Accommodation a two-way street, Alberta court confirms in shoulder injury ruling

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Canadian human rights legislation can be a landmine for employers.

Much of this is by design, intended to protect vulnerable workers from discrimination. A key feature of this design is that there is no “presumption of innocence” for employers accused of discrimination. Once that allegation is raised in a proceeding, it is the employer’s responsibility to disprove it, or provide a permissible justification under the law.

Another key feature of human rights law is that employees cannot be held responsible for their employer’s legal costs if they file an unsuccessful application to a human rights tribunal. Employers are also expressly prohibited from retaliating against employees who assert their rights under human rights legislation, even when the claim may be frivolous.

Against this backdrop, there is no deterrent for disgruntled employees seeking human rights damages against employers. Meanwhile, the legal and reputational costs for employers are high. It is no wonder why many employers will seek to avoid a human rights dispute at all costs.

A new decision from the Alberta Human Rights Tribunal, however, should provide employers with some comfort.

In Zupcic v Saputo Foods Limited, an employee alleged discrimination against her former employer for failing to accommodate her disability in the form of a shoulder injury, and then terminating her as a result of that disability, after she disagreed with a Return to Work (RTW) offer.

Issues for the Tribunal

The first issue for the Tribunal was whether the employer accommodated the employee’s shoulder injury while she was employed. It was determined that the employer did. Crucial to this determination was an assessment of the medical evidence. The Tribunal determined that the employer’s offer to provide “modified work” were consistent with the medical evidence, and that the employee’s testimony directly contradicted the written records prepared by medical professionals.

The next issue was whether the employee’s shoulder injury was a factor in her termination.

If it was, her termination would automatically be deemed discriminatory. Although the employer argued that the employee was terminated for refusing to sign the RTW offer, the Tribunal clarified that the termination does not need to be “because” of the disability in order to be deemed discriminatory.

In other words, her disability did not need to be the sole or main factor in her termination –it needed to only be a factor – in order to be discriminatory. In this case, the disability was found to be a factor in the termination, since the employee was fired because she did not agree that her shoulder injury was being properly accommodated.

Crux of the case

Thankfully for the employer, that did not end the inquiry. Once an employer has proposed a reasonable accommodation, the employee has a responsibility to facilitate its implementation. That was the crux of this case.

Ultimately, the employer’s proposed accommodation was found to be reasonable, because it was consistent with medical evidence. By refusing to sign the RTW offer, the employee prevented the employer from offering her modified work conditions, and ultimately, her claim was dismissed.

Takeaways for employers

This case has several important takeaways for employers. Firstly, to the extent possible, all requests for accommodation should be considered subject to the evidence of medical experts. When there is an inconsistency between the employee’s self-reports and the information provided by medical experts, a Tribunal is likely to prefer the evidence of the medical expert, particularly when it is the employee’s own medical expert and/or the medical expert does not have any interest in the proceeding.

Secondly, accommodation is a two-way street. Once an employer has proposed a reasonable accommodation, the employee has a responsibility to help implement that accommodation. While the employee in this case abjectly refused to participate, there are other instances where an employee could be deemed to have refused accommodation, such as failing to provide medical information or information pertaining to restrictions as requested by the employer, or refusing to respond to reasonable inquiries.

Finally, employers who act in good faith and in accordance with their legal obligations, need not shy away from defending themselves against human rights allegations. That said, it is recommended that employers do so under the guidance of experienced employment law counsel.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.