Worker didn't provide sufficient medical information to warrant accommodation efforts
A British Columbia worker’s disability discrimination complaint has been dismissed by the province’s human rights tribunal on the basis that the worker didn’t provide information supporting accommodation and simply didn’t respond to the employer’s attempts to find out what was going on.
Kyah Aue Thah was employed with Pacific Metals, a metal recycling company in Vancouver. His job was that of a torchman, a position that involved welding and the use of blowtorches.
On July 17, 2014, Thah was in a motor vehicle accident, suffering multiple soft tissue injuries. The day after the accident, he provided a doctor’s note and sent an email to Pacific Metals that indicated he would need to be off work until July 25 to recover. During that time, Thah received physiotherapy and continued to provide doctor’s notes saying he couldn’t return to work.
Thah remained off work for three months. On Oct. 7, he presented a doctor’s note that said he would be able to return to his “full duties and full-time” after Oct. 15. Thah actually returned on Oct. 20.
Thah worked for six of the next 10 days but said his injuries were exacerbated and he couldn’t continue his full duties. Pacific Metals tried to accommodate him by providing him “the lightest duties in the operation” for which he had training or was qualified.
Thah’s supervisor wrote him a memo stating he had been cleared to return to work full-time and perform his full duties, but he seemed to be unable to do so and was complaining of pain. The supervisor asked him to see his doctor again and let him know “where you are at,” noting that his safety was the company’s “primary concern” and it needed to ensure he was cleared for “full heavy duty work and are fully recovered.”
Thah was off for another three months and returned on Jan. 26, 2015, performing his full duties on full-time hours. Thah complained that Pacific Metals refused to accommodate him with light duty work and he soon missed two of his shifts. Pacific Metals had no medical documentation indicating Thah required accommodation, though a chiropractor’s discharge report dated Feb. 24 stated he was working full hours on modified duties.
On Jan. 30, Thah’s supervisor emailed Thah’s union representative saying he didn’t believe Thah was able to work full-time due to his July 2014 car accident. He requested the union find Thah employment elsewhere so Pacific Metals could hire a new torchman that was capable of working full-time. However, the union didn’t take action and Thah continued to work as a torchman.
In late April 2015, Thah missed two shifts. He called the operation manager to advise him he was unable to attend work. The manager asked for a doctor’s note as well as several other questions. Thah claimed not to understand the questions, so he hung up. The operations manager later said he didn’t remember receiving such a phone call from Thah.
Two days later, on April 29, Thah’s supervisor contacted the union representative, this time saying Thah was absent without notice and further absences would lead to “escalating consequences.” The supervisor also emailed Thah to tell him that he had been absent without notifying the company — a violation of company policy — and gave him a first warning under the discipline process.
Pacific Metals still hadn’t heard from Thah by May 1, so it suspended him without pay. When Thah received a voice message informing him of the suspension, he didn’t try to return to work or contact Pacific Metals.
By May 7, with still no contact from Thah, Pacific Metals terminated his employment for absence without leave. Thah didn’t respond to the memo advising him of the termination, but he later filed a human rights complaint alleging discrimination on the basis of physical disability and arguing the company should have accommodated him.
The tribunal found that when Thah returned to work in October 2014, his medical information indicated he was cleared to work full-time on full duties. The same was the case when he returned again in January 2015. The only information Pacific Metals had was that Thah was capable of working full-time on his regular duties and there was no official indication that he required accommodation, said the tribunal.
The tribunal also found that when Pacific Metals asked Thah for more information after he seemed to be having trouble, there was no evidence Thah provided any additional information or even visited his doctor for an evaluation. When he stopped showing up for work in April 2015, there was no medical evidence to support his absence or that he needed accommodation.
The tribunal found Pacific Metals fulfilled its duty to enquire about Thah’s condition when it tried to contact him during his absences. Even after learning he was suspended without pay, Thah didn’t take steps to follow up or submit medical information to support his absences. The consistent thread throughout the process was that Thah didn’t respond to the company’s efforts to remedy the problem of his absences.
