A long-serving worker at a pulp mill in British Columbia has been awarded nearly two years’ back pay after he was suspended — and not accommodated in a suitable position — despite medical evidence that he could have safely performed non-safety sensitive work while awaiting further medical assessments.
Arbitrator Arne Peltz upheld the employer’s right to initially seek detailed medical information and conduct independent medical examinations (IMEs) to ensure the grievor was fit to work safely after a critical safety incident.
However, the arbitrator found that, at certain stages, the employer failed to provide reasonable temporary accommodations in non-safety sensitive roles, unnecessarily prolonging the employee’s loss of income and disregarding accommodation obligations required by human rights principles. Arbitrator Peltz also tacked on $5,000 for non-pecuniary losses related to the employer’s failure to accommodate.
Failure to respond to alarms
The grievor, employed as a Control Room Engineer (CRE) since 1988, failed to respond to multiple alarms in the mill’s steam plant. Rather than imposing discipline, the company explored whether a mild cognitive impairment, linked to a past stroke, was affecting his fitness for duty in this safety critical role.
Over nearly two years, attempts to secure medical information were complicated by the union’s privacy concerns and the grievor’s reluctance to share personal medical data. Eventually, an IME by a neuropsychologist, Dr. Sarah Greer, confirmed a mild neurocognitive disorder that could pose significant safety risks under stressful conditions but could be managed with carefully monitored accommodations.
Less hazardous roles
While the arbitrator agreed that the employer had justified holding the grievor out of his safety critical position pending proper assessments, he found the company was required to explore and offer suitable temporary placements or accommodations in less hazardous roles. For months, the grievor was without work or pay, even after medical evidence established he could perform certain non-safety sensitive tasks.
The employer’s failure to implement a temporary placement in a timely manner amounted to discrimination, the arbitrator concluded, warranting a make-whole remedy, including lost wages and damages for injury to dignity. The arbitrator also found a two-month delay late in the process, when the employer sought additional expert input rather than moving forward with recommended accommodations, justified further compensation.
In contrast, the arbitrator rejected claims that earlier requests for medical information, including authorizations for an exchange of information between the employer’s doctor and the grievor’s physician, were inappropriate. The complexity of the safety risks and the grievor’s initial refusal to provide required medical details meant the company was within its rights to insist on a thorough assessment before returning him to his original position.
The award
The worker was awarded back pay for the period between May 4, 2020, and March 2, 2020 — the time period he was held out of service without wages until he was placed in a temporary position. During this time, he received no pay despite ongoing attempts to resolve the dispute over his fitness for work.
Ultimately, the award directs the employer to provide the grievor with back pay and benefits for a specified period, as well as damages of $5,000. The arbitrator retained jurisdiction to finalize details of the compensation if the parties could not agree.
For more information, see Cariboo Pulp & Paper Company v Unifor Local 1115, 2024 CanLII 124034 (BC LA).
