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Human Rights Office

LeFrense v. IBM Canada Ltd. 2015 NS HRC 1720 (CanLII)

Summary:

In 2000, Mr. LeFrense began working for IBM as an IT maintenance specialist or a Systems Services Representative (SSR). As part of his work, Mr. LeFrense worked on rotation as part of team of other SSR’s. Mr. LeFrense was required to work some overtime, an on-call weekend every eight weeks and an on-call night every two weeks. In 2004, Mr. LeFrense was diagnosed with sleep apnea. He sought accommodation from IBM ( in relation to overtime and night shifts) and when they indicated they could not accommodate him he went on disability. While on disability IBM paid for his benefits. In 2005, IBM offered Mr. LeFrense a return to work on regular hours together with two Saturdays per month, and some overtime as required to finish his work. Mr. LeFrense rejected this accommodation and countered with a different offer – one Saturday per month and no night driving. IBM did not agree to this accommodation stating that it would negatively impact other members of the SSR team and place an undue hardship on the organization. At this point in time IBM began to look for other jobs within IBM to accommodate Mr. LeFrense. In 2006, IBM offered Mr. LeFrense a job as a parts specialist. In this position the accommodations sought by Mr. LeFrense would be met. Mr. LeFrense accepted the position, despite the roles reduced pay. In this case Mr. LeFrense alleges that IBM discriminated against him by failing to accommodate his disability by not adapting his work schedule so that he could stay employed as an SSR. Mr. LeFrense’s claim was dismissed.

Question(s) to be Determined:

  1. In this case did IBM’s actions against Mr. LeFrense, constitute discrimination under Sections 5(1)(d)(o) of the Nova Scotia Human Rights Act?

Findings:

  1. In this case did IBM’s actions against Mr. LeFrense, constitute discrimination under Sections 5(1)(d)(o) of the Nova Scotia Human Rights Act?

NO

Reasoning:

  1. In this case it was decided that IBM had accommodated Mr. LeFrense and his disability, related to sleep apnea, to the point of undue hardship and therefore had not discriminated against Mr. LeFrense. It was stated:

“I am satisfied that IBM accommodated Mr. LeFrense by paying him disability for over two years, by actively and seriously considering his condition and how it might be accommodated within the requirements of the SSR position and then when this proved unmanageable without undue hardship to Mr. LeFrense’s colleagues and to IBM itself, IBM found him another position that did accommodate the effects of his condition as they had been repeatedly stated by his own physician” (p. 17).

In this case the adjudicator provided detailed information relating to the duty to accommodate and accommodation to the point of undue hardship. The adjudicator stated:

“The purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to preform work in exchange for remuneration….The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.” (para 15-16).

“Because of the individual nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties– or even authorize staff transfers– to ensure that the employee can do his or her work, they must do so to accommodate the employee.” (para 17).

Remedies:

This case was dismissed and therefore no remedies were awarded.