Recent Cases in Accommodation (Employment)

Four themes characterize recent decisions made by Arbitrators, Provincial Courts and the Supreme Court of Canada:

Supreme Court is clarifying legal standards

Arbitrators and Provincial Courts are misinterpreting legal standards and wrongfully awarding punitive damages.  The Supreme Court of Canada has asked itself three questions:

• In the case of chronically absent employees, what are the limits of undue hardship? (Hydro Quebec)
• Before applying a termination clause, what three conditions must an employee meet?  (McGill University Hospital)
• Can civil courts award punitive damages for discrimination?  (Honda v Keays)

Employers are failing to accommodate 

Employers are being found responsible for discrimination on the basis of disability. They are failing to take appropriate steps to assess disabilities and/or are making poor decisions concerning accommodation plans and the limits of undue hardship. 

• Employer terminates chronically absent employee despite positive prognosis for full recovery  (Hayes v Yukon College and United Brotherhood)
• Employer terminates chronically absent employee without notification (Senyk v WFG Agency Network)
• Employer fails to ask for medical assessment, blames inaction on third parties (Kerr v Boehringer)
• Employer makes an unfair assessment  (ADM Milling Co)
• Employer fires employee based on false stereotypes (ADGA group)
• Employer does not believe the employee, drags its heels (Toronto Police Association)

Employee mistakes

Employees are failing to establish prima facie discrimination due to lack of medical documentation.  They are also failing to cooperate with the employer in its attempts to accommodate them.

• Employees fail to distinguish between differential treatment and unfair treatment  (Hill v University of Waterloo)  
• Employee fails to provide sufficient evidence of disability (Unger v B.C. College of Optics)
• Employee fails to provide updated medical information to employer (Lenihan v British Columbia)
• Employee fails to accept accommodation due to lifestyle choices (CB v Emergency)
• Employee breaches last-chance agreement (M.F. v Capilano)
• Employee unwilling to try the accommodation proposed by the employer (J.B. v Fraser Milner Casgrain)

Employers are failing to use the hybrid test

The misconduct of employees with disabilities often contains culpable and non-culpable aspects.   The hybrid approach allows employers to assess both aspects appropriately.

• What mitigating factors should be taken into consideration when determining disciplinary action?  (Gooding)
• Does lying about a cocaine relapse constitute culpable conduct worthy of termination?  (Brewering, Winery and Distillery Workers)
• Under what circumstances does buying cocaine during work hours constitute non-culpable conduct? (Direct Energy and Communication)
• What steps should an employer take to assess the misconduct of an employee with a mental disability? (Manitoba Government)
• Does the compulsion to gamble turn theft into an act of non-culpable misconduct? (Communication, Energy and Paperworkers)