Susan Koivos has a 'scent and fragrance sensitivity',
although precisely what that involves was not clearly established
in her human rights complaint against her erstwhile employer:
Koivos v Inteleservices Canada Inc, 2012 HRTO 1570. Koivos
worked for Inteleservices, which operates a call centre, for a
total of three days. During her job interview, she indicated that
she was sensitive to scents and was assured that that wouldn't
be a problem, as the company had a 'fragrance-free' policy
in the workplace. The policy seems to have been lost on Buffy, one
of the complainant's co-workers, whose perfume or cologne
allegedly made Koivos feel unwell during a training session. Koivos
complained to the trainer and the message appeared to have been
communicated to Buffy. But Buffy seems, however, not to have been
the only offender: Koivos claimed that another colleague's
cologne brought on feelings of nausea. Upset, she approached a
supervisor and said she couldn't continue with the company
– but did not seek any specific accommodation, apart from
enforcement of the fragrance policy. She did ask if there were jobs
that didn't involve proximity to other call-centre workers but
was told there was nothing available. This resulted in a complaint
to head office in the US and a decision to quit on the grounds that
the fragrance policy was not being enforced. A complaint to
Ontario's human rights commission ensued.
The adjudicator of that complaint reviewed the Inteleservices
policy, noting that it was really a request for employees to be
aware of others' sensitivities and go easy on the Eternity,
rather than an enforceable prohibition. There was evidence that the
employer had accommodated workers who were bothered by exposure to
scents, but not a lot of evidence about the exact nature of the
sensitivity to scent that Koivos characterised in her complaint as
a disability. Given Koivos's hypersensitivity (she claimed to
be affected by smells that are undetectable by others) it was
unlikely that she could ever be accommodated without imposing undue
hardship on her employer – but in any event, Koivos
hadn't sought any accommodation or clearly articulated the
effects she suffered. Asking for enforcement of a voluntary policy
was an insufficient foundation for a claim of discrimination
through failure to accommodate.
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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