Employer must prove it met procedural, substantive components of duty to accommodate
The BC Human Rights Tribunal has dismissed an employer’s argument that it reached undue hardship in accommodating an employee’s physical disability, sending the complaint to a full hearing.
The worker joined Badry Collision, an automotive repair shop in Coquitlam, BC, as an automotive painter in December 2015.
In January 2019, the worker went on leave after he was diagnosed with a brain tumour. He informed the company about his diagnosis and that he needed a medical leave for treatment and recovery.
Badry approved the medical leave and hired a temporary automotive painter on a three-month contract. When the temporary painter’s contract was up in April, the worker wasn’t able to return to work so it hired a second painter on a temporary basis. That painter was with Badry for a month, but when the worker still couldn’t come back the company hired a third painter on May 7.
Employers are not required to hire extra staff or create ‘make-work’ assignments to accommodate employees, says a lawyer.
Return to work uncertain
The worker underwent radiation therapy beginning in April, which lasted just under two months. In June, he told Badry that it was over but he needed some time to recover from the side effects. He suggested that he return to work gradually and, according to him, the owner told him that “he had a painter working at the shop and would work [the worker] into the schedule somehow.”
According to Badry, the worker visited the shop in early June and the owner told him that “things were bad” and he was “urgently needed back at work.” The worker said that he didn’t know when he would be returning and, when he did, he would probably only be able to work a couple of hours per day.
In late June, the owner told the worker that “things were falling apart at the shop” and his own health was being negatively affected because he was having to work extra hours – the owner was in his 60s and had ongoing chronic conditions, which his doctor felt could impact his ability to work long shifts without a day off.
On June 17, the owner called the worker to ask him when he could come back to the shop. According to the worker, he said that he was waiting for an appointment with the oncologist, which would be mid-July. Until then, he wouldn’t be able to confirm a date.
However, the worker claimed that at that point the owner offered him a severance package, which shocked him. He said that he needed to think it over.
An employer met its duty to accommodate a worker, despite the worker’s disenchantment with the solution, the Ontario Human Rights Tribunal found.
Difficulty replacing worker
The owner said that it was difficult to hire and retain automotive painters and the third one was threatening to quit without a guarantee of permanent employment. The company denied that the worker mentioned his appointment, treatments, or how he would return to work. The offer of a severance package included an extension of the worker’s benefits to help the worker, the company said.
By June 28, Badry had not received a response from the worker, so the owner called him and said that “his cheques were ready for him at the shop.” The worker came to the shop and asked if he was being fired, to which the owner said no but he had no idea when he was coming back and could no longer run the business without him. The owner also offered to help him re-enter the trade when he was well enough to work again.
The worker filed a complaint alleging discrimination based on a physical disability when Badry dismissed him while he was on medical leave. Badry applied to have the complaint dismissed as having no reasonable prospect of success.
Badry agreed that the worker could prove the three elements of the test for prima facie discrimination – his disability was a protected characteristic under the BC Human Rights Code, he experienced an adverse impact in his employment, and the protected characteristic was a factor in the adverse impact.
However, the company argued that it could establish a defense at a hearing that its decision to terminate the worker was based on a bona fide occupational requirement and that it could no longer accommodate the worker’s absence without undue hardship, referring to the owner’s health issues and evidence that it experienced a decline in revenue during the worker’s absence. Badry also argued that the worker did not co-operate in the accommodation process.
Failure to meet both the substantive and procedural elements of the duty to accommodate can lead to liability for employers, says a lawyer.
Duty to accommodate
The tribunal found that Badry Collision was a small business and other employees couldn’t easily fill in for the worker. However, a key factor was whether the company had sufficient information on the worker’s prognosis before the termination decision was made – the procedural component of the duty to accommodate imposes a duty on the employer to obtain all relevant information about the employee’s disability. The worker said that he would receive an update on his prognosis in July and it was unclear if Badry requested the worker to provide more detailed information, said the tribunal.
The tribunal also found that the evidence of Badry’s revenue decline was unclear on the causes and didn’t necessarily show that the worker’s accommodation impacted the company’s financial viability.
The tribunal determined that a hearing was necessary to assess whether Badry discharged its duty to accommodate fully and whether the worker adequately participated in the accommodation process. It denied Badry’s application to dismiss and referred the complaint to a hearing. See Pacey v. Badry Collision Repairs Inc., 2023 BCHRT 56.
