Canadian Employment Law Today

October 24, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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6 | October 24, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Worker made several requests for new furniture « from LACK OF ERGONOMIC on page 1 Worker described ergonomic furniture she used with previous employer move to Vancouver from Ontario to support some of her activities, including rowing. Ac- cording to the president, she didn't mention any special needs or required equipment. Once she started working for the union, Mogado told the president that the furni- ture in her office didn't fit her — the previ- ous occupant of the office was a large man — and she requested the union acquire er- gonomically suitable furniture and equip- ment for her. e president said she would be able to purchase new furniture, so she described the specialized equipment she had been provided with while working for a previous employer, which had been recom- mended in an ergonomic assessment. e assessment had taken place after she had received a medical referral due to discom- fort she experienced in her wrists, back, and neck. In addition to the ergonomic furniture, Mogado requested privacy glass for her office, new laptop computers for herself and others, Internet upgrades, and new office furniture for other areas. Unite Here acquired some of these things, but the president later testified that at this point in time, he wasn't aware that any of Mogado's requests were related to any medical needs she had. In the spring of 2015, Mogado asked an administrator where the union purchased office furniture. e administrator provid- ed contact information for an office supply company and Mogado sent it a copy of the ergonomic assessment from her previous job — including recommendations for an ergonomic chair, keyboard tray, split key- board, vertical mouse, monitor lever, foot- rest, and document holder. Employee persistent, but unsuccessful in furniture requests On June 4, Mogado emailed an agenda for an upcoming meeting to the president, including an item on seeking quotes for furniture. e president testified this was the first time Mogado indicated she wanted new furniture, but he still didn't know there were any medical reasons for it. In fall 2015, Mogado gave the president a preliminary quote for new furniture. e president said it was too high and she should revise her request to half the amount. Moga- do emailed him several times over the next couple of months, but still didn't indicate she had a medical need or disability. In a late October email, Mogado mentioned the furniture request was "based in part on the recommendations in an ergonomic assess- ment" from her previous job. e president asked Mogado to split the order into two parts so it could be spread out over time. e order still wasn't placed, however, and Mogado sent more reminder emails through November and December. On Jan. 7, 2016, Mogado emailed an agenda for a meeting to the president that included an item for "furniture request… shoulder/neck/carpal tunnel issues." Almost two weeks later, Mogado went on medical leave until late January and provided a doc- tor's note that stated she was getting forearm tendonitis that was likely caused by a "poorly sized desktop." e note went on to request that Unite Here work with Mogado to ac- commodate her condition. According to the president, this was the first time he learned that Mogado's furniture request was related to a medical need. e day after Mogado went on medical leave, the president emailed her to ask if they could discuss what was going on and how she was doing on her medical leave. Mogado responded that she would only be able to discuss things after her doctor cleared her return to work. On Jan. 26, Mogado emailed another doc- tor's note to Unite Here and followed up three days later to say she would be able to return to work on Feb. 15. She also asked if the union could order the furniture she re- quested before she returned. e president replied that his preference was to order only the two items that were the biggest priorities on her list — an ergonomic chair and a free- standing desk. Mogado felt frustrated because she didn't think those two items alone would be enough to avoid discomfort. She didn't re- spond until mid-February, when she said her return 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 ordered, she wanted all the items required by the ergonomic as- sessment to be ordered before she returned. Mogado also requested that her out-of-of- fice message be changed, as it stated she was on medical leave — which she believed to be an improper disclosure of her private health information. e 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 adequate support for her workload concerns, and failing to provide 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 human rights com- plaint, claiming discrimination on the basis of physical disability and sex because of the failure to buy the furniture, and discrimina- tion on the basis of mental disability because of the message disclosing that she was on medical leave. Unite Here applied to the tribunal to have the complaint dismissed for having no rea- sonable prospect of success. e tribunal found that Mogado 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 disabil- ity that required accommodation with the furniture, said the tribunal. However, the tribunal noted that Mogado twice sent the ergonomic assessment to the union and, while the assessment didn't necessarily mean she had a disability, 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 complaint. e 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 woman of small stature. However, the tribunal found there was no reasonable prospect of the mental dis- ability aspect of Mogado's discrimination complaint could succeed. It disagreed with Mogado's contention that the message say- ing she was on medical leave damaged her reputation and disclosed her private medi- cal information. ere was no evidence sup- porting these arguments and Unite Here acted responsibly by removing the message when she objected to it. e tribunal dismissed the complaint of discrimination based on mental disability and allowed the complaints of discrimina- tion based on physical disability and sex to proceed to a hearing. For more information see: • Mogado v. Unite Here, Local 40, 2018 Car- swellBC 2065 (B.C. Human Rights Trib.).

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