A labour relations board says a border services officer’s attempt to avoid Sunday shifts, citing an old knee injury, was a “sham.”
The federal labour relations board has dismissed as “a sham” a border services officer’s determined attempt to never work a Sunday because of an old knee injury.
Frank Rodrigues, a Canada Border Services Agency (CBSA) employee, claimed that solely due to his injured knee, he could never work on a Sunday, and demanded a compressed schedule of Wednesday through Saturday.
When his employer asked for more medical information about his injury, he deemed it harassment and filed a grievance.
For ten years, he pressed the issue and sought compensation for his alleged mistreatment under the Canadian Human Rights Act. He said the CBSA failed in its legal duty to accommodate his injury in the workplace.
In a recent decision, a federal labour relations board adjudicator flatly rejected Rodrigues’ grievances.
“No evidence was presented that linked the grievor’s knee injury to a functional limitation that would justify him never working on Sundays,” Bryan Gray said. “The many medical notes provided to the employer were nothing more than an exercise in obfuscation.”
In fact, Gray said, Rodrigues admitted to his superintendent — and later confirmed to her in an email — that he wanted Sundays off for family reasons.
Gray noted that Rodrigues could have sought a workplace accommodation to meet his family obligations, but for some reason chose not to pursue that route.
The labour relations board heard that Rodrigues first suffered a knee injury in 2007 that left him with chronic pain and swelling.
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In June 2012, he presented CBSA with a note from his family physician, Dr. Jonathan Peck, who recommended Rodrigues work a four-day, compressed workweek due to his chronic knee pain, and related sleep difficulties.
Peck said Rodrigues could only sit for 20 to 30 minutes at a time due to pain and swelling.
Rodrigues submitted an accommodation request based on the doctor’s letter for a permanent, compressed work week of Wednesday to Saturday.
In July 2012, CBSA senior management wrote to Peck, seeking more details of Rodrigues’ functional work limitations given his role in passenger operations at Pearson International Airport. Employees in the CBSA branch process passengers and goods 24 hours a day, seven days a week.
The manager explained that airport workers were scheduled five days a week on day shift, or else on compressed work weeks of Thursday through Sunday, or Friday through Monday.
Asked to explain why Rodrigues could not work such a schedule, Peck said it was “for personal medical reasons.”
The CBSA sent another letter in November, asking Peck for more information about how working Sundays would exacerbate Rodrigues’ condition. Peck said he couldn’t answer the question without providing a “personal and confidential” diagnosis.
Rodrigues said the CBSA was improperly asking for personal medical information.
In December 2012, the CBSA rejected Rodrigues’ accommodation request, saying he did not sufficiently explain why working other days of the week would exacerbate his medical condition.
Tammy Dineen, superintendent of passenger operations at Pearson International Airport, testified that Rodrigues’ accommodation request made little sense since his proposed work schedule would mean he worked longer shifts during busier airport periods.
Rodrigues argued the CBSA did not accommodate him to the point of undue hardship as required by law, and did not engage meaningfully in that process. The CBSA contended it was Rodrigues who did not engage in the accommodation process by virtue of his refusal to provide the information necessary to conduct a proper workplace assessment of his limitations.
Adjudicator Bryan Gray concluded the CBSA’s requests for more information were eminently reasonable, and noted that the accommodation process “does not simply allow a grievor to dictate his or her preferred accommodation.”
“No information was provided to explain the functional limitations of how the grievor could work a longer shift on Saturday but could never work on a Sunday,” he said. “If information could ever be provided to justify that seemingly impossible medical situation, none was ever provided to the employer.”
