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Arbitrator dismisses teacher’s duty to accommodate grievance
March 14, 2005

An arbitrator recently dismissed a grievance alleging that a school district failed to accommodate a teacher’s return to full-time employment from sick leave.

The grievor posted into a challenging teaching assignment. She struggled, and subsequently went off on medical leave. When she was ready to return to work, the union claimed the difficulty of the grievor’s assignment made her working environment intolerable. The union argued that the employer had a duty to accommodate the teacher by providing her with a different teaching assignment.

The employer argued no duty to accommodate arose because neither the union nor the teacher disclosed that the grievor was suffering from depression and obsessive compulsive disorder. However, the employer agreed, without prejudice, to accommodate the teacher by placing her on the teacher on call list and giving her top priority for on call assignments for which she was qualified. Her benefits were maintained and she was paid on scale for the days she worked.

The union argued this was insufficient. It said the employer had to call in the teacher even for assignments for which she was not qualified, and even where a qualified teacher was available. Alternatively, the union said the employer was obliged to maintain the grievor’s full time salary and benefits if there was no work for which she was qualified.

The arbitrator disagreed. She found that the duty to accommodate did not arise since the employer did not know the grievor was suffering from a mental disability. Although an employer cannot ignore circumstances which should lead it to investigate when there are signs of a mental disability, in this case the union or the teacher should have disclosed that she was suffering from a mental disability when negotiating her return to work.

The arbitrator further concluded that even if a duty to accommodate had arisen, the employer had discharged it in the circumstances of the case. Moreover, an employer is not required to accommodate an employee into a position for which he or she is not qualified.

(Click here for a copy of the Decision)