Modified duties were within worker's medical restrictions, but discipline and termination were related to disability
An injured Alberta worker who was laid off on his first day back on regular duties was discriminated against and harassed because of his physical disability, the Alberta Human Rights Tribunal has ruled.
Pillar Resource Services is an oil and natural gas company based in Calgary. The company employed the worker as a pipefitter.
On March 17, 2014, the worker slipped and fell while walking on some pipes, injuring his shoulder and elbow. He reported the injury to a safety officer, who told him to complete an accident work report and to visit a doctor the next day if he was still in pain.
The next day, the worker was in pain but he still reported for work. The safety officer took him to a medical clinic, where the worker was diagnosed with a sprained shoulder. The worker returned to work and was assigned to picking up garbage, which fell within the medical restrictions identified by the doctor. However, while picking up garbage, the worker slipped. He didn’t fall, but he jerked his injured arm painfully.
The day after that, March 19, the worker visited a different doctor and x-rays revealed a broken shoulder. The doctor wrote a note stating that the worker should be off work for about one month, but Pillar said that it had sedentary duties within his restrictions and he should come to work.
The worker returned to work. He was eventually cleared for light duties and Pillar assigned him to a large machine called a sub arc welder. The worker was later cleared for medium duties, so Pillar assigned him additional tasks on the sub arc welder.
Injury worsened
In August, a CT scan revealed that the worker’s injury had not healed and was getting worse. The worker believed that his assigned duties on the sub arc welder exceeded his medical restrictions, but his doctor had approved them and a physical therapist indicated that he could return to many of his duties. In addition, the Alberta Workers’ Compensation Board (WCB) monitored the worker during his modified duties and noted that they were appropriate for his medical limitations.
Pillar instituted a safety rule banning radios in indoor spaces, as indoor radio use had been found to reduce response times in safety muster drills. The worker continued to listen to a radio while working, including setting up the speaker just outside the door and projecting its sound inside with a traffic cone. Pillar disciplined him for violating the rule.
Another day, the worker arrived at work without enough gas to travel between work sites. He was assigned to modified duties at another site, so he took his personal vehicle to a gas station before going to the assigned site. As a result, he was absent from work without permission for about 15 minutes and Pillar docked his pay.
On Aug. 22, the worker requested to go back to sedentary duties. He also requested a day off the following week to take his child to her first day of school. Pillar had a policy of 14 days’ advance notice for time off requests, but the worker believed that his supervisor verbally agreed to it. However, when he didn’t show up for work on that day, Pillar disciplined him for absenteeism. Two days later, Pillar suspended the worker for 5 days for being absent on four other occasions as well — one that had been for a legitimate medical reason, one related to his disability, one that followed a car accident, and one for a personal matter for which he had received verbal permission to be absent.
On Sept. 23, the worker missed a morning toolbox safety meeting. He said that he went to the wrong location by accident, as he often had to go to different locations for his modified duties. Pillar disciplined him for missing the meeting and the warning letter stated that “in spite of supervisor’s request to stay for morning toolbox meeting… [the worker] insisted on taking wife’s car to mechanic.” This left the worker feeling confused, as his wife didn’t own a car and he hadn’t gone to a mechanic that day.
Given the nature of some of the absences and the timing of the discipline, it was likely that the worker’s disability and need for modified duties was a factor in the discipline.
Pillar created a safety video that featured the worker and his experience after his injury. The worker willingly participated in it, but he discovered that it was edited to make him look foolish, including a comment about a temporary impact on sexual intimacy. The worker said that he experienced ridicule after the video was shown to co-workers and he overheard comments such as “the disabled guy who couldn’t get it up” and “the idiot who fell off the pipe.”
Laid off on first day of full duties
The worker returned to full duties on Feb. 2, 2015. The previous Friday, Pillar had informed the WCB that it had work for him. However, when the worker reported for work it laid him off for lack of work. The company claimed that there had been a significant downturn in the oil industry over the past few months.
The worker filed a human rights complaint alleging discrimination and harassment on the basis of physical disability. He claimed that medium duties aggravated his injury, he was unfairly disciplined because of his disability, and his termination was because of his disability.
The tribunal agreed that the worker’s injury was a disability and aggravating it at work was an adverse impact, but the disability was not a factor in the adverse impact because Pillar assigned work within the medical restrictions that had been established.
The tribunal found that the discipline was a mixed bag. The worker violated a safety rule when he used the radio indoors, so that discipline was rationally connected to the job and was applied equally to all indoor spaces in the workplace, said the tribunal. In addition, the discipline for leaving work to refuel his personal vehicle was legitimate as well — the worker was absent from the workplace without permission and Pillar needed to know who was onsite if an incident occurred.
However, the tribunal found that the 5-day suspension and the discipline for missing the toolbox meeting were unwarranted. The company was aware of the reasons for the absences leading to the suspension and the worker had a reasonable explanation for missing the meeting. Given the nature of some of the absences and the timing of the discipline, it was likely that the worker’s disability and need for modified duties was a factor in the discipline, said the tribunal.
The tribunal also found that the making and showing of the safety video featuring the worker was harassment, as the worker was humiliated.
As for the worker’s termination, the tribunal found that the worker’s disability was a factor. The timing of the layoff on his first day of full duties after Pillar had advised the WCB that it had work for him and there had been no other layoffs yet despite the downturn, and evidence of the company believing that the worker took advantage of being on modified duties all led to that conclusion.
The tribunal determined that the worker was subjected to discrimination and harassment because of his physical disability. Pillar was ordered to pay the worker $25,000 in damages to dignity and compensation for lost wages for one month from his layoff to when he found alternate employment.
For more information, see:
- The worker v. Pillar Resource Services Inc., 2021 AHRC 121 (Alta. Human Rights Trib.).
