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Foscolos and Treasury Board (Revenue Canada - Taxation)
Before: P. Chodos
Appearances: D. Landry, for the Grievor; A. Garneau, for the Employer
Decision rendered: June 8, 1998
Illness - Duty to accommodate - the grievor, an income and excise tax auditor, grieved that he was not permitted to perform his duties for a 20-week period and sought financial compensation - the grievor was suffering from hypersomnia and had been absent from work for one month - upon his return, he had problems meeting his work schedule, showing up late, or not showing up at all - the employer gave him the option of working specified hours or taking unpaid extended medical leave, as the grievor had exhausted his sick leave credits - the grievor provided medical certificates and was unable to commit to specified hours of work - however, he did not propose any alternative work arrangement - the grievor argued that it was not his illness that prevented him from working, but the employer's decision to insist on specified hours of work - the grievor submitted that he had never been declared unfit to perform his duties and that the employer did not seek evidence concerning his limitations in respect of his ability to work - the grievor alleged that the employer had a duty to accommodate his needs - the employer replied that, upon returning to work after his initial one-month sick leave, the grievor was not in a condition to resume working - the employer added that the grievor could not give assurance that he would be at work on any given day - the employer stressed that the grievor had not proposed any alternative work arrangement - the adjudicator found that, in the circumstances of the case, the employer was justified in assuming that, if the grievor could not work specified hours, he would not be attending work - the adjudicator further found that the grievor had an obligation to tell the employer what kind of work schedule he would have been able to meet - the adjudicator also found that employers have a duty to accommodate and that employees have a duty to co-operate to this end - the adjudicator finally found that no evidence had been adduced to determine what compensation the grievor would otherwise have been entitled to.
Case cited: Renaud v. Board of School trustees, School District No. 23 et al.,  2 S.C.R. 970.