Alberta employer was aware of worker's injuries from car accident; had duty to inquire
An employer should have inquired about whether a worker’s performance issues were related to a disability stemming from a motor vehicle accident before firing him for those issues, the Alberta Human Rights Tribunal has ruled.
The worker was an employee of Alberta Health Services (AHS).
In 2016, some of the worker’s clients complained about poor services provided by the worker, so AHS placed him on a performance plan involving regular meetings with his manager, a reassignment of his portfolio, and a learning plan.
On Nov. 2, 2016, the worker was involved in a motor vehicle accident. He suffered a concussion and was off work until Nov. 28.
Nearly four in 10 of Canadians living with disabilities say that companies have a way to go in supporting employees with disabilities, according to a survey.
Lasting effects from accident
The accident and resulting concussion had lasting effects for the worker, as he developed post-traumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder. In early 2017, a couple of months after the accident, he told his supervisor that he was suffering from headaches and a lack of sleep. He also advised that he had an appointment with a specialist about his concussion. AHS granted him medical leave to see a medical specialist.
AHS was still concerned about performance issues such as missing timelines, not responding, an inability to relay information to clients, and an inability to detect risks. In January 2017, the operations department at AHS advised the worker’s manager that the worker didn’t understand his portfolio and he was disengaged in leadership meetings. It was also noted that the worker had become less engaged and unable to manage complex files since the motor vehicle accident.
On Feb. 9, 2017, the worker’s manager advised that there were significant concerns about his job performance and the worker needed to improve. Although the worker had shown some improvement on the performance plan, he still had several areas of improvement such as improperly scheduling meetings, incomplete files, and inappropriate advice to clients.
On March 9, AHS issued a letter to the worker warning that if his poor performance continued, “this will result in disciplinary action up to and including termination.”
On March 17, the supervisor remarked that one of the worker’s clients thought that the worker was “cognitively impaired.”
Termination for poor performance
On June 6, AHS terminated the worker’s employment without cause but cited the worker’s poor performance on the job.
The worker filed a human rights complaint alleging discrimination in the area of employment on the protected grounds of physical and mental disability.
The Director of the Alberta Human Rights Commission found that AHS accommodated the worker’s disabilities by providing medical leave after his accident and for subsequent medical appointments. However, the worker did not formally request any accommodation or advise AHS that his disability was affecting his job performance in any way, particularly since the worker had performance issues before the accident. The director dismissed the complaint.
The worker filed request for review of the director’s decision, maintaining that AHS failed in its duty to inquire about his disability and accommodate it.
An Alberta Human Rights Tribunal decision reinforced that the duty to accommodate includes reasonable, not preferred options.
Employer aware of injury and changes in behaviour
The tribunal agreed that the worker had a disability arising from the motor vehicle accident and AHS was aware that he had suffered injuries in it, including a concussion – the worker told his supervisor that he was experiencing headaches and AHS granted a medical leave so he could see a specialist. It had also been observed that the worker was having cognitive issues and was unable to manage complex files. All of this invoked a duty for AHS to inquire if the worker’s disability was affecting his performance and if he needed accommodation, the tribunal said.
“An employer who knows or ought reasonably to know that there may be a connection between an employee’s disability and their poor performance on the job is required to inquire into such connection before taking any disciplinary action against the employee for poor performance,” said the tribunal.
In addition, employers have an obligation to provide reasonable accommodation to the point of undue hardship when they have knowledge of the employee’s disability, the tribunal said.
Although AHS provided some accommodation to the worker in the wake of the motor vehicle accident, there was a question of whether the worker was accommodated to the point of undue hardship. This question would have to be assessed in a hearing, said the tribunal in overturning the director’s dismissal of the complaint and referring it to a hearing. See Peng v. Alberta Health Services, 2023 AHRC 62.
