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Human Rights Office

Laurentian University Faculty Assn. v. Laurentian University (Dr. X Grievance), 2015 O.L.A.A. No. 184 (CanLII)  

Summary:

In this case the grievor is a full professor at Laurentian University. The grievor came to work at the university in July 2003 after teaching at other universities for several years. Since February 2005 the grievor has had several medical leaves of absence from work. At the time of the hearing the grievor was on his fourth period of sick leave. The grievor was on sick leave due to bi-polar disorder. During the above mentioned medical leaves of absence, there had been several attempts to return to work that were not successful. The Union argued that the prior unsuccessful returns to work failed because the employer did not make appropriate accommodations for the grievor and his condition.  From the employer’s position the four previous failed accommodation/return to work attempts suggested that the grievor remained unfit to return to work. The University also argued that a further unsuccessful return to work would be unfair to students enrolled in the grievor’s course(s). In this case it was found that Laurentian University has an obligation under the Code to accommodate the grievor in accordance with the Return to Work Plan (RTWP) proposed by the union and the grievor’s doctor.

Question(s) to be Determined:

1.    Does the employer, Laurentian University have an obligation under the Human Rights Code to accommodate the grievor in accordance with the Return to Work Plan (RTWP) proposed by the union and the grievor’s doctors.

Findings:

1.    Does the employer, Laurentian University have an obligation under the Human Rights Code to accommodate the grievor in accordance with the Return to Work Plan (RTWP) proposed by the union and the grievor’s doctors.

YES

Reasoning:

1.    In this case it was found that the Employer does have a duty to accommodate the grievor in accordance with the RTWP proposed by the union and the grievor’s doctors. It was decided that that accommodation plan would not result in undue hardship for the employer and that the RTWP constituted reasonable accommodation as required by the Code.

“In my view the Employer has failed to demonstrate that the proposal of Dr. D. and
Dr. B. for a gradual return to work by the Grievor would result in undue hardship. I accept the submissions of the Union that assigning the Grievor to an online course in one of the subject areas that he is familiar with teaching and restricting class enrolment in that course for his second term back in the workplace will result in only a minimal increase in costs (less than $200.00). Nor does such an assignment result in the Employer creating a job for the Grievor when it is clear that the Employer pays others to teach these online courses. I also do not accept the suggestion that giving such an assignment to the Grievor for one term on a transitional basis constitutes an accommodation that requires the Employer to create a job if the limiting of enrolment for the Grievor causes them to have two instructors for that course where one person could have done the entire course. In my view that would only be a legitimate objection to the proposed accommodation if such an assignment were to be made on a permanent basis. Here the plan proposed by the Grievor's doctors is clearly transitional, requiring such limitations on course assignment for only the first term of the Grievor's return to active teaching. In addition, the fact that the increase in costs is so minimal and only exists for one term means that it is not in any way similar to the creation of an extra job or extra position to accommodate the Grievor's disability. However, I agree with the Employer submission that under existing arbitral principles recognized in cases such as Canada Post, supra and Nestle Purina, supra, such an accommodation is only reasonable on a temporary basis and would constitute undue hardship if done on a permanent basis” (para 141).

Further emphasizing the fact that the RTWP did not constitute undue hardship for the employer it was stated, “I acknowledge the Employer's legitimate concerns that the gradual ramping up of regular duties means that if all goes according to plan the Grievor will not return to full regular duties, including full research and governance, until his fifth term, or fourth term of active teaching. While this may seem to be a more lengthy work hardening program than is the norm in dealing with the accommodation of disability, the underlying test for whether it represents a reasonable accommodation that is consistent with the Employer's obligations under the Human Rights Code is whether it will cause undue hardship. Given that the plan only requires the Employer to provide payment for regular duties that are actually performed by the Grievor, and given that the gradual nature of the plan also constitutes a measure to lessen negative consequences for students in the event of a relapse, the length of the work hardening measures would appear to decrease the risk of undue hardship rather than augment it” (para 147).

In this case it was determined that no damages would be awarded to the grievor for violation of the Human Rights Code. In making this decision a number of factors were considered including:

-Changes to the RTWP by the Union and the Grievor’s doctor during the time in question, ultimately leading to a withdrawal of the RTWP in Fall of 2012 (para 149).
-Changes to the RTWP during the hearing which serve the interests of both the Employer and the Grievor (para150).
-Responses during the hearing related to Grievor’s steps to get back into scholarly activity, indicated he may have benefitted from the delay (para 151).
-The employer took reasonable steps to accommodate the Grievor from 2005-2013 (para 152).