Employers can't avoid duty to accommodate by failing to followup: Alberta court

Worker awarded $6,000 for pain and suffering after employer refuses to let him return to work following illness
|employmentlawtoday.com

An Alberta employer that refused to accommodate an employee returning to work from a disability has been ordered to pay him lost earnings plus $6,000 in damages for pain and suffering.

The Alberta Court of Queen’s Bench overturned a earlier decision by a human rights panel that said the company’s decision not to accommodate the worker’s return to work was justified — a ruling the court strongly disagreed with.

Gary Trick complained to the Alberta Human Rights and Citizenship Commission on July 12, 2002, alleging he had been discriminated against by Federated Co-operatives Ltd., his former employer, on the grounds of physical or mental disability.

He said that when he was ready to return to work, following a period off work while ill, Federated had already filled his position as feed sales representative with another full-time permanent employee and refused to accommodate him in another position.

The panel agreed that Trick had proven he had been discriminated against, but said Federated had showed it was justified in failing to accommodate him because he didn’t provide all the medical information the company wanted.

Background

Trick began experiencing health difficulties in early 2000. He received a preliminary diagnosis that he suffered from bipolar disorder. He received treatment, but his condition worsened and by January 2001 he felt so ill he was unable to work.

Trick told his direct boss, Ralph Atkinson, about his illness in June 2000. When he could no longer work in January 2001, he applied for and began receiving short-term and then long-term disability payments from Co-operators Life Insurance Company, the disability insurer under contract to Federated to provide disability insurance to its employees.

Trick was successfully treated for his illness and felt ready to return to work by September 2001. But Federated was not prepared to accommodate him. Despite Trick’s clearance by his doctor to return, the company wanted further medical information about what he could and couldn’t do before finding a position for him.

On Jan. 7, 2002, a letter was sent by Co-operators to Trick. Although it was addressed to Trick, it was sent to Federated’s offices and was copied to the company’s HR manager. It said Trick had apparently been medically cleared to work on a full-time basis without restrictions, but it appeared Federated was “unable to accommodate you for a return to work.” The letter also said his long-term disability benefits would terminate on Jan. 31, 2002.

The HR manager filed the letter, but did nothing else. Trick apparently did not receive the letter and knew nothing of its contents when he phoned Federated on Jan. 28 to enquire about his return to work.

At that point Trick was told the company still required more medical forms to be completed before it could facilitate his return.

Trick was left with the impression he had no job at Federated and, worried his long-term disability benefits would cease, he found a position as a feed sales representative with another company at a lower salary. He was not offered severance pay from Federated.

The panel’s decision

The human rights panel dismissed the discrimination complaint. It concluded Federated was “justified” in requesting further medical information from Trick and he had failed to “facilitate the transfer of relevant medical information.”

Therefore, it ruled, Trick failed to participate in the search for accommodation. The Alberta Court of Queen’s Bench said the panel’s decision rested upon four findings of fact:

•Trick knew Federated required information about his ability to drive;

•Federated requested further medical information from Trick;

•such requested were justified; and

•Trick failed to provide this further medical information.

The court’s reversal

The court blasted holes in the panel’s reasonings, calling them “unreasonable” because they were not supported by evidence and therefore it overturned the decision. The court had the option of sending the case back to the human rights panel for a new hearing, but decided to handle the case itself.

“Remission of this matter to the panel will simply cause needless expense to the parties,” the court said. “I therefore reverse the panel’s decision and will make the appropriate order.”

The court then looked at whether Federated had established a

bona fide

occupational requirement in refusing to accommodate Trick.

Using the

Meiorin

analysis, outlined by the Supreme Court of Canada in a 1999 ruling, an employer may justify its refusal to accommodate by establishing on the balance of probabilities:

• the employer adopted the standard for a purpose rationally connected to the performance of the job;

•the employer adopted the particular standard in an honest and good faith belief it was necessary to the fulfilment of the legitimate work-related purpose; and

•the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Meiorin test not appropriate: Federated

In this case, Federated said it was inappropriate to apply the

Meiorin

test. It agreed it had a duty to accommodate Trick’s disability, but argued it did not receive sufficient information to know what accommodation was necessary. Therefore, applying the test would be premature.

But the court disagreed and went ahead and applied the test. It said Federated met the first two parts — the standard was for a purpose rationally connected to the performance of the job and Federated adopted the standard in an honest and good faith belief it was necessary.

“However, an employer’s obligation to accommodation requires the employer to demonstrate that it is impossible to accommodate without undue hardship,” the court said. “The employer cannot avoid its obligations to accommodate by failing to follow up to obtain the information it believes to be necessary.”

Federated had medical information that clearly established Trick was no longer disabled and his doctor reported he was fit to return to work without restriction. The court said it was “inexplicable” the company didn’t followup with anyone that it considered the medical information insufficient. The court also found it strange the company didn’t take issue with the Jan. 7 letter from Co-operators that stated Federated had no intent to accommodate Trick.

The court said Federated discriminated against Trick on the basis of disability. It pointed out the following comments from evidence gathered by the human rights panel to support that claim:

•Trick’s boss said they did not want him back as a feed sales representative;

•Trick’s boss testified that “a person needs to perform without using illness as an excuse”;

•management indicated that among their concerns was whether Trick was “the kind of person that we want to have in the community”;

•a Co-operators employee testified that his impression was that the HR manager was hesitant to accommodate Trick and so the Co-operators hired a third-party rehabilitation consultant; and

•the rehabilitation consultant said Trick’s boss made negative comments about his illness.

“Taking all these factors into account, and recognizing that it is rare that an employer would expressly articulate its refusal to accommodate a disabled employee, I conclude that, in fact, Federated discriminated against Mr. Trick, notwithstanding their repeated assertion that they would have accommodated him had they received the medical information they considered necessary,” the court said. “I do not accept that their actions constituted a

bona fide

attempt to acquire that information.”

Damages

The court awarded Trick:

•compensation for lost wages from Feb. 1, 2002, to March 9, 2002, when he began employment with the new employer;

•compensation for the difference in wages between Federated and the new employer;

•compensation for the loss of pension benefits due to reduced pension contributions;

•general damages for pain and suffering of $6,000; and

•interest on the above amounts.

For more information see:

Alberta (Human Rights & Citizenship Commission) v. Federated Co-operatives Ltd.

, 2005 CarswellAlta 1156 (Alta. Q.B.)


More articles on accommodation

A sampling of articles from

Canadian Employment Law Today

's online archives dealing with an employer's duty to accommodate disabled employees:

Returning from disability

One of our employees, who has been on long-term disability for 12 months, now wants to return to work with doctor’s approval. We've lost trust in him and no longer have a position for this employee.

Addiction in the workplace

The employer's duty to accommodate addictions

Undue hardship? Not always

An arbitration board has upheld the firing of a college professor even though it said the college did not adequately accommodate his alcoholism

Small employers, big duties

Case involving pregnant police officer shows smaller firms have the same obligations to accommodate employees as larger ones

Bus driver re-instated with seven years' pay

Canadian Human Rights Tribunal orders OC Transpo to bring back worker it fired seven years ago for chronic absenteeism — also awards $3,500 for mental suffering

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