Changing work hours failed to accommodate employee’s disability: tribunal

Different hours had previously been approved to accommodate employee's multiple sclerosis

A British Columbia company discriminated against an employee with multiple sclerosis (MS) when it changed his work hours, the B.C. Human Rights Tribunal has ruled.

Dennis Chong worked Violetta Industries Ltd. in Burnaby, B.C., as a builder of water sterilization systems. He was hired March 30, 2005, and as part of his employment agreement, he was entitled to five sick days and flexible work hours. Chong had MS, which caused extreme fatigue around 3 p.m. each day. As a result, Chong received approval in June 2005 to work from 6: a.m. to 2 p.m.

The owner of Violetta, Douglas Somerville, soon learned Chong had MS. He changed company policy on paid leave and flexible hours, saying employees required one year of service before they could take time off with pay and the company’s work hours were 8 a.m. to 5 p.m. with no exceptions.

Chong explained to Somerville the earlier hours accommodated his MS symptoms but Somerville insisted he work the regular hours and “if Mr. Chong did not like that, he could quit.”

As a result of this situation, Chong became stressed and upset, which exacerbated his MS symptoms and he missed a day of work following Somerville’s ultimatum.

On Feb. 22, 2006, Somerville sent Chong a letter reiterating his work hours and reduced some of his benefits, including personal days. Chong responded by proposing possible solutions including the status quo, telecommuting from home in the afternoon or working reduced hours. Somerville was not receptive to the suggestions and the two had “heated discussions.” After work on Feb. 24, 2006, Chong told his manager he would not be returning to work at Violetta for the sake of his health.

The tribunal found Chong’s MS was a disability which required accommodation. Changing his work hours was a failure to accommodate his disability. Chong was willing to co-operate by offering compromises, but Violetta was not.

Chong was awarded lost wages or the time he was unemployed and the difference between his Violetta pay and the lower pay of his subsequent employment. The total wage loss was set at $11,480.

The tribunal also found Somerville’s attitude and treatment towards Chong was unacceptable and made his condition worse.

“(Somerville’s) conduct resulted in the aggravation of Mr. Chong’s disability,” the tribunal said.

In addition to the lost wages, the tribunal awarded Chong $7,500 for injury to dignity, feelings and self-respect. See Chong v. Violetta Industries and Somerville (No. 2), 2007 BCHRT 163 (B.C. Human Rights Trib.).

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