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The particular obligation of employers who operate larger workplaces is illustrated in Re T. Nevertheless, the arbitrator was satisfied that the size of the operations would allow the grievor to be accommodated in a different, re-designed job, with a regular rather than a rotating shift, and special training arrangements for other employees to work around the employee, among other conditions.
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.
Arbitrators and the reviewing courts have recognised that accommodation always requires a balancing act between two underlying issues: the right of an employee with a disability to equal treatment, and the right of an employer to operate a productive workplace.
The employer is not required to accommodate where undue hardship would result, nor is it obligated to create an unproductive position.
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.
As the board acknowledged, this form of accommodation could only work in a larger workplace, where there are enough employees to allow such a re-bundling and yet, not unduly burden these other employees with only heavy tasks in their own re-assembled positions. The arbitrator accepted that the continued employment of the employee in his regular position created an unacceptable safety risk to the grievor and to other employees as well.
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.
If the employee cannot, then determine if he or she can perform his or her existing job with modifications.
If the employee cannot, then determine if he or she can perform another job in its existing, modified or "re-bundled" form. The Extent of the Employer's Duty The considerable weight that the duty places upon the employer is demonstrated in a recent award from Alberta.