Canadian Employment Law Today

January 27, 2021

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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©2021 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS EDITION of You Make the Call features a worker who claimed her employer discrimi- nated against her because of her height. The worker applied for a delivery driver position with a Gander, N.L. pizza shop in January 2013. There were no available driver positions, but the pizza shop decided to hire her to work in the shop. There was a small number of staff in the shop, so all employ - ees rotated through five positions — making dough, making pizza, operating the ovens, serving the front counter and taking orders and taking telephone orders. The worker was to be trained in all five positions. On her first day, the worker was trained to make dough. However, she had difficulty lift - ing the dough from the dough maker machine, but she was able to do it. Once there, though, she couldn't reach the dough sheeter because she was only 4 feet, 9 inches tall. The worker found a plastic milk crate to stand on so she could put dough into the sheeter as there wasn't anything else she could use to reach. On her second day, the worker was trained in making pizzas. Due to her short stature, she had to stand on her tippy toes to reach the top - pings on the preparation table, which resulted in her apron getting messy, but she didn't need the milk crate. The owner felt it wasn't sanitary and he didn't like customers seeing a dirty apron touch the pizza dough, but he didn't say anything to the worker at the time. On the third day, the worker operated the pizza ovens. She couldn't reach the top convey - or in the oven, so she once again stood on the milk crate and reached over her head to take pizzas out of the top of the oven. The owner told her once not to use the milk crate to stand on because it wasn't safe due to the narrow aisles in the shop, but she continued to use it because nothing else was available. She didn't ask for a stool or any other equipment to assist her because she was on probation and felt un - comfortable asking for something to help her perform her duties. On the fourth day, the worker continued standing on the milk create in the prepara - tion area. The owner told her again not to use it and decided to train her on the front counter, but the worker refused to deal with the public. She tried taking orders over the phone, but she grew frustrated and said she couldn't do it. The owner asked her to try again, but she said she wasn't going to deal with the public. About one hour before the end of her shift, the owner told her that she was too short to do the job properly and he was terminating her employment. The worker was upset and surprised, as no one had mentioned that her stature was a problem or that she wasn't performing her du - ties correctly. She filed a complaint of discrimi- nation based on "perceived disability" — her height. YOU MAKE THE CALL Did the pizza shop have cause for dismissal? OR Did the pizza shop discriminate against the worker? IF YOU SAID the shop discriminated against the worker, you're right. The Newfoundland and Labrador Board of Inquiry found that the worker couldn't properly complete her job duties without using a milk crate because of her short stature and the owner was aware of it, as he had observed her struggling to do so. Her difficulty in performing those duties was a factor in the decision to terminate the worker's employment, said the board. The board also found that "shortness of stature is a physical disability." As a result, the termination was based on the worker's physi - cal disability and was, therefore, discrimina- tory. The board noted that the worker worked for only four days and at no time did the own- er try to assess the situation to see if anything could be done to help the worker perform the job, such as looking at reconfiguring the pro- duction area or acquiring something to help her reach things. The owner assumed that us- ing a stool or the crate would cause a hazard, but no real assessment was done. The board agreed that the shop owner be- lieved the height standard was reasonable for the safety and performance of the job and it was rationally connected to the process of making pizza, but it found that he failed to show he had made any effort to accommo - date the worker or show that to do so would be undue hardship. The pizza shop was or- dered to pay the worker $5,000 in damages for the loss of dignity, self-respect and hu- miliation plus $3,200 loss of income until she found a new job eight weeks after her termination. For more information, see: • Samson and Ruter Enterprises Inc., Re, 2020 C.L.L.C. 230-038 (N.L. Bd. of Inquiry). Pizza shop employee falls short of expectations No real assessment about the possibility of a stool was done. The worker had to stand on a milk crate to make pizzas.

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