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.
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
1 2011 QCCRT 0551.
2 An Act respecting labour standards, R.S.Q., ch.
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