An employer's breach of its procedural duty to accommodate
was a significant factor in the decision to uphold a human rights
application in Sears v Honda of Canada Mfg., 2014 HRTO 45. The employee, whose job
it was to spot vehicle defects on a computer screen, began to
experience increasingly serious performance issues due to vision
problems. The problems had been evident for more than a year
before the employer took measures to accommodate him. When he
sought additional assistance, he was terminated.
The termination was found to have been motivated at least in
part by the employee's perceived dissatisfaction with the
employer's accommodation efforts and by his assertion of his
rights under the Human Rights Code. The Tribunal found
that the employer was aware, from the employee's initial
employment application and his subsequent performance difficulties
and requests for assistance, that his colour blindness and myopia
were causing problems. The employer breached its procedural
duties when it failed to make inquiries about his need for
accommodation in these circumstances, despite the absence of a
formal request from the employee.
The employer's absence of a clear policy addressing
accommodation and the process involved to attain it was a
contributing factor to the ultimate termination, as was the
employer's failure to investigate the employee's
discrimination complaints and its failure to adhere to the
accommodation plan eventually put in place. The employer was
held liable for compensation of $35,000 for the employee's
intangible loss and was directed to hire a professional to draft an
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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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