Apr 28, 2016

Duty to accommodate may include transferring employee to another workplace

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

In a recent decision, Emond v. Treasury Board (Parole Board of Canada), the Public Service Labour Relations and Employment Board concluded that an employer’s duty to accommodate may include transferring an employee with a disability to another nearby workplace.

Background: disagreement over medical opinion leads to grievance

The employee, Line Emond, commenced employment with the Parole Board of Canada in 1975 in Ottawa. In November 2009, Ms. Emond began working with a new co-worker, identified only as “Mr. X” in the decision, whose behaviour made Ms. Emond ill. Among other things, Mr. X:

  • ran a white noise machine in his office;
  • had a habit of making bizarre noises;
  • reheated his meals, which had a strong smell;
  • frequently used the “f-word”;
  • engaged in distracting workplace behaviours;
  • walked barefoot around the office;
  • washed his feet with vinegar in front of others in the office;
  • told Ms. Emond, “[…] there is a line on the floor and do not cross that line because I do not know what will happen […]”; and
  • filed a harassment complaint against Ms. Emond.

Ms. Emond raised concerns about Mr. X with her employer on several occasions. She also filed a harassment complaint against Mr. X which was dismissed by the employer because “she had filed it too late.”

Ultimately, in August 2011, Ms. Emond commenced a disability leave as a result of her general fear of Mr. X and, in particular, her fear that Mr. X might become violent toward her. In the opinions of her general physician and her psychologist, Ms. Emond would be capable of returning to work if she was permitted to work in a different workplace than Mr. X. Although the employer suggested that Ms. Emond should attempt to return to work on a different floor of the same workplace, both of Ms. Emond’s treating physicians disagreed. Ultimately, the employer refused to permit Ms. Emond to work in a different workplace or from her home. Ms. Emond grieved the employer’s decision, alleging a failure to accommodate her medical restrictions in the workplace.

The decision of the Public Service Labour Relations and Employment Board

Deciding in favor of Ms. Emond, Adjudicator Linda Gobeil concluded that Ms. Emond suffered from emotional stress caused by Mr. X. Although the adjudicator recognized that “stress cannot automatically be associated with a disability or an incapacity,” she concluded that Ms. Emond’s medical condition did constitute a disability or an incapacity, thereby triggering the employer’s duty to accommodate.

The adjudicator also concluded that the employer failed in its duty to accommodate. Specifically, the adjudicator commented that the employer had not called any rebuttal medical evidence nor discredited Ms. Emond’s treating physicians. As such, the adjudicator was left to rely upon the medical evidence of Ms. Emond’s treating physicians, which categorically concluded that Ms. Emond’s “medical condition would not improve if she were to return to the same workplace as Mr. X, regardless of the precautions the employer would put in place.” The employer also failed to satisfy Adjudicator Gobeil that Ms. Emond absolutely needed to work at the same workplace as Mr. X.

For those reasons, the adjudicator ordered the employer to move Ms. Emond to another of its nearby workplaces, and to compensate Ms. Emond for the difference between the amount she received while on long-term disability and her salary due to the employer’s failure to accommodate.

In an attempt to narrow the scope of her decision, Adjudicator Gobeil also stated:

“I would like to specify that my decision cannot be interpreted as carte blanche in favour of the grievor and does not aim to allow her to impose where and how she works in the future. In effect, finding accommodation does not mean accepting what the grievor feels is best for her under the circumstances. She must also cooperate and show good faith.”

Employers should consider obtaining independent medical evidence

Although the foregoing statement of the adjudicator is consistent with the established requirements of accommodating a disability in a workplace, the outcome of this decision is a surprising example of the duty to accommodate in the circumstances.

Employers should be mindful that they may need to transfer employees with disabilities to other nearby workplaces, in appropriate circumstances, in order to fully discharge the employer’s duty to accommodate.

This decision also serves as a reminder to employers that it is wise to obtain independent medical evidence if the employer disagrees with the medical evidence provided by the employee. The independent medical evidence will also be helpful to the employer in working through the accommodation process with the employee, and, if necessary, justifying the employer’s position to an adjudicator.