Ensuring that all employees are treated with respect is a crucial concern for employers. However, when addressing an employee’s unique needs, employers are expected to make reasonable accommodations within the workplace to the point of undue hardship. When it comes to unique needs and systemic challenges, progressive employers are often committed to rectifying these issues and proactively creating environments that accommodate the diverse needs of their employees.

In a recent decision from the Human Rights Tribunal of Alberta, the Tribunal explored an employee’s complaint that their employer failed to provide accommodations despite receiving supporting medical evidence. The Tribunal also assessed the employee’s claims that the employer acted contrary to section 7 and section 10 of the Alberta Human Rights Act.

Permanent restriction prevents employee from performing regular duties as roofer

In the matter of Gittins v Peddie Roofing & Waterproofing Ltd., the employee complainant (the “employee”) appealed a decision, pursuant to section 26 of the Alberta Human Rights Act, from the Director of the Alberta Human Rights Commission (the “director”) in which his human rights complaint was dismissed. The complainant alleged that the respondent employer (the “employer”):

• discriminated against his physical and mental disability through employment practices, contrary to section 7 of the Alberta Human Rights Act; and 
• retaliated against him, contrary to section 10 of the Alberta Human Rights Act.

The employer employed the employee as a roofer. In December 2019, the employee told the employer that he was not fit to work, and the employer kept him off work until the medical examination results were available. Several days later, the employee filed a complaint as the employer had not provided him with alternative work pending the medical examination. 

The employee eventually attended the medical examination, and the employee provided the employer with medical information that disclosed a permanent restriction from working above three feet in height. During the discussion, the parties agreed that this permanent restriction would prevent the employee from performing his regular duties as a roofer. However, the parties disagreed on whether it would constitute undue hardship for the employer to accommodate the employee with modified duties or alternative work. The employer also asserted that the employee’s complaint should be read “strictly to limit it to events that occurred up to the point of the [c]omplaint, and nothing that happened after that date.”

Human Rights Commission Director dismisses employee’s claim

Regarding the employee’s claim that the employer retaliated against him, the employee alleged that during a phone call on December 9, 2019, the employer’s general manager threatened him because he believed the employee had made or attempted to make a human rights complaint. The employer acknowledged that the manager’s tone was inappropriate during the call and apologized. However, he denied that threats were made. Further, the employer argued that section 10 of the Alberta Human Rights Act did not apply, as the employee had not made nor attempted to make a complaint when the phone call occurred. 

Upon review of the employee’s human rights complaint and submissions provided by the parties, the director determined that the complaint should be dismissed, agreeing with the employer that the events after the complaint date could only provide context. The director determined that the section 7 aspect of the complaint had “no reasonable basis in the record to proceed.” The director also determined that the section 10 allegations could be dismissed as the language contained within the Alberta Human Rights Act used the past tense, and the employee had not yet made the complaint at the relevant time.

Determining whether a complaint has a reasonable prospect of success

The employee filed a request for review, particularly focused on the section 10 aspect of the complaint, emphasizing that although he had not yet made the complaint when the alleged retaliation took place, he had drafted it. The manager believed he had already made the complaint. 

On review by the Human Rights Tribunal of Alberta (the “Tribunal”), the Chief of Commission and Tribunals reviewed the “screening function” of the Alberta Human Rights Commission (also referred to as the “AHRC”) used when conducting an initial complaint assessment. Under this, the Chief of the AHRC may review and decide a director’s decision to dismiss a complaint. Complaints may be dismissed if it is deemed to be “without merit” or has “no reasonable prospect of success.” When determining whether a complaint has a reasonable prospect of success, a chief or director must find that the complaint:

• contains a genuine issue to be resolved by a hearing;
• there is “some chance of success” at the hearing;
• the allegations of fact within the complaint are accepted as true unless they are based on speculation, assumption, or are “patently ridiculous or incapable of proof”; and
• the evidence takes the case out of the realm of conjecture.

Post-complaint conduct may be considered

The Tribunal found that the employer-requested medical examination was not discriminatory towards the employee as it was intended to obtain medical evidence by the employer’s duty to accommodate. Accordingly, there was no reasonable prospect of success that the employer’s request for the employee to attend a medical examination was discriminatory.

Turning to post-complaint conduct, the Tribunal noted that the limitation period for a human rights complaint is retrospective, while allegations occurring more than one year before the complaint are barred from consideration. However, events occurring after the complaint has been filed are not barred. In other words, conduct “of the same nature and directly connected to the allegations of the complaint” may be deemed to form part of the original complaint. As such, the Tribunal considered the parties’ post-complaint conduct. 

Tribunal finds employer failed to accommodate to the point of undue hardship

After the employee attended the medical examination and provided supporting medical evidence regarding his permanent restriction, the Tribunal found that the employer failed to accommodate the employee, taking minimal procedural steps to explore accommodations. The Tribunal also noted that the employer took no substantive steps to learn more about the employee’s functional limitations in the workplace. The Tribunal explained that an employer must first take steps to assess accommodation and then consider the workplace standard and whether an alternative standard is possible.

The Tribunal noted that there was a reasonable prospect of success that the employer did not accommodate the employee to the point of undue hardship. The Tribunal noted that there are several factors for an employer to consider when assessing a duty to accommodate, as outlined by the Supreme Court of Canada in the case of Moore v. British Columbia (Education), those being:

“(a)      Has the employer investigated alternative approaches that do not have a discriminatory effect…?

(b)      If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?

(c)      Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?

(d)      Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?

(e)      Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?”

Finally, the Tribunal assessed the employee’s section 10 complaint regarding retaliation based on legislative interpretation and the relative timing of the complaint being filed. Upon applying a broad, contextual interpretation of the Alberta Human Rights Act and considering the connection between the phone call, alleged conduct, and the employee’s evidence that he was threatened, the Tribunal found a reasonable prospect of success of the employee’s retaliation complaint. 

Accordingly, the Tribunal overturned the director’s decision in part and referred the complaint to the Tribunal for a hearing. The Tribunal did uphold the director’s decision to dismiss the employee’s claim against the employer for keeping him off of work without pay, pending the outcome of the medical examination.

Important takeaways about the duty to accommodate and human rights complaints

This decision reminds employers that the accommodation process is not a clear path. However, employers must uphold their duty to explore options for accommodations and can question and amend workplace standards so long as safety and business productivity will not be detrimentally impacted. This decision also emphasizes an employee’s right to file a human rights complaint without fear of retaliation by their employer and appeal a director’s decision, outlining the standard against which a complaint will be assessed. 

The Calgary Employment Lawyers at Getz Collins and Associates for Advice on Employee Terminations During the Probationary Period

The trusted employment lawyers at Getz Collins and Associates help employees and employers work through complex workplace issues, including human rights complaints, workplace discrimination, and employment standards disputes. By providing practical and comprehensive legal advice, our employment law team helps clients explore options for dispute resolution. We provide exceptional representation and advocacy for our clients when litigation is necessary. To learn how we can help you address your workplace concerns, contact us online or call us at (587) 391-5600 to schedule a confidential consultation.