When a warehouse worker was injured in a car accident in 2008, his employer did the right thing: Maersk Distribution accommodated his graduated return to work and provided him with light duties. Maersk stepped up again when the grievor’s shoulder injury was further aggravated. But when the economy took a turn for the worse, Maersk laid off the grievor due to his disability. A labour arbitrator has now found that the Employer's human rights "duty to accommodate" substantially changed when its business was side-swiped by the crashing economy.
The grievor’s job involved heavy physical demands. As a result of his injuries, he was seriously restricted in his ability to handle loads and was limited to four hours work per day. His Employer understood that human rights requirements imposed a duty to accommodate his disability to the "point of undue hardship". It met its duty as follows:
- by modifying the grievor’s job to eliminate all moderate to heavy physical work,
- assigning him whatever light duties became available, and
- by reducing his hours.
In practice, the grievor was being carried as an extra employee during his recovery period. It became apparent that his recovery was going to be a long one. At the same time, the faltering economy was reducing the employer's business volumes. This situation was made worse when it lost one of its major customers. As the Employer reduced shifts and laid off employees it concluded that it could not continue to accommodate the grievor. It advised him that he would be laid off until he was sufficiently recovered to resume the full scope of his regular duties.
The grievor’s union challenged the layoff. It argued that the Employer must continue the accommodation of the grievor’s disability as it had already been doing. In response, the Employer acknowledged its human rights-based duty to accommodate the grievor’s disability. For the Employer the issue was one of "undue hardship" in the particular circumstance of a major business downturn.
The Supreme Court of Canada has previously identified the point of undue hardship as limiting the duty to accommodate. It has identified factors to consider in evaluating hardship as including the following:
- financial cost,
- disruption of a collective agreement,
- problems of morale of other employees,
- interchangeability of work force and facilities,
- the size of the employer's operations, and
- the magnitude of possible safety risks.
In this case, Arbitrator John Sanderson noted that the decline in business affected most of these factors. He concluded that what had been a reasonable accommodation in good times became an undue hardship during hard times. Most significant was the loss of a major customer which carried with it the possibility of closure of the facility where the grievor worked.
Arbitrator Sanderson emphasized that the search for a reasonable accommodation is always a fact specific inquiry. In this case the business downturn and loss of the major customer "changed the equation for both the employer and the grievor". The cost of continuing accommodation became one of a "totally different magnitude" with the loss of business.
In reaching the conclusion that a continuing accommodation would have imposed an undue hardship, Arbitrator Sanderson is following a recent trend. The trend was initiated by the Supreme Court of Canada in a 2008 decision involving Hydro-Quebec when it re-examined the concept. Adjudicators can be seen to be recalibrating the duty to accommodate through greater emphasis on the impact on employers and their other employees.