Employee's pay reduced following return to work
Rob Bossence, a water and wastewater operator with the city of Chatham-Kent in Ontario, won a grievance against his employer after an arbitrator found it failed to accommodate his disability.
Bossence, who had worked in Chatham-Kent for 29 years, had a seizure at work in the summer of 2014. He returned after a short break and performed all of his regular duties with the exception of driving and occasional snow plowing in the winter.
For the month following his return to work, he was paid at his regular rate. After that, his pay was reduced by $5.93 per hour, or the rate for a “labourer” classification. His union, the Canadian Union of Public Employees (CUPE), filed a grievance on his behalf.
According to the union, the employer failed to accommodate Bossence and was therefore in violation of the collective agreement and the Human Rights Code. The employer’s practice of reducing an employee requiring the use of a licence to the labourer rate should their licence be suspended for any reason did not apply here, the union said.
“The grievor had been properly accommodated upon his return to work but, after a month, that changed,” the union said. “The grievor had a disability under the Ontario Human Rights Code and he had, therefore, a legal entitlement to accommodation that suspended any agreement the parties may have made.”
The duty to accommodate was not taken into consideration and the grievor’s pay was unilaterally and arbitrarily reduced, it said.
Moreover, there were plenty of willing and able employees available to drive Bossence to and from his jobs, typically a two-person crew, and Bossence was able to operate the equipment and perform the work on-site, the union added.
Therefore, the employer was not experiencing any “undue hardship,” the union said, adding that “Reducing pay in these circumstances was contrary to law and contrary to the collective agreement.”
The municipality, on the other hand, said the labourer designation did not have any specific duties or functions attached to it, which would account for employees without a driver’s licence. Wage rates are determined by a number of factors, not least of all an employee’s qualification, the employer said.
“The wastewater operator classification required a driver’s licence. That was in part the basis upon which that wage rate had been established in negotiations with the union,” the employer said. “The grievor should not be paid for a qualification he did not possess that was reflected in the job rate. To pay the wastewater operator classification rate would be to overpay the grievor.”
Arbitrator William Kaplan agreed with the union.
Bossence was an extremely senior employee — with 29 years of service — and was suffering from a disability. As an employee with a disability, he was entitled to accommodation, which should have been mutually agreed upon.
Instead, the employer continued to pay Bossence his regular rate for one month before reducing it without much consideration.
“This is the direct antithesis of what the accommodation obligation requires,” Kaplan said. “The essence of accommodating people with disabilities is individualization. The union, the employer and the employee must be involved and all options must be considered. That did not happen here.”
Therefore, the grievance was dismissed and Kaplan ordered Bossence be made whole for any lost wages. Going forward, he would be paid the wastewater operator rate.
Reference: Municipality of Chatham-Kent and the Canadian Union of Public Employees (CUPE). Scott Williams for the employer, Duncan Bronson for the union. William Kaplan — arbitrator. Jan. 7, 2016.
