Canadian Employment Law Today

Canadian HR Reporter, 2021 able to return to work as a truck driver at the time his employment was terminated, so the question was whether he could have been accommodated — the third element of the test. It also found that although some of the medical information indicat - ed that Philps might be able to return on a graduated basis to the truck driver posi- tion, that was "unrealistic" due to the risk of re-injury performing many of the truck driver tasks. The tribunal noted that Philps' doctor rec- ommended a functional capacity and voca- tional assessment, but there was no evidence that Ritchie-Smith Feeds did this. Although the operations manager had a good under- standing and knowledge of the company's positions and their requirements, without an assessment he couldn't have known Philps' capacity and vocational potential, the tribu- nal said. "[I]t would seem somewhat reckless for a manager to dismiss a 22-year employee without having conducted a personalized as - sessment first," said the tribunal. The tribunal found that Ritchie-Smith didn't investigate whether Philps could do more work in the dispatch position — a job he sometimes performed on Saturdays that the company provided no evidence of undue hardship from assigning him to — measure his physical limitations against the physical demands analysis criteria, or discuss any oth - er positions with Philps for which he might be trained or accommodated. Instead, the company tried to place burden on Philps to design an accommodation plan, the tribunal said. "In short, the procedures one would ex - pect a sophisticated employer to follow were not followed in this case," said the tribunal. "The [company's] conclusion, that they were unable to accommodate Mr. Philps to the point of undue hardship, was speculation on their part in the absence of any documented efforts to determine that." The tribunal determined that Ritchie- Smith Feeds didn't meet its duty to accom - modate Philps and discriminated against him based on physical disability. The com- pany was ordered to pay Philps compensa- tion for lost wages from working every Sat- urday as a dispatcher for the five years from his termination to the date of the hearing minus LTD payments and employment income received during that period —to- talling more than $42,000 — $8,000 for pain and suffering from the discrimination, $3,000 for the company's reckless conduct, plus interest and out-of-pocket medical ex- penses. For more information, see: • Robert Philps v. Ritchie-Smith Feeds Inc., 2021 CHRT 9 (Can. Human Rights Trib.). July 14, 2021 | Canadian Employment Law Today CREDIT: WILDART iSTOCK The employer didn't conduct a functional capacity and vocational assessment, as recommended by a doctor.

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