An essential component of the accommodation process is
engaging in a thorough inquiry as to the limitations of an
employee, a significant aspect of which is consultation with the
employee in need of accommodation. Consultation is necessary to
determine the employee's limitations, obtain medical
information and assess what forms of accommodation are necessary
and practical. In the absence, an employer is unlikely to have the
information necessary to determine whether the point of undue
hardship has been reached. As a pair of recent British Columbia
decisions illustrate, a failure to engage in such consultation can
have a significant impact on the outcome of a case.
In Mould v. JACE Holdings (No. 2),1 the
Complainant, who had been on disability leave for 30 months, was
terminated in June 2010 by the Respondent employer on the basis
that her employment had been "frustrated" by her
disability. Upon receiving this notice, the Complainant contacted
the Respondent to ask whether she could be accommodated by working
shorter shifts with modified duties. In reply, the Respondent
simply told her that she could not be accommodated and failed to
elaborate, despite the Complainant's repeated attempts to
engage in such a dialogue.
In its reasons, the Tribunal acknowledged that given the
Complainant's restrictions it was altogether possible that the
Respondent could not accommodate the Complainant without undue
hardship. However, the Tribunal could not come to this conclusion,
due largely to the fact that Respondent had failed to make any
inquiry into whether the Complainant could return to work.
Attention was drawn to the fact that, among other things, the
Respondent failed to entertain any discussion as to her
accommodation and failed to ask the Complainant for medical
information, even in the face of the Complainant initiating
discussions about accommodated employment. Without doing so, it was
not found that the Respondent had accommodated the Complainant to
the point of undue hardship.
A similar finding was made in Brewer's Distributor
Limited.2 As part of a return to work agreement
following serious injuries, the Grievor was placed in a modified
position, working limited hours and limited duties, with the
ultimate goal being a return to his original position. After a year
with no improvement in the Grievor's condition, the Employer
concluded that the Grievor was unable to fulfill his obligations
under the agreement and terminated his employment.
Arbitrator Keras found that the Employer had failed to
accommodate the Grievor to the point of undue hardship. Again, the
Employer's inability to do so was owed largely to its failure
to engage in an adequate inquiry into the Grievor's
limitations. Although the Employer had accommodated the Grievor for
a year in a modified position, and was under no obligation to
continue to do so, the Employer had, throughout the duration of the
return to work agreement, failed to notify the Grievor that he was
not meeting expectations, inquire into the degree of pain being
experienced by the Grievor, or engage in any discussion as to
whether independent medical assessments were required to determine
the Grievor's capabilities. Accordingly, the Arbitrator was
unable to find that the Employer had consulted with the employee so
as to determine whether the point of undue hardship had been met.
The Grievor was reinstated to his position.
These cases serve as a valuable reminder of the importance of
consultation by the employer during the accommodation process. When
faced with an accommodation issue, employers must be sure to engage
in transparent discussions with the employee for the purposes of
making a proper assessment regarding accommodation and, if
accommodation is impossible, with a view towards strengthening and
defending that position. While employees have a role to play in
this process, the primary responsibility lies with the employer,
who is generally expected to initiate and lead accommodation
1 2012 BCHRT 77
2 Brewer's Distributor Limited v. Brewery, Winery and
Distillery Workers' Union, Local 300 (Peebles Grievance),
 B.C.C.A.A.A. No. 49
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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