Edited by Jennifer M. Fantini and Naomi E. Calla.
Denis Bizier v. Les Équipements Lapierre inc.,1 is the most recent Québec labour law decision from Québec's Labour Relations Commission (the "Commission"), considering the employer's duty to accommodate an employee. The plaintiff filed a complaint with the Commission claiming he was dismissed without a good and sufficient cause, pursuant to section 124 of An Act respecting labour standards.2 In the five years preceding the termination of his employment, the plaintiff was absent numerous times owing to illness and injury. While not all his injuries were work related, all important absences were supported by medical certificates.
The plaintiff's dismissal was based on his excessive absenteeism and incapacity to perform his normal work functions over a short term period.
On the issue of excessive absenteeism, the administrative judge concluded that the employer was required to demonstrate a chronic rate of absenteeism, a prejudice to the company and an incapacity of the employee to perform his normal work functions over a short-term period. This last condition was tied to an employer's duty to accommodate.
The employer argued that the plaintiff provided information concerning his capacity to carry out work tasks, which differed from the information it had received from the plaintiff's doctor. However, it was evident that the plaintiff had a problem with his right shoulder and, at the time, was unable to perform his normal work functions.
Considering the decision of Langlois v. Gaz Métropolitain inc.3, the Commission stated:
The Supreme Court of Canada has recognized illness as a handicap for the purposes of article 10 of the Charter, which necessarily imposes an obligation of accommodation on the employer.
In consideration of its duty to accommodate, the employer must consider the possibility of maintaining the salaried employee in an irregular, part time capacity or to modify his tasks to the extent that reasonably possible.
[our translation]
A physical problem, as well as the presence of pain, may amount to a handicap pursuant to article 10 of the Charter of Human Rights and Freedoms. As a result, the employer has a duty to accommodate the plaintiff, unless it can demonstrate undue hardship.
The Commission found that the employer did not fulfill its duty to accommodate the plaintiff. The employer did not accept a progressive return to work and was influenced by the fact that the plaintiff's illness seemed indeterminate and that there was no prospect of recovery.
The Commission determined that if the employer had doubts as to the veracity of the plaintiff's prognosis as provided by his physician, it should have requested a medical report to determine the plaintiff's capacity to perform his work. In that regard, the Commission concluded that it is incumbent upon the employer to determine the employee's state of health and his actual capacity to work.
The Commission found that the employer made no real attempt to accommodate the employee, since it did not verify the plaintiff's state of health, nor did the employer inquire as to his limitations. The employer simply relied on its evaluation of the plaintiff's responses to its questions.
Even in the context of a high level of absenteeism and the incapacity of an employee to work a normal work week in the foreseeable future, the employer has the obligation, prior to terminating an employee, to communicate with his treating physician if it has any doubts regarding the medical opinion provided by the physician.
Footnotes
1 2011 QCCRT 0551.
2 An Act respecting labour standards, R.S.Q., ch. N-1.1.
3 204 QCCRT 0267.
About BLGThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
