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.Consistent with the Supreme Court of Canada's direction in O'Malley, Central Alberta Dairy Pool, and Renaud, the initial burden is upon the employer to reasonably accommodate the employee's mental or physical disability.To prove that its accommodation efforts were serious and conscientious, an employer by law is required to engage in a three step process: First, determine if the employee can perform his or her existing job as it is.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.Other assignments as a receptionist and a special project clerk proved to be too demanding for her physical limitations.
That duty includes "not only the duties and requirements associated with current jobs but also the duties and requirements associated with a bundle of existing tasks within the ability of a disabled employee." The undue hardship test, which, if applicable, relieves the employer from accommodation requirements, requires the employer to do more than bear trivial or de minimus costs to accommodate the needs of a disabled employee.
This responsibility requires the employer to look at all other possible positions.
Recent cases have said that the employer's accommodation efforts must be "serious", "conscientious", and it must demonstrate its "best efforts".
In its award, the board said it is not sufficient for the employer to show that its employee could not perform any of the current job descriptions.
It must also be able to show that the job descriptions cannot be altered without undue hardship: "The duty to accommodate requires more than determining that an employee cannot perform existing jobs.
In any permanent accommodation circumstance, an employee has to be able to perform the essential job duties of the existing or re-structured or newly-assigned position.