Accommodation can be a difficult process to navigate. Determining the appropriate compensation based on an employee’s accommodation can be especially challenging, particularly if an employee is being accommodated with a different position and/or fewer hours than what there employment contract set out.
The recent case of City of Toronto v. Canadian Union of Public Employees, Local 79 highlights the challenges of balancing compensation with accommodation.
In this case, a full-time employee’s disability was accommodated with part-time work. To the employee’s frustration, their new part-time hours were paired with part-time benefits in line with all other part-time workers for the company.
When the situation was brought before an arbitrator, the arbitrator determined that it was a breach of the Ontario Human Rights Code (OHRC) to provide part-time benefits to an employee who normally worked full-time but was working part-time as an accommodation. However, the employer argued that they were merely paying the employee for the work they were actually doing and this required them to adjust their benefits package.
The Ontario Divisional Court (ODC) reviewed the arbitrator’s decision and determined that the it was unreasonable and that the grievance should be dismissed. The ODC clarified that employers do not owe a part-time worker full time benefits even if the reason for their part-time employment was an accommodation for a disability. The ODC concluded that the employee’s different treatment was based on a different level of work and not their disability and was therefore acceptable under the OHRC.
Takeaway for employers
You should never discriminate against an employee because of their disability. It is your duty to accommodate to the point of undue hardship so that all your workers can thrive and work to their fullest potential. However, employees also have to work for their compensation. A reduction of work hours or job responsibilities may lead to a justified reduction in salary, benefits or other compensation.
Nevertheless, you should be extremely careful when adjusting terms of employment and compensation as part of an accommodation. Be sure to consult with an experienced employment lawyer before making any changes to an employee’s. They can guide you through the process and ensure that you are not in breech of the OHRC and that your policies create a respectful and equitable workplace.
For legal advice and assistance with your rights as a part-time employer or as a part-time employee, Call KCY at LAW today to book your consultation at 905-639-0999 or connect with us online by filling out a consultation request form.