Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2021 AN ALBERTA employer's accommodation ac- tions are more important in determining dis- crimination than the employer's actual belief that an employee has a disability, the Alberta Human Rights Tribunal has ruled. The worker started employment as a cook at Calgary restaurant Fourth Street Public Eatery in August 2012, having previously worked with the restaurant's executive chef and head chef. At the time, the worker had back problems of which the restaurant was aware. The restaurant wasn't concerned about the issue and hired him with a note in his personnel file. Two years later, the worker exacerbated his back problems. He started feeling sharp pain and was barely able to move, so he sought medical treatment. He told the restaurant that his back disability was getting worse and provided medical notes. In 2015, an X-ray diagnosed him with arthritis in his spine as well as a herniated disc. The worker said he provided this to the head chef, but it wasn't in his personnel file. The worker asked to be re-assigned to the pizza and salad station because it featured less heavy lifting and bending. The restaurant granted his request and also relieved him of the responsibility for lifting and carrying heavy items during grocery deliveries and stocking. The worker was also told to ask for assistance from others if he required lifting any heavy items. The worker's back continued to worsen and he began experiencing severe pain at work. He claimed he told the restaurant about it on a weekly basis and the restaurant said that if he didn't want to work, it could find someone else to do the job. According to the worker, whenever he asked other em - ployees for help in carrying heavy items, they refused. He started to believe that staff and management didn't believe he had back dis- ability, which he attributed to the owner. The owner believed that the worker was using his disability to avoid tasks that were within his restrictions, such as carrying lighter items or checking the list of gro - cery deliveries. He started thinking that the worker was lazy and trying to avoid work, as he had heard that the worker had been seen dancing at social events and roughhousing in the restaurant, though he had never wit - nessed it. On Jan. 6, 2016, the worker provided a doctor's note that recommended avoid- ing bending and lifting completely for two weeks. Despite the worker's claims that he regularly told the restaurant about his wors- ening disability, this was the first medical document he provided. The owner was con- cerned about the worker's attendance, so he required the worker to provide medical notes when he was absent. The worker did so and was never disciplined for absenteeism. Eventually, the worker felt the pizza and salad station was no longer appropriate for his disability because he had to frequently bend. He asked about the prep cook position as a form of accommodation, but the restau - rant said that job involved constant lifting and carrying of heavy items. The worker said other employees could help with that, but the restaurant replied that it would be inef - ficient and there wouldn't be much left for him to do. Workplace argument led to complaint On June 13, 2017, the worker had to work on the hot line plating orders. He was angry be - cause the position involved tasks beyond his restrictions, such as bending, and it was re- quired because the sous-chef would be com- ing in late. The worker believed the sous-chef was late because he had been out late the pre- vious night. He asked why the sous-chef was late but was told to keep working. When the worker confronted the sous- chef, the sous-chef accused him of faking his disability and told him to go home. They started arguing and management overheard the worker using expletives and insulting the sous-chef. They both yelled and swore at each other, with the worker saying he was going to contact the Human Rights Commis - sion before leaving. The next day, the worker spoke to the head chef and said he was going to file a human rights complaint. He went on a pre-sched- uled vacation for one week and when he re- turned on June 20, the restaurant terminated him for insubordination. The regional operations manager and the owner both felt that the worker was difficult to work with and there had been several in - cidents of abusive and disruptive behaviour. They had discussed termination at manage- ment meetings, but the executive chef and head chef, who had recommended him, said they felt that he could improve. They didn't issue any written discipline or warnings be - fore the termination, although they had given several verbal reprimands, including sending him home to cool off. The tribunal noted that the worker didn't provide documentation about the worsen - ing of his back condition until January 2016, even though he claimed started getting worse in 2014. The worker's evidence of what infor- mation he provided and when was vague and inconsistent, said the tribunal. The tribunal found that the restaurant accommodated his back disability when it re-assigned him to the pizza and salad station while exempting him from lifting heavy items from grocery deliveries. While the worker said that position had too much bending, he only provided a medical note limiting bending for two weeks, not perma - nently. The workers didn't provide any other evidence or specific dates of what he told the restaurant and when. "There is no dispute that the [restau- rant] did take steps to accommodate the [worker]… but without any evidence about when or what further accommodation was requested, it is impossible to assess whether the respondent failed to meet its duty," said the tribunal. The court noted that the restaurant didn't have a formal policy to address accommo - dation requests and the worker alleged that management didn't believe he had a dis- ability, but the Alberta Human Rights Act doesn't require employers to have formal accommodation policies or believe an em- ployee's claim about a disability. In this case, the restaurant did take steps to accommodate the worker based on the information it had, which was all that was legally required, the tribunal said in dismissing the worker's com - plaint. "Belief is irrelevant. The act compels ac- tion," said the tribunal. "That is, where an employee advises they have a disability, and requires accommodation, an employer has a duty to address that claim and request, re- gardless of what they may actually believe." For more information, see: • Gatenby v. Fourth Street Public Eatery Ltd., 2021 AHRC 31 (Alta. Human Rights Trib.). BY JEFFREY R. SMITH Accommodation actions speak louder than words Alberta employer took appropriate accommodation measures based on information it had, regardless of doubts about worker's disability The Alberta Human Rights Act doesn't require employers to have formal accommodation policies or believe an employee's claim about a disability.

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