The B.C. Ambulance Service failed in its duty to accommodate a paramedic who could no longer palpate a pulse because of his mulitple sclerosis, an arbitrator has ruled, and the paramedic's manager was also held personally responsible.
That was the decision of the British Columbia Human Rights Tribunal after the ambulance service had won an earlier case on judicial review. The previous judicial review established the important principle that the duty to accommodate does not include an independent procedural duty. However, when the matter was sent back to the tribunal to reconsider, the result was worse for the employer and the manager.
The tribunal determined the disabled paramedic could have been accommodated as a "Driver Only" and "Special Driver Only" without undue hardship. Even though the ambulance service seeks to have both paramedics in each ambulance to be fully qualified, the reality was there were 135 "Drivers Only" out of 2,500 part-timers. The tribunal noted the lack of evidence showing actual harm arising from not having both paramedics being able to palpate a pulse and concluded the addition of one "Driver Only" to an existing complement of 135 was statistically insignificant.
The case is also worthy of note for the finding against the manager. Many human rights complaints name both the employer and individual managers, but there are relatively few cases where individuals are found liable.
In this case, the manager was found to have actively thwarted efforts to find an accommodation and to have deliberately sought to prevent the paramedic from returning to work. The tribunal commented more than once that the manager did not do the things expected of management when it is necessary to consider accommodation under the B.C. Human Rights Code.
Therein lies the good news for managers: If you approach accommodation issues objectively and neutrally, and apply a reasonable effort to the task, you are unlikely to be held personally responsible.
Earl Phillips is a partner in McCarthy Tétrault's Vancouver office practising in the Labour and Employment Group. He can be reached at (604) 643-7975 or firstname.lastname@example.org. This post was originally published on McCarthy Tétrault’s British Columbia Employer Advisor blog at http://www.bcemployerlaw.com. The firm also recently launched its Ontario Employer Advisor blog at http://www.ontarioemployerlaw.com.