Canadian Employment Law Today

July 14, 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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Canadian HR Reporter, 2021 4 B.C. employer had good reason to rule out worker's return to regular position, but didn't put much effort into investigating accommodation options No prognosis, no return-to-work estimate, but no accommodation attempt A BRITISH Columbia employer must pay a former long-term employee more than $50,000 after it fired him without investi- gating accommodation options when he couldn't return to his regular job due to injury. Robert Philps, 63, was a career truck driv- er who was hired in 1994 by Ritchie-Smith Feeds, a company providing livestock feed to dairy and poultry farms in southern B.C. His job duties included physically unload- ing the feed into customers' storage facili- ties, which involved climbing ladders on storage bins, using an auger system to open doors at the bottom of the binds, climbing the truck ladder, flushing out the bin with an air hose, and carrying a 50-pound bag of grit. In addition, sometimes his truck wasn't loaded so he had to climb up to a platform about 13 feet high, removed the lids of the bins containing feed, take sam - ples, put the lids back on, and climb down. This required bending and physically lift- ing. Philps usually worked a regular 40-hour week, but sometimes worked overtime, in- cluding occasionally as a dispatcher on Sat- urdays. In May 2011, Philps was injured when he got in a car accident on the way to work. He suffered soft tissue damage but continued to work as much as possible. However, he had surgery in January 2015, after which he developed chronic pain that prevented him from returning to work. Philps' insurance provider approved him for long-term dis - ability (LTD) benefits. In August 2015, Ritchie-Smith Feeds con- firmed with Philps that he had been granted LTD benefits and he wouldn't be returning to work anytime soon. The company asked him to submit medical evidence with a prognosis on his ability to return to work within two weeks so it could incorporate such information into its decisions on his continued employment. If he didn't provide any additional information, its decisions would be based on the understanding that there was no evidence that he would return to work. No estimate for return to regular duties Over the next several months, Philps pro - vided additional medical information from his treatment providers through 10 separate letters and reports. However, they consis- tently indicated that Philps' chronic pain was exacerbated by repetitive heavy loads or activities. There was a suggestion that he could start a gradual return to work while attending physiotherapy, but there was still no indication of when he would be able to return to work — Philps' general physician stated that he was "unsure if he will be able to return full-time to that position, but if that fails to be possible, other less strenuous activities within your company that he is ca - pable of could be a consideration." The company was concerned that if Phil- ps returned to work he would risk further injury and it couldn't identify any other po- sition where the injury risk would be less. It asked for more medical information and Philps provided information that indicated his physical status wasn't permanent. How- ever, he still wasn't ready to return to his full employment from before his injury and it was once again suggested that he might be able to return to work with lighter duties and decreased hours. In February 2016, the company advised Philps that his employment was being ter - minated, but invited him to provide docu- mentation supporting the notion that he would be able to return to work at some point. Philps replied that he was still under- going treatment and they hadn't discussed any accommodation to assist his return. He then supplied a letter noting that he was showing some improvements but was still not able to return to his pre-injury job. On March 30, Philps' doctor completed a report that stated it was unlikely that Philps would be able to return to his previous oc - cupation. He recommended that Philps un- dergo functional capacity and vocational as- sessment "with a view to possible retraining for future employment." On April 6, 2016, Ritchie-Smith terminat- ed Philps' employment because "it appears that you will not be able to return to your previous work as a truck driver in the fore- seeable future." Philps submitted a complaint to the Canadian Human Rights Commission al- leging that his disability was a factor in his termination, making it discriminatory under the Canadian Human Rights Act. Ritchie-Smith Feed argued that Philps was unable to perform the duties of the truck driver position, providing a physical de - mands analysis that included tasks such as frequent low-level lifting of 20-pound loads, waist-level lifting of the 30-pound sucker house, frequent above-shoulder lift- ing of 25-pound loads, and handling the 50-pound bags of grit. The tribunal found that the chronic pain from which Philps suffered after his surgery — related to his injuries stemming from the car accident — that prevented him from working was clearly a disability. Ultimately, his inability to work or provide an estimated return to work was the reason his employ - ment was terminated, so his disability was a factor in his termination. As a result, Ritchie-Smith Feeds had to prove that his restrictions prevented him from performing his job duties and it couldn't accommodate him in any way, said the tribunal. Duty to accommodate Based on the physical demands analysis, the tribunal agreed that the physical require - ments of the truck driver position, which Ritchie-Smith Feeds considered in terminat- ing Philps, were rationally connected to the job and were created in good faith. These were two of the three elements of the test to prove a bona fide occupational requirement that jus - tified discrimination in the decision to termi- nate employment. The tribunal found that Philps was not CASE IN POINT: ACCOMMODATION When an employee has medical restrictions that prevent them from performing the duties of their regular position and no prognosis of when they will be able to, it can lead to frustration of employment. However, the employer has a duty to investigate all options for accommodation before terminating the employee or it may face allegations of discrimination and wrongful dismissal. BACKGROUND BY JEFFREY R. SMITH The physical requirements of the truck driver position were rationally connected to the job and were created in good faith.

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