To what extent should employers accommodate an employee unable to resume his usual job duties due to an employment injury?
This is the first case where the Tribunal administratif du travail (the “TAT”) has applied the principles laid down by the Supreme Court of Canada in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3 (hereinafter “Caron”), rendered nine months earlier.
In order to understand the TAT decision, it is necessary to understand the precedent that was established in the Caron case.
When an employee suffers an employment injury covered by the Act Respecting Industrial Accidents and Occupational Diseases (the “Act”), and suffers a permanent functional disability preventing him from performing his pre-injury job duties, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “Commission”) as the body responsible for designating “suitable employment”, examines the employee’s functional limitations. The Commission first examines whether there exists any “suitable employment” within the employer’s establishment. If not, it looks into alternative or suitable employment elsewhere in the labour market.
Since Caron, the Commission has to not only examine whether there is “suitable employment” within the employer’s workplace, but must also ensure there is compliance with the Quebec Charter, which guarantees the duty to accommodate an employee in the workplace who is suffering from a handicap.
Vallée v. City of Montreal constitutes one of the first cases where the TAT applied the teachings of the Supreme Court of Canada.
A unionized City of Montreal gardener and general maintenance worker injured his right elbow in a workplace accident. His claim for an employment injury was accepted.
During the course of his recovery, the employer temporarily assigned him to other job duties, including snow-shovelling. Unfortunately, while shovelling, the worker injured himself on his upper left-hand side due to overcompensation for the pre-existing injury on the right-hand side. Eventually, his functional limitations on both the right and left side proved to be permanent. As a result, the employee could no longer exercise his previous employment as a gardener and general worker.
Under these circumstances, the Commission was called upon to examine what form of suitable employment was available, in compliance with the Act. For purposes of determining what constituted suitable employment, the worker described his position as “Sports and recreation maintenance worker”, which included tasks such as collecting garbage and using a mop, shovel, electrical tools and tools generating vibrations or indirect, repeated strain impacts.
An ergonomist retained by the Commission came to the conclusion that it was possible for the City to accommodate the worker by alleviating job-related stress through the use of “micropauses” of between 5 to 30 seconds so as to allow the employee to vary job duties, for example by either alternating tasks or switching hands. The ergonomist also suggested modifying the manner of moving tools and equipment as well as limiting efforts associated with moving material with pails or shovels.
The employer took issue with the solution proposed by the ergonomist, and concluded that it was not possible to accommodate the employee in his employment. As there was only one Sports and Recreational Maintenance position per borough, the worker had to be capable of carrying out all the duties assigned for the relevant job position. Thus, the employer terminated the process of seeking suitable employment without undertaking any other steps to seek alternatives or to customize an existing position.
Having come to the finding that the worker was incapable of exercising job duties as a sports and recreational maintenance worker with the City of Montreal – Borough of Côte-des-Neiges, the Commission rendered a decision that a classification as “maintenance/cleaner office buildings (Class B)” elsewhere in the labour market constituted suitable employment.
The employee challenged the Commission decision before the TAT.
In the meantime, Caron was rendered, which integrated the duty to accommodate within the process of determination of suitable employment with the employer.
The TAT decision
In its decision, the TAT initially agreed with the employer: an employee has to be capable to perform all of his job duties since he was generally alone in the execution of his tasks. Furthermore, from a productivity standpoint, the idea of taking micro-pauses was unrealistic. The TAT concluded therefore that the employee was not capable of carrying out job duties as a sports and recreational worker in the Borough of Côte-des-Neiges.
However, the analysis of the TAT didn’t stop there. The Tribunal next raised the issue as to whether the employer had satisfied its duty to accommodate under the Charter.
In the view of the Tribunal, the exercise undertaken by the employer remained “incomplete” and notwithstanding its good faith, the employer had not made the efforts necessary to fulfil its duty to accommodate short of causing undue hardship.
The TAT was harsh in its criticism of the employer’s approach. In the TAT’s view, after having received the report prepared by the employee’s ergonomist, and having expressed its doubts regarding the feasibility of the proposed accommodations, the employer should not have declined the offer of the Commission to meet in order to seek out other possible avenues of accommodation.
Following the Commission’s decision on suitable employment, the employer took no further action to fulfil its duty to accommodate, notwithstanding the employee’s expressed wish to maintain his employment.
Furthermore, the employer failed to notify either the union or the Commission when it came time to retain the services of an ergonomist. Then, when the ergonomist concluded that the employee could no longer exercise his duties as a sports and recreational worker due to his functional limitations, the employer ceased all efforts to find alternative or suitable accommodation for the employee. In the TAT’s opinion, the employer did not demonstrate that it had envisaged solutions, and that the envisaged solutions could not be properly implemented as they amounted to undue hardship.
It should be pointed out that an employer representative admitted at the hearing that he had not considered the possibility that the employee might exercise the same type of work in other boroughs although the collective agreement allowed for reintegration into another bargaining unit. Moreover, the evidence presented at the hearing demonstrated that in certain boroughs the tasks of the Sports and recreational workers can vary.
Under these circumstances, the TAT concluded that it was premature for the Commission to render a decision determining that suitable employment only existed elsewhere on the labour market. Thus, the Tribunal returned the matter to the Commission to restart the process of determining alternative or suitable accommodation by the employer in collaboration with the employee and the union.
What can be learned from this decision?
1. The employer shouldn’t restrict or abbreviate the process of seeking suitable accommodation just because there is no suitable position within the company, without first having assessed all possible avenues of accommodation, provided that doesn’t entail undue hardship for the employer.
2. The employer should include the worker and the Commission in this process in addition to the union in cases where an employee is a union member.
Reference: Vallée v. City of Montréal —Borough of Côte-des-Neiges-Notre-Dame-de-Grâces, 2018 QCTAT 5440.