Employer's Narrower Interpretation of Accommodation Plan Upheld

OUTCOME: Dismissed

Date: 202 60402 File : 566- 02- 40771 Citation: 2026 FPSLREB 32 Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act Before a panel of the Federal Public Sector Labour Relations and Employment Board [NAME_2] [NAME_1] and [NAME_3] ( [NAME_4]) Employer Indexed as [NAME_1] v. [NAME_3] ([NAME_4]) In the matter of an individual grievance referred to adjudication Before: [NAME_5], a panel of the Federal Public Sector Labour Relations and Employment Board For [NAME_1]: [NAME_6], counsel For the Employer: [NAME_7], counsel ADVANCE \y 657 Heard by videoconference, August 5 and October 1 to 3 and 27, 2025.

REASONS FOR

DECISION I. Individual grievance referred to adjudication [ 1 ] [NAME_2] (“[NAME_1]”) filed two individual grievances that were heard separately at the same hearing before the Federal Public Sector Labour Relations and Employment Board (“the Board”) concerning files nos. 566-02-47501 and 40771. For clarity’s sake, I have decided to render two separate decisions. This one pertains to the grievance in Board file no. 566-02-40771, which is about the denial of overtime opportunities further to a duty to accommodate (DTA) [NAME_1]. [ 2 ] As of the hearing, [NAME_1] had worked as a correctional officer (CX) for the previous 27 years. In 2018, he received a medical accommodation in that he was to no longer be assigned overnight shifts, known as morning (night) shifts, which will be discussed further in this decision. From then on, he was assigned overtime in the form of extra-duty work for the 4 hours before and after his regular day shifts. [ 3 ] But in March 2019, a manager advised [NAME_1] that he could no longer be assigned extra-duty evening or morning (night) work because it contravened the accommodation plan put in place by the [NAME_4] (“the employer”) for [NAME_1]. [NAME_1] explained that the accommodation plan was for overnight work but that he was available for extra-duty work from 06:15 to 22:15. [ 4 ] For the reasons that follow, I deny the grievance because I find that when the employer narrowed its interpretation in applying [NAME_8] accommodation plan to be in compliance with it, thus prohibiting him from working extra-duty evening and morning (night) shifts, the employer did not contravene clauses 21.10 and 37.01 of the collective agreement between the [NAME_3] and the [NAME_9] des agents correctionnels du Canada - CSN (“the bargaining agent”) for the Correctional Services group that expired on May 31, 2018 (“the collective agreement”).

II. Summary of the evidence [ 5 ] Before I begin, it would be useful to present the shift nomenclature in use at the employer’s [NAME_10] in Edmonton, Alberta. There are 3 shifts, including the day shift, which covers the normal day period; the evening shift; and the morning shift, which refers to the overnight shift. It is called as such because most of the work hours occur after midnight, hence the morning. There are at least 2 different shift lengths, one of 8 hours, and one of 12.75 hours. The specific hours related to each shift are quite intricate and defining them would not enlighten the reader as to the conclusion of this decision. A. For [NAME_1] [ 6 ] As mentioned, [NAME_1] testified that as of the hearing, he had worked for the employer for 27 years as a CX classified at the CX-01 group and level. During that period, he took many relevant training classes related to his CX duties. He worked 12.75-hour shifts. [ 7 ] On June 19, 2018, he obtained a medical certificate that required the employer to accommodate [NAME_1], for medical reasons. In brief, the certificate stated this: “For health reasons, I recommend that [NAME_1] be taken off the night shifts.” It had a handwritten note that stated that he would be “[s]ubbed [ sic ] to days until Sept 11 th to be Reviewed - meeting set for Sept 11 1400 hrs”. He explained that “subbed” meant that he would work only days. His accommodated work shift was from 06:15 to 19:30. [ 8 ] [NAME_1] referred to a report from the employer’s [NAME_11] ([NAME_11]) dated from January 1 to December 31, 2018. It set out that January 22 was a rest day but that he had done extra-duty work, meaning overtime, for eight hours during the day. The report noted that he had worked the morning (night) shift the week of April 9. [ 9 ] [NAME_1] referred to the accommodation form submitted on June 19, 2018. Its section C was checked as “Approved”, and in section D, it noted that “[NAME_1] will remain on his current schedule, but will be subbed to days where necessary.” This meant that he would be taken off morning (night) shifts and placed on day shifts. The document was signed by [NAME_1]; [NAME_12], the manager; [NAME_14], from the bargaining agent; and [NAME_15] from the employer’s Human Resources (HR) section. [ 10 ] [NAME_1] was asked to submit a letter from management to his doctor, [NAME_16], which asked for the functional limitations and restrictions that led to his recommendation and whether the limitations were permanent and if not, how long they would be in place. [ 11 ] The doctor replied on July 22, 2018, and stated that [NAME_1] agreed that he share his diagnosis with the employer, which was a chronic condition requiring treatment, and explained that [NAME_1] should be reassessed in six months. As planned, an accommodation meeting was held, at which it was agreed to prolong [NAME_8] accommodated schedule to December 2018. [NAME_1] referred to the [NAME_11] report and indicated that in the week of August 13, 2018, he was hired to work overtime for eight hours during the day. [ 12 ] [NAME_1] testified that on January 7, 2019, another accommodation meeting was held, to review his accommodation. An unspecified note-taker documented the meeting. The notes state that [NAME_1] asked that his accommodation be removed because he felt that it was threatening his job. He claimed that [NAME_17], Acting Assistant Warden - Operations ([NAME_17]), said, “Anyone who does not work all three shifts should not have a job.” He testified that at that moment, he became upset and left the meeting. He stated that that is why he asked that the accommodation be withdrawn; he was afraid of losing his job. [ 13 ] Continuing from the meeting notes, they state that [NAME_17] denied threatening [NAME_8] job and asked if he was making an accommodation request. The notes state that he did not believe [NAME_17] and that he requested that the accommodation be removed. [NAME_1] testified that he had a target on his back and that the employer was looking for a way to discipline him. [ 14 ] [NAME_1] turned to a memo dated January 7, 2019, in which the [NAME_17] informed him that his current accommodation would remain in effect until he was advised otherwise. It also included a letter for the treating doctor, asking the same questions as noted earlier in this decision. The doctor replied that [NAME_1] suffered from a chronic condition and renewed his recommendation that [NAME_1] work day shifts from January 28 to July 29, 2019. Based on that reply, the [NAME_17] wrote back and asked the doctor for clarification. [ 15 ] [NAME_1] turned to another [NAME_11] report, this one from June 2018 to March 2019, which set out his overtime availability. He referred to it to demonstrate his availability for the last four hours of the morning (night) shift and the first four hours of the evening shift. In essence, he testified that on his days of rest, he was available for overtime work from 06:45 to 22:15 . He entered a table generated from the [NAME_11] that effectively demonstrated his availability for overtime work. [ 16 ] [NAME_1] referred to an email dated February 27, 2019, from [NAME_17] to all correctional managers (CMs), informing them that [NAME_1] had an interim accommodation, that he should work only day shifts, and that “[t]he Regional Return to Work advisor has suggested that to look out for [NAME_1]’s best interest while awaiting the update, that he should not be working evening and/or morning shift overtime, as it goes directly against the accommodation request ” [emphasis in the original]. [ 17 ] [NAME_1] testified that his CM told him that he could no longer work overtime and that if he wanted to discuss it, he should speak with the [NAME_17]. [ 18 ] [NAME_1] submitted another email, also dated February 27, 2019, from [NAME_18], CM Scheduling & Deployment, to the [NAME_17], discussing his accommodation. She wrote this: “He wants [to work] straight days but is consistently working evening and morning shift OT. This looks like a manipulation of the system. It should not be allowed.” [ 19 ] On March 18, 2019, [NAME_1] submitted another response from his doctor to an employer’s request, in which he stated in a handwritten note that [NAME_1] should continue his day shift and specified that the hours should be from 06:00 to 23:00. [ 20 ] [NAME_1] then referred to another accommodation form that followed that doctor’s note. It was unsigned and undated. However, it is quite significant, as it stated that the accommodation request was denied. In section C, it stated the following: [NAME_1] requested an accommodation on 2018-06-28, along with a medical note dated 2018-06-19, in which his treating practitioner, [NAME_16] recommended that he be taken off night shifts.

Accordingly, management put in place a temporary accommodation while seeking additional information and clarification from the treating practitioner. On 2019-03-18 clarification was received as noted above. Given that there are no medical restrictions/limitations identified by the doctor, management is discontinuing the accommodation as of 2019-04-15 following a meeting with [NAME_1] to advise him of this decision. Effective 2019-04-15, [NAME_1] may return to his shift schedule and work overtime for any shift. Note: management will sub [NAME_1] to day shift for his next scheduled morning shift rotation, April 22-25, 2019, in order to allow him a period of re-adjustment to the shift schedule. [ 21 ] [NAME_1] testified that he filed a grievance on March 27, 2019. It read as follows: “ I have been denied overtime on evening shift (14:30-22:30) as well as extension shifts (19:30-22:30) since Feb, 27, 2019 . I have been informed by the Correctional Managers that this is a direction provided by [NAME_17] via an emall [ sic ].” [ 22 ] That is this grievance. He claimed that while on accommodation, he worked overtime mornings (nights) and evenings, and that then, all of a sudden, it stopped. [ 23 ] [NAME_1] referred to an accommodation meeting held on April 19, 2019, at which the employer emphasized that the doctor made recommendations but did not identify any restrictions. Therefore, it concluded that it would deny the accommodation. [ 24 ] On April 15, 2019, [NAME_18] emailed all the CMs, stating that the accommodation no longer applied to [NAME_1] and that he was free to work any and all shifts that he signed up for. [ 25 ] [NAME_1] referred to the second-level grievance hearing held on May 3, 2019, which is reflected in the notes taken that day. He stated that no one talked to him about his accommodation plan. The decision at that level denying the grievance is dated May 8, 2019. [NAME_1] denied that the employer ever discussed the accommodation plan with him before it removed his accommodation. The third-level grievance decision also denying it is dated August 12, 2019, and in this one too, he claimed that the accommodation plan was never discussed. [ 26 ] In cross-examination, [NAME_1] confirmed that [NAME_16]’s June 19, 2018, report did not discuss his hours of work per se, just that he should not work night shifts, and that management approved it until September 11, 2018. [ 27 ] Counsel for the employer suggested to [NAME_1] that [NAME_17] did not tell him that his job was threatened because of the accommodation plan and that she had tried to clarify what she said. [NAME_1] replied that he left the meeting before anything else was said because he was too angry. [ 28 ] Counsel for the employer referred [NAME_1] to the January 7, 2019, accommodation meeting, when it was stated that he wanted his accommodation withdrawn because of his fear of losing his job. He stated that [NAME_19] allowed more time for the accommodation. [ 29 ] In reference to the doctor’s note of February 22, 2019, [NAME_1] confirmed that the employer did not ask for specific hours. He testified that he probably told his doctor to write that his hours should be from 06:00 to 23:00. He also affirmed that he did not discuss his health issues with the employer. [ 30 ] [NAME_1] confirmed that he signed up for extra-duty work for the first four hours of the evening shift but that his availability from 06:15 to 22:30 was not discussed. [ 31 ] [NAME_1] confirmed that he signed up for overtime between June 2018 and March 2019 and that his availability was not discussed with the employer. Counsel for the employer submitted an [NAME_11] Employee Overtime Availability report, an [NAME_11] report, and an untitled [NAME_11] overtime report. [ 32 ] [NAME_1] stated that he had no reason to believe that the reports were incorrect. His counsel also referred to two [NAME_11] documents called Hire Overtime , and the one dated March 14, 2019, had this comment: “accommodation meeting yet to take place, employer doesn’t want to do harm”. The second one just stated, “Accommodation”. [ 33 ] [NAME_1] testified that although he currently worked all shifts, he managed to exchange his morning (night) shift with another CX who prefers those shifts and confirmed that his accommodation ended on April 15, 2019. When questioned by counsel for the employer, he confirmed that he did work some morning (night) shifts in the week of May 20, 2019, and on August 5, 2019. The morning (night) shifts are scheduled approximately monthly. [ 34 ] In redirect examination, [NAME_1] explained that a shift extension occurs when he is already at work and remains at work at the end of his shift to work overtime. [ 35 ] Counsel for [NAME_1] called [NAME_14] to testify. [NAME_14] is a CX-02 and as of the hearing was in his 27th year of employment with the employer. He briefly explained the differences between a CX-01 and a CX-02. Generally, CX-02s intervene with inmates, and CX-01s are assigned to posts. He testified about his over 25-year involvement with the bargaining agent in several capacities, from shop steward to local president. [ 36 ] [NAME_14] was referred to the National Direction – Policy on the Management of Overtime for Correctional Officers - 2013-06 (“the bulletin”) of November 5, 2013, and the [NAME_21] 254-3 (“the [NAME_21]”), at page 7, paragraph 17. [ 37 ] He confirmed that he helped [NAME_1] prepare his accommodation form, and his name and signature appear on it. He was the bargaining agent’s return-to-work advisor. He stated that the accommodation plan was to turn [NAME_8] morning (night) shifts into day shifts, per the doctor’s recommendation. [ 38 ] [NAME_14] explained the different types of overtime work. Ordered overtime occurs when an inmate is injured or an escort is required and there is a short-staff situation. He referred to [NAME_8] overtime availability report from June 2018 to March 2019. He then explained the overtime system and how it allows employees to express their interest in overtime at specific times and durations. He stated that it is a very flexible system for the employees and the employer. [ 39 ] [NAME_14] was then referred to the employer’s notes from a September 11, 2018, accommodation meeting. He testified that the notes were a faithful account of the meeting. [NAME_8] medical condition was discussed. [ 40 ] The notes of the January 7, 2019, meeting are also a faithful account, which is when [NAME_17] threatened [NAME_1] by stating that his job was on the line. He became upset and felt that his job and livelihood were in jeopardy. [NAME_14] testified that [NAME_1] told him that [NAME_17] said that people like him are a drain on the system and that they should quit. Subsequently, in early 2019, he and [NAME_1] met with [NAME_20], the warden, to explain the threat and to ask that [NAME_17] be removed from managing [NAME_1], which was done. [ 41 ] [NAME_14] was referred to [NAME_17]’s February 27, 2019, email to all the CMs, which stated as follows: [NAME_1] currently has an interim accommodation in place where he is only to work dayshifts, with a meeting scheduled for March 11 th to address it. The Regional Return to Work advisor has suggested that to look out for [NAME_1]’s best interest while awaiting the update, that he should not be working evening and/or morning shift overtime, as it goes directly against the accommodation request . … [Emphasis in the original] [ 42 ] [NAME_14] testified that [NAME_1] became aware of that email’s contents only when he realized that he had been passed over for overtime. The email was referred to at the second-level grievance hearing. He then referred to the final-level grievance response and stated that overtime was not discussed. [NAME_1] was not instructed about his overtime at those meetings. [NAME_14] testified that he was not consulted about [NAME_8] overtime or his accommodation. [ 43 ] In cross-examination, [NAME_14] confirmed that he was not present for the January 7, 2019, conversation. His only knowledge of it came from [NAME_1]. Counsel for the employer stated that [NAME_17] would testify later that the meeting occurred in the summer of 2018. He replied that he did not have firsthand knowledge of the events. [ 44 ] [NAME_14] was referred to the notes of the September 11, 2018, accommodation meeting. He confirmed that no threat was mentioned. The accommodation plan was to be temporary and last six months. [NAME_1] was to remain on the same shift but was to be subbed to only day shifts. Overtime was not discussed, and no one raised it. [ 45 ] [NAME_14] was present at the January 7, 2019 meeting, when [NAME_17] repeated that [NAME_8] job was not in jeopardy; she even wrote in an email on that day that his job was not threatened. Nonetheless, he testified that [NAME_1] believed that he was threatened, wholeheartedly. [ 46 ] [NAME_1] called [NAME_22]. As of the hearing, he had been a CX for 18 years at several institutions in the employer’s Prairie Region. He had been involved with the bargaining agent for 14 years in different capacities, from local steward to president. As of the hearing, he was a local vice-president. [ 47 ] He was referred to the CX overtime report from April 1, 2018, to March 31, 2019, and stated that the data was extracted from the [NAME_11]. He explained that the bargaining agent mainly monitors the overtime opportunity column. He stated that for [NAME_1], there was a discrepancy between his overtime opportunities of 1351.5 hours and the total offered, which were 463.75 hours. In a similar report from April 1, 2022, to March 31, 2023, [NAME_1] had slightly less hours than did the others. B. For the employer [ 48 ] Counsel for the employer called [NAME_23], Senior Labour Relations ([NAME_24]) Officer. As of the hearing, he had been with the employer since 2008. Within the [NAME_24], he dealt with different projects and policy development for the [NAME_24]. In 2018-2019, he occupied the same position and was assigned to CX-related issues and overtime files. He contributed to a large settlement of more than 1000 cases. He also sat at the CX bargaining table. [ 49 ] He testified that his current position was the same as the one he had occupied in 2023. He sat at the Program and Administrative Services bargaining table, became a subject matter expert in grievances at the first and second levels, and provided training across the country. He claimed that he worked as “the pen” when the national overtime policy was written. He testified that to be eligible for overtime, an employee must meet the position’s qualifications. The overtime system is really about equity between employees. He claimed that changes were made to include those who required accommodation. He testified that he reviewed [NAME_8] file. [ 50 ] [NAME_25] was referred to clause 21.10 of the collective agreement and stated that management makes reasonable efforts to offer overtime on an equitable basis to all employees who are able to work it, with a reasonable notice. Employees who are readily available and can arrive on time work all the overtime shifts and have had a reasonable amount of rest. [ 51 ] He was referred to the [NAME_26] between the employer and the bargaining agent. He testified that it is not part of the collective agreement. He stated that section II-J, “Overtime Hiring”, is based on clause 21.10 of the collective agreement. He stated that the overtime system ensures equity between employees and that the onus to ensure it falls on management and the bargaining agent. [ 52 ] [NAME_25] turned to the November 5, 2013, bulletin and claimed that he was the lead on its writing. He pointed to section 2, “Principles”, which emphasized that management makes every effort to allocate overtime equitably. To achieve that goal, it relies on the very sophisticated [NAME_11]. [ 53 ] Under section 6, “Eligibility for Overtime Offering”, (2013) this is stated in red: “Managers must consider accommodated employees who are qualified and readily available, taking into consideration their limitations and operational requirements.” [ 54 ] [NAME_25] testified that management assessed [NAME_8] accommodation, to determine whether he could work overtime. He testified that [NAME_1] should have worked only day-shift blocks and not outside of them. He testified that in the [NAME_11] overtime report that covered April 1, 2018, to March 31, 2019, the data did not set out that [NAME_1] did not receive overtime but that he received some but less than others. He affirmed that considering his accommodation, [NAME_1] received overtime, and that it was not inequitable. [ 55 ] He then analyzed some different [NAME_11] reports (from April 1, 2018, to March 31, 2019 , and from April 1, 2022, to March 31, 2023) and commented that the second one looked better because it was more in line with the ebb and flow of the other employees. [ 56 ] In cross-examination, [NAME_25] was referred to the grievance form and to [NAME_8] accommodation form dated April 15, 2019, showing his denied accommodation. He confirmed that [NAME_1] was no longer accommodated. [ 57 ] The employer then called [NAME_17]. As of the hearing, she was the acting manager of operations at the employer’s [COMPANY_27] in Maskwacis, Alberta. She had been with the employer for more than 23 years. She worked as a CM from 2016 to 2018 and then as an [NAME_17] from 2018 to 2020. [ 58 ] She began her involvement with [NAME_8] accommodation in June 2018. At that time, another assistant warden, [NAME_28], was also involved, and he received [NAME_8] request. [NAME_1] gave him the doctor’s note recommending that [NAME_1] be taken off morning (night) shifts. At that time, he was working 12.75-hour shifts. He could have worked from 07:00 to 19:45. [NAME_17] testified that [NAME_1] could only have been scheduled for day shifts. [NAME_28] specified that [NAME_8] roster did not change, meaning that he would exchange his morning (night) shifts with another employee to work only day shifts, which was subbing. He emphasized that nothing prevented [NAME_1] from working overtime on his days of rest, from 07:00 to 19:45. [ 59 ] [NAME_17] was referred to [NAME_28]’s memo dated June 28, 2018, to [NAME_1] that included a form for the doctor that asked for [NAME_8] limitations, the timeline considered for his situation, and whether his situation was temporary or permanent. On June 29, 2018, the accommodation form was noted to indicate that the accommodation request not to work night shifts was approved. [ 60 ] On July 22, 2018, [NAME_16] confirmed [NAME_8] health issues. [NAME_17] stated that [NAME_1] never indicated that he could work on different rosters. She referred to the second accommodation form, dated September 11, 2018, which stated that the accommodation was still granted. [NAME_1] was to continue to be subbed to day shifts. [ 61 ] [NAME_17] testified about the September 2018, incident, which [NAME_1] mentioned, when she allegedly told him that a CX had to work all shifts, and he felt threatened. She explained the circumstances by testifying that at that time, she and [NAME_28] were discussing in her office when [NAME_1] came in. He was upset because a visitor had arrived late. They explained that all was not black and white and that sometimes, they had to be flexible. [ 62 ] The discussion continued, and she explained that when a CX signs their offer letter, they agree that they are to work all shifts. In her testimony, she said that she had not been speaking to [NAME_1], that he had misunderstood her, and that although she apologized, he never accepted it. She denied ever saying that people like him are a drain on the system and that it would be better off without them. [ 63 ] [NAME_17] confirmed that [NAME_1] asked that she not be involved in his situation, so from September 10 to December 2018, she refrained from being involved. On December 18, 2018, she emailed [NAME_29] about scheduling another accommodation meeting and noted that [NAME_1] would want to have it extended. [ 64 ] The meeting occurred on January 7, 2019. She stated that the related email was an accurate account of it. She testified that although [NAME_1] felt threatened by her and her alleged earlier comment, she reiterated that his job was never in jeopardy and that he was not subjected to or at risk of discipline. She stated that he then withdrew his accommodation request but that she still gave him time to reconsider his decision. She claimed that she reassured him that he had no reason to believe that he was targeted or that his job was being threatened. The accommodation issue was not discussed further. [ 65 ] [NAME_17] testified that although the accommodation was withdrawn, it remained in effect. She stated that she could have ended it, but the doctor had recommended it, and it would not have been fair to [NAME_1]. He continued to work only day shifts. She stated that the issue was to determine if it was a personal preference or a medical condition. [ 66 ] She requested another update from [NAME_16] on January 7, 2019. On January 29, 2019, he replied that he continued to recommend that [NAME_1] work the day shift until July 28, 2019. She then sent another request to the doctor on February 22, 2019, asking whether he had made a recommendation or whether [NAME_1] had a functional limitation or restriction associated with a disability. [ 67 ] [NAME_17] became aware that [NAME_1] was working overtime shifts until 23:00 after February 22, 2019, while he was being accommodated, and she wanted clarification on it. She testified that that continued for quite a few months, which she did not realize because she did not monitor the schedule. She stated that [NAME_1] would sign up for overtime even though he had not asked for a roster change. She stated that his 12.75-hour shift allowed for more days off and provided more overtime opportunities. [ 68 ] [NAME_18] emailed this to [NAME_17] on February 27, 2019: “He [[NAME_1]] wants straight days but is consistently working evening and morning shift OT. This looks like a manipulation of the system. It should not be allowed.” [NAME_17] agreed. She claimed that the employer would have had to hire more [NAME_30] to cover the morning (night) shifts since [NAME_1] was no longer working them. She then emailed all the CMs, advising them that looking “out for [his] best interest”, [NAME_1] should not work overtime outside day shifts and that he could not be hired if his name came up for evening or morning (night) overtime shifts, as doing so would go directly against his accommodation request. She claimed that that respected his accommodation request. [ 69 ] On March 18, 2019, [NAME_16] replied to her February 22 query by stating that he recommended that [NAME_1] continue on day shifts and indicated that the hours should be from 06:00 to 23:00. [ 70 ] On March 26, 2019, [NAME_24] recommended to [NAME_17] that based on that medical note, the accommodation was not supported by that rationale, and that an accommodation form should be filled out for the warden’s signature. The accommodation was terminated as of April 15, 2019. [ 71 ] [NAME_17] testified that the employer did not behave in bad faith; she claimed that it went above and beyond when it looked out for [NAME_8] best interests. [ 72 ] In cross-examination, she stated that her understanding of the accommodation was that [NAME_1] could work only from 07:00 to 19:45, or only the day shift. She could not explain why she assumed that the doctor’s recommendation limited [NAME_8] hours of work specifically to those hours. She stated that other hours were not discussed. [ 73 ] [NAME_17] was referred to the [NAME_21] and the final-level decision on the grievance of August 12, 2019. She stated that there was no requirement for an accommodation form, but it outlined the accommodation requirement, with all the relevant information. It indicated that on June 29, 2018, [NAME_1] was to remain on his current schedule but was to be subbed to days when necessary. She stated that overtime was important to some but not all employees. [ 74 ] [NAME_17] stated that before February 27, 2019, no specific instruction was provided to the CMs. She stated that she believed that she considered [NAME_8] best interests when she limited his overtime only to day-shift hours. She testified that when she received the March 18, 2019, doctor’s note, she reached out to [NAME_24] and not to [NAME_1]. [ 75 ] She was referred to an overtime report that covered February 26 to March 31, 2019, and noted that [NAME_1] was ordered to work some evening shifts. She claimed that that did not respect his accommodation and her instructions. She stated that it can happen that a CX is required to remain after their regular shift, depending on the circumstances. [ 76 ] The employer called [NAME_18], who as of the hearing had been with the employer since 2009. She began as a CX-01 and then was a CX-02 and then a CM, from 2014 to 2019. During the relevant period, as a CM, she was responsible for scheduling and shift trades, among her many responsibilities. She became involved in accommodations in December 2018. [ 77 ] She stated that at that time, [NAME_1] worked a 12.75-hour shift. She stated that because of his accommodation, he could work only day-shift overtime and was restricted to working from 06:45 to 19:30. She testified that she suggested the January 2019 accommodation meeting and acknowledged that [NAME_1] would be upset and would likely push back. [NAME_18] believed that their relationship might have been strained. [ 78 ] [NAME_18] confirmed that during the January 7, 2019, meeting, [NAME_1] wanted to withdraw his accommodation request because he felt that his job was threatened. The warden agreed to prolong his accommodation by two more weeks. She claimed that [NAME_8] job was never threatened; nor were any discipline threats made against him. [ 79 ] She testified that during the meeting, [NAME_8] demeanour was standoffish and uncomfortable, and that he expressed unhappiness through his body language. In contrast, [NAME_17] was professional and explained the situation considering the doctor’s last note. Still, any time [NAME_1] was scheduled for morning (night) shifts, he was to be subbed to day shifts. Overtime was not discussed. [ 80 ] [NAME_18] stated that working until 23:00 was not part of [NAME_8] schedule. She stated that he was on the 12.75-hour shift schedule, which is very much coveted. She stated that there is a wait list for it and that it is assigned based on seniority. [ 81 ] I asked [NAME_18] about other [NAME_30]’ prejudice with respect to the accommodation. She stated that the institution is a world of its own and that it could have been seen as manipulating the schedule. [ 82 ] She explained that the [NAME_11] is convoluted. [NAME_1] could have asked for a roster change to a 5-day schedule, but it would have penalized him with respect to his benefits. She claimed that the employer worked hard with him, to accommodate him, but that he just wanted to work only the 12.75-hour day shift and not the morning (night) shift. [ 83 ] She stated that she realized that [NAME_1] was working overtime outside his day shift in February 2019 and that it was not appropriate for him to work the evening shifts, based on the doctor’s recommendation. She stated that [NAME_1] tried to get the best of both worlds by working overtime past his regular hours. She stated that she was not biased against him and that he was not prohibited from all overtime but that it had to be worked during the day shift. She claimed that doing otherwise was unethical, as all the staff members would have obtained similar medical notes requiring accommodation. [NAME_1] had no impediments to working overtime during the day shifts. [ 84 ] [NAME_18] testified that she spoke to [NAME_31], an [NAME_11] trainer, about [NAME_8] situation and that she reported it to [NAME_17] in a February 27, 2019, email. Mr. [NAME_31] recommended that it was in [NAME_8] best interests that he should not work evening- or morning (night)-shift overtime, as he claimed that it went against the accommodation request and actually could have harmed [NAME_1] further. [ 85 ] On April 15, 2019, [NAME_18] emailed all the CMs, advising them that [NAME_1] was no longer being accommodated and that he was free to work any shifts that he signed up for. [ 86 ] In cross-examination, [NAME_18] testified that her assistant took care of the required transaction when [NAME_1] was subbed to day shifts, when necessary. [ 87 ] [NAME_18] reiterated that she was not biased against [NAME_1] but that she considered his behaviour unethical. She explained that she considered it unethical that [NAME_1] would work overtime outside day shifts based on his accommodation, which indicated that he could work only day shifts. [ 88 ] She was referred to the [NAME_21], about management responsibilities. She testified that she had been familiar with those [NAME_21] at the relevant times but that she had been gone for seven years. She stated that it can be difficult for management to find replacements for morning (night) shifts and that if none are found, it can order others to work them.

III. Summary of the arguments [ 89 ] Both counsels, for [NAME_1] and the employer, presented extensive arguments to support their respective positions on the grievance. Although I will summarize them, I considered them in their entirety in my analysis and when I reached my conclusion. A. For [NAME_1] [ 90 ] Counsel for [NAME_1] stated that the grievance disputes the overtime prohibition that the employer imposed on him from February 27 to April 15, 2019. [ 91 ] At the time of the events at issue, [NAME_1] benefited from a formal accommodation plan, which the employer was reviewing. It did not include any restrictions related to his ability to work overtime. [ 92 ] His counsel claimed that the employer’s unilateral, precipitous, and unexplained actions to prohibit him from working overtime constituted discrimination and violated clause 37.01 of the collective agreement and ss. 2, 3(1), 7(b), and 10 of Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA ), in accordance with the Board’s powers to interpret and apply the CHRA referenced in s. 226(2)(a) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2). [ 93 ] On June 19, 2018, [NAME_1] submitted a medical note to his employer recommending that for health reasons, he be taken off the night shift. On June 29, 2018, an accommodation plan was issued, which the employer followed. His counsel argued that the accommodation demonstrated clearly that the employer recognized that the accommodation fell under the prohibited ground of disability, as indicated in the June 18, 2018, accommodation form. [ 94 ] On June 28, 2018, the employer sought clarification from [NAME_16] about his condition. It asked about 1) the functional limitations and restrictions that led to his recommendation, 2) whether [NAME_8] limitations and restrictions were temporary or permanent, and 3) if they were temporary, when they would be reviewed. [ 95 ] On July 22, 2018, the doctor replied. He described [NAME_8] medical condition and stated that working night shifts negatively affected his health condition and that working only day shifts would help him. Otherwise, [NAME_1] had no other physical limitations or restrictions. The doctor answered the two last questions by stating that [NAME_1] should be reassessed in six months, by December 2018. [ 96 ] [NAME_8] counsel stated that three events occurred in January 2019. [NAME_1] felt that his employment was threatened from his discussion with [NAME_17]. He was so upset, he felt that he had a target on his back, and he asked for his accommodation to end. The employer kept the accommodation in place for four more weeks. [ 97 ] On January 7, 2019, the employer wrote to [NAME_16], seeking further clarification about [NAME_8] condition. It explained that the [NAME_10] operates 7 days per week and 24 hours per day and that its employees have to work shifts, including nights. The same 3 questions noted earlier were submitted to the doctor. [ 98 ] On January 29, 2019, the doctor replied that he continued to recommend that [NAME_1] work day shifts from then to July 28, 2019, “… to avoid an exacerbation of his chronic medical condition and worsening of his overall health.” [ 99 ] On February 22, 2019, the employer requested more clarification from the doctor. It further advised [NAME_1] that his accommodation would be continued until March 11, 2019. Counsel for [NAME_1] insisted that the doctor “continued” with the same recommendation, indicating that [NAME_8] circumstances had not changed since the first medical recommendation. She claimed that the February 22, 2019, letter to the doctor called into question his reasoning about his opinion and how he reached his conclusion. [ 100 ] On February 27, 2019, [NAME_18] wrote to [NAME_17], stating that [NAME_1] wanted straight day work but that he consistently worked evening and morning (night) shifts. She claimed that it appeared to be a manipulation of the system. Shortly after that, on February 27, 2019, came the prohibition against [NAME_1] working overtime beyond his day shift. [NAME_17]’s email to all the CMs confirmed that doing so went against his interim accommodation request. [ 101 ] On March 18, 2019, responding to another of the employer’s requests, the doctor stated that [NAME_1] could work from 06:00 to 23:00. His counsel argued that it was a clear medical opinion, uncontradicted by any evidence, and that there was no legal ground to deprive [NAME_1] of the work opportunity. [ 102 ] On April 15, 2019, at the last accommodation meeting, [NAME_8] accommodation was denied, and he was able to work any shift. His counsel repeated that the prohibition period ran from February 27 to April 15, 2019. She referred to the second-level grievance response, which stated that in its decision, management failed to mention that [NAME_1] was manipulating the system but argued that it contradicted the medical recommendation that he be taken off night shifts. [ 103 ] Counsel for [NAME_1] stated that in the final-level reply, management acknowledged [NAME_8] momentary request to cancel his accommodation request but that it failed to state that he did so because he felt that [NAME_17]’s comment threatened his employment. [ 104 ] His counsel stated that [NAME_1] testified that he learned of the overtime prohibition on March 3, 2019, that the decision was not explained to him, and that he ended up hurt and confused. She relied on [NAME_14]’s testimony when she stated that [NAME_1] had routinely worked overtime on the evening and morning (night) shifts. [ 105 ] Counsel for [NAME_1] stated that the question at issue is whether [NAME_1] was discriminated against when he was deprived of the opportunity to work overtime. She stated that the main collective agreement clauses are clause 37.01, which prohibits discrimination, and clause 21.10, which deals with overtime compensation. She further stated that “day shifts” are undefined. She referred to ss. 2, 3(1), 7(b), and 10 of the CHRA . [ 106 ] [NAME_8] counsel referred to [NAME_32] v. [NAME_33] (Education) , 2012 SCC 61 at para. 33, which discussed the three criteria required to demonstrate prima facie discrimination. She also referred to Quebec (Commission des droits de la personne et des droits de la jeunesse) v. [COMPANY_34]. ([COMPANY_34]) , 2015 SCC 39, which illustrated that the ground for discrimination was a factor in the distinction, exclusion, or preference. [ 107 ] Counsel for [NAME_1] stated that there was no doubt that [NAME_1] met the three grounds required to establish prima facie discrimination. She argued that the accommodation plan and the employer’s behaviour demonstrate that [NAME_1] had a recognized disability. She referred to the accommodation forms of June 28, 2018, and September 11, 2018, which clearly indicate disability as the ground upon which his accommodation request was based. She claimed that they are an undeniable written admission by the employer. [ 108 ] [NAME_8] counsel argued that the employer’s prohibition of overtime opportunities for [NAME_1] on February 27, 2019, demonstrated that he experienced an adverse effect from the discrimination. Finally, she argued that the employer repeatedly admitted that his differential treatment, i.e., the prohibition, was entirely due to his accommodation both in written documents and in oral testimony, thus demonstrating a link between his disability and the adverse financial effect that he suffered. She argued that the overtime prohibition was rescinded at the same time as the accommodation plan was stopped, on April 19, 2019. His counsel concluded that there was an undeniable connection between [NAME_8] disability and the employer’s decision to deprive him of overtime opportunities. [ 109 ] [NAME_8] counsel claimed that on a factual analysis, there is no doubt that [NAME_1] met his burden on the balance of probabilities, in accordance with the prima facie test. She stated that [NAME_32] and [NAME_33] Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 SCR 3, indicate that the burden now falls on to the employer to justify the discrimination under the exemptions available under the CHRA . She further submitted that no such exemptions are available in this case and that its behaviour was woefully unreasonable and requires the Board’s sanction. [ 110 ] Although counsel for the employer conceded that it would not present an undue-hardship defence, counsel for [NAME_1] argued that the [NAME_21] emphasize the employer’s obligation to communicate with the employee and ensure that they are part of the accommodation process. She stated that [NAME_1] was not included in making the decision before it was imposed on him. [ 111 ] She then referred to paragraph 34 and quoted as follows paragraph 35 of the [NAME_21]:

35. If there is reason to believe the employee’s accommodation requirements have changed, if the accommodation is no longer required, or if the temporary accommodation has expired, the manager/supervisor must request updated information, when applicable, from the employee. [ 112 ] [NAME_8] counsel argued that the employer did not ask the doctor to specify the hours that [NAME_1] could work, given his disability. She stated as well that there was no mention of overtime in the accommodation plan until the last accommodation meeting, at which time his accommodation was denied. [ 113 ] She stated the overall obligations on the employer from the [NAME_21] are the following:

1) The employer could not make a decision on the basis of an assumption or an opinion.

2) It has to manage accommodations in a timely and sensitive manner.

3) It had to communicate in a timely fashion with the bargaining agent and [NAME_1] before making a decision.

4) It had to request updated information from the medical practitioner on the precise issue of [NAME_8] ability to work during a specific time frame before making a decision.

5) It had to ensure that [NAME_1] was part of the accommodation process by holding a meeting and allowing all the parties to find appropriate accommodation solutions before making a decision.

6) It had to document its decision to prohibit overtime on the accommodation form and share it with [NAME_1]. [ 114 ] She argued that none of that was done and reiterated that when the employer obtained a cogent medical opinion from [NAME_16] on March 18, 2015, his disability allowed him to work from 06:00 to 23:00. The employer still did not alter its prohibition until April 15, 2019, when it denied the accommodation. [ 115 ] To support her argument, [NAME_8] counsel submitted Quebec (Commission des normes , de l’équité , de la santé et de la sécurité du travail) v. [NAME_35] , 2018 SCC 3, which discusses the duty to reasonably accommodate employees. She emphasized that the goal is that employees who are able to work can work. She argued that a reasonable employer would not base its decision on an assumption that [NAME_1] was manipulating the system, for preferential treatment. She argued that the employer reached its conclusion through [NAME_18] and [NAME_17] without properly analyzing [NAME_8] situation. She further argued that their arguments were based only on the definition of the day shift and that they omitted that the last four hours of the morning (night) shift and the first four hours of the evening shift are in fact in the day shift. [ 116 ] [NAME_8] counsel argued that a reasonable employer would have considered a more limited prohibition rather than the most restrictive blanket prohibition but that it was not done. [ 117 ] She also argued that had there been actual concern for [NAME_8] health if he worked beyond a certain time frame, the employer would have considered that forced overtime would also have been detrimental to his health, and it would have elaborated a plan to also avoid it. It did not, and twice, [NAME_1] was called on to work ordered overtime shifts after February 27, 2019. [ 118 ] Counsel for [NAME_1] referred to Canada (Attorney General) v. [NAME_36] , 2014 FCA 131 at para. 16, to argue that there are not two separate procedural duties to accommodate that give rise to remedies if the employer established that it is satisfied that it met the prima facie discrimination test. [ 119 ] [NAME_8] counsel put forward that the employer had an obligation to equitably offer overtime to [NAME_1] as the employer’s Policy on the Management of Overtime for Correctional Officers prescribes. Counsel referred to [NAME_37] v. [NAME_3] (Canada Border Services Agency) , 2024 FPSLREB 103, which deals with the equitable distribution of overtime, for an accommodated b order service officer who had a disability and was moved to an accommodated post. According to counsel, this decision supports the position t hat the employer is obligated to have a fair and functioning overtime system, permitting disabled, accommodated workers to volunteer for overtime. [ 120 ] In terms of remedy, [NAME_8] counsel claimed that [NAME_1] is owed pay for 197.65 hours, plus the applicable shift premium. He also seeks $2000 for pain and suffering and $5000 in special compensation under ss. 53(2)(e) and (3) of the CHRA . Alternatively, she requested that if the grievance is allowed, the parties be allotted time to determine between themselves the amount due [NAME_1] for lost overtime opportunities for February 27 to April 15, 2019, based on an average of overtime assigned at the [NAME_10] to similarly situated [NAME_30]. B. For the employer [ 121 ] Counsel for the employer stated that the hearing before the Board was a de novo hearing (a new hearing) and that its role is not to assess the reasonableness of the employer’s decision but to determine whether the employer breached the collective agreement based on a de novo (new) assessment of the relevant facts, law, and arguments (see Canada (Attorney General) v. [NAME_38] , 2023 FCA 118 at para. 21). [ 122 ] She argued that there is no disability in this case and claimed that not all medical conditions amount to a disability. She argued that although [NAME_1] sought a medical accommodation, the doctor confirmed that there was no disability and that no functional limitations prevented him from working his regular shifts. She claimed that any restrictions on his work hours were only recommendations. She claimed that there is no disability in the case. [ 123 ] Counsel for the employer referred to the test to establish discrimination, as in if [NAME_1] made out a prima facie case, whether the employer could provide a defence for its actions that is not discriminatory. She claimed that [NAME_1] failed to establish a prima facie case since he failed to establish that he has a disability and, hence, failed to demonstrate a protected characteristic under the CHRA . She acknowledged that he had a medical condition for which his doctor recommended that he not work nights. [ 124 ] She argued that [NAME_1] suffered no adverse effect from the restriction and that it was not a total ban on his ability to work overtime. She claimed that it was an entirely reasonable position for the employer to take when it realized that there was a misunderstanding about the accommodation plan that was in place. She further argued extensively that [NAME_1] was treated equitably as it pertained to overtime opportunities. She stated the employer acted in good faith and reasonably in implementing [NAME_8] accommodation plan. [ 125 ] Counsel for the employer argued about [NAME_17]’s alleged threat to [NAME_1], stating that while he might have perceived it as a threat, there was no reasonable basis for that perception. She stated that [NAME_17]’s testimony repeatedly clarified that misunderstanding. She argued that the employer’s evidence should be preferred as substantially more credible. [ 126 ] Counsel also submitted that [NAME_1] was entitled to an equitable distribution of overtime, if he was readily available and qualified to do so pursuant to clause 21.10(a) of the collective agreement. [NAME_1] in this case was not readily available, nor qualified to work evening shifts and the hours extended beyond the hours of the day shift, at the time that those overtime opportunities arose. The only evidence of restrictions that the employer had at that time were the medical notes from [NAME_16] recommending that he only worked the day shift. It did not specify that he could work evening shift hours in any capacity. The employer had legitimate concerns about the nature and extent of his functional limitations at that time and reasonably concluded that until that clarification was received from his physician, he could not be deemed available to work those hours, regardless of whether or not he felt he could. [ 127 ] Counsel raised that [NAME_1] did not demonstrate that he did not receive his equitable distribution of overtime for fiscal year April 1, 2018, to March 31, 2019. The Federal Court sets out the test for assessing whether the distribution of overtime is equitable in Canada (Attorney General) v. [NAME_39] , 2011 FC 1259.

IV. Reasons [ 128 ] [NAME_1] has the burden of establishing a prima facie case of discrimination. To make a case of prima facie case of discrimination, [NAME_1] must establish three factors as stated in [NAME_32] : · he has a characteristic protected from discrimination under the CHRA ; · he experienced an adverse impact from the employer; and · the protected characteristic was a factor in the adverse impact. [ 129 ] In this case, I find that [NAME_1] demonstrated that he had a disability protected under the CHRA . I agree with counsel for [NAME_1], his disability was undeniably recognized by the employer. The evidence clearly established that [NAME_1] presented the employer with medical information from his doctor recommending that he not work night shifts. I also find that [NAME_1] suffered from an adverse impact from the employer because the employer prohibited him from overtime opportunities at the end of the morning (night) and at the beginning of the evening shifts. I agree that the prohibition was due to [NAME_8] disability given that there is a link between both of these factors. Therefore, [NAME_1] has met his burden of demonstrating a prima facie case of discrimination. The onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship. [ 130 ] In the workplace, the employer acknowledged [NAME_8] condition by putting in place an accommodation plan whereby removing [NAME_1] from the morning (night) and evening shifts on an interim basis following the doctor’s recommendation, throughout the period in question. [ 131 ] For most of the period that was subject to the accommodation plan, [NAME_1] was permitted to work overtime at the end of the morning (night) and at the beginning of the evening shifts. He never complained that working the extra shifts contravened his accommodation plan. Only when [NAME_18] met an [NAME_11] trainer did she conclude that working the overtime that the employer was not compliant with the accommodation plan by mistakenly giving a wider scope to it. [ 132 ] The evidence sets out that her interpretation of the accommodation plan was that [NAME_1] could work overtime only on day shifts, excluding the end of the morning (night) and the beginning of the evening shifts, which were part of the night shift. She then convinced [NAME_17] to direct the CMs to cease assigning those shifts to [NAME_1], only strictly day shifts. [ 133 ] The evidence also sets out that two reasons prompted [NAME_18]’s decision. First, she doubted [NAME_8] reason behind his accommodation request and believed that it was an abuse of the system. Second, in her justification to the CMs for limiting [NAME_8] ability to work overtime, she invoked concerns about his well-being and the respect of the accommodation plan. [ 134 ] Here lies the crux of the matter. The accommodation plan was not stopped; the employer narrowed its interpretation of the accommodation plan when [NAME_18] discussed the issue with an [NAME_11] trainer. She concluded that, by offering [NAME_1] to work the end of the morning (night) and the beginning of the evening shifts, the employer was actually not complying with the accommodation plan and gave it a wider scope than it should have. [NAME_1] was not prohibited from working overtime altogether; he was prohibited from working overtime at the beginning of the evening and the end of the morning (night) shifts. He was still allowed to work overtime on day shifts. [ 135 ] [NAME_8] counsel argued that morning (night) shifts are not defined per se in the collective agreement and suggested that evenings until 23:00 or the early mornings should not be considered night shifts and were permitted by the doctor’s recommendation. [NAME_18] and [NAME_17] disagreed. They testified that in general terms, those shifts could be construed as morning (night) shifts. However, on a balance of probabilities, and especially in the context of an accommodation plan for an employee suffering from the type of chronic condition in this file, I find the employer’s interpretation more convincing and reasonable. [ 136 ] [NAME_18]’s recommended narrow interpretation did not go against the accommodation plan; in fact, it reinforced it by ensuring [NAME_1] would not work during those periods recommended by the doctor. I find that limiting [NAME_8] ability to work overtime as did the employer did not put in dispute his accommodation plan. Counsel for [NAME_1] relied on [NAME_40] v. [NAME_3] ([NAME_4]) , 2015 PSLREB 41, to argue that the employer’s speculations about his functional limitations were its motivation to justify its decision. Rather, I find that the doctor’s recommendations were the motivation to limit [NAME_8] ability to continue working overtime as he had been doing. [ 137 ] That said, in fact, [NAME_1] was permitted to work overtime at the end of the morning (night) and at the beginning of the evening shifts from June 29, 2018, until February 27, 2019, when [NAME_17] gave her direction to the CMs. The evidence demonstrated that [NAME_8] condition was temporary, and accommodation meetings were held regularly, to assess his condition, on June 29, 2018, September 11, 2018, and March 27, 2019, which ended the employer’s DTA. Each time, except for the last one, the accommodation plan was prolonged, and [NAME_8] overtime was never discussed. [ 138 ] Paragraph 13 of the [NAME_21] states that the DTA is primarily the employer’s duty, and a successful DTA requires multiple parties to cooperate, including managers and employees. At paragraph 15.f, the [NAME_21] stipulate that the manager is responsible for communicating with the employee and ensuring that they are part of the accommodation process. Paragraph 16 lists the employee’s responsibilities. [ 139 ] The evidence demonstrates that the employer acquitted itself of its responsibilities pertaining to its DTA insofar as it met with [NAME_1] and his bargaining agent and together, they agreed on an accommodation plan. But they failed to address the overtime issue, and the implied interpretation was that it would be permissible for [NAME_1] to work the overtime, as he had been doing. When management interpreted working overtime by limiting it to outside the beginning of the evening and the end of morning (night) shifts, it narrowed its interpretation of the accommodation plan. [ 140 ] I agree that the employer did not discuss with [NAME_1] the change in its interpretation to a narrower application of the accommodation plan. As provided by s. 15.f of the [NAME_21], management is “… responsible for … communicating with the employee and ensuring that they are a part of the accommodation process”. The evidence established that numerous accommodation meetings were held, and that had overtime been raised, possibly, this grievance could have been avoided. The employer should ensure, as a best practice, that it follows its own [NAME_21]. However, the accommodation plan remained intact. The employer’s narrower interpretation of the accommodation plan simply ensured that the doctor’s recommendations were strictly abided by management so that [NAME_1] would not be assigned night shifts. [NAME_8] ability to work overtime remained attached to working day shifts, as recommended by the doctor. This did not constitute a breach of clause 37.01 of the collective agreement. [ 141 ] On the overtime argument, the employer submits that being readily available is a precondition to having any entitlement to an equitable distribution of overtime under clause 21.10(a) of the collective agreement. I agree. Clause 21.10 of the collective agreement provides that the employer shall make every reasonable effort to allocate overtime work on an equitable basis among readily available qualified employees. In [NAME_39] , the Federal Court stated at paragraph 62 that overtime is allocated to employees who make themselves available for overtime. At paragraph 142 in [NAME_41] v. [NAME_3] ([NAME_4]) , 2025 FPSLREB 137 , the Board states that “[t]he term ‘readily’ [means] ‘quickly and without difficulty’ and available [means] ‘that you can get’.” [ 142 ] The evidence shows, through medical notes, that [NAME_16] recommended that he only work the day shift and the accommodation plan in place was set accordingly. He was unable to work evening and morning shifts, as a result of his accommodation plan. I conclude he could not be deemed readily available to work the evening and morning shifts. My conclusion is aligned with the reasoning in [NAME_37] , where the Board found that as long as the work did not conflict with his medical limitations, he was readily available for overtime work. This is not the case here given the evening and morning shifts came into conflict with his medical limitations.

I therefore conclude that the employer did not breach clause 21.10 of the collective agreement. [ 143 ] For all these reasons, I come to the conclusion that the employer did not breach clauses 21.10 and 37.01 of the collective agreement when it adopted a narrower interpretation of [NAME_8] accommodation plan. [ 144 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

V. Order [ 145 ] The grievance is denied. April 2, 2026. [NAME_5], a panel of the Federal Public Sector Labour Relations and Employment Board