Numéro de sentence arbitrale 13-011

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Award Date:	2013-09-19
Arbitre:	McLaren, R. Voir les prix par McLaren, R.
Municipalité:	Niagara Voir les prix а partir de Niagara
Région:	South West Voir les prix а partir de South West
Classifications:	Disability, Discrimination - Disability, Transfer
Plaignant:	Sgt. C. Priest
Comparutions:	G. Hopkinson, pour l'Association W.B. McKaig, pour l'employeur
Longueur:	19 pp
Référence conventions collective	Article 5.1
Référence législative	Police Services Act; Human Rights Code, ss. 10, 11 & 17; Workplace Safety and Insurance Act

Sommaire

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Disability   Duty to accommodate - Uniform members - Grievance challenging transfer from deployable position - Supervisor of traffic reconstruction team was transferred to quartermasters stores position after he failed use of force qualification - During use of force test grievor injured his knee - No procedural accommodation put in place because no connection ever made between injury and failure to pass test - Grievor continued to perform his job despite lacking use of force qualification - No consideration given to adjusting test - No consideration of how grievor could be accommodated in his position until he had sufficiently recovered to re-try test - Employer met neither procedural nor substantive component of duty to accommodate - Interim award.

Discrimination - Disability   Uniform members - Grievance challenging transfer from deployable position following failure to pass use of force test - Grievor injured his knee during test - Medical information confirmed that failed test was due to injury at work - Knee disability required accommodation pursuant to Human Rights Code - Issue whether use of force requirement reasonably necessary and whether requirement to pass test without alteration reasonably necessary - In this case no recognition of a need to accommodate - Employer breached collective agreement - Interim award.

Transfer   Involuntary transfer - Uniform members - Supervisor of traffic reconstruction team challenged transfer to quartermasters stores position - Grievor’s failure to pass use of force test was due to knee injury sustained during test - Grievor continued to perform his job for 7 months before being transferred - No recognition of a need to accommodate - No recognition of whether use of force requirement reasonably necessary or whether test could be modified - Employer breached collective agreement - Interim award

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Réalités

The grievor was the detective sergeant in charge of traffic administration. The grievor had 21 years of service with the Niagara Regional Police Service and 15 years of prior experience with the Metropolitan Police in London, England. He supervised the traffic reconstruction team, a highly trained group of 5 detective constables who conducted technical collision investigation work for all fatal and life-threatening collisions. The grievor reported to the unit commander of emergency services, Insp. Coulis. Under the Police Services Act, every police officer had to complete their use of force and firearms requalification annually. The training unit of the NRPS offered courses related to requalification. These courses were mandatory within every 12 month period for officers who might be required to use force in the execution of their duties. On June 2, 2011 the grievor attended the requalification course. He failed the defensive tactics portion of the course and had to surrender his use of force equipment as a result. On November 3, 2011 a transfer meeting was held and management decided that the grievor would be transferred to the quartermasters stores position effective January 1, 2012 – a position which did not require use of force qualifications and retesting. On November 22, 2011 a grievance was filed alleging that the grievor was transferred in a manner that was arbitrary, discriminatory and done in bad faith, contrary to Article 5.1 of the collective agreement. The grievor testified that during the test, specifically during the “gauntlet” exercise, he hurt his knee but he carried on with the test, believing he had aggravated an old injury. He told the course instructors that he had hurt his knee but not to worry about it. The instructors concluded that the grievor did not meet the standard.Management was advised that the grievor failed the test, he was unable to defend himself or others, and that it was a safety issue. Management did not realize that the knee injury caused the grievor to fail. Although the expectation was that the grievor would re-do the test, when that did not happen by the time of management’s annual fall transfer meeting, they determined that the grievor would have to be moved to a non-operational position that did not require use of force retraining. Nevertheless, the grievor’s supervisor, Insp. Coulis, lost his own use of force qualification in March 2012; yet he remained in his position without regaining the qualification until he retired almost a year later. The grievor testified that he saw a specialist in September 2011, who diagnosed the injury as a deep bone bruise caused by the “gauntlet” exercise. He was told it would take 6 months to clear up. He underwent physiotherapy from July 2011 to February 2012. Although he had failed the use of force test, the grievor continued to deal with fatal traffic accidents by telephone, without going to the scene. His goal was to re-try the use of force testing once his knee improved. A WSIB claim was filed; however since it indicted that there was no lost time and that the grievor was performing his regular duties, HR was not aware of any need for modified duties. A medical report from the specialist dated June 7, 2012 stated that weight bearing on the injured leg “…would be painful and this would limit his ability to kick, lower himself to the floor, kneel on one or both knees, or rise to his feet from a supine or prone position and/or rise from his feet in a kneeling position” - all of which were physical ability components of the defensive tactics test.

Argument

The association argued that the grievor’s knee injury and knee pain constituted a disability under the Human Rights Code and the employer had a duty to accommodate the disability. The leading authority on the duty to accommodate was the Supreme Court of Canada’s decision in Meiorin(infra), which posited a three-step analysis of what is a bona fide occupational requirement (BFOR). In this case the third step was in dispute, namely whether the work standard was reasonably necessary to accomplish a legitimate work-related purpose. According to the association, the employer adopted an inflexible rule that was not justified, as demonstrated by the fact that Insp. Coulis was allowed to remain in his position for nearly a year before retiring. The association contended that the grievor should have had a detailed accommodation analysis. The employer argued that the use of force training promoted officer and public safety. The instructors correctly determined that the grievor failed the test. The bar in the gauntlet exercise might have caused the injury but was not the reason for the failed test. At the time of the test the grievor did not think he needed accommodation and did not ask for it. The employer submitted that it took appropriate steps to accommodate the grievor after June 2, 2011.

# de sentence arbirale

The evidence was clear that the grievor ought to have failed the test on the day he took it. Unbeknownst to the instructors, the grievor was injured during the defensive tactics course. The resulting knee injury was a disability under the Human Rights Code. Ultimately an injury report was filed under the Workplace Safety and Insurance Act and the WSIB recognized a no-time-lost injury. The medical evidence explained the cause of the failed test and confirmed that it was due to the grievor’s injury at work. On a review of all the evidence, it was clear that the employer did not make any connection between the injury and the failure to meet the standard in the use of force test. As the Supreme Court of Canada found in Meiorin, in order to constitute a BFOR a standard must be reasonably necessary to the accomplishment of a legitimate work-related purpose and the employer must show that it is impossible to accommodate an individual employee sharing the characteristics of the claimant - in this case, a knee disability - short of undue hardship. In this case, there were two standards at issue: the requirement that an officer in a deployable position had to have their use of force qualification at all times; and the requirement to pass the re-testing as it was set out, without alteration. After he lost his use of force qualification the grievor continued to perform his duties as supervisor of the traffic reconstruction team by directing officers under his command via telephone. There was no indication that this caused any problems. In effect, he was accommodated in the position for 7 months before the transfer to quartermasters stores took effect. The employer had to establish that it could not accommodate the grievor without experiencing undue hardship. In this case the available evidence was to the contrary, i.e. there was no undue hardship, since Insp. Coulis continued working in his position - also a deployable position - for one year without his use of force qualification. The employer knew about the grievor’sinjury but was unaware that it was an on-going problem. This situation was caused by a lack of communication on the part of the grievor and a lack of penetrating inquiry by senior officersin the chain of command, who thought the problem related to the grievor’s fitness and inability to do the test, not a disability. The connection between the injury and the failed use of force requirement was never made. Thus no procedural accommodation was put in place with respect to re-testing. The fact was, however, that the grievor continued to perform his job despite lacking the use of force qualification. The employer should have examined how it might have accommodated the grievor but never did so. Instead, senior officers relied on the absolute standard that an officer in a deployable position had to have their use of force qualification. In their view, the grievor did not have it and had not tried to obtain it. The employer gave no consideration to modifying the test or to accommodating the grievor in his actual position until he was sufficiently recovered to re-try the test. There was both a procedural and a substantive failure to accommodate. Accordingly the employer violated the collective agreement as alleged. The arbitrator retained jurisdiction with respect to appropriate remedies for the breach.

Autorités cité

British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (Meiorin), [1999] 3 S.C.R. 3 Boyce v. New Westminster (City) [1994] B.C.C.H.R.D. No. 33, 24 C.H.R.R. D/441 Re Ontario Jockey Club and H.E.R.E., Local 75 (Szelba)(2000), 91 L.A.C. (4th) 146 [Further authorities as submitted by the parties may be found at pp. 12-15 of the decision.]

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