Employer relied on insurer to handle things, but worker made direct request
An employer can’t hide behind its third-party disability insurer when faced with an accommodation request from a worker with a mental disability, the Alberta Human Rights Tribunal has ruled.
The worker was employed with Hunting Energy Services (HES), a Calgary-based manufacturer of machinery and equipment for use in oil and gas fields.
According to the worker, a co-worker sexually assaulted her outside of work hours. The co-worker was charged with assault, pleaded guilty, and was convicted.
HES consulted Alberta Occupational Health and Safety and received advice that it had no obligation to investigate the matter because a criminal investigation was already being conducted.
Short-term disability leave
The worker returned to work soon after the assault, but she began experiencing anxiety because the co-worker’s workstation was near hers. She provided medical notes indicating that she needed to go on sick leave and she received short-term disability benefits while she was off work.
The worker and HES communicated with each other in an attempt to develop a return-to-work plan. The worker suggested moving her office away from the co-worker or working with her door closed so she couldn’t see him, but HES said that its disability insurer was in charge of receiving and communicating medical restrictions and disability requests. The company also did not want the worker returning to work before she was medically cleared.
Without medical clearance or a request for accommodation made through the disability insurer, HES declined to discuss accommodation or a return-to-work plan with the worker.
On Aug. 6, 2019, HES wrote to the worker that it had investigated the circumstances around her departure and it was confident that it could provide a safe work environment for her. The company also stated that it was willing to provide her with a “departure offer so that you can move on to new endeavours” and included details on such an offer.
Worker resigned, made discrimination complaint
Further discussion of the offer and arrangements followed over the next few weeks, but they were unable to reach an agreement. On Sept. 27, the worker resigned. In June 2020, the worker made a human rights complaint alleging discrimination in the area of employment on the grounds of gender and mental disability.
The Deputy Director of the Alberta Human Rights Commission reviewed the complaint and HEC’s response. The director found that the worker developed a mental disability after the assault for which she had to go on short-term disability leave, but she asked to return to work before the end of her medical leave. They also found that HES discharged its duty to accommodate by providing short-term disability leave and asking for medical evidence to indicate that the worker was ready to come back early. As a result, the director dismissed the worker’s complaint as having no reasonable prospect of success.
The worker requested a review of the director’s decision on the basis that she requested accommodation and HES failed to meet its duty to accommodate. HES countered that the worker failed to follow the required process through the disability insurer and didn’t provide medical information to support her claim for accommodation. The worker’s request to work with her office door closed was not considered because it didn’t follow this process, the company said.
The tribunal noted that it had been established that the goal of accommodation is to ensure that an employee who is able to work isn’t unfairly excluded where working conditions can be adjusted without undue hardship to the employer. In addition, accommodation is a shared responsibility between the employer and the employee, the tribunal said.
Uncertain if duty to accommodate discharged
The tribunal found that HES relied on its process with the disability insurer to guide it in the duty to accommodate. However, it was unclear whether the worker’s failure to follow that process discharged HES’ duty to accommodate to the point of undue hardship, said the tribunal.
The tribunal also found that there were questions over whether the worker was obliged to make her accommodation request through the disability insurer when she made one to HES and whether the accommodation proposal was reasonable. These questions, and whether undue hardship was reached for HES, were unresolved and needed to be addressed by the tribunal, it said.
The tribunal determined that the worker’s discrimination complaint should not have been dismissed. It overturned the director’s decision and referred the complaint for resolution through a hearing. See Couture v. Hunting Energy Services (Canada) Ltd., 2024 AHRC 7.
