Canadian Employment Law Today

Canadian HR Reporter, 2021 production flowing, overseeing and assisting with set-up work, working with the manager to ensure accurate and timely shipping and receiv- ing, maintaining the inventory control system, assigning duties to workers, and preparing work schedules. Sometimes during the course of his workday, Singh created Word documents for personal matters but didn't download anything from the internet. The office and computer were acces - sible to other warehouse employees. In early July 2017, Singh injured his back while lifting a sofa at work. He saw a chiroprac- tor a few days later, who found joint restriction, ligament tenderness, and muscle spasms. The chiropractor diagnosed an acute, moderate lumbar sprain and strain. Singh made a workers' compensation claim for his injury to WorkSafeBC and received wage loss benefits for two months until Sept. 13. He also submitted a form from the chiropractor indicating that he wasn't capable of full duties and could return to work in 14 to 20 days with light duties. His restrictions included no lift - ing, pushing, pulling, trunk flexing, or sitting for more than 20 minutes, with frequent small breaks throughout the day. By early August, Singh was ready to begin an occupational rehabilitation plan created by WorkSafeBC. The physiotherapy centre esti - mated that Singh could be discharged from the rehabilitation plan and return to his pre-injury position without limits by Sept. 6. The estimate changed slightly to Sept. 14 after a functional assessment two weeks later. Pre-injury position was filled However, when Singh visited Dodd's with a staff member from the physiotherapy centre to investigate a gradual return-to-work plan, Singh was told that his assistant manager position was no longer available and the company could of - fer him a job assembling furniture instead. This change in job duties meant that the plan wasn't completed and the physiotherapy worker re- ported that "these job demands are significantly heavier than the pre-injury occupation." According to Dodd's, Singh's new role was part of a restructuring and had nothing to do with his injury. The company maintained that there were plans to change warehouse worker positions before Singh was injured and it had been given the impression, after consulting with a human resources company, that it only had to find Singh a job with the same hours and rate of pay, not the same position. As a result, it had filled the assistant manager position while Singh was on medical leave and preferred the new worker in that role. On Sept. 14, WorkSafeBC discharged Singh from the program with a report saying he was "safe to attempt a full return to work to his pre-injury occupation without limits" and recommended Singh continue with a home exercise program to continue his recovery. However, Singh considered the new position he was offered a demotion and more physi - cally demanding with the risk that it would aggravate his back injury, so he declined to return to work with Dodd's. Dodd's president responded with an email saying that he had not been terminated and "you were injured and as such we created a new position at the same rate of pay and with the same hours." The email concluded by saying that the com - pany had "done everything possible to ac- commodate you" and if he didn't report to work by Sept. 29, Dodd's would consider him to have resigned. Singh didn't return and started occasional work as a cab driver. He felt depressed from losing his job at Dodd's and didn't think he de - served to be demoted. He also suffered finan- cial hardship and extra stress from the loss of income. Singh filed a human rights complaint, al- leging that Dodd's discriminated against him based in his physical disability. The tribunal agreed that Singh's back injury amounted to a disability under the B.C. Hu- man Rights Code, as it caused him to take a six-week leave from work, during which he was physically unable to work in his pre-injury position and required medical treatment. In addition, he suffered an adverse impact when Dodd's demoted him to the assembly worker position, said the tribunal. New job created because of injury The tribunal found that although Dodd's was restructuring around the time of Singh's medi - cal leave, it was clear that Singh was removed from the assistant manager position because of his leave. Dodd's hired a new employee to fill his position and the company president directly stated in an email that Dodd's created a new po - sition for him because of his injury. With no evi- dence of any performance issues, the tribunal determined that Singh's disability was "a cen- tral factor" in his demotion and loss of employ- ment. This was discrimination under the code, and Dodd's had to prove that it accommodated him to the point of undue hardship. The tribunal noted that the rehabilitation centre and WorkSafeBC cleared Singh to return to his pre-injury position, so it wasn't clear why Dodd's decided that he couldn't return to that job. Dodd's didn't supply any evidence that ac - commodating Singh with modified, light du- ties in the assistant manager position where he wouldn't have to perform the occasional heavy lifting, would be undue hardship. In fact, the as- sembly worker position required about the same amount of lifting, so modifications to that posi- tion would be about the same, the tribunal said. Dodd's also didn't provide evidence that fill- ing the assistant manager position on a tempo- rary basis during the six weeks Singh was on leave would have caused undue hardship. It didn't inquire as to what was needed to accommodate Singh in the assistant manager role and it didn't give due consideration to his needs when it as - signed him to the more physically difficult as- sembly worker position, said the tribunal. "It appears Dodd's simply preferred the new worker," said the tribunal. "Such a preference does not discharge an employer's duty to ac- commodate its employees to the point of undue hardship." The tribunal determined that Dodd's contra- vened the B.C. Human Rights code by not ac- commodating Singh's disability in the workplace and ordered the company to pay Singh $10,000 for injury to his dignity, feelings, and self-respect. For more information, see: • Singh v. Dodd's Furniture (No. 2), 2021 BCHRT 85 (B.C. Human Rights Trib.). 6 | | August 11, 2021 August 11, 2021 « from NEW JOB on page 1 Newly created position offered to worker was demotion Cases and Trends Cases and Trends 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 taxing time off, checking on employee mental health, and dealing with anti-mask employees. You can view the blog at www.employmentlawtoday.com. Preferring a new worker in the position doesn't discharge the duty to accommodate to the point of undue hardship: court

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