Tag for delivery

Appearances:

For the union: Tom Gollan.

For the employer: Sid Federovich.

ISSUE

¶ 1      This case deals with a clash between the duty to accommodate an injured relief letter carrier, Mr. Zenovie Kindrachuk, and the seniority rights of his co-workers. The accommodation of Mr. Kindrachuk resulted in senior relief letter carriers being unable to bid on letter carrier routes to which their seniority would have otherwise entitled them. Mr. Larry Kalinowski (the "Grievor") was one such employee and he filed a grievance claiming that his seniority rights had been violated. While the Union supported the accommodation of Mr. Kindrachuk, it argued that other accommodation alternatives were available that would not have interfered with the Grievor's seniority rights. The Employer did not disagree that other alternatives existed, but submitted that Mr. Kindrachuk was accommodated in the position that enabled him to perform the greatest part of his original job and was most productive for the Corporation. The balancing of interests needed to successfully accommodate Mr. Kindrachuk, while affecting the seniority rights of the Grievor, resulted in the most reasonable accommodation in the circumstances, in the Employer's submission, and should be upheld.

EVIDENCE

¶ 2      There is very little dispute about the material facts. Mr. Kindrachuk is a relief letter carrier (RLC) in the Saskatoon head office depot and part of a complement of seven RLC's who cover the routes of letter carriers who are on annual leave (i.e. vacation). Mr. Kindrachuk is third in seniority within his RLC group; the Grievor is first. As routes become available for RLC coverage, they are bid by seniority on a weekly basis. The evidence showed that the letter carrier routes covered by the RLC complement have varying characteristics. Some are mainly commercial routes, others are mainly residential, and others are a combination of commercial and residential. The routes also vary in terms of the amount of time spent outdoors, a function of distance between delivery points and the number of office and apartment buildings on the route. It was common ground that individual relief letter carriers have personal preferences for the various routes that come open and use their seniority to choose preferred routes.

¶ 3      Mr. Kindrachuk was injured at work in January 2004 when his fingers became badly frostbitten while delivering mail on a particularly cold day. He was off work for several months, lost part of a finger, suffered a loss of manual dexterity, and has high sensitivity to cold. As a result, he must avoid exposure to cold temperatures as much as possible. Given Saskatoon's climate, this creates restrictions for Mr. Kindrachuk. A letter from a medical specialist treating Mr. Kindrachuk highlights the situation (Exhibit 8):

Mr. Kindrachuk testified that even using snow mobile gloves, his hands get cold easily. A battery hand warmer was discussed with his doctor, but rejected as not sufficiently reliable. The only solution is to avoid being outdoors for long periods during the winter months.

¶ 4      In May 2004, after talking to his union representatives, Mr. Kindrachuk asked to be accommodated under Article 54 of the collective agreement (Exhibit 7). Union - management consultation, which Mr. Kindrachuk attended, took place on October 22, 2004 and an accommodation agreement was reached. The consultation minutes, signed by Union and Employer representatives, sets out the agreement (Exhibit 3):

¶ 5      Mr. Tony Andrade, president of the local union, attended the October consultation. He agreed that Mr. Kindrachuk was to be given first choice of the routes identified as within his restrictions. In practice this meant choosing a route that resulted in the least amount of outside work. However, when the agreement was discussed with the two most senior RLC's, it was pointed out that during some weeks there were two or more available routes within Mr. Kindrachuk's restrictions. In those situations, the senior RLC's felt that they, not Mr. Kindrachuk, should have first choice.

¶ 6      Mr. Andrade testified that the "multiple route" scenario was raised with management at consultation on November 15, 2004 and December 8, 2004 but no agreement was reached (Exhibits 4 & 6). Minutes of the December 8th consultation highlight the differences between the parties (Exhibit 6):

¶ 7      The current grievance was filed on December 20, 2004. The Grievor testified that he is sympathetic to Mr. Kindrachuk and is willing to forego his seniority rights when there is only one walk that Mr. Kindrachuk can do. When there is more than one walk within Mr. Kindrachuk's capabilities, the Grievor believed that he should be able to use his seniority to choose his preferred route. He described a situation in which Mr. Kindrachuk had worked one route for a week and then, even though the same walk continued to be available in the following week, Mr. Kindrachuk had switched to a route that the Grievor would have selected using his seniority. This route was known as the Dolan route (after the incumbent letter carrier); Mr. Kindrachuk had been assigned that route on what amounted to a permanent basis from December 19th to the beginning of May.

¶ 8      Mr. Kindrachuk confirmed that he is able to work on more than one route during the winter months. He said he selected routes based on what he felt was most beneficial for his medical condition, preferring routes that minimized his outdoor exposure. From November 14 - 27, he worked the Zemlak route; from November 28 - December 4 he chose the Olson route; from December 5 - 28 he was on the Groff route; and from December 19 to May 1 he worked the Dolan route. In addition to these routes, he identified seven other routes that he was able to perform within his medical restrictions. He said most downtown routes allowed him to deliver mail indoors. The usual situation, according to Mr. Kindrachuk, was to do a morning walk and then perform duties inside the depot in the afternoon. For example, on the Groff route he had delivered mail on the morning portion of the route and then worked inside the depot from 11:30 to his quitting time of 2:30.

¶ 9      Mr. Kindrachuk identified the Dolan route as the one that enabled him to "pretty well do the entire walk" -- the full morning and all but 50 minutes of the afternoon portion. Because it was mostly indoors, it minimized the risk of re-injury. When assigned to the Dolan route, Mr. Kindrachuk said he would usually be let off working the last 50 minutes of his day, but would receive full pay.

¶ 10      The evidence showed that Mr. Dolan retired January 30, 2005, but left the workplace on December 19, 2004. Mr. Kindrachuk testified that he asked management for accommodation on the Dolan route in early December (Exhibit 9). He said that management agreed to assign him to the Dolan route until May 1st, but then to put the Dolan route out to permanent bid. Though he bid on the Dolan route, it was awarded to someone with more seniority. According to Mr. Kindrachuk, the Dolan route was the first vacant position in the depot since his injury.

¶ 11      Mr. John Horbay is Superintendent of the Saskatoon Head Office Depot. He testified that when Mr. Kindrachuk was assigned to routes on which he was only able to perform the morning portion, he would find afternoon work for him to do in the depot. Typically such work was over and above the depot's complement, but, Mr. Horbay agreed, it was work that needed to be done. When Mr. Kindrachuk was assigned to the Dolan walk, he would sometimes do depot work for the remaining 52 minutes of his shift, but other times, if he had taken more time during his walk, no additional duties would be assigned. Mr. Horbay said that his intention was to have Mr. Kindrachuk do as much of his regular relief letter carrier duties as possible and the Dolan route best met this objective. It allowed Mr. Kindrachuk to perform 7/8 of his regular duties; the other routes provided only 5/8.

       COLLECTIVE AGREEMENT

UNION ARGUMENT

¶ 12      The Union characterized the dispute as involving a clash between an accommodation of choice and an accommodation of necessity. Allowing Mr. Kindrachuk first choice of routes, even though other routes were available within his medical restrictions, severely infringed on the seniority rights of the other employees, including the Grievor. The Union recognized that the law permits the collective agreement to be modified if that is the only alternative for achieving an accommodation. However, where an acceptable accommodation existed without modifying the collective agreement, that accommodation had to be implemented. This was true even if a superior accommodation, from the injured employee's perspective, was available. In the Union's submission, the accommodation that was less invasive of collective agreement rights must be chosen. The Union cited Central Okanagan School District No. 23 v. Renaud (1992) 95 DLR (4th) 577 (SCC).

¶ 13      In the current situation, the Union argued that it had agreed to modify the collective agreement seniority provisions where there was the only one available route that Mr. Kindrachuk could perform within his restrictions. But since it was clear from the evidence that there were a number of routes that lay within Mr. Kindrachuk's medical capabilities, there was no need to supersede the seniority rights of the Grievor in order to accommodate Mr. Kindrachuk.

¶ 14      The Union asked that the grievance be sustained and that the Grievor be compensated for the violation of his seniority rights. It requested that the parties be ordered to consult on a method of accommodating Mr. Kindrachuk that respected the collective agreement rights of co-workers. In support of awarding compensation to the Grievor, the Union cited several cases including: Canada Post Corporation and Canadian Union of Postal Workers [Wilson] (1985) Unreported (Blouin) and Canada Post Corporation and Canadian Union of Postal Workers [Britton] (1987) Unreported (Norman).

CORPORATION ARGUMENT

¶ 15      The Employer argued that no violation of seniority rights of the Grievor (or any other worker) had occurred because the Employer had in fact followed Article 54.01 of  the collective agreement in accommodating Mr. Kindrachuk. Under Article 54.01(b), according to the Employer, the use of seniority in the selection of RLC assignments (Article 52) did not apply. In essence, for purposes of accommodation, Article 54.01(b) set up a waiver of the normal procedures by which relief letter carriers chose their assignments. The parties had explicitly contemplated the suspension of normal seniority rights in order to accommodate employees, and this is precisely what had occurred in this instance.

¶ 16      Furthermore, the Employer submitted that assigning Mr. Kindrachuk to the Dolan route  during the winter months was the most reasonable accommodation. It allowed him to do the largest portion of his regular duties, minimized the risk of re-injury, and reduced the overall operational disruptions to management. Since accommodation often involved a balancing of competing rights, management's approach was fully justified in the circumstances. Thus, even  if the seniority rights were alive during the accommodation, this was a situation in which the achievement of an accommodation superseded seniority rights.

¶ 17      In support of its position the Employer also cited Renaud as well as several other authorities including: Brown & Beatty, Paragraph 7:6120; Mohawk Council of Akwesasne and Akwesasne Police Association (2003) 122 LAC (4th) 161 (Chapman); and Canada Post Corporation and Canadian Union of Postal Workers [Milligan] (1993) 38 LAC (4th) 1 (M. Picher).

UNION REPLY

¶ 18      The Union argued that Article 54.01 did not apply to the accommodation of Mr. Kindrachuk on the Dolan route from December 19, 2004 to May 1, 2005. Articles 54.01(a) & (b) applied to situations in which a "vacant assignment" existed. In the current case, Mr. Dolan was on annual leave prior to his retirement and his position did not become vacant until January 30, 2005. Thus, because there was no vacant assignment to be filled, the seniority bypass set out in Article 54.01(b) did not apply. Alternatively, even if Article 54.01 was applicable, the Union had exercised its right under Article 54.01(b) to request that the waiver of seniority rights be revoked since it was not medically necessary for Mr. Kindrachuk to only work on the Dolan route to achieve an accommodation.

¶ 19      Finally, the Union pointed out that it was ironic that the retirement of Mr. Dolan, which created a situation in which where Article 54.01 arguably did apply, did not lead management to use that provision to allow Mr. Kindrachuk to secure the Dolan route.

DECISION

¶ 20      The first question to address is the applicability of Article 54.01 of the collective agreement. The Employer's position is that Article 54.01 allows management to bypass seniority in staffing decisions in order to achieve an accommodation. The Union, on the other hand, argued that the right to bypass seniority only occurs in situations where a "vacant assignment" exists.

¶ 21      In the current circumstances, the assignment into which Mr. Kindrachuk was placed is the so-called Dolan route. The need to fill this route was created by the absence of Mr. Dolan from December 19, 2004 to January 30, 2005, prior to his retirement on January 30, 2005. The question is whether Mr. Dolan's absence in the period prior to his retirement created a vacant assignment for the purposes of Article 54.01(a). I note that the facts of Mr. Dolan's absence from the workplace prior to his retirement were not canvassed in detail. The Union, in its argument, asserted that Mr. Dolan was on vacation during this time period, an assertion not challenged by the Employer. I accept, for the purposes of this analysis, that Mr. Dolan was on annual leave prior to his retirement.

¶ 22      Assignments are defined for Group 2 employees under Article 13.02 of the collective agreement. The article says that "an assignment in Group 2 means a letter carrier, mail service courier or mail service courier (heavy vehicle) route, a relief assignment, or any other assignments that may be identified". A vacant assignment is defined in Article 13.17 as follows: "A vacant assignment shall be deemed to exist when an incumbent leaves his or her assignment or a new assignment is created". Article 13.18 then goes on to describe a bidding process for filling vacant assignments based on seniority.

¶ 23      It is my conclusion that letter carriers on annual leave do not create vacant assignments. If annual leave for letter carriers created vacant assignments there would be no need for the  procedures for replacing letter carriers on annual leave set out in the relief letter carrier provisions found in Article 52. Such procedures would be redundant, or at the very least, in conflict with Article 13.18. Looking at the scheme of the collective agreement I conclude that Mr. Dolan's annual vacation did not give rise to a "vacant assignment" under Article 54.01(a). Nor did his retirement on January 30, 2005 give rise to a vacant assignment -- his retirement resulted in a vacant position, which is defined in Article 13.08. Accordingly, I agree with the Union that the seniority bypass provisions in Article 54.01(b) for accommodating employees in vacant assignments were not triggered by Mr. Dolan's annual leave and subsequent retirement. In short, the Employer's argument that it could assign Mr. Kindrachuk to the Dolan route under Article 54.01(b) without reference to the seniority rights of other employees must be rejected.

¶ 24      While there is no dispute that the Grievor's seniority rights were overridden when Mr. Kindrachuk was assigned the Dolan route ahead of him, this does not end the matter. It was common ground between the parties that seniority may sometimes be ignored in order to achieve a successful accommodation. Both the Union and Employer cited the Supreme Court of Canada's decision in Renaud as providing the framework for assessing the obligations of management, the union, and bargaining unit members in facilitating an accommodation.

¶ 25      The principles set out in Renaud confirmed that employers have a duty to accommodate employees who might otherwise face discrimination on grounds protected by human rights law (such as religion, gender, or disability) to the point of undue hardship. In Renaud, the same obligation was extended to unions. With respect to the provisions of any collective agreement in effect, the Court stated (paragraph 26):

The Court then added that "the reaction of employees may be a factor.... The objection of employees based on well-grounded concerns that their rights will be affected must be considered" (paragraph 30).

¶ 26      In practical terms, the Court stated (paragraph 39, 40):

The Court found in Renaud that the union had "contributed to the continuation of the discrimination with its refusal to accept the employer-suggested accommodation which was not only reasonable but the most reasonable solution to the problem" (paragraph 48).

¶ 27      Finally, the Court noted that "the search for accommodation is a multi-party inquiry" and that the employee seeking accommodation "must do his or her part. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus, in determining whether the duty of accommodation has been fulfilled the conduct of the [employee] must be considered" (paragraph 43).

¶ 28      The Renaud decision provides the following principles for analysis of the current case. First, collective agreement rights are not sacrosanct and may have to be superseded in order to achieve an accommodation. Second, because overriding the collective agreement will often negatively effect the rights of other bargaining unit members, other alternatives that are less disruptive of the collective agreement and the rights of other employees must be canvassed and carefully considered. Third, the employee seeking an accommodation has an obligation to facilitate an accommodation. Fourth, sensible solutions that disrupt the collective agreement should be preferred to solutions that, even though they do not override the contract, are not sensible, though the degree of disruption must be weighed.

¶ 29      Applying these principles, it is my conclusion that the grievance should succeed. I find that the parties were willing to override contractual seniority rights when no other alternative existed. Both the Union and Employer accepted that, where no alternatives existed, the contract must give way to the requirement to accommodate Mr. Kindrachuk. Thus, where there was only one route that Mr. Kindrachuk was able to perform, he was given that route even if it meant ignoring the seniority rights of other employees.

¶ 30      Where more than one route existed within Mr. Kindrachuk's medical capabilities, the need to override the seniority provisions of the contract largely disappeared. An accommodation of Mr. Kindrachuk could be achieved without disrupting the contract's seniority provisions or interfering with the rights of other members of the bargaining unit. I recognize that such an accommodation would have resulted in Mr. Kindrachuk working on a route other than the Dolan route. I understand that the Dolan route was preferred by him and the reasons for his preference. Nevertheless, Mr. Kindrachuk has an obligation to facilitate his own accommodation and accepting a route that is within his medical capabilities, even if not his first choice, is part of that obligation.

¶ 31      I also understand why the Employer preferred having Mr. Kindrachuk assigned to the Dolan route since he could perform a higher percentage of the duties of that route. However, the evidence showed that management was able to find productive depot work for Mr. Kindrachuk even when he was assigned to walks on which he was only able to deliver the morning portion. There was no evidence to suggest that assigning Mr. Kindrachuk to such routes might cause the Employer undue hardship.

¶ 32      In the end, I am faced with the choice between two alternative accommodations. The first, assignment to Dolan route, interferes with the Grievor's collective agreement seniority rights (and that of another employee). It allows Mr. Kindrachuk to do almost 90 percent of his normal duties. The second alternative results in Mr. Kindrachuk working other routes within his medical restrictions, but is not the first choice of either Mr. Kindrachuk or management. It allows Mr. Kindrachuk to perform slightly less than two-thirds of his normal  duties. This alternative does not disrupt the collective agreement or interfere in the rights of others.

¶ 33      While the first alternative may be more sensible from an operational perspective than the second alternative, I am not persuaded that the difference is significant enough to be decisive. Neither accommodation is perfect, but I prefer the one that least disrupts the collective agreement. This is especially true because the disruption affects seniority rights which are of fundamental importance in this collective agreement. Accordingly, where there are two or more routes that lie within Mr. Kindrachuk's capabilities, more senior employees are to be given first choice of the routes.

¶ 34      The grievance is sustained. I conclude that the Employer's approach to accommodation had the effect of unnecessarily overriding the seniority rights of the Grievor. The Employer is directed to cease this practice and to consult with the Union with respect to the ongoing accommodation of Mr. Kindrachuk in ways that minimize the disruption of the collective agreement. With respect to the compensation requested by the Union for the Grievor, I agree that the Grievor was denied the right to choose his preferred route based on his seniority. At the same time, I believe that management acted in good faith and was genuinely motivated by Mr. Kindrachuk's interests. The contract violation amounts to an act of omission rather than commission, quite unlike the situations in Wilson and Britton. Bearing in mind the dangers of rulings that might have a chilling effect on good faith accommodation efforts, it is my view that this is not a situation calling for compensation.

¶ 35      I will retain jurisdiction should any questions arise with respect to the implementation of this award.

QL UPDATE:  20050727
qp/e/qlaim