Alberta’s Human Rights Act, like similar legislation in other jurisdictions at the federal, provincial, and territorial levels, lists several areas in which a person is protected from discrimination.[1] These areas include physical disability. When a worker is unable to do a job within the shift schedule of an employer’s operation, an employer may be required to accommodate that worker; for example, change the assigned shifts or assign the worker to different tasks. However, such an accommodation will be limited by the concept of “undue hardship.”
The Alberta Human Rights Commission had to consider accommodation and its limits in the decision of Woods v North American Construction Group Inc.2022 AHRC 26 (CanLII), <https://canlii.ca/t/jmnb7. The case arose out of a worksite in the oil patch. The complainant, Trevor Woods, had been a maintenance supervisor for several years at a large oil sands site. However, over the course of a few years, the complainant developed a condition known as gastroesophageal reflux disease, which manifests as difficulty in swallowing, digesting food, and serious weight loss, and can eventually lead to surgery in an attempt to control it. Indeed, the complainant took a two-month leave of absence to get an operation to address the condition. However, after returning to work, his employer, North American Construction Group, refused to accommodate his needs and eventually fired him.
The complainant’s long-term primary care physician, Dr. Chan, had been seeing the complainant as a patient for the past 25 years, including the past seven years for treatment related to the acid reflux condition. After lifestyle changes and several medications failed to result in any improvement, Dr. Chan referred the complainant to Dr. Bedard for surgery. On November 4, 2011, Dr. Chan cleared the complainant to return to work in his ”usual employment”.
The respondent employer implemented changes to the hours of shifts and duration of the times at which employees were expected to work. These changes in effect meant that the complainant would have to change his hours and would also have to work nights. Before the surgery, the complainant worked only days on a 10-day on and four days off cycle. However, the employer announced a policy and scheduling change where employees would work a rotating schedule of 14 days and be off for seven days. According to Dr. Chan, placing the complainant on such a schedule would increase physical and mental distress for the complainant and thus aggravate his physical condition.
The complaint before the Human Rights Commission raised three issues:
- Did the complainant prove a prima facie case of discrimination that the respondent discriminated against him when it refused to return him to work that he could medically do following the surgery?
- Did the complainant prove a prima facie case of discrimination that the respondent discriminated against him when it terminated the complainant’s employment?
- Did the respondent prove that it reasonably accommodated the complainant to the point of undue hardship?
A prior decision of the Supreme Court of Canada, Moore v British Columbia (Education), 2012 SCC 61 has established the legal test that a complainant must meet in order for a complaint to succeed:
- The complainant had a protected ground:
- The complainant suffered an adverse impact; and
- The complainant’s protected ground was a factor in the adverse impact.
The burden to prove all three steps in a human rights complaint always falls on the complainant. First of all, the complainant argued that the employer’s failure to return him to work following his surgery was discriminatory. The parties did not dispute the second and third parts of the test as set out in the Moore decision. Therefore, the issue was whether the complainant had a physical disability as contemplated by Human Rights Act. “Physical disability” is defined in section 44 (1) (l) of the Human Rights Act to mean “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” In considering what this definition means, the human rights tribunal took a broad and purposive approach, including looking at the nature of disability as a condition that limits a person’s ability to function.
Every human rights case is determined by the particular set of facts and the evidence before the Human Rights Tribunal. In considering the evidence and the amount of weight to give a particular piece of evidence, the Tribunal recognized that evidence will often conflict so therefore it is important to look at any bit of evidence in context with the entire body of evidence, including medical evidence. In looking at the medical reports and post-operative condition of the complainant, the Tribunal decided that the complainant did in fact have a physical disability as contemplated in the Human Rights Act and this disability, which took the form of a serious gastrointestinal disorder that required medication and a lifestyle change, interfered with the complainant’s ability to work. The Tribunal gave considerable weight to the fact that in spite of the complainant’s post-operative pain and discomfort, he had tried the new work schedule but that he was unable to fully perform his tasks because of his condition. In so doing, the Tribunal rejected the employer’s position that the complainant was lying about his condition and malingering.
The second area where the complainant argued discrimination was in being let go from the company. When the complainant made an allegation of discrimination, he assumed the burden of establishing a physical disability, that he had experienced an adverse impact as a consequence, and that the physical disability was a factor in the adverse impact. This third point proved to be crucial in the Tribunal’s analysis. The parties had agreed the firing constituted an adverse impact. So, the crux of the matter was whether the complainant’s disability was a factor in the adverse impact/termination.
In July of 2012, roughly six months after the complainant had shown to be unable to work in accordance with the employer’s new shift schedule and while he was on long term disability leave, the company terminated his employment. The official reason given was that the termination was simply part of a larger lay-off and the complainant’s disability was not a factor in the grand scheme of things. However, the Tribunal saw things differently. A history of prior judicial decisions including some at the level of the Supreme Court of Canada has established that a protected ground (physical disability in this instance) need not be the sole or dominant factor in the termination; it only needs to be a factor. The Tribunal accepted that although the round of lay-offs in the summer of 2012 may have been done for a legitimate business reason, it saw the complainant’s disability as a factor in the company’s decision to include him in the layoffs. The Tribunal noted the complainant’s generally positive work record prior to his disability, paying particular heed to a supervisor’s admission under cross-examination that his positive opinion of the complainant’s work ethic had changed after the complainant had declined to continue to work under the new shift requirements.
Finally, the Tribunal had to consider whether the employer would have experienced “undue hardship” were accommodations to have been made to enable the complainant to work during the day and at modified duties. To this end, the Tribunal essentially found no evidence that even a token attempt at accommodation had been tried, let alone a serious, reasonable one. Instead, the employer simply seemed to decide that efficiency or convenience of operations was the main reason accommodation could not be extended to the complainant. In any event, shortly after the complainant had returned to work following his surgery, it became clear in reading internal communications after the fact that the company was not only uninterested in accommodation; they were clearly interested in getting rid of him. Emails between the disability manager and the human resources manager throughout late 2011 and early 2012 establish a toxic work context. For example, on December 21, 2011, the disability manager emailed the human resources manager to say: “Hi – just talked to [complainant]. What a case he is!” then on January 5, 2012, the human resources manager wrote to the disability manager to say: “He’s certainly a piece of work so be cautious on phone conversations…I truly thought [complainant] would come back to work but it appears he’s milking it.
In conclusion, after considering the totality of written evidence and oral testimony, the Tribunal decided that the complainant had met the legal burden of establishing he had a physical disability and the respondent employer had discriminated against him when it refused to return him to work that he was capable of doing and then when it terminated the complainant in July of 2012.
[1] Section 7 of the Alberta Human Rights Act lists these areas. They are race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.