Employer’s assumption leads to discrimination against worker with disability

A Newfoundland and Labrador company discriminated against a worker when it chose to keep a replacement employee it had hired while the work went on medical leave, the Newfoundland and Labrador Board of Inquiry has ruled.

Maurice Philpott worked as a driver for City Tire and Auto Limited, an automotive repair company in St. John’s. He was hired in 2009 and his duties for much of his workday involved driving vehicles — which involved a lot of looking over his shoulder — and moving large and heavy tires.

In late 2012, Philpott was experiencing pain in his neck to the point where he had trouble moving his head from side to side. As a result, driving was painful and he had to leave work several times because of the pain. A November 2012 X-ray of his spine showed that the injury was degenerative and aggravated by his work.

He saw a neurosurgeon in early February 2013 and reported that his neck pain had been increasing to the point where it was fairly constant and aggravated by physical activity. The neurosurgeon diagnosed him as having a bulging and deteriorating disk along with arthritis in his neck, providing him with anti-inflammatory medication and a referral for physiotherapy.

A few weeks later, Philpott’s doctor recommended he take time of work as of March 1. Philpott applied for disability benefits, with his doctor saying that his symptoms began in May 2012, his job likely contributed to and aggravated his condition and he was unsure about a return-to-work date. The doctor also suggested his previous job could be modified.

Replacement hired

City Tire initially modified some of the driver duties with an eye toward Philpott’s return, but it eventually hired a replacement for the driver position in April. The replacement employee also took on part-time service advisor duties because the person in that position left — Philpott had been asked to take on some of these duties before he went on medical leave, but he had declined because he wished to stay in the driver position for which he had been hired. With the new hire, City Tire adopted a policy that a driver was expected to cover for a service advisor on weekends and holidays — a practice intended to advance drivers through the company while adapting to new economic circumstances.

After another medical examination in late March, Philpott’s doctor determined that Philpott’s symptoms would improve over time, but they would likely be ongoing because they were “mechanical and degenerative.” The doctor expressed hope that Philpott’s symptoms would settle and Philpott could reintegrate into the workforce after two or three months of physiotherapy.

Over the next few months, Philpott continued to provide medical information to City Tire, including a report in June saying that he was unable to return to his driver job based on his current symptoms and that an occupational assessment might determine if he could perform a different job at City Tire. The company decided not to have an occupational assessment performed.

In July, City Tire made the replacement driver a permanent employee while performing driver duties and some extra service advisor duties.

In September, Philpott told the branch manager and assistant manager that he expected to be medically cleared for a return to work on Oct. 21. He visited City Tire on Oct. 1 to have his car serviced and confirmed with the branch manager that he would be able to return on Oct. 21.

However, a few days later, the branch manager called Philpott and told him to “consider this a two-week notice that you’re being laid off” and City Tire was keeping things the way they were — City Tire wanted to keep the replacement employee in the driver position on a permanent basis and there was only one such position at that location. On Oct. 18, Philpott’s doctor cleared him to return to work as a driver, as tolerated.

Philpott filed a complaint alleging discrimination in his employment on the ground of disability. He said that City Tire discriminated against him by terminating his employment following his medically related absence from work and the termination was related to that absence — and, therefore, his disability. He continued to have problems with his neck, but he had been medically cleared to return to work.

City Tire argued that it had modified the duties of the driver position but that, during Philpott’s medical leave, the duties changed so that they involved covering as service provider on weekends and holidays. There was less demand for a driver, so the position involved more service advisor responsibilities — a decision stemming from the company’s new business model that was implemented for economic reasons. The replacement employee was willing to do these additional duties while Philpott was not, the company said.

The board noted that the Nova Scotia Human Rights Act, 2010 prohibited an employer from refusing to employ or continuing to employ or otherwise discriminate against a person in regard to employment on the basis of a prohibited ground of discrimination, including disability. Based on the medical evidence that Philpott had a degenerative disease in his neck that would worsen over time, the board agreed that he had a disability.

Disability a factor in dismissal

The board found that Philpott’s job of driver was still a job at City Tire when he was cleared to return to work but City Tire didn’t want to return him to the position. While the company may not have intentionally discriminated against him and just wanted to keep the replacement employee, the result was that Philpott was terminated while on sick leave, making the sick leave a factor in his termination, said the board.

In addition, Philpott was denied the opportunity to take on the extra service advisor duties that had come about after the service advisor had left. City Tire didn’t only deny Philpott a return to his old position with modified duties but found someone else to do the modified duties while he was still on sick leave. This also indicated that Philpott’s disability was a factor in his termination, the board said.

 The board agreed that City Tire adopted the new job standard with service advisor duties for a legitimate business purpose and in an honest and good-faith belief that it was necessary. However, it also found that the company made no effort to see if it could accommodate Philpott. The company never told Philpott that if he didn’t take on the modified duties his job could be in jeopardy and, therefore, didn’t give him the chance to change his mind about those duties before terminating his employment, the board said.

“There is a duty to accommodate Mr. Philpott, [and] in meeting that duty City Tire were required to bring him back to work once he was cleared for work, he was to be given the opportunity to fulfill his job including any modified duties and he was not given that opportunity,” said the board. “Mr. Philpott was never given the opportunity, he was not given an ultimatum, it was not explained to him about the changes because of a service advisor leaving and for economic and business reasons the driver duties were to be modified.”

City Tire was ordered to pay Philpott compensation for loss of income from the time of his dismissal to July 31, 2016 — a reasonable date that his employment at City Tire could be expected to end — minus any employment income and employment insurance benefits he received, plus $7,000 to compensate for loss of dignity, self-respect, hurt feelings and mental distress.

For more information, see:

• Philpott and City Tire and Auto Centre Ltd., Re, 2020 CarswellNfld 383 (N.L. Bd. of Inq.).