A recent case heard by the Public Service Labour Relations Board
provided a reminder to employers that the duty to accommodate is
not always satisfied by the employer's proposed action. In this
decision, the Federal
Government was required to manage two Ottawa public servants who
struggled to co-exist in the workplace.
Line Emond worked as a statistics and data quality manager at
the Parole Board of Canada and in 2009 a new employee, identified
as Mr. X, moved into her neighbouring cubicle. Unfortunately, Ms.
Emond found Mr. X to be a bad neighbour. Mr. X regularly swore,
spoke loudly, made a lot of noise, and most notably regularly
washed his feet with vinegar in the office. Ms. Emond found this
behaviour to interfere with her ability to work and brought a
complaint forward to her supervisor asking to be moved.
The supervisor at first did not move either employee – or
take any action at all. Perhaps as a result of this inaction, the
situation escalated. In May, 2010, approximately 6 months after Mr.
X first moved in, an incident occurred. Ms. Emond was on the phone
with a colleague when she was distracted by the noise Mr. X was
making. In an effort to get him to stop, she banged on their shared
wall. Mr. X came into her office and confronted her by asking
"What is your problem?". Mr. X then went on to warn Ms.
Emond not to cross the line on the floor as he was not sure what
would happen. Ms. Emond was frightened after this incident and
again brought the issue to her supervisor. This time the supervisor
offered Ms. Emond mediation and a new office. Ms. Emond accepted
the new office but declined any attempt at mediation.
When the two employees were no longer neighbours it appeared
that the situation had been resolved. Until 8 months later. At this
time Mr. X filed a harassment complaint against Ms. Emond. One
element of this complaint was upheld. Ms. Emond did not respond
well to the complaint and went on sick leave for depression, fear
and anxiety. Ms. Emond would be on sick leave for almost two
During the time Ms. Emond was on sick leave her employer
continued to try to assist her in returning to work. She was
offered an office in the executive suite which could only be
reached by individuals with two security cards. This offer was
refused, as Ms. Emond insisted that she would only feel safe
working in a different building from Mr. X.
At arbitration, the employer relied on the offer of a secure
office space as a reasonable accommodation. Unfortunately for
employers, this position was rejected by the Tribunal. Adjudicator
Gobeil found that Ms. Emond's stress could only be addressed by
relocating her to a different building. The Adjudicator also
awarded her wages and benefits that were lost while she was on sick
The Tribunal's decision should remind employers to be
responsive to an employee's requests for accommodation and
expressions of concern in the workplace. However, employers should
keep in mind that employees are not entitled to perfect or their
preferred accommodation in most cases. Accordingly, if an employer
can demonstrate that the concerns and needs of the employee can be
addressed by the employer's proposal the duty to accommodate
should be fulfilled.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent decision from the Supreme Court of British Columbia, Ly v. British Columbia (Interior Health Authority) 2017 BCSC 42, provides helpful clarification of the law on termination of probationary employees on the basis of "suitability" and sends a cautionary note about the importance of fair and objective assessments during probationary periods.
The Ontario Court of Appeal recently gave employees and employers a valuable reminder: a breach of an employment contract does not, in and of itself, constitute a constructive dismissal. Even if the breach translates into hundreds of thousands of dollars not being paid.
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