Cape Breton Regional Municipality terminated a bylaw enforcement officer’s employment following his refusal to return to work pursuant to a return-to-work plan. In response, the union filed a grievance on behalf of its employee, claiming that the employee should have been accommodated by transferring him to another apartment. The employee was unable and refused to return to work with his manager who he alleged harassed and intimated him, which in turn caused him stress and anxiety.
The 24 year old employee had been experiencing perceived conflicts with his manager, some of which are as follows:
- returning to work from bereavement leave and finding his desk cluttered;
- his truck being towed away from the parking lot after he blocked other vehicles; and
- returning to work from sick leave finding his office chair had been replaced by a different one.
In all the above situations, the employee believed these acts were forms of harassment, retaliation and intimidation. In response, the employee claimed anxiety and left work. He refused to return to work in the same department as his manager.
On October 28, 2010, the grievor filed a harassment complaint against his manager under the employer’s harassment policy. After an investigation, the report found no harassment, stating that the employee should return to work gradually.
On September 21, 2012, the Return to Work Committee issued a report and concluded that the employee’s conflicts with his manager do not merit accommodation and do not merit a transfer. However, he was entitled to apply for other posted positions for which he was qualified. The employee refused to return to work, maintaining that because of his anxiety he could only return to work if he was transferred to another department.
Finally, on October 17, 2012, the employee was terminated as a result of his failure to return to work.
The union grieved the dismissal and argued that the termination was unreasonable. The employer argued that it had just cause to terminate, due to the employee’s refusal to return to work. The employer acknowledged the conflict, yet, contended that the perceived intimidation did not necessitate transferring him to another department, as this would impose undue hardship on the employer.
The arbitrator ultimately dismissed the grievance, ruling that the employer had accommodated the employee to the point of undue hardship. The Arbitrator noted that the incidents “did not fall into the category of harassment” but were instead incorrect interpretations of various incidents.
While the Arbitrator did not explicitly reject the idea that the grievor suffered a disability, triggering the employer’s duty to accommodate, he determined that there was insufficient medical evidence before him to conclude that a reasonable accommodation necessitated moving the employee to another department.
This line of argument follows the Supreme Court of Canada’s reasoning as set out in Central Okanagan that employees are not entitled to the perfect, preferred, ideal or even “most appropriate” workplace accommodation, but can expect only an accommodation that is “reasonable” in all the circumstances. Furthermore, in Callan v Suncor Inc, the Alberta Court of Appeal stated: “there is no duty of instant or perfect accommodation; only reasonable accommodation… the employer is [not] required to accept the complainant’s own subjective assessment of his or her abilities.”