Different treatment based on different level of work, not disability
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By now most employers know (or should know) that accommodation is a difficult process to navigate. One of the challenges that employers must address is how to appropriately compensate an employee who is being accommodated in a different position. This question only gets more complicated when the employee in question has changed status, such as full-time to part-time, as part of the accommodation process. The Ontario Divisional Court provided direction for employers in the recent decision of City of Toronto v Canadian Union of Public Employees, Local 79.
The court reviewed a decision of an arbitrator which found that it was a breach of the Ontario Human Rights Code (OHRC) for the employer to only provide part-time benefits to an employee who was being accommodated with part-time work but who usually worked full-time. Like many workplaces – in this case part-time benefits were different from full-time benefits, including not having short-term disability and long-term disability coverage. The approach of the employer in this case was to pay the employee for the work he was actually performing which included adjusting his benefit package to reflect his change in status to part-time.
The good news for employers is that the court determined that the arbitrator’s decision was unreasonable and directed that the grievance should be dismissed. The court confirmed that an employer does not discriminate or breach the OHRC by failing to provide the added benefits that a full-time employee is entitled to when a person is working part-time hours – even if the change in status is due to a disability. This distinction is acceptable under the OHRC because the different treatment is based on the different level of work e.g. full-time versus part-time and is not based on disability.
When navigating the accommodation process employers should keep in mind that it remains the case that there is a requirement for the employee to provide work in return for compensation which includes working full-time in order to receive full-time benefits. Despite this positive decision, employers should continue to be cautious in adjusting terms of employment as part of the accommodation process.
Angela Wiggins is an associate with CCPartners in Brampton, Ont., focusing on employment law, labour relations, and human rights law. She can be reached at (905) 874-9343 ext. 227 or [email protected].
