This is a sample Accommodation E-lert. A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.
Employer should have re-bundled different tasks into a productive position for long-service employee with permanent injury
Accommodation E-lert, posted on February 1, 2024 within the category "The legal duty on employers".
A long-service employee alleged that his employer had not accommodated his physical disability when he wanted to return to work. He had held several skilled positions with the employer, most recently as a ticket millwright and a welder. Following an injury, the employee went on long-term disability. When he lost his long-term disability status, the employer terminated him, stating that it could not accommodate his limitations. The Alberta Human Rights Tribunal ruled that the employer had not accommodated him to the point of undue hardship because it could have re-bundled different tasks in the workplace into a productive position for the employee.
Legal Citation
Pratt v. West Coast Reduction Ltd. (Head Office), 2023 AHRC 97 (November 30, 2023) (Commission Member C. Nduka Ahanonu)
Facts
Mr. Garry Pratt had worked for the employer – a food-waste reprocessing plant in Alberta – since 1980 in a variety of positions.
Most recently, he had worked as a ticket millwright and a welder.
In 2017, following a back injury, he took a short leave and subsequently returned to work on modified shifts with modified duties.
In 2018, the employee seriously injured his knee after a fall, and went on long-term disability (LTD). His physician testified that, even after surgeries, the employee would be permanently physically limited due to his knee issues.
His disability prevented him from returning to his prior positions as a millwright and a welder.
In April 2020, the employer’s insurance-benefits carrier removed him from his long-term disability status, and his appeal was denied.
Later that month, the employer terminated Mr. Pratt, stating that it was unable to accommodate him in any productive workplace position due to his physical limitations.
Mr. Pratt initiated a complaint under the Alberta Human Rights Act, alleging that his employer had discriminated against him on the grounds of physical disability. He argued that, even with his physical limitations, he was able to work in several roles, given his extensive experience with the employer. He pointed out that the employer had recently filled several positions with outside hires which would have been suitable for him.
In reply, the employer presented two reasons why it could not accommodate the employee to the point of undue hardship. First, it had substantively reviewed the employee’s restrictions and could not find a suitable position for him. Second, it maintained that it had attempted to re-bundle some duties to create a new productive position for the employee, but these duties proved to be unsuitable.
Analysis
The Alberta Human Rights Tribunal began by considering whether the employee proved a prima facie case of discrimination based on the test from Moore¹:
- He has a characteristic protected from discrimination by the Act;
- He experienced an adverse impact; and
- The protected characteristic was at least a factor in the adverse impact
The tribunal held that, on the evidence, Mr. Pratt had established a prima facie case of discrimination: his physical disability was a protected characteristic under the Act; the termination was an adverse impact; and his physical disability was a factor in his termination.
The tribunal then considered whether the employer breached the duty to accommodate based on the Meiorin test² which requires an employer to prove that:
- The workplace standard was adopted for a purpose rationally connected to the performance of the job;
- It was adopted in an honest and good faith belief; and
- It was impossible to accommodate individuals sharing the characteristics of the claimant without imposing undue hardship.
The accommodation question at issue was whether the employee could have been productively accommodated in a workplace position after his long-term disability (LTD) status was revoked.
The tribunal held that the employer failed the first part of the Meiorin test because it could have placed the employee into jobs posted by the employer, both during the period of the search for accommodations and after his termination. Given Mr. Pratt’s experience and training, the tribunal was unconvinced that the employer could not have re-bundled different tasks into a productive position for the employee.
The tribunal accepted that the employer had met the second part of the Meiorin test because it acted in good faith in investigating whether it could return the worker to his previous position.
On the third step of the Meiorin test, the tribunal found that the employer had not accommodated the employee up to the point of undue hardship. It noted that the Supreme Court of Canada had defined the meaning of “undue hardship” in Council of Canadians with Disabilities³:
The point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain.
It went on to say:
The [employee] wanted to be back to work at the [employer]. The [employee] was willing to come back to work if his duties were re-bundled to accommodate his restrictions. There is no evidence of the steps taken by the [employer] to re-bundle any of the duties that the [employee] could perform.
Instead, the [employer] terminated the [employee’s] employment once the [employer] realized that the complainant’s LTD had been terminated and that the [employee’s] appeal had also been denied. There is no evidence of the hardship any of the options would have caused the [employer]. There is nothing in the evidence to show that the [employer] would suffer undue hardship…
The tribunal noted that the employee had fulfilled his accommodation obligations because he was actively involved in the treatment plan developed by his health professionals and he was providing regular updates to his employer.
The tribunal allowed the grievance.
It awarded $40,000 in general damages for injury to dignity to the employee. It justified this high damage award on the grounds that the employer’s discrimination was severe because it could have accommodated the employee, but did not, and because the employee had worked for the employer for 40 years. As it explained:
In my view, this is a case where the blameworthiness of the [employer] should be considered...A termination of an employment of long duration on the basis the employee’s physical ability is more likely to impact the employee more than a termination of employment of relatively short period.
Implications for Employers
Employers should be aware that they can be required to re-bundle existing duties into a new position in order to accommodate an employee. This is especially the case when the employee is highly skilled and experienced. One caveat is that the accommodated position – whether an existing position, a new position or a rebundled position – must still be productive for the employer. It does not have to place an employee in a position whether there is no productive value for the employer. Finally, employers should be extra-careful with long-service employees, as a finding of discrimination may result in considerable damages awards.
Implications for Unions
Advocating for union members who require an accommodation is becoming one of the most important duties of a union. Ensuring that a proper accommodation position is found means that unions will often have to be vigilant and assertive in ensuring that human rights are observed. There is an elevated representation duty on unions when they are advocating for a member with a human rights and accommodation issue, so being vigilant and assertive is not only a good organizational practice, but it is also a legal requirement.
¹ Moore v British Columbia (Education) (Moore), 2012 SCC 61 at para 33
² British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union, [1999] 3 SCR 3 at para 54 [Meiorin].
³ Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 SCC 15 at para 130 [Council of Canadians with Disabilities].
Tip Of The Day
No single test for family status discrimination has yet emerged in Canada, and the analytical approach to family status discrimination continues to vary from jurisdiction to jurisdiction.
