FAQ's Cases - Stewart McKelvey

[109] The respondent submits that it is reasonable that the respondent return to hishome position, that the identified job duties on this shift were within his physicalrestrictions, that they have a policy of returning employees to their home position, thatthere was not an ongoing position on the day shift. The applicant argues that there wasno undue hardship for the respondent to place him on the day shift, that it would not bereasonable to expect him to report to a supervisor who, in the past, had subjected himto harassment and forced him to carry out duties beyond his physical restrictions.[110] I find the respondent’s offer of accommodation on the afternoon shift meets therespondent’s duty to accommodate the applicant up to the point of undue hardship. Inconsidering the issue of how a respondent must meet its duty to accommodate up to thepoint of undue hardship the Supreme Court of Canada in Central Okanagan SchoolDistrict No. 23 v. Renaud, [1992] 2 S.C.R. 970 (“Renaud”) writes:2012 HRTO 1455 (CanLII)While the complainant may be in a position to make suggestions, theemployer is in the best position to determine how the complainant can beaccommodated without undue interference in the operation of theemployer’s business. When an employer has initiated a proposal that isreasonable and would, if implemented, fulfil the duty to accommodate, thecomplainant has a duty to facilitate the implementation of the proposal. Iffailure to take reasonable steps on the part of the complainant causes theproposal to founder, the complaint will be dismissed. The other aspect ofthis duty is the obligation to accept reasonable accommodation. This isthe aspect referred to by McIntyre J. in O’Malley. The complainant cannotexpect a perfect solution. If a proposal that would be reasonable in all thecircumstances is turned down, the employer’s duty is discharged.[111] It is clear the applicant wanted to return to a position on the day shift. He furtherindicated in September and October 2007 that he would never return to work under Mr.Castellano’s supervision. I am of the view that this stated precondition for returning towork is not reasonable. I find that the modified position proposed by the respondentwould meet the applicant’s restrictions and therefore his accommodation needs. Indeedthe applicant was not disputing that this would be the case. I agree with the Tribunal inBoyce v. Toronto Community Housing Corporation, 2012 HRTO 853 that absentmedical advice to the contrary, it is implicit in the duty to cooperate that the employee35