• A constable named Greg Horoky was a full-time police officer since June 1974 and ranked as the first-class constable. After the constitution of Essex Police Service Board (hereinafter referred as Board) in the year 1999, Horoky was performing his duties for the board.
• On 10^thAugust 1999, when Horoky was at work, he felt a back spasm and he went to Dr. Sinclair for taking a treatment. According to the report of Dr. Sinclair, Horoky was suffered from a herniated disc in addition to foregoing facet condition.
• Sinclair declared Horoky as “Non-fit to pursue any kind of gainful employment” and unable to go back to the work for an uncertain period.
• In August 1999, after the visit of several other specialists, Horoky received a final analysis report from Dr. Sinclair in which he was declared as completely incapacitated doing any gainful employment.
• Horoky asked the board to provide alternative positions and board denied for the same. Therefore Horoky filed a grievance against the board.

1. The lead issue before the case was to check that whether Horoky ever discussed his choice to gain an alternative position with the chief of the board.
2. To check those whether chief has reviewed the entire physical situation of Horoky before denying for the alternative post.
3. To check that whether the board had a duty to accommodate to Horoky.
4. To check that whether Horoky could be employed in alternative positions without preceding the risk of injury further.
5. Whether there is an existence of undue hardship.

In cases where a party expect the presence of undue hardship, the Onus of Proof rested on the same. It means in this case, the board was required to prove that creating new positions for Horoky can lead a situation of undue hardship for the board.   

1. Common law principles related to employment law says that both the employer and employee must perform their duties and obligations with full of care and diligence. In cases of dismissal, there must be a valid reason of the same.
2. Under Common law, disability of an employee is not termed as a valid reason of dismissal (Mcmillan.ca, 2018).
3. The further common law puts an obligation on the employers that in cases of disability of an employee, the employer must review the whole case and must use his/her best efforts to save the employment of such employee. In order to do the same, the employer is required to search another post for the disabled employee. This is also known as the duty to accommodate(Shilling, 2018).
4. The case of Nason v. Thunder Bay Orthopaedic Inc.,2017 ONCA 641 also identifies the duty of the employer to accommodate his/her employee.
5. The principle of Undue hardship also can be treated as a common law principle. It is a situation where if after reviewing all the circumstance including medical condition of employee an employer finds that it is not possible to provide an alternative position to the employee, he/she is not required to perform the duty to accommodate (International Society of Fire Service Instructors, 2011).

• In this case, being the employer, chief of the board argued that Horoky has never discussed his will to be get employed on certain other positions or to return to the work. Chief also argued that he never refused to grant the asked position to Horoky. The first time when Horoky presented his will to return to the work was in December 2000 when the chief denied the appeal made by Horoky in respect to his LTD Claim (Blg.Com, 2018).
• Employer further argued that the physical condition of the employee do not allow the same to do any kind of work as mentioned under the report of Dr. Sinclair.
• For the CSO Position, the chief made it clear that for a person who employed in this position is required to wear the uniform and a gun belt. In conjunction to this, he/she is also required to provide V.I.P. training in high schools on behalf of the chief and other police services and in order to perform his/her duty he can be required to drive a marked vehicle. The employer did not find this position suitable and possible for Horoky because of his physical condition.
• On the other side, Sergeant Pierschke, one of the officer described the job of CI as “half investigation and half administration” because of the nature of the works consists. The chief agreed that this position was not easy to perform as it includes a requirement of going on several visits and therefore Horoky could not do so  (Policearbitration.On.Ca, 2018a).
• In the matter of creating a new position for Horoky, the board has divided all the task into four categories and found that no such category was eligible to provide a full-time employment to Horoky.In the opinion of the chief, the available tasks were able to provide a work of 10-15 hours a week to Horoky.

• The very first argument of association (Essex Police Association) who was presenting the case on behalf of Horoky was that the employee presented his will to return to work. In addition to the same Horoky claimed that chief has denied providing accommodation to him.
• The board failed to consider the question at the time and also breached the provisions of human rights code by determining all the tree alternative positions unsuitable for Horoky.
• In the opinion of Ms. McCormick’, Horoky was able to do less rigorous acts. Horoky testified that he could not perform the duties that are required to be performed by a front line constable as the same includes many of the physical tasks. He further argued that he can perform the duties related to a CSO or a CI position.
• The position of CI includes a review of reports, investigation, and management of serious cases and therefore do not involve many physical activities. It has been claimed that this position was perfect for Horoky as he had the necessary experience and knowledge to be in this position.
• In the arguments, it has been given from the side of the employee, that new position can be created for the same. There are many another task, that the board left to include in the list (Policearbitration.On.Ca, 2018b). In addition to a new task, many other tasks were there that were not required to be performed by uniformed employees and in such a manner board can consider one or more task for the Horoky and in this way can make a new position for him.

In the final decision of the court, the same found chief as a decent person. The court stated that in this case, both employer and employee performed their duties well and in a fair manner. Chief has taken a decision what he found in the best interest of Horoky and his best judgment during the whole proceedings. Although board breached the code yet cannot be held liable for the same as chief tried his best to fulfill his duty to accommodate in favor of Horoky. It was a situation of Undue hardship and board has found to be unable to provide any alternative position to Horoky considering the risk to his physical condition.

According to the Human Right code and common law principle, the board was required to provide employment on alternative positions under the duty of accommodate, however in this case board failed to comply with this duty. Board has not provided any alternative employment to Horoky. In the reasoning of the decision, it has been provided that in this case, it was not possible for the board to comply with the duty to accommodate due to undue hardship. Horoky was not able to do any kind of work that involved physical movement on a continuous basis. All the three positions were not suitable for him as the same could be proven dangerous for the employee and therefore board was not guilty.

References

Blg.Com. (2018). Labour & Employment L a w News. Retrieved From:  https://blg.com/en/News-And-Publications/Documents/publication319_EN.pdf

Essex Police Services Board V Essex Police Association (2002), 105 LAC (4th) 193

International Society of Fire Service Instructors. (2011). Fire Service Instructor: Principles and Practice. UK: Jones & Bartlett Publishers.

Mcmillan.ca. (2018). Employment law in Canada: provincially regulated employers. Retrieved From:  https://mcmillan.ca/files/Employment%20Law%20in%20Canada%20-%20provincially%20regulated%20employers.pdf

Nason v. Thunder Bay Orthopaedic Inc., 2017 ONCA 641

Policearbitration.On.Ca. (2018a). Essex Police Services Board And Essex Police Association. Retrieved From: https://policearbitration.on.ca/search/documents/awards/02-006.pdf

Policearbitration.On.Ca. (2018b). Essex Police Services Board And Essex Police Association. Retrieved From: https://policearbitration.on.ca/search/documents/awards/02-006.pdf

Shilling, D. (2018). The Complete Guide to Human Resources and the Law. New York: Wolters Kluwer Law & Business.