In City of Toronto v. Canadian Union of Public Employees, Local 79, 2019 ONSC 4045, Ontario’s Divisional Court judicially reviewed an arbitration award¹ made in the context of a unionized workplace.  The court’s decision, that an employer is not discriminating against an accommodated employee who can only work part-time because of a disability when it fails to provide the employee the benefits that a full-time employee receives, is equally relevant to employers whose employees are not unionized. 

Background

The employee was first employed in a full-time position and, as a member of the full-time bargaining unit, he received greater benefits than employees in part-time bargaining units.  When he became unable to work full-time because of a disability, the employee went to a part-time schedule but remained in the full-time bargaining unit and continued to enjoy the privileges of that status, including the benefits provided to full-time employees.  Eventually, the employer asked the employee to provide medical documentation to determine whether his need for accommodation was permanent.  The employee complied, and his documentation indicated that the need was permanent.  When the employer’s collective agreement with the union expired 17 years after the employee’s accommodation was first put in place, the employer notified the union that it was discontinuing its practice of allowing employees who had no reasonable expectation of returning to full-time hours to remain in the full-time bargaining unit.  Following a two-year transition period, the employer moved the employee into the part-time bargaining unit and his benefits were pro-rated. A grievance was filed.

The question before the adjudicators was whether an employer that unilaterally transfers an employee from full-time to part-time status when the employee is unable to work full-time due to a disability, is discriminating against the employee in contravention of Ontario’s Human Rights Code (Code).

The Arbitration Award

The arbitrator upheld the grievance on behalf of the employee.  Although she acknowledged that she was bound by the decision of the Court of Appeal for Ontario in Ontario Nurses’ Association v. Orillia Soldiers Memorial Hospital et al. [1999] O.J. No. 44, the arbitrator failed to follow it.  Orillia established that it does not constitute discrimination for an employer to unilaterally transfer an employee from full-time to part-time status if, because of a disability, the employee has become unable to work full-time, and there is no reasonable likelihood the employee will be capable of returning to full-time hours in the foreseeable future.  In addition, under Orillia, it is not discrimination to link payment of wages or the provision of benefits to work performed. 

Rather than following Orillia as she acknowledged she was bound to do, the arbitrator concluded that a unilateral change of the employee’s longstanding accommodation, in the absence of a change in his circumstances and evidence that maintaining the accommodation would cause the employer undue hardship, was a violation of the Code.  The arbitrator allowed the grievance and ordered the employer to reinstate the employee to the full-time bargaining unit with full compensation. 

Decision of the Divisional Court

The Divisional Court granted the employer’s application for judicial review and dismissed the grievance on the basis that the arbitrator’s decision with respect to the application of the Code was unreasonable.  The court noted that the decision was “not supported by existing legal principles nor is the reasoning process transparent and intelligible.”  The court followed the decision of the Court of Appeal in Orillia, which established that requiring an employee to provide work in return for compensation is a reasonable and bona fide occupational requirement. To be entitled to benefits under the full-time collective agreement, the employee had to demonstrate that his need to work part-time would be temporary, which he failed to do. 

Bottom Line for Employers

According to this case, when an employer accommodates an employee who has a disability by allowing the employee to work part-time hours, and medical documentation establishes that the employee will require this accommodation permanently, the employer will not be discriminating against the employee under the Code if it reduces the employee’s benefits to that of a part-time employee.  The difference in treatment is not related to the employee’s disability but rather to the number of hours the employee works; an employer is not required to compensate an employee who has a disability for time not worked. 

Employers are entitled to gratuitously provide full-time benefits to an employee who works part-time hours due to a disability.  If an employer intends to reduce these benefits once medical documentation establishes the employee will never be able to resume full-time hours, however, it should consider several practical steps.  For example, it would be wise for the employer to specify a time limit for the accommodation after which the documentation will be required, and to indicate that if the documentation establishes the accommodation will be required permanently, the employee’s benefits will be reduced to that of a part-time employee. 

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.