Alberta preschool taught a lesson on accommodation

The owners of an Alberta preschool must pay a former employee $20,000 for discrimination and a failure to accommodate her mental disability after they fired her while on medical leave, the Alberta Human Rights Tribunal has found.

The worker was a development assistant for Time to Play (TTP), a preschool in Alberta, working seasonally from September to June. She started with TTP in 2011 and continued to work from September through June over the following three years and her employment contract included a provision that required telephone communication in case of an absence due to illness. The worker suffered from generalized anxiety disorder for which she took daily medication.

On Oct. 31, 2014, the worker got into an argument with a colleague about watching one of her children. As a result, she left work early feeling upset about the altercation. TTP arranged a Nov. 3 meeting with her and the colleague to discuss the matter.

At the meeting, TTP’s office manager and co-owners told the worker that she was in need of help, as the co-owner had a background in psychology and the office manager in social work. The co-owner was aware of the worker’s anxiety because they had discussed it at work previously. The co-owner offer the help the worker move to Ontario to get help and asked her to think about it and the following day, the co-owner emailed the worker about a 30-day medical leave with two weeks’ severance plus assistance to relocate. If the worker didn’t accept the offer, she was expected to return to work immediately.

Two days later, the co-owner emailed the worker reiterating the options of going to Ontario for on a medical leave or returning to work. The other co-owner followed this up with an email saying there would be no employment insurance and offering to drive her to Ontario if she chose that option. On Nov. 6, the worker provided a doctor’s certificate stating that she was unable to work due to illness  until Dec. 6.

Medical leave extended

The worker was scheduled to take a first aid course on Dec. 6, which was a Saturday and the last day of medical leave according to the doctor’s note. TTP sent two email reminders to the worker and the officer manager called her to request confirmation, but the worker sent a second doctor’s certificate on Nov. 25 stating that she was unable to work due to illness and would be assessed on Dec. 16.

The day after TTP received the second certificate, TTP requested confirmation that the worker was seeing a doctor for her illness and a statement from the doctor on what the illness was. The email concluded with “see you in the New Year.” The worker responded by saying that she wasn’t required to divulge personal medical information and confirmed that she was seeing her doctor. She also said that she wouldn’t be attending the first aid training on Dec. 6.

One of TTP’s co-owners followed up with an email stating that the worker’s absence caused a “good deal of stress and disruption on our day to day operations” but coverage for her workload had been arranged until the end of the school term on Dec. 19 with the hope that the worker would be able to return for the start of the next term on Jan. 5.

TTP called the worker on Dec. 16 — the last day of her medical leave under the last doctor’s certificate — to ask about her status, but the worker didn’t answer. The next day TTP called again to inquire about the worker’s status and left a voicemail message, but again didn’t hear back from her. Three days later, on Dec. 20, TTP sent the worker a termination letter saying that it expected that she would have either returned to work on Dec. 17 or notified it of another medical leave extension. The letter also rescinded the offer of two weeks’ severance and stated that “since neither of those things happened we must conclude you have abandoned your employment contract with TTP.”

The same day as the termination letter, TTP received a doctor’s certified extending the worker’s leave until Dec. 31. TTP made additional attempts to contact the worker but these were unsuccessful.

On Jan. 2, 2015, the worker filed a human rights complaint alleging that TTP failed to accommodate her mental disability when it terminated her employment when it had communicated to her that she wasn’t expected back until the new year. She also claimed that TTP had a duty to inquire into her accommodation needs.

The tribunal found that the worker was subjected to prima facie discrimination, as her anxiety was a mental disability, her termination was an adverse impact, and her disability was a factor in her termination since TTP knew that she needed help and her absence was related to an illness for which she was seeing a doctor.

The tribunal acknowledged that TTP accommodated the worker’s medical leave as requested by the first two doctor’s certificates, from early November 2014 until Dec. 16. However, it stopped accommodating her on Dec. 17 when it had no further information from the worker and she didn’t return to work on that day, the tribunal said.

The tribunal found that there was still a duty to accommodate the worker after Dec. 16 even though it had no definite information until a few days later. The most recent medical information that TTP had at that point was that the worker would be reassessed on Dec. 16 — creating a possibility that the medical leave would be extended. Regardless, the last date of a medical certificate doesn’t necessarily mark “an immediate end” to an employee’s protected status for a disability, the tribunal added.

Worker was told she wasn’t expected until next term

The tribunal also found that although TTP wasn’t successful in communicating directly with the worker, it had sent two different emails indicating that it didn’t expect her back until the new term began in January. The preschool was holding her to the standard in her contract requiring timely notice of absence, but ignoring its previous communications in the process, said the tribunal, pointing out that this was an unreasonable standard and not rationally connected to the performance of the job.

The tribunal noted that on the same day TTP send the worker the termination letter, it received a medical certificate indicating an extension of her leave. Even if TTP was uncertain of the worker’s status previously, the certificate should have cleared things up. TTP may have been frustrated at that point, but its assertion that the worker abandoned her employment was not in good faith, the tribunal said.

In addition, the tribunal found that TTP didn’t try to accommodate the worker to the point of undue hardship. While TTP experienced some difficulty in arranging coverage for the worker’s duties, it was able to do so to the end of the term in December with internal resources. However, it didn’t seek out any external help while the worker was off work and it didn’t begin looking for another development assistant until late January or February.

Time to Play and its two owners were ordered to pay the worker $20,000 in general damages for injury to dignity and self-respect from the discrimination. There was insufficient evidence on any shortfall between EI benefits the worker received and her regular wages, or the worker’s attempts to mitigate her losses, so no damages for lost wages were awarded.

For more information, see:

• Cryderman v. Time to Play ECS (and individual respondents), 2020 AHRC 26 (Alta. Human Rights Trib.).