Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases on an occasional basis." The evaluation deter- mined that she was unable to perform certain actions that were essential to the job of police officer. Kurpel performed various duties over the next few years, including that of a court officer, and was seconded to positions outside of her division — some involving background inves - tigative work. She retained her UOF equipment at all times. Every year, she took annual block training — training that covered legislation, policies and procedures, first aid and CPR, the use of UOF equipment and the proper proce - dure for using appropriate levels of force. She passed block training each year from 2004 to 2012 and retained her UOF equipment, which allowed her to continue to be seconded to in - vestigative positions. In August 2013, Kurpel was diagnosed with cancer and went on a medical leave of absence for almost two years. When she went on leave, she handed in her UOF equipment, as was re - quired for any OPP officer going on leave for more than 30 days. During Kurpel's medical leave, the OPP changed its policy on the reinstatement of UOF equipment as the result of a report on job-related stress for officers stemming from the suicide of two officers with their service revolvers. The new policy dictated that when an officer returned from a leave of more than 30 days, the officer's need for UOF equipment would be examined. No more use-of-force equipment Kurpel returned to work in July 2015. At this point in time, the temporary assignment on which she had been working was over and an - other officer was doing the job. She was put on a graduated program of modified work, mostly working on a provincial offences e-disclosure project. However, under the new UOF policy, the OPP determined that, since she wasn't per - forming front-line duties and was limited due to her ankle disability, she didn't need her UOF equipment back. The OPP also noted that had the new policy been in effect when Kurpel returned from her ankle injury in 2003, she likely would not have had her UOF equipment returned then. Follow-up medical reports over the next few months confirmed that Kurpel wasn't ready to deal with the public and should continue to perform accommodated tasks as she had been doing. As a result, the OPP denied her the court officer position, which was a uniformed role requiring UOF equipment, and postponed her next block training. In December 2015, Kurpel sought the rein - statement of her UOF equipment as she want- ed to take the annual block training. The OPP requested medical information supporting her ability to perform "full-front-line duties" of a police officer — a requirement for the block training — noting that it could continue to assign her administrative duties if she was un - able to do so. Kurpel's doctor replied that Kur- pel could "resume all the duties she performed until the diagnosis of cancer." Her psychologist also indicated that she was "psychologically able to attend block training and complete the requirements for requalification" and perform the duties of a police officer. However, the OPP refused to re-issue the UOF equipment to Kurpel as the WSIB func - tional abilities examination from 2006 indi- cated that her ankle injury prevented her from performing the duties of a front-line police of- ficer. In April 2017, Kurpel's doctor provided a medical report stating that Kurpel was "fit to do front-line policing duties and patrolling with- out physical or mental restrictions." Kurpel also completed a functional abilities examina- tion that showed that she didn't demonstrate "any limitations nor were there any limitations identified by the assessors that would interfere with her abilities to perform the duties of a law enforcement officer." Kurpel successfully completed block train - ing in June 2017. The OPP returned her UOF equipment to her on July 1 and she began working as a uniformed patrol officer. Kurpel filed a human rights complaint al- leging that the OPP's refusal to permit her to carry her UOF equipment after her cancer di- agnosis was discrimination on the basis of the perception of a physical disability and a fail- ure to meet its duty to accommodate. She not- ed that she was allowed to carry UOF when she returned from medical leave after her ankle injury in 2003 and her capabilities in that regard hadn't changed. The OPP's denial of her UOF equipment when she returned to work in 2015 made her ineligible for career advancement, caused her unnecessary stress that affected her family life, was degrading and humiliating and was inconsistent with her return from her medical leave in 2003, when her UOF equipment was returned to her. Kurpel claimed damages of $25,000 for injury to dignity, feelings and self-respect plus placement in a developmental opportunity with the OPP. Disability-related disadvantage The tribunal noted that there was no doubt that Kurpel had a disability-related restriction that was identified by her medical practitioners and she suffered a disadvantage in not having her UOF equipment re-issued when she re - turned to work in 2015 — a disadvantage that was related to her disability and made Kurpel ineligible for assignments and secondments that she performed prior to her medical leave for cancer. The tribunal also noted that, in late 2015, her doctors cleared Kurpel for the duties she did before her leave of absence for cancer treat - ment. The OPP was accommodating her at that time based on her previous accommodation for her ankle disability, with the added restric- tion of no UOF equipment. The tribunal accepted that the OPP changed the way it made decisions about UOF equip- ment reinstatement and that was in good faith, but the OPP didn't seek clarification of Kur- pel's medical information when it wasn't cer- tain about the extent of accommodation she needed. This was a failure to accommodate, said the tribunal. The tribunal found $10,000 was a more appropriate award for the injury to Kurpel's dignity, feelings and self-respect, particularly since there was no bad faith on the OPP's part. It also declined to order the OPP to place her in a developmental opportunity as there was no evidence that she would have been success - ful in any of the secondments that she wanted between 2015 and 2017 and, now that she had her UOF, she was eligible to apply for any that she desired. For more information, see: • Kurpel v. Ontario (Ministry of Community Safety and Correctional Services), 2021 HRTO 83 (Ont. Human Rights Trib.). « from ONTARIO POLICE on page 1 Police force used old functional abilities evaluation to determine capabilities Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as getting terminated employees to sign releases, employment law developments in 2021, and workplace harassment. You can view the blog at www.employmentlawtoday.com.

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