The Alberta Health Service (AHS) failed to accommodate a registered nurse who was neurodivergent and struggled under managers who didn’t follow an accommodation agreement, an arbitrator has ruled.
It awarded the RN $10,000 in human rights damages for the breach of the duty to accommodate, and asked the parties to come to an agreement over damages for lost wages and benefits.
And while it didn’t have the power to reinstate her, it asked for a copy of its order to be submitted to the College of Registered Nurses of Alberta (CARNA) with a recommendation that she be given another shot to prove whether or not she could perform a RN’s duties.
The RN has been employed by the AHS since 2006. After about six years on the job, she was placed on long-term disability for medical and personal reasons.
She returned about two years later to a different position. The grievor had difficulty with her new role and the employer issued suspensions as a result. The employer requested an independent medical exam (IME) and the worker agreed to participate in it.
The IME disclosed that she was neurodivergent with associated memory, encoding, self-monitoring, attention and concentration difficulties that required accommodation in the workplace.
The recommended accommodations included that she receive written summaries of work-related discussions and repeat them back.
After another failed return-to-work, she was eventually placed in a clerical non-nursing role while being paid as an RN. She was successful in this role, working with a senior manager who implemented the accommodation recommendations from the IME.
After one year, on the recommendation of that manager, she moved into a nursing role. She completed six months successfully and was assessed by CARNA as performing to the standard of an RN.
Manager retires, new bosses take over
When her manager retired, a new management team assumed supervision over the RN. After six months, it sent in another performance evaluation to CARNA stating she was not performing to the standard of an RN.
CARNA suspended her license and the employer suspended her without pay in July 2018. She was suspended without pay to the start of this arbitration.
The union filed two grievances. First, it argued the employer violated the collective agreement by sending the performance evaluation directly to CARNA without her her review and input. The arbitrator dismissed that grievance.
The second grievance alleged the employer failed in its duty to accommodate, which found a favourable ear.
The employer’s take on undue hardship
AHS argued it accommodated the RN to the point of undue hardship. Over a four-year period, it identified four different placements for her — and each time she struggled to the point of being unable to perform to the level of a RN.
The behaviour of AHS was not the issue, it argued. Rather, it was the “grievor’s inability to accept constructive feedback, inability to follow directions, inability to get along with co-workers and her managers” and the fact she could not perform to the required level expected of a registered nurse.
“AHS argues the grievor has illustrated no accountability for her role in the accommodation process and she conducts herself in a manner that she believes the employer must do everything for her on her terms, and there is no accountability or ownership for the role that she plays in making the endless accommodation attempts,” the arbitrator said.
It also noted CARNA was limiting its ability to employ the RN with significant restrictions on her that would be cost prohibitive for any employer. That included full buddy shifts for 80 hours and only being able to perform as an RN after the buddy RN determines she can work safely and independently, and the supervisor must be on the unit at the same time.
In short, it required AHS to pay two RNs to do one RN’s job, which it said was undue hardship.
The arbitrator said the facts in this case do not support a finding of undue hardship on the part of AHS.
While it acknowledged the employer had committed significant resources and time to accommodate her, it failed to fully comply with the accommodation agreement.
It noted that, under the now retired manager that adhered to the accommodation agreement, the RN was successful.
“There is evidence to the contrary that not only has the employer not reached the point of undue hardship, if it follows the Accommodation Agreement as it should, the grievor can successfully perform her duties as an RN to the required level with appropriate supports in place,” it said.
The union sought an order for lost wages and benefits, along with human rights damages. But the arbitrator put the issue back to the parties, citing the length of time that has passed — she had been off since July 2018 — and a number of uncertainties.
For example, it knew she had since been employed by AHS, but “we do not know in what capacity nor do we know the length of that employment.” Nor did it know if CARNA maintained any conditions on her license or even if she was capable of performing as an RN.
And while it didn’t have jurisdiction to put her back in her position, or any position with AHS, it did comment on her new bosses.
“We do believe that the actions of her new managers impeded her abilities to accurately assess her capabilities to perform as an RN,” it said. The woman should be given another opportunity to see if she can meet the standard of performing as an RN, it said, though it noted it does not have jurisdiction to impose a decision on CARNA.
But it directed the employer and union to share a copy of its ruling and recommendation to CARNA.
The union was seeking $20,000 for human rights damages. The arbitrator, noting AHS had discriminated against her by failing to follow the accommodation agreement, settled on a figure of $10,000.
“Despite the finding of discrimination, there is certainly evidence that the Employer worked with the Union and the Grievor to both find her a position that worked and met her needs before the most recent issues emerged but even afterwards in its efforts to try to work with CARNA,” it said in relation to that award.
It also reserved jurisdiction to address the issue of damages relating to lost wages and benefits if the parties are unable to reach a resolution.
For more information, see United Nurses of Alberta v Alberta Health Services, 2023 CanLII 17662 (AB GAA).