Employer met duty but not collective agreement: Arbitrator

Arbitrator finds collective agreement required a more timely response to accommodate

An arbitrator has found an Ontario employer who took two years to implement recommended modified duties for an injured employee did not fail to accommodate but dragging its heels did violate the collective agreement.

Rose Stevens was a laboratory assistant for Canadian Blood Services (CBS) in Ottawa. In 1999 she began experiencing severe wrist pain and was diagnosed with carpal tunnel syndrome. The Workplace Safety and Insurance Board (WSIB) determined her condition was job-related and conducted an assessment of her job duties in the fall of 2000.

The WSIB completed a report on Oct. 19, 2000, saying the duties of Stevens’ position could aggravate her wrist injury and suggested changing the equipment, tools and work methods.

After having surgery on both wrists in the summer of 2001, Stevens returned to work performing training duties. The WSIB notified CBS her injury was a permanent one that prevented her from doing “repetitive or prolonged gripping and pinching activities.” It recommended she be placed in a job which limited this type of action.

However, Stevens was concerned she was still doing work she shouldn’t be doing and co-workers were making comments she considered harassment based on her disability. In May 2002, she met with the director and told the assistant lab manager that her duties were hurting her and asked why the WSIB’s recommendations weren’t being implemented. Her complaints led to hard feelings from some of her co-workers. Another meeting was scheduled in July 2002 to discuss accommodation of her disability but the manager in charge of staff development wasn’t there.

In August, after Stevens requested the WSIB to investigate, CBS gave her a different job in which she was given training duties three days a week. The WSIB agreed the duties were within her capabilities and wouldn’t aggravate her condition.

Stevens claimed CBS failed to accommodate her and provide a workplace safe and free from harassment by taking until 2002 to implement the WSIB’s recommendations. She also complained her employer had violated the collective agreement, which required the employer to “make every effort to create an adaptive work environment for employees who sustain injuries at work.”

The board found any difficulties with co-workers were minor and didn’t constitute harassment. It also found the training duties she had after her operation were reasonable and the WSIB recommendations weren’t discussed until 2002. As a result, the lag in giving her modified duties was understandable and not a failure to accommodate. However, the arbitrator found the lack of initial action after the meetings to find Stevens modified duties violated the collective agreement, which required immediate attention. Though Stevens suffered no financial loss, the arbitrator said, she was entitled to a token damage award of $1,000. See Canadian Blood Services v. O.P.S.E.U., 2007 CarswellOnt 7999 (Ont. Arb. Bd.).

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