A recent Ontario Labour Arbitration decision, the City of Toronto v. The Canadian Union of Public Employees, Local 79 (2023 ONLA 95296 CanLII), considered an employer’s obligation to continue to provide a full-time position, with benefits, to an employee who is unable to fulfil full-time hours.
The general case law on this issue comes from another City of Toronto case, City of Toronto v. Canadian Union of Public Employees, Local 79, 2019 ONSC 4045 known as the Berg decision.
In Berg, the City had maintained an employee within the full-time bargaining unit, even though the worker had been unable to work full-time hours for years, by reason of disability. The City put the Union on notice that it would discontinue its practice of maintaining such employees full-time status, where there was no reasonable expectation of returning to full-time hours. A two-year transition period would be provided, according to the City, during which time the employee would be placed in the part-time program. After the transition period, the employee would be transferred to the part-time bargaining unit.
At arbitration, the arbitrator found that the City had the management right to transfer the grievor to the part-time bargaining unit. The City had, according to the arbitrator, gone beyond its legal obligation to accommodate. The City’s maintenance of the grievor in the full-time unit, with paid benefits and pension, had been for a longer period than in any other reported case. The arbitrator ultimately found that it was permissible for the City to continue to accommodate the grievor by transferring them to the part-time unit, with associated part-time pay and benefits.
In this recent case, the union challenged the application of the Berg decision.
This case dealt with the employment of a full-time caseworker at the City of Toronto. During much of her employment, which started in 1991, the grievor was absent from the workplace or was working less than full-time hours. In April of 2015, the City decided, unilaterally, to place her into the Part Time Program for Permanent Full-Time Employees (the “Program”), pursuant to the Collective Bargaining Agreement (the “Agreement”).
The Agreement allows for full-time employees to work on a part-time basis, while retaining their status in the full-time bargaining unit, with pro-rated benefits participation.
The Union claimed that the Employer shouldn’t have placed the Grievor in the Program and should have maintained her entitled to full-time benefits without any pro-ration, despite the fact hat she had not worked full-time hours for a number of years. The Union alleged that reducing her benefits was a breach of the Human Rights Code (the “Code”).
The arbitrator found that, relying on Berg¸ the City was entitled to rely on the distinction between working full and part-time hours as a bona fide requirement to accessing full-time compensation. The arbitrator confirmed that this was permissible under the Agreement and the Code. The arbitrator agreed with the City’s decision to place the grievor in the Program, considering her long history of reduced hours and extensive absenteeism.
Takeaways and Impact
There is a distinction between reasonable accommodation and renumeration for work. When employers accommodate an employee, the employer need not provide the renumeration that an employee would earn if they were to work within the terms of their employment contract. In this case, the employer was not required to continue to provide the pension and benefits that full-time employees enjoy to an employee who was not working full-time hours for an extended period of time due to disability.
A key issue in applying this principle is whether there is a reasonable expectation of return to full-time hours in the foreseeable future. If the accommodated part-time hours are short-term and expected to be temporary, then reducing access to full-time benefits and compensation may not be justified. Relying on current medical information (not just the conclusions of a insurer) is also an important factor in being able to prove that reduction of benefits is justified.
As always, PooranLaw is here to support you in your accommodation response and planning, and will continue to provide updated information as the case law on this important issue evolves.
Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.