Accommodating change

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The arbitration board ruled for the union, deciding that the clerical position was not the only available accommodation possible for the employee: "We accept that the grievor received very little, if any, training.In retrospect, and in view of the grievor's present career goals, it would have been prudent for the employer to have arranged for training in the education department." Arbitrator Richard Brown, in Re Mount Sinai Hospital, has laid out the governing principles of the employer's duty to accommodate.Having determined that the grievor could not perform any existing job, the employer was obligated to turn its attention to whether, and in what manner, existing nursing jobs could have been adjusted, modified or adapted short of undue hardship to the hospital in order to enable the grievor to return to work despite her physical limitations." As part of the remedy, the board ordered the hospital to "conduct a thorough examination of its work place in order to ascertain how, without incurring undue hardship, it can adapt or modify a nursing job (or jobs) so that the grievor's physical disability can be accommodated." Other recent labour arbitration awards have reinforced this point.In Re Greater Niagara General Hospital, the arbitration board ordered the employer to re-examine existing positions in a nursing unit to determine if they could be re-structured into a new "bundle of duties" that would allow the grievor, a nurse, to work within the limitations of her permanent back injury.

The employer's obligation to accommodate includes the provision of training to the employee, provided that the costs of such training would not amount to an undue hardship.The employer had determined that because of her physical limitations, it was unable to place her into another nursing position.The union maintained that the hospital had not examined ways to re-arrange the nursing positions in order to find an accommodation. It found that although the nurse was unable to perform the duties of any of the nursing positions as they were currently structured, the employer had not taken the additional step of determining whether any nursing position could be modified to accommodate her.In Re York County Hospital, the grievor, a nurse, was unable to return to her full nursing duties after suffering a work-related injury.The employer wanted to place her in a part-time clerical position, but the grievor aspired to become an educator with the hospital, which would have required training.

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