Accommodation only triggered upon full disclosure of disability

Employee indicated he had a disability when he applied but provided no details; didn't raise issue until shortly before termination during probation
By Lisa Fraites and Madeleine Loewenberg
|employmentlawtoday.com|Last Updated: 01/27/2014

A recent Alberta Court of Queen’s Bench decision confirmed an employee’s obligation to prove an employer knew (or ought to have known) about his or her disability in order to establish discriminatory treatment.

Also favourable to employers, the decision emphasizes the obligation of an employee seeking accommodation to provide sufficient detail about his or her disability to allow accommodation to be achieved.

The grievor was hired by Telus Communications Inc. as a call center agent. Prior to the end of his probationary period, Telus terminated the grievor after determining he was unsuitable for the position. A grievance was subsequently filed. The grievance alleged that the grievor was terminated as a result of his disability, his termination was discriminatory, and Telus had a duty to accommodate the grievor to the point of undue hardship.

The arbitrator’s decision

The arbitrator concluded that Telus’ duty to accommodate had not been triggered. On this basis alone, the arbitrator determined the grievance had to be dismissed.

Of note, the arbitrator determined the grievor did have a disability that was disclosed twice. The first occasion was when the grievor had ticked a box with the answer “yes” in response to the question “Do you have a disability?” during the job application process. The second occasion was approximately one week before he was terminated, when the grievor mentioned he had Asperger’s syndrome. Prior to that disclosure, the grievor had undergone numerous coaching sessions with his employer during which no mention was made of his disability or its alleged impact upon his performance.

The arbitrator also found that the grievor’s disability was a contributing factor in his failure to meet the performance standard required of him, which ultimately resulted in his termination.

Despite this, Telus was not required to inquire into possible accommodations because it knew too little about the grievor’s disability. The grievor’s answer to the question “Do you have a disability?” was not accompanied by any detail that would obligate Telus to inquire about the disability and any accommodations that may be required. The grievor’s disclosure of a disability the week before his termination was made too late and insufficiently detailed to satisfy the grievor’s obligation to provide information required by Telus to consider whether accommodation was required.

Further, relying on expert evidence, the arbitrator concluded that there was no accommodation that could have been made to the grievor’s position that would have allowed him to perform the duties that were integral to his employment.

Even had the duty to accommodate been triggered, the arbitrator found that the grievor’s dismissal was not discriminatory. The arbitrator premised her conclusion on the grievor’s probationary status, determining there was no obligation to find an alternate position outside the call centre for a probationary employee. Since the grievor’s call centre position could not be accommodated and there was no obligation to seek a position for him outside the call centre, the arbitrator concluded that Telus had not discriminated against the grievor.

The judicial review

The Alberta Court of Queen’s Bench upheld the arbitrator’s decision.

The court concluded that the arbitrator was entitled to find that the employer did not have knowledge of the grievor’s disability, based on the facts in evidence. The court also found that it was reasonable for the arbitrator to conclude that (a) ticking a box on an application and (b) raising the existence of a disability when it was obvious the grievor would be terminated did not constitute satisfactory disclosure of the disability requiring the employer to assess the issue of accommodation.

The court affirmed a union does not have to prove (or disprove) whether accommodation to the point of undue hardship had been achieved. This obligation has long been placed upon employers asserting that accommodation has been offered and/or thwarted due to undue hardship considerations. However, to initiate the duty to accommodate, the employer must first be aware of the disability.

The court provided clarification regarding the arbitrator’s determination that Telus was not required to find another position for the grievor because he was a probationary employee. First, noted the court, the arbitrator dealt with this issue in the alternative, after concluding Telus had no knowledge of any disability and therefore no duty to accommodate. This lessened the impact of the arbitrator’s finding. Second, the court clarified that the evidence showed that no accommodation could have been provided to the grievor in the position for which he was hired. On that basis and because he was a probationary employee, the court confirmed the arbitrator’s determination that the grievor’s dismissal was not discriminatory.

This decision confirms that an employer cannot be subject to a duty to accommodate where it is unaware that an employee has a characteristic or condition that requires accommodation. In such circumstances, the onus is on the complainant to establish the employer knew or ought to have known of the circumstances giving rise to the claim of discrimination.

The case also stands as a reminder to document coaching sessions and performance management meetings, including any employee explanations for failure to meet performance expectations.

The grievor in the Telus decision offered no disability-related explanation for his performance issues until just prior to the end of his probationary period, at which point he was on the cusp of termination. Conduct repeated in similar cases may result in a similar determination that the existence of a disability has been raised “too late” to require an employer to inquire into possible job accommodations. However, to rely on such evidence, employers would be well advised to have recorded the content of any performance-related discussions and be prepared to disclose those discussions during a legal proceeding.

Lisa Fraites and Madeleine L.S. Loewenberg are associates practising employment and labour law with Norton Rose Fulbright in Toronto. Lisa can be reached at (416) 216-3931 or lisa.fraites@nortonrosefulbright.com. Madeleine can be reached at (416) 216-3932 or madeleine.loewenberg@nortonrosefulbright.com.

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