B.C. employer had good reason to rule out worker’s return to regular position, but didn’t put much effort into investigating accommodation option
A British Columbia employer must pay a former long-term employee more than $50,000 after it fired him without investigating accommodation options when he couldn’t return to his regular job due to injury.
Robert Philps, 63, was a career truck driver who was hired in 1994 by Ritchie-Smith Feeds, a company providing livestock feed to dairy and poultry farms in southern B.C. His job duties included physically unloading the feed into customers’ storage facilities, which involved climbing ladders on storage bins, using an auger system to open doors at the bottom of the binds, climbing the truck ladder, flushing out the bin with an air hose, and carrying a 50-pound bag of grit. In addition, sometimes his truck wasn’t loaded so he had to climb up to a platform about 13 feet high, removed the lids of the bins containing feed, take samples, put the lids back on, and climb down. This required bending and physically lifting.
Philps usually worked a regular 40-hour week, but sometimes worked overtime, including occasionally as a dispatcher on Saturdays.
In May 2011, Philps was injured when he got in a car accident on the way to work. He suffered soft tissue damage but continued to work as much as possible. However, he had surgery in January 2015, after which he developed chronic pain that prevented him from returning to work. Philps’ insurance provider approved him for long-term disability (LTD) benefits.
In August 2015, Ritchie-Smith Feeds confirmed with Philps that he had been granted LTD benefits and he wouldn’t be returning to work anytime soon. The company asked him to submit medical evidence with a prognosis on his ability to return to work within two weeks so it could incorporate such information into its decisions on his continued employment. If he didn’t provide any additional information, its decisions would be based on the understanding that there was no evidence that he would return to work.
No estimate for return to regular duties
Over the next several months, Philps provided additional medical information from his treatment providers through 10 separate letters and reports. However, they consistently indicated that Philps’ chronic pain was exacerbated by repetitive heavy loads or activities. There was a suggestion that he could start a gradual return to work while attending physiotherapy, but there was still no indication of when he would be able to return to work — Philps’ general physician stated that he was “unsure if he will be able to return full-time to that position, but if that fails to be possible, other less strenuous activities within your company that he is capable of could be a consideration.”
The company was concerned that if Philps returned to work he would risk further injury and it couldn’t identify any other position where the injury risk would be less. It asked for more medical information and Philps provided information that indicated his physical status wasn’t permanent. However, he still wasn’t ready to return to his full employment from before his injury and it was once again suggested that he might be able to return to work with lighter duties and decreased hours.
In February 2016, the company advised Philps that his employment was being terminated, but invited him to provide documentation supporting the notion that he would be able to return to work at some point. Philps replied that he was still undergoing treatment and they hadn’t discussed any accommodation to assist his return. He then supplied a letter noting that he was showing some improvements but was still not able to return to his pre-injury job.
On March 30, Philps’ doctor completed a report that stated it was unlikely that Philps would be able to return to his previous occupation. He recommended that Philps undergo functional capacity and vocational assessment “with a view to possible retraining for future employment.”
On April 6, 2016, Ritchie-Smith terminated Philps’ employment because “it appears that you will not be able to return to your previous work as a truck driver in the foreseeable future.”
Philps submitted a complaint to the Canadian Human Rights Commission alleging that his disability was a factor in his termination, making it discriminatory under the Canadian Human Rights Act. Ritchie-Smith Feed argued that Philps was unable to perform the duties of the truck driver position, providing a physical demands analysis that included tasks such as frequent low-level lifting of 20-pound loads, waist-level lifting of the 30-pound sucker house, frequent above-shoulder lifting of 25-pound loads, and handling the 50-pound bags of grit.
The tribunal found that the chronic pain from which Philps suffered after his surgery — related to his injuries stemming from the car accident — that prevented him from working was clearly a disability. Ultimately, his inability to work or provide an estimated return to work was the reason his employment was terminated, so his disability was a factor in his termination. As a result, Ritchie-Smith Feeds had to prove that his restrictions prevented him from performing his job duties and it couldn’t accommodate him in any way, said the tribunal.
Duty to accommodate
Based on the physical demands analysis, the tribunal agreed that the physical requirements of the truck driver position, which Ritchie-Smith Feeds considered in terminating Philps, were rationally connected to the job and were created in good faith. These were two of the three elements of the test to prove a bona fide occupational requirement that justified discrimination in the decision to terminate employment.
The tribunal found that Philps was not able to return to work as a truck driver at the time his employment was terminated, so the question was whether he could have been accommodated — the third element of the test. It also found that although some of the medical information indicated that Philps might be able to return on a graduated basis to the truck driver position, that was “unrealistic” due to the risk of re-injury performing many of the truck driver tasks.
The tribunal noted that Philps’ doctor recommended a functional capacity and vocational assessment, but there was no evidence that Ritchie-Smith Feeds did this. Although the operations manager had a good understanding and knowledge of the company’s positions and their requirements, without an assessment he couldn’t of known Philps’ capacity and vocational potential, the tribunal said.
“[I]t would seem somewhat reckless for a manager to dismiss a 22-year employee without having conducted a personalized assessment first,” said the tribunal.
The tribunal found that Ritchie-Smith didn’t investigate whether Philps could do more work in the dispatch position — a job he sometimes performed on Saturdays that the company provided no evidence of undue hardship from assigning him to — measure his physical limitations against the physical demands analysis criteria, or discussed any other positions with Philps for which he might be trained or accommodated. Instead, the company tried to place burden on Philps to design an accommodation plan, the tribunal said.
“In short, the procedures one would expect a sophisticated employer to follow were not followed in this case,” said the tribunal. “The [company’s] conclusion, that they were unable to accommodate Mr. Philps to the point of undue hardship, was speculation on their part in the absence of any documented efforts to determine that.”
The tribunal determined that Ritchie-Smith Feeds didn’t meet its duty to accommodate Philps and discriminated against him based on physical disability. The company was ordered to pay Philps compensation for lost wages from working every Saturday as a dispatcher for the five years from his termination to the date of the hearing minus LTD payments and employment income received during that period —totalling more than $42,000 — $8,000 for pain and suffering from the discrimination, $3,000 for the company’s reckless conduct, plus interest and out-of-pocket medical expenses.
For more information, see:
- Robert Philps v. Ritchie-Smith Feeds Inc., 2021 CHRT 9 (Can. Human Rights Trib.).
