Legal News

Employer May Place Disabled Employee on Sick Leave if Productive Work Unavailable
December 16, 2003

In a recent decision, an arbitrator determined that an employer was entitled to place a disabled employee on sick leave where there was insufficient productive work available to accommodate the worker.

The grievor worked as a full-time letter carrier until he injured his ankle in September 1999. When he returned to work, the grievor’s injury precluded him from resuming his full-time letter carrier position. After a number of temporary assignments, the grievor was moved into a part-time position as a letter carrier assistant. In this job the grievor worked half days; on occasion his supervisor was able to find odd jobs to keep the grievor busy for the balance of the day. However, when full time relief letter carriers were available for work, the supervisor felt obligated under the collective agreement to allow those individuals to be fully utilized. As a result, on some days, available odd jobs were assigned to others, and the grievor was sent home on sick leave. The grievance claimed that the employer had failed to properly accommodate the grievor by providing him with full-time modified duties.

The arbitrator first observed that in such cases an initial onus rests with the grievor to demonstrate on balance that, although he is injured and requires accommodation, he is nevertheless available for full-time work with modified duties. Once this onus is met, the burden shifts to the employer to demonstrate that, given the grievor’s disability, there are no duties available which suit the grievor’s accommodation needs.

In this case, the employer conceded that the grievor had met the initial onus. In examining the employer’s accommodation efforts, the arbitrator concluded that the grievor had been accommodated each day for a minimum of four hours and that the employer had attempted to accommodate the grievor for a full eight hours where productive work was available. However, the employer was not obliged to allow the grievor to remain on the job performing work which was of no economic benefit to the employer. Additionally, the employer was not required to provide the grievor with preferential treatment over the full-time relief letter carriers, since that would result in the relief carriers being assigned unproductive work.

In the result, the grievance was partially denied. The arbitrator determined that the employer was entitled to place the grievor on sick leave when there were no productive duties available for him. On a separate but related issue, the arbitrator concluded that the grievor was entitled to be compensated for the employer’s failure to deduct sick leave credits in accordance with the formula set out in the collective agreement and for an “unreasonable delay” in assigning the grievor accommodated duties on one occasion.

Canadian Post Corp. v. Canadian Union of Postal Workers, [2003] C.L.A.D. No. 336, August 22, 2003 (Jolliffe)