Canadian Employment Law Today

March 19, 2014 6 Published by Canadian HR Reporter, a Thomson Reuters business 2014 sals for her initial complaint. The tribunal found McDonald's didn't make any effort to investigate whether it could accommodate Gahagan with modifi ed duties or another position that fi t her medical restrictions. However, the restaurant was able to show she was incapable of performing "the essential duties of her job with accommodation." The limited space in the small res- taurant kitchen didn't allow for a chair to be placed for resting without raising health and safety concerns, and Gaha- gan's physical limitations impeded her ability to do the grill assembly-line pro- cess, said the tribunal. Additionally, the only other possibili- ties were runner duties — not available at the small McDonald's — or have a job shadow to assist her, something not pos- sible with the small staff and fast pace. Even with the physiotherapist's recom- mendation of three, three-hour days per week, Gahagan wouldn't be able to per- form her essential duties, said the tribu- nal. The tribunal noted the co-owner of- fered accommodation by having her work at a larger McDonald's in nearby Peterborough, Ont., but Gahagan didn't have a car to drive there. The tribunal dismissed Gahagan's initial complaint that McDonald's failed to accommodate her return-to-work efforts. Employee's benefi t claims acknowledged she couldn't work The tribunal also found at the time of Gahagan's termination, she hadn't worked for nearly two-and-one-half years. The physical restrictions that she had in 2009 were still in place in 2011. The fact she received LTD benefi ts and a CPP disability pension was telling, since both required "an inability to perform her job and a severe and prolonged dis- ability" and pointed to the likelihood Gahagan couldn't work without accom- modation, said the tribunal. The restaurant claimed it had not completed the employer statement for Gahagan's application for long-term dis- ability benefi ts because it received no- tice of the application after her employ- ment had been terminated. Though the restaurant was incorrect in its assumption that it didn't have to fi ll it out, it corrected itself when it re- ceived a second application. There was no evidence supporting the claim Mc- Donald's intended to retaliate against Gahagan by delaying the fi ling of her long-term benefi ts application, said the tribunal. The tribunal found Gahagan failed to establish any discrimination or reprisal on the part of McDonald's. The com- plaint was dismissed. "In my view, (Gahagan's) real com- plaint relates to the decision of the WSIB that she was employable in her re-trained occupation of customer ser- vice in August 2011 and the termination of her benefi ts as a result of that deci- sion," said the tribunal. "(Gahagan) has appealed that decision to the Workplace Safety and Insurance Appeals Tribunal, which is the proper forum for this com- plaint." For more information see: • Gahagan v. James Campbell Inc, 2014 HRTO 14 (Ont. Human Rights Trib.). ployer to be held civilly liable for an employee's off-duty harassment of a co- worker or a customer is limited by the principles applied in determining vicari- ous liability, it is not non-existent. If an employer could be found to have signifi cantly increased the risk of harm by putting the employee in her position and requiring her to perform the as- signed tasks that resulted in the harm, vicarious liability might be found despite the off-duty nature of the misconduct if there was a connection to employment. Finally, an employer may be liable under human rights legislation for off- duty conduct of an employee where the conduct amounts to a breach of human rights legislation. Since the Supreme Court of Canada decision in Robichaud v. Canada, it has been clear that employers may be held liable for the discriminatory acts of their employees, subject to the specifi c terms of the relevant legislation. In Attis v. New Brunswick School District No. 15, a school board was found liable under hu- man rights legislation for the conduct of a teacher in making widely-disseminated anti-Semitic statements while off-duty. The school board's liability was based on its failure to respond in any meaning- ful way and its continuation of the teach- er's employment, effectively condoning his off-duty misconduct. A similar result is possible if an employee's off-duty ha- rassment was also a breach of human rights legislation. For more information see: • Ottawa-Carleton District School Board v. O.S.S.T.F., District 25, 2006 CarswellOnt 8752 (Ont. Arb.). • Millhaven Fibres Ltd. [1967] O.L.A.A. 4 (Ont. Arb.). • Mount Royal Faculty Association v. Mount Royal University (Board of Gov- ernors), [2011] A.G.A.A. No. 55 (Alta. Arb.). • Memorial University of Newfoundland Faculty Assn. v. Memorial University of Newfoundland, 2007 CarswellNfl d 416 (N.L. Arb.). • Chatham-Kent (Municipality) v. Nation- al Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 127 (Clarke), 2007 CarswellOnt 5078 (Ont. Arb.). Wasaya Airways LP v. A.L.P.A., 2010 Car- swellNat 6233 (Can. Arb.). Alberta v. A.U.P.E., 2007 CarswellAlta 823 (Alta. Q.B.). Simpson v. Consumer's Association of Canada, 2001 CarswellOnt 4448 (Ont. C.A.). Clarke v. Syncrude Canada Ltd., 2013 CarswellAlta 913 (Alta. Q.B.). Jacobi v. Griffi ths, 1999 CarswellBC 1262 (S.C.C.). Bazley v. Curry, 1999 CarswellBC 1264 (S.C.C.). Robichaud v. Canada, 1987 CarswellNat 1105 (S.C.C.). Attis v. New Brunswick School District No. 15, 1996 CarswellNB 125 (S.C.C.). Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@norton- rosefulbright.com. Continued from page 1 Continued from page 2 Medical restrictions still in place 2 years later Employer could be liable for employees' acts The tribunal found the worker's real complaint lay with the decision of the WSIB that she was employable and thus terminated her benefi ts.

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