective Agreement, human rights legislation, occupational health and safety legislation and the City’s Respectful Workplace Policy”.  The City was not only vicariously liable for the sexual assaults on the grievor, but for a number of serious missteps that followed:

·         Not starting an investigation when the issue was first raised by the grievor to her immediate supervisor, leaving the abuser in charge of the workplace where the grievor worked;

·         The grievor’s manager claiming that he viewed the evidence from the spy camera as “inconclusive” and not removing the grievor from the workplace or taking any steps to prevent reprisals;

·         Moving the grievor back into the workplace before the “rat poison” investigation was completed contrary to her concerns for her safety, and counselling her on being disrespectful;

·         Sending her for a psychiatric IME when she stated an intention to speak to the mayor about the situation, and insisting that she have a fitness certificate before she could return to work from a previously scheduled vacation;

·         Only removing the grievor from the workplace after her union intervened, and then only transferring her to a temporary ad hoc location, causing additional stress; and

·         Maintaining that the grievance had no merit throughout the grievance procedure.
After reviewing the evidence, the Arbitrator awarded the grievor lost wages (past and future), general damages, damages for pension loss, and special damages, totalling approximately $850,000 (less a discount for various contingencies).  The Arbitrator described the situation as a “tragic case” in which a “vulnerable victim” had her situation worsened by “insensitive management”, greatly exacerbating the effects of the sexual assaults.

If any lesson is to be learned from these two cases, it’s that careful, proactive steps can greatly mitigate an employer’s risks, particularly when addressing sensitive issues like human rights.  Failure to act with urgency and care comes with very high and unnecessary costs.

If you have a question about this post or have a human rights issue you’d like to discuss, please don’t hesitate to contact Lance Ceaser.


No comments:

Post a Comment