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The
battle against discrimination in the Retail section continues to add
chapters to a growing volume of documented disputes regarding the duty
to accommodate. On April 4,
2005, another discrimination grievance was settled by memorandum on the
eve of an arbitration hearing. The
facts that led to the submission of that grievance were very similar to
the facts that have given rise to other recent grievances that have been
filed concerning Retail’s approach to staffing. On August 30, 2004, a
VMPP Postal Clerk’s application for a vacant assignment in Retail was
rejected on the basis that she was subject to certain physical
limitations. Those limitations were modest, and did not prevent her from
working in the VMPP Manual section. Yet without making any attempt to
accommodate those limitations, Canada Post awarded the position to a
junior employee. While this type of approach has become epidemic in the
Retail section, it is anathema in the judicial system. Both
the collective agreement and the Canadian Human Rights Act prohibit
discrimination on the basis of physical disability. In 1999, the Supreme
Court of Canada (British Columbia (Public Service Employee
Relations’ Union Commission) v. British Columbia Government Service
Employees Union (B.C.G.E.U.) [1999] “Meoirin”)
affirmed the proposition that an employer must accommodate a disabled
employee to the point where it is impossible to do so without
incurring undue hardship in order to avoid facing a charge of
discrimination. While that test is generally accepted as the prevailing
standard, the Union and Canada Post continue to be embroiled in disputes
regarding the Corporation’s statutory duty to accommodate its disabled
employees. This particular dispute concluded in a settlement that
requires the Corporation to provide the grievor with the appropriate
training and a proper job assessment in a Retail position. While that
arrangement might have been made at the time of the Grievor’s
application, it took the leverage of an arbitration hearing to compel
the Corporation to comply with its obligations under Human Rights
legislation. With
an aging workforce, the Corporation will face increased pressure in the
future to explore the range of possibilities that exist in terms of its
duty to accommodate. While there is still some resistance to these
concepts, the Union remains prepared to use arbitration as the process
by which to ensure that all employees are provided with the same
opportunities, regardless of disability. Ken
M. |
