Kirby v. Treasury Board (Correctional Service of Canada)

2015 PSLREB 41

  • Before: Margaret T.A. Shannon
  • Decision Rendered: May 11, 2015
  • Original Language: English

Subject terms:

Labour relations – Discrimination – Duty to accommodate – Permanent disability – Job restructuring – Duties terminated – Prima facie case – No bona fide occupational requirement – Award for damages

The grievor filed a grievance alleging that the employer discriminated against him by failing to accommodate his disability in the workplace – the grievor was employed at the Kingston Penitentiary as an institutional driver – due to his disability, he was unable to perform the messenger and freight functions of his job – the employer recognized his disability and accommodated him on a temporary basis by assigning him only escort driver duties, which included transferring inmates to other institutions – this accorded with the restrictions identified by the grievor's medical professionals, which the employer accepted – the grievor continued to perform those duties for a period of three years and nine months, at which point the employer advised him that his duties were terminated and directed him to go on sick leave – the employer's decision was based on a recent medical report confirming that the grievor's restrictions were considered a permanent disability – the report also confirmed that the grievor was capable of continuing in his accommodated duties – the adjudicator found that this evidence established on a prima facie basis that the employer engaged in a discriminatory practice by refusing to continue to employ the grievor and by adversely differentiating in relation to his employment on account of his disability (section 7 of the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA) – the employer admitted in its evidence that the escort driver work was required and that there was funding available to pay for it – the employer acknowledged that continuing to accommodate the grievor would not have caused it undue hardship – however, the employer believed that once the grievor's disability was determined to be permanent, he could be accommodated only in a full-time indeterminate position, not in a position created to accommodate the disabled employee – the employer also believed that safety was an issue, and it was unwilling to accept the risk of allowing the grievor to continue in the escort role – the adjudicator found that there was no evidence establishing that the grievor performing the escort driving duties would pose a true threat to the safety of escorted inmates or to the correctional officers who accompanied them in transit – the employer's concerns were no more than mere speculation – any performance issues relating to the discharge of the grievor's duties as an escort driver should have been dealt with under the employer's performance management policies, not by terminating an otherwise reasonable and effective accommodation – the employer did not demonstrate that its refusal to employ the grievor as an escort driver was based on a bona fide occupational requirement; nor did it provide convincing evidence to rebut the grievor's prima facie case of discrimination – the adjudicator assessed an award of $10 000 in compensation for pain and suffering, pursuant to paragraph 53(2)(e) of the CHRA, and an award of $2500 in special compensation, pursuant to subsection 53(3) of the CHRA, due to the employer's wilful and reckless disregard of its policies on workplace discrimination and for not taking every reasonable step to accommodate the grievor – the special compensation was assessed at the lower end of the spectrum to take into account the employer's attempts at accommodating the grievor after the ill-thought decision to withdraw the escort driving duties, which mitigated the employer's wilful and reckless conduct – the matter of other compensatory amounts to which the grievor is entitled was remitted to the parties to determine, failing which the matter will be dealt with by the adjudicator at a later date.

Grievance allowed.