The Ontario Superior Court of Justice recently overturned an arbitrator’s decision that ruled an employer could accommodate disabled employees by placing them into reserved jobs in another bargaining unit.
The grievance arose after the employer transferred police officers covered by the Uniform Agreement into vacant positions in the police services communications department, which fell under the Civilian Agreement. The employer further established a policy of placing four to eight uniformed officers in the communications department on an ongoing basis in order to accommodate their disabilities.
At the arbitration there was no evidence that the employer had explored alternative accommodation options for these particular officers before placing them in the communications department, nor was there evidence of any undue hardship resulting from their accommodation in uniformed positions. Nevertheless, the arbitrator held that the employer could reserve the eight positions for accommodation as a matter of policy.
In quashing the arbitrator’s decision, the Court concluded the arbitrator had failed to properly apply the legal principles governing the duty to accommodate and further, had failed to consider the individualized nature of the duty to accommodate. The Court held that the duty to accommodate under the Ontario Human Rights Code does not permit an employer to unilaterally reserve positions in another bargaining unit for disabled employees. Although the union in this case conceded there could be circumstances in which a police officer might need to be accommodated by placement in a position covered by a different collective agreement, the Court found that the duty to accommodate such an officer turns on a consideration of demonstrated need in individual circumstances.
This decision once again highlights the importance of considering accommodation options on a case-by-case basis.