CSR | November 2018 | News
Employee mentioned ergonomic assessment at previous employer
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February, when she said her re-
turn to work would be delayed
until the end of the month. She
also said that she had agreed
to split the furniture order, but
since nothing had yet been or-
dered, she wanted all the items
required by the ergonomic as-
sessment to be ordered before
she returned. Mogado also re-
quested that her out-of-office
email notice be changed, as it
stated she was on medical leave,
which she believed to be an im-
proper disclosure of her private
health information.
The union president agreed to
work with Mogado to purchase
new furniture, but disagreed
that the out-of-office message
breached her privacy. However,
he agreed to replace it with a
message simply saying she was
on leave. On Feb. 26, he asked her
to provide "her best indication of
when she expected to be able to
return to work" so it could plan
for coverage of her workload.
Mogado replied on March 1
saying she felt Unite Here had
constructively terminated her
employment by changing her
job duties, failing to provide ad-
equate support for her workload
concerns, and failing to pro-
vide ergonomically appropriate
furniture in a timely manner.
She stated that she wouldn't be
returning to her position with
Unite Here. She later filed a hu-
man rights complaint, claiming
discrimination on the basis of
physical disability and sex be-
cause of the failure to buy the
furniture, and discrimination on
the basis of mental disability be-
cause of the message disclosing
that she was on medical leave.
Unite Here applied to the tri-
bunal to have the complaint dis-
missed for having no reasonable
prospect of success.
The tribunal found that Moga-
do did not explicitly tell Unite
Here that she had a physical
disability that required accom-
modation until January 2016
after she went on medical leave
and provided the doctor's note.
While she indicated on several
times that there were ergonomic
reasons, there was no reference
to any physical disability that re-
quired accommodation with the
furniture, said the tribunal.
However, the tribunal noted
that Mogado twice sent the ergo-
nomic assessment to the union
and, while the assessment didn't
necessarily mean she had a dis-
ability, the assessment referred
to neck and back discomfort. As
a result, there was some doubt
to the union's argument that
it could establish that it didn't
know about Mogodo's disability
earlier than her medical leave,
said the tribunal in denying its
application to dismiss the com-
plaint.
The tribunal also declined to
dismiss the sex-related part of
Mogado's complaint, as it found
it could be "intertwined" with
her physical disability as a wom-
an of small stature.
However, the tribunal found
there was no reasonable pros-
pect the mental disability as-
pect of Mogado's discrimination
complaint could succeed. It dis-
agreed with Mogado's conten-
tion that the message saying she
was on medical leave damaged
her reputation and disclosed
her private medical information.
There was no evidence support-
ing these arguments and Unite
Here acted responsibly by re-
moving the message when she
objected to it.
The tribunal dismissed the
complaint of discrimination
based on mental disability and
allowed the complaints of dis-
crimination based on physical
disability and sex to proceed to
a hearing.
For more information see:
• Mogado v. Unite Here, Local
40, 2018 CarswellBC 2065
(B.C. Human Rights Trib.).
Ignoring < pg. 5
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