View cases - Stewart McKelvey

[104] The evidence before me establishes that the only way of accommodating Mr. Pannu inthe Recaust Operator position is to exempt him from having to perform the emergency shutdown and to designate someone else to do it instead. Because of the way the recaust departmentis staffed, this means that a Utilityman whose job does not ordinarily include this responsibilitywill have to assume it. In order to achieve its reasonable purpose of minimizing or eliminatingadditional hazards in an emergency and accommodate Mr. Pannu, Skeena will have to train someUtilitymen and AROs as relief AROs and Recaust Operators. It will necessarily incur someinitial and ongoing costs, as there is a high turnover of Utilitymen. The evidence does not showwhat impact this cost would have on Skeena’s general operating costs.[105] If not enough Utilitymen and AROs volunteer for additional training to cover off Mr.Pannu’s shifts and/or the Union takes the position that additional compensation is required forthe Utilitymen on his shift who will now have increased responsibility for emergency dutieswhether or not an emergency occurs, the job descriptions will have to be amended. In that event,I would agree with Mr. Vatcher that accommodating Mr. Pannu would be very onerous,necessitating a “substantial departure” from the existing terms and conditions of employment inthe collective agreement. The evidence before me only establishes that this is a possibleconsequence of accommodating Mr. Pannu. Without evidence as to the Union’s position or theUtilitymen’s willingness to volunteer for additional training, I am not prepared to find unduehardship on the basis of this factor alone.[106] With respect to risk, there is no change in the likelihood of risk. I have found that, evenwith additional training, there is some real increase in the magnitude of risk. This is becausepersons with less job experience than Mr. Pannu will be assuming responsibility 25% of the timefor the emergency shut down, including the trouble-shooting function that is potentially soimportant in an emergency. The most significant change that follows accommodating Mr. Pannuis that the person that bears the risk shifts entirely from Mr. Pannu onto someone else.[107] I have reviewed the authorities and have found no case in which accommodating acomplainant necessitates shifting a risk to personal safety entirely from the complainant tosomeone else. Somewhat analogous are the line of disability discrimination cases in whichemployers seek to justify rules which exclude persons with certain disabilities on the basis that to27