Appearances:

¶ 1      The grievor is an Electronic Systems Technologist in the classification of EL-4 at the employer's facility at the Prince George, BC Airport. He has worked at the Prince George Airport since October of 1968.

¶ 2      In 1985 it was made known to the employer that Mr. Tompkins had a phobic fear of flying. He was accommodated by the employer by waiving the requirement to fly to remote sites where, at certain times of the year, the only access is by helicopter. The employer recognized his fear of flying as a disability and accommodated him by waiving its requirement that he fly.

¶ 3      The employer says it was able to accommodate the grievor's disability at the Prince George Airport because there are six EL-4's and one working supervisor at that facility. When Technicians are required to fly by helicopter to access remote sites, two Technicians are required. That is for both safety and, on occasion, when two Technicians are required to service equipment at the remote site. The employer says it was able to make that accommodation for the grievor without undue hardship.

¶ 4      The employer has further accommodated the grievor's fear of flying by allowing him to travel by train when he is required to undergo training at the NAV Canada Institute in Cornwall, Ontario. That has caused additional cost to the employer, as compared to having him fly by commercial airline, but it has not considered such additional costs sufficient to constitute an undue hardship.

¶ 5      However, the grievor applied for an EL-4 position at the Cranbrook Airport pursuant to a posting for a vacancy there on February 22th, 2000. That would have constituted a lateral transfer for him. The employer considered his application but turned it down. It took the position that to accept Mr. Tompkins application for that lateral transfer would have, in all the circumstances, constituted an undue hardship.

¶ 6      In support of its decision, the employer noted there are three remote sites serviced out of Cranbrook that can only be accessed by helicopter at certain times of the year. Further, there are only three Technicians in Cranbook; two EL-4's and one EL-5 who is a working supervisor. The working supervisor, Wilf Bakken, is also being accommodated because he refuses to fly. In January, 1998 he was involved in a helicopter accident. He was injured and suffers from trauma associated with that accident to the extent that he will not fly except under an extreme emergency situation and then only when conditions are perfect without any turbulence. That leaves only one EL-4, Dale Johanson, who can fly and that Technician might very well be away from work for vacation or other leaves. Because two Technicians are required to be on any helicopter flight, it is absolutely necessary, says the employer, that the EL-4 who is posted to the vacancy at Cranbrook be able to fly. In circumstances where the one EL-4 at Cranbrook who is able to fly was away on vacation or on leave, the employer has been able to hire a Technician from the local area to act as a safety watcher or, it has had to fly in another Technician from another facility when necessary.

¶ 7      Given those circumstances, the employer takes the position that having accommodated the grievor at Prince George for his disability related to his fear of flying, to further accommodate him by approving his transfer to Cranbrook would constitute undue hardship.

¶ 8      I note for the record there is no dispute between the parties that in all other respects, Mr. Tompkins meets the position's technical qualification requirements (PTQR) for the Cranbrook position.

¶ 9      The provision of the collective agreement dealing with transfer is ARTICLE 56 - STAFFING and in particular, article 56.01 - Order of Staffing, subparagraph (e) which states;

Article 56.03 (a) (i) provides;

¶ 10      I now turn to a brief summary of the evidence adduced by the parties at the hearings of this dispute.

¶ 11      The grievor is 59 years of age and confirmed that his disability, arising out of his fear of flying, has been accommodated by the employer in Prince George, BC. He testified about his plans for retirement. If he is unsuccessful in this grievance and is required to remain in Prince George, he could retire in July, 2002 on full pension having accumulated 35 years of service. However, if the union goes on strike there he would continue to work until he received his retroactive pay. But, if he succeeds in this grievance, he could work at the Cranbrook Airport until mandatory retirement at age 65.

¶ 12      He then gave evidence as to why he applied for the transfer to Cranbrook. He said he wanted to get out of Prince George where the air quality is bad and has affected his wife's health. Further, his wife comes from Cranbrook where there is clean air and where they plan to live in retirement. He confirmed that Mr. Bakken cannot fly since his helicopter crash.

¶ 13      As to the remote sites served out of the employer's Cranbrook facility, he said there are three sites; the Cranbrook VOR, the RCO Granite Mountain near Castlegar, BC. He is not sure of the third site. As to the first two sites, he said they are accessible by four wheel drive truck and snowmobile. Occasionally, access would only be by helicopter. There are roads to those sites and those roads can be snow plowed in winter. As to the Cranbrook VOR site, it could be accessed by truck in approximately one-half an hour or two to three hours by snowmobile. It would only take 15 minutes to get there by helicopter. He also observed there are times when a helicopter cannot reach a site because of fog or bad weather which can continue for up to a week while snowcats could make such a trip in those conditions.

¶ 14      In cross-examination, the grievor confirmed he was eligible to retire in July, 2002 on full pension.

¶ 15      Mr. Tompkins was shown his grievance form, Exhibit E-12, which sets out the following details;

He conceded there were no other reasons given to the employer for his application for the lateral transfer. It was put to the grievor that Granite Mountain can only be accessed by helicopter. He disagreed. In response to further questioning, Mr. Tompkins agreed he has been accommodated in Prince George by the employer's being able to work around him. He said there is very little helicopter flying required out of Prince George. He conceded, however, that if he was on standby and the need for a helicopter to access a remote site was required, someone else would go on the flight.

¶ 16      The grievor was shown Exhibit E-15 which was his expense claim for a training trip to Cornwall, Ontario in September of 1998 when he travelled by train and bus. When shown the difference between his expenses and what would have been incurred had he flown by commercial airline, the grievor conceded the employer has incurred extra expense.

¶ 17      In response to further questioning, the grievor said he has no personal knowledge of Mr. Bakken's situation in Cranbrook. He also could not comment on the suggestion that for the employer to acquire a snowcat and its ancillary equipment and building, the cost would be in excess of $100,000.00.

¶ 18      The grievor was then shown Exhibit E-16 which is the assignment of response times and the priorities therefore, 1 through 3. He agreed Appendix "G" showed Castlegar (Granite Mountain) - PAL 134.2 had a priority 2, PAL 227.3 at that site had a priority 3 and that Cranbrook (VOR ridge) - PAL 133.6 had a priority 2 with a comment "helicopter access. Delays possible due to weather".

¶ 19      Paul England, the Site Manager at Cranbrook, BC testified that in May of 1998 he was in charge of technical operations there. There was a restructuring in December, 2000 and the EL-4's no longer report to him. However, he is familiar with their duties. He worked for two years in Prince George with the grievor as an EL-4. In general, he commented that Technicians are responsible for prevention and corrective maintenance of the systems and equipment which includes radio, electronics, radar and navigational aids.

¶ 20      He was shown Exhibit E-I which is the job description for the position of EL-4 which he said, covers most of their duties. He noted that an EL-5 is a working supervisor at smaller sites. The EL-4's work a day shift, Monday to Friday, and take turns on standby on off hours.

¶ 21      He went on to testify that the Prince George facility consists of a Control Tower and a Flight Service Station. There are six EL-4's and one EL-5 working supervisor at Prince George. He then described how Technicians respond to equipment failures. The Shift Manager determines the priority. He also makes the decision whether to raise up the priority or leave it as is. 80 % of the time, the priority is upgraded depending on the problem with the particular equipment. Depending which equipment is down, there can be considerable adjustments especially if the equipment failure affects the airlines. Delay in making repairs costs them money because aircraft would have to slow down or change their routes.

¶ 22      Turning to the helicopter trips, they are infrequent and there were none in Prince George while he was stationed there for the two years he worked as an EL-4 with the grievor.

¶ 23      The witness went on to comment that flying is part of the job of an EL-4. It is a requirement to get to a facility that has a problem. While scheduled maintenance is usually done in the summer, occasionally a helicopter is used if that is the most expedient way to deal with the situation.

¶ 24      The witness then turned to the Cranbrook facility. With respect to Exhibit E-5, the PTQR for the Cranbrook vacancy, he agreed "flying" does not appear as a requirement of the job. However, not all requirements for the job appear in the PTQR; e.g., holding a valid Driver's License, shipping and receiving parts, ordering parts and doing necessary paperwork.

¶ 25      The witness then described in detail the three sites out of Cranbrook that, because of their remoteness and inaccessibility, can on occasion, require helicopter flights. I do not find it necessary to discuss the three sites in detail. However, I note the witness's evidence that those sites in winter would be inaccessible by snowmobile because of too much snow. In the spring and fall seasons, because of snow conditions, it would not be possible to use a 4x4 vehicle. However, he said wind and weather can stop a helicopter flight to a site. There are two snowmobiles at the Cranbrook facility and one at a site. However, it is not a simple matter to use that method of access. In some conditions, equipment cannot be dragged up to the site because it is either too heavy or too delicate to survive a trip like that. He noted that Castlegar (Granite Mountain) is the highest point in Canada for a navigational facility being some 7,500 ft. above sea level. If access by snowmobile is impossible in winter conditions, a helicopter flight is the only other choice available.

¶ 26      Mr. England testified that over the last three years there were eleven scheduled and eight corrective trips to the Cranbrook VOR site. In the winter of 1998-99 and 1999-2000, there was a total of five helicopter trips to that site.

¶ 27      Turning to the Granite Mountain site near Castlegar, he noted that facility is on the top of Red Mountain and helicopter flights are required in summertime. The road to the site is unsafe for travel by vehicle. There is one scheduled maintenance per year at that site. During the period June, 1998 to July, 2000 four trips, all by helicopter, were undertaken.

¶ 28      The third site serviced by Cranbrook is the Fernie RCO. It is 25 miles southwest of Fernie on Moresy Ridge at an altitude of 6,000 ft. He noted the site is not one of NAV Canada's but is owned by Telus. Sometimes Telus will plow the road in wintertime but NAV Canada does not look after it and in some circumstances it would be necessary to fly by helicopter to access that site.

¶ 29      Turning to the response times shown in Exhibit E-16, the witness noted that the Cranbrook V04 is a priority 3 but it is not unusual for upgrades to be made. If that site went down on the weekend it was not unusual for him to be called at home to respond to the situation because it could not wait until the following Monday. The work was done on the weekend.

¶ 30      Mr. England testified further that in response to a study that was completed in the fall of 1999, it was confirmed that one more EL-4 position was required for the Cranbrook facility. That need was filled by the posting in February, 2000 for the additional position.

¶ 31      Mr. England described in detail the circumstances surrounding Mr. Bakken's injuries as a result of the helicopter accident in January of 1998. While he made several trips after the accident, on February, 2000 it was recommended that he no longer fly. He has only flown once since then but was very reluctant to do so. He will only fly in clear weather where there is no turbulence. That situation had a considerable impact on the personnel in Cranbrook. Because two Technicians are required to fly by helicopter, there is a refired Technician in the Cranbrook area who has been hired on occasion but he is becoming less and less available. If he is not available when needed, NAV Canada would have to poll the facilities in Calgary, Kelowna or Kamloops to find and bring in an EL-4. It is not expedient to have to deal with the situation on that basis.

¶ 32      The witness said he was aware that the grievor could not fly and his application for transfer was rejected for that reason. At Cranbrook there is only one EL-4 who can fly, Mr. Johanson, but he is a senior person with a lot of annual leave that he takes in the winter. He and his wife travel to Australia during that time and it would be very difficult in those circumstances if a successful candidate for the EL-4 position was unable to fly. NAV Canada wanted a Technician who could fly even though it might be possible to get by with one who could not, but it is not the solution NAV Canada wanted.

¶ 33      If there was a transfer available to other sites in British Columbia where there are more Technicians, like Kelowna, Victoria and Vancouver, all of whom have six Technicians or more, the grievor could be accommodated there, but not in Cranbrook.

¶ 34      In cross-examination, the witness said that the company only uses a helicopter when necessary. It prefers ground transportation to the remote sites, where possible, because of the cost of a helicopter which ranges from $700.00 to $800.00 per hour. The witness agreed that while there were four helicopter trips from June, 1998 to July, 2000 to the Granite Mountain site, there were none in 2001.

¶ 35      In response to further questioning, the witness agreed that in the job description for an EL-4 there is not mention of a need to fly. "It's just understood", said Mr. England. It was suggested to the witness that it would be possible to take equipment by helicopter to a remote site and personnel could travel to it by snowmobile. The witness responded that he had never seen that done. He confirmed there were four helicopter trips to Granite Mountain and of the nineteen trips to the Cranbrook VOR, five were by helicopter. W. Johanson's vacation time is equal to that of Mr. Bakken which, he said, was more than five weeks per year. Further, he said, there are no surplus ET's in the system as far as he knew.

¶ 36      I now turn to a summary of the arguments advanced by counsel in these proceedings. Mr. Chamberlain noted there is no dispute that the grievor meets all the criteria under article 56 of the collective agreement with respect to lateral transfers. He is entitled to the transfer without giving any reasons therefore. Next, he argues, the grievor is entitled to the protection of the Canadian Human Rights Act and in particular, section 7 (b) where it provides that it is a discriminatory practice, directly or indirectly "in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination". One of those prohibitive grounds is discrimination by reason of physical disability.

¶ 37      Counsel then turned to the Supreme Court of Canada decision in British Columbia (Public Service Employee Relation Commission) v British Columbia Service Employees Union, (1999) 3 S.C.R. 3 (Wofin). He noted in particular the three-step test that appear at pages 15 and 16 where the Court enunciated the elements of a unified approach to the issue of discrimination. The Court, at paragraphs 54 and 55, said the following;

¶ 38      Counsel drew comfort from paragraphs 63 and 64 of the Court's decision where the following passages appear;

¶ 39      Counsel then turned to the publication Illness and Disability in the Workplace published by Canada Law Book September, 2001 and in particular, page 4-6 where the new unified approach of the Supreme Court of Canada in the Melorin decision was discussed;

¶ 40      Counsel then turned to the publication Remedies in labour Employment and Human Rights law, Field Atkinson Perraton, Carswell & Company, and the passage appearing at page 2-143 with respect to the duty to accommodate flowing from the Meiorin decision. The author noted the decision of Arbitrator McPhilips in Re Air BC Limited where the learned arbitrator stated;

¶ 41      Applying that case law to the instant dispute, Mr. Chamberlain suggested there are alternatives for the employer that can accommodate the grievor in Cranbrook. It has been done in the recent past but the necessity for helicopter flights is an infrequent occurrence in any event. There have only been nine flights in three years and that is not a day to day event. It is possible for the employer to supplement its facilities to accommodate the grievor. There is no dispute in the evidence that the grievor was denied his transfer because of his disability. With respect to the additional factors outlined by Arbitrator McPhilips only 6. has application and that is the question of costs. The decision in Meiorin recognizes that an employer, in order to accommodate a disabled employee, will incur costs. But the costs that could be incurred in the case of Mr. Tompkins is relative and the employer has a number of alternatives. It could bring a safety watcher for a helicopter flight, it could pull in EL-4's from other sites or it could look at alternative means of transportation like a sno-cat. There will be some cost to the employer but that cost does not amount to an undue hardship.

¶ 42      Counsel for the union noted Mr. England's evidence on his direct examination with respect to accommodating the grievor in Cranbrook where he said that it "is possible, but not the solution we wanted". That, he said, sums up the position of the employer and that is not a sufficient ground to deny him his transfer.

¶ 43      Mr. Gibson commenced his argument by noting that the grievor has already been accommodated for his disability. What he is now asking for is a modification of that accommodation for personal reasons. The issue is; how much more is the employer required to do?

¶ 44      Counsel urged that flying is a normal part of the duties of the EL-4 position. While flying does not appear in the PTQR, that document sets out only the training requirements for the job. Counsel points to article 33.01 of the collective agreement which provides for flying pay for an employee required to perform duties with equipment while in flight. Further, he points to Letter of Understanding 2-98 which appears at pages 181-182 of the collective agreement which deals with work sites/egress difficulties.

¶ 45      Counsel then cited the decision of the board of arbitration chaired by Colin Taylor, Q.C. in Lions Gate Hospital v. British Columbia Nurses' Union (Hilton Grievance), dated April 20th, 1994 (unreported). That decision stands for the proposition that it is the employer who has the right to fix qualifications for a job which reflects the employer's perception of what is needed and that any omission in a job posting with respect to duties, is not fatal where there has been no detrimental reliance thereon.

¶ 46      Turing to the Supreme Court of Canada decision in Meiorin on the aspect of the unified approach, counsel says the employer has satisfied the first two tests. The issue is the third one; whether, to allow the grievor's transfer in the instant case would create "undue hardship".

¶ 47      Counsel then went into some detail with respect to the steps outlined in that decision which ought to be invoked on the issue of accommodation. Mr. Gibson then referred to the Supreme Court of Canada decision in Central Okanagan School District No. 23 v. Renaud, (1992) 2 S.C. R. 970 and the findings of the Court on the nature and extent of the duty to accommodate.

¶ 48      Counsel cited the decision of Arbitrator R.M. Brown in Re Mount Sinai Hospital and Ontario Nurses' Association, 54 L.A.C. (0) 261, on the "balancing interests" approach in analyzing and assessing the concept of undue hardship. That decision, he urges, is completely consistent with the subsequent decision in Meiorin.

¶ 49      Counsel then turned to the decision of the board of arbitration chaired by Heather Laing in Children's and Women's Health Centre of British Columbia v. Hospital Employees' Union (Rasmussen Grievance), dated October 20, 2000 (unreported). There, the board determined the grievor was looking for a "perfect solution" to her situation which was to remain in her former job location. Her position had been eliminated and the employer sought to reassign rather than lay her off but the grievor wanted to stay at her old location. The board there held the employer's decision did not constitute harassment and accordingly the grievance failed.

¶ 50      Finally counsel turned to the decision of the Federal Court of Canada - Trial Division before Noel J. (1997) 2 F.C. 17 in the case of Gidbord v. Canada. That caw dealt with what constitutes "genuine operational concerns" on the part of the employer. The court upheld the decision of the adjudicator that the concerns raised by the employer fell within the class of factors relevant to the determination of what constitutes undue hardship. At paragraph 36 the Court observed;

¶ 51      Applying those cases to the dispute at hand, counsel for the employer argues that it has taken reasonable steps to accommodate the grievor's disability in Prince George. It has been a full accommodation causing no detriment to the grievor. While there, has been some cost to the employer for the accommodation of the grievor at Prince George, it has not amounted to undue hardship. Counsel noted the evidence is clear that there are three sites in Cranbrook that can only be serviced by helicopter on occasion. Mr. Bakken will not fly except in the very best of conditions and the other EL-4, Mr. Johanson, takes extensive winter vacations. If the grievor were transferred to Cranbrook there would be significant additional costs to the employer and delay in accessing sites which have to be serviced by helicopter flights.

¶ 52     With respect to the grievor's personal circumstances, he has lived for 33 years in Prince George with his wife and is eligible for a full pension in July, 2002. At that time he would be free to reside in Cranbrook. What the grievor is asking for is a "perfect" accommodation for his disability. He is eligible to transfer to many other sites in British Columbia when a vacancy arises and where helicopter flying is not required. To grant his transfer to Cranbrook would amount to undue hardship in all the circumstances of the case. To do so would be to ignore a flexible, balancing and purposive approach on the duty to accommodate.

¶ 53      Counsel for the union suggested the cases cited on behalf of the employer can be distinguished. In Lions Gate, the grievor there could not perform the primary duties of the position in question without six months training. Central Okanagan, he suggests, predates Meiorin and the concept of "adverse effect" discrimination as being abandoned. As to the Mount Sinai decision, the old test of "proportionality" is no longer applicable in light of the Meiorin decision. The Children's Hospital decision was made without consideration of the Human Rights Code.

¶ 54      The Supreme Court of Canada decision in Meiorin has had a significant impact on the law in Canada with respect to an employer's duty to accommodate an employee suffering from a disability. The evidence persuades me that the employer here has met the first two step tests for determining whether a prima facie discriminatory standard is a bona fide occupational requirement. Notwithstanding the need to fly does not appear in the job description for an EL-4, the evidence persuades me that it is a requirement that need not be in writing. It is well understood that EL-4's may be required to fly by helicopter in order to access remote sites where no other means are practical or available. So too, EL-4's are expected to fly by commercial airline to Cornwall, Ontario where they undergo training. The requirement to fly, in my judgment, is a purpose rationally connected to the performance of the EL-4 job and that such standard has been made by NAV Canada honestly, in good faith as a necessary requirement to fulfil a legitimate work-related purpose.

¶ 55      There is no dispute that notwithstanding that standard, the grievor has been accommodated at the employer's facility in Prince George, BC for many years. On the infrequent occasion when it has been necessary to use a helicopter to access a remote site serviced out of Prince George, Mr. Tompkins has not been required to fly. The employer concedes that while there has been some additional cost and inconvenience as a result, including the grievor's inability to fly to Cornwall, Ontario, it has not amounted to undue hardship.

¶ 56      That leaves only the third of the three-step test enunciated in Meiorin that has to be determined in this dispute. The question can be framed thusly; is it reasonably necessary in the factual circumstances of this case, to accomplish the legitimate work related purpose of the employer, to require the EL-4 who occupies the position in Cranbrook to be able to fly and that it is impossible to accommodate Mr. Tompkins without imposing undue hardship upon the employer?

¶ 57      After carefully considering the evidence adduced at this arbitration and the very able arguments of counsel and the cases and authorities cited by them, I have concluded that on the particular facts here, to grant the transfer to Cranbrook for Mr. Tompkins would, indeed, constitute undue hardship on the employer.

¶ 58      First, it is of significance that what the grievor is really asking for is an extension to and modification of the accommodation which he has enjoyed for some 16 years in Prince George. The employer's ability to grant such an accommodation there without undue hardship has been clearly established on the evidence. The requirement to fly to remote sites out of Prince George happens only on infrequent occasions.

¶ 59      However, that is not the case at the facility in Cranbrook, BC. The mountainous topography of the East and West Kootenays in British Columbia bears little relationship to the topography in Prince George. As noted in the evidence, the-Castlegar site is located at the highest point of any site in Canada. So too the Fernie, BC site is not only inaccessible, but access to it is not even under the control of NAV Canada. When that is coupled with the frequency of requirements in the past to access the Cranbrook VOR site by helicopter, the requirement to have the successful EL-4 candidate for the Cranbrook, BC vacancy to be able to fly becomes obvious.

¶ 60      The Cranbrook facility has significantly less personnel but a significantly greater requirement for helicopter flying than Prince George. One of the EL-4's presently stationed in Cranbrook also has a disability where he cannot fly except only in the very best of conditions. The other EL-4, Mr. Johanson, is away on vacation for a significant period of time in the winter months. Given those circumstances it would be an undue hardship to impose upon the employer the burden of the likelihood that, if a situation arises where a helicopter flight is required in that region, not only would considerable extra expense be incurred, but the probability of delays occurring in dealing with the problem because personnel would have to be found from other facilities to go to Cranbrook, is self-evident.

¶ 61     The employer is charged with the high responsibility of providing and servicing navigational aids for safe air travel in Canada. In my view, to meet that responsibility, it is necessary that it do all it can to ensure that when problems arise at any facility, especially remote ones in winter time where access is difficult, it has the necessary qualified personnel on site with the ability to fly. Here, we have a situation where "the relative interchangeability of the work force and facilities", as noted in Meiorin, is so minimal that it amounts to, in my judgment, undue hardship on the employer.

¶ 62      When that responsibility is assessed against the grievor's personal wish to transfer his disability accommodation from Prince George to Cranbrook, the employer's legitimate workrelated needs must prevail. The "perfect solution" requested by the grievor cannot be sustained.

¶ 63      In the Central Okanagan School District (Renaud) case, which in my view has survived Meiorin insofar as the Court's comments on what constitutes "undue hardship", the observations of the Court at paragraph 19 are of particular interest in this dispute. The Court observed;

¶ 64      As the Court noted, it is a question of fact which varies with the circumstances of the case as to what constitutes undue hardship. I find the facts here are that the financial cost, the potential disruption to the employer's primary obligation to maintain and expeditiously repair navigational facilities as promptly as is reasonably possible, are such that to accept the grievor's request for transfer would require it to adapt the operation of its Cranbrook facility to the extent that it would cause undue hardship. In my judgment, the safety of the system and the risk to disruption of necessary repairs when helicopter access is the only available means to access a remote site is a relevant consideration for me to take into account. The employer ought not to be placed in the position of having to deal with those circumstances in a situation where, if this grievance were to succeed, two of the EL-4's at its facility in Cranbrook, BC could not fly when such flying by helicopter was required.

¶ 65      For all of the above reasons the grievance of Mr. Tompkins is denied and it is so awarded.

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