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DISCRIMINATION - Mental or physical disability - Workplace disposition - Reasonable accommodation

Thursday, January 23, 2020 @ 8:03 AM  

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Application by the Attorney General for judicial review of a decision of the Federal Public Sector Labour Relations and Employment Board finding that Correctional Service of Canada (CSC) failed to accommodate the respondent by reason of the process it followed in returning him to work after an absence due to a work-related injury. The respondent worked as a correctional officer. In 2008, he was attacked by a prisoner, suffered post-traumatic stress disorder as a result and was unable to work. His treating psychiatrist provided the opinion that the respondent was permanently disabled from working as a correctional officer at any institution. In January 2012, the respondent was found fit to return to work as correctional officer but only at a different institution. CSC began a search for an alternate position for the respondent and as part of the job-search process required that the respondent furnish an updated curriculum vitae and complete a transfer request, in which the respondent was asked to identify those CSC installations where he wished to work. As many of the positions in the institutions that the respondent identified required incumbents to be bilingual, CSC also required that the respondent update his second language certification. He obtained this re-qualification in May 2012. There were no CSC positions available in some of the institutions. CSC also determined it could not place the respondent in the institution where his ex-spouse worked or where the inmate who had assaulted him was incarcerated. Shortly after that inmate was paroled in May 2012, CSC placed the respondent in a permanent bilingual position in that institution in June 2012. CSC did not reinstate the respondent’s salary over the period from February to June 2012 and his benefit coverage was not recommenced until he returned to work. The respondent filed a grievance contesting CSC’s failure to accommodate him as of the date it received his medical note. The Board held that CSC failed to adequately accommodate the respondent because it treated his request to return to work as a transfer request as opposed to recognizing that the respondent had a right to be reinstated. The Board held that the procedure adopted by CSC deprived the respondent of his salary, which he had a right to because he was ready to work. The Board awarded the respondent damages equivalent to the value of the salary and benefits he would have earned had he been at work between the date he was medically able to return to work and the date of his return plus $5,000 for pain and suffering under s. 53(2)(e) of the Canadian Human Rights Act.

HELD: Application allowed. The grievance was remitted for re-determination. The decision was unreasonable. The Board departed from settled authority governing accommodation in holding that the respondent was entitled to salary and benefits merely because he was able to return to work. The duty to accommodate did not require that an employer pay an employee who was not performing services or create a job assignment as a pure “make-work” project since doing so would cause undue hardship to an employer. The Board unreasonably conflated the respondent’s ability to work with CSC’s obligation to compensate and return the respondent to work. Finding that the procedure adopted by CSC to reinstate the respondent, in and of itself, constituted a failure to accommodate was unreasonable. There was no separate procedural right to accommodation that imposed any procedure that an employer must follow in seeking to accommodate an employee.

Duval v. Treasury Board (Correctional Service of Canada), [2019] F.C.J. No. 1346, Federal Court of Appeal, M. Nadon, M.J.L. Gleason and M. Rivoalen JJ.A., November 22, 2019. Digest No. TLD-January202020009