Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases In June, Krill's name was mistakenly included on a list of former employees and her benefits were terminated. However, when she informed the company, her benefits were immediately restored. A couple of months later, Primco Dene declined to reimburse Krill for her professional registration fees to the College and Association of Registered Nurses of Alberta, which she needed to maintain her nursing licence. The company normally reimbursed its nurses for the fees when they were required for work, but since Krill was on medical leave, it felt that she didn't need an active practice permit. It eventually relented and reimbursed her. In early November, the company told Krill that it needed some more information regarding the limitations of her injury so it could "accurately advise on available modi - fications." It wanted to know how her injury impacted her job duties and certain activities, as well as if she had an estimated return-to- work date. Krill maintained that she still didn't have an estimated date and would likely get more information in the future. The company inquired about a return date once again in December, with no success. After Krill had her surgery in June 2016, it asked her if the surgeon would be able to clear her for modified work and when that might happen. It followed up again in August 2016, asking about having "a chat and catch you up on where we are at the clinic and what we can do to accommodate your gradual return." Krill's benefits were halted again in March 2016 when Primco Dene changed its benefits provider when the provider made an error during the transition. It took some time to work out the issue, but her benefits were restored retroactively in September. Modified duties Krill was eventually able to return to work on Sept. 14, 2016, 17 months after she went on medical leave. Primco Dene assigned her to modified duties in its head office rather than the work camp clinic, as it felt that the nature of the work at the clinic was onerous and an occupa - tional health nurse needed to be at full duties. In addition, the shift schedule at the work camp clinic required 12-hour shifts — the contract with the oil and gas company was for 24-hour service — which Krill was unable to do in her modified duties. If Krill was at the work camp, the company would have to find another nurse who was willing to work four to six hours per day and not every day while in camp. Krill wasn't happy with being reassigned to the head office and asked if she could be an "extra" at the work camp instead of scheduled as a regular staff member. However, the company said it wasn't feasible and Krill worked at the head office performing duties that were within her physical restrictions and at her regular rate of pay, although it was for fewer hours since there was no need for 12-hour shifts. Krill filed a complaint alleging that Primco Dene discriminated against her in the area of employment on the ground of physical disability. She said that the company failed to consider accommodation options that would have returned her to work earlier with modified duties, extending her medical leave to 17 months. She also said her benefits were changed without notice while on leave and the company failed to pay for her professional registration fees, which was also discrimina - tory because these put her in a disadvantaged position because of her disability. Krill filed a second complaint alleging that Primco Dene retaliated against her for the first one by scheduling her for fewer hours in the head office instead of returning her to the work camp clinic. She said this was differential treat - ment and a demotion. Reasonable accommodation The Alberta Human Rights Commission investi- gated the matter and the director dismissed both complaints, finding that Primco Dene reasonably accommodated Krill's physical disability through a medical leave and modified duties. The director noted that the company consistently stayed in touch with Krill on her status and expressed a willingness to work with her to determine accom - modation, but Krill didn't provide sufficient information to determine her modifications. The director also found that when Krill's benefits were cancelled, the company quickly worked to remedy the situation and her benefits were restored with no loss. As for the nursing registration fees, the company had reason to believe they weren't required at the time and it eventually reimbursed her anyway, the director said. The director also dismissed the second complaint, finding no evidence that any of the company's conduct was "an intentional or direct response to your previous human rights complaint." Krill appealed to the tribunal, which upheld the director's decision to dismiss both complaints. The tribunal agreed that Primco Dene made sufficient efforts to accommodate Krill, as it kept up regular communication with her during her leave and frequently asked for an estimated return-to-work date and her restrictions. Krill didn't supply either of these through most of her leave, so the company was unable to explore accommodation options. The tribunal also found that Primco Dene had legitimate reasons for reassigning Krill to the head office based on her inability to work 12-hour shifts in a remote area without access to workers who could cover shorter shifts. Krill's request to be an extra suggested that she wanted the company to "create a position for her for which it had no need and could not claim as an expense to its client as it did for nurses working to meet the… contractual obligations." The reduction in hours at the head office was a reasonable part of the accommodation, as that reflected the nature of the head office duties, the tribunal said, adding that the company main - tained her rate of pay even though nurses at the head office normally were paid less than at work camps. The duty to accommodate didn't require a perfect accommodation and meet Krill's pref- erences as long as it was reasonable. The tribunal also agreed that the benefits cancellations and professional registration fees reimbursement were not discriminatory, and there was no evidence of a demotion as Krill was still employed as an occupational health nurse with similar responsibilities. For more information, see: • Krill v. Primco Dene (EMS) Ltd., 2021 AHRC 54 (Alta. Human Rights Trib.). « from ALBERTA WORKER'S on page 1 Worker didn't like new hours and duties at employer's head office The worker's physical restrictions prevented her from working the 12-hour shifts needed at the work camp clinic. 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 paid sick leave, drug and alcohol testing, and harassment between remote workers. You can view the blog at www.employmentlawtoday.com.

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