Canadian Employment Law Today

March 28, 2018

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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©2018 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 YOU MAKE THE CALL Did the NSHA have a duty to accommodate Yuille before she was offi cially hired? OR Did the NSHA have the right to hire someone who could fi t its needs for nights and rotating shifts? IF YOU SAID the NSHA had a duty to accommodate Yuille, you're correct. e Board of Inquiry noted that the Nova Scotia Human Rights Act should provide protec- tion against employment discrimination for everyone. However, such accommodation shouldn't clash with the rights of existing employees — meaning the point of undue hardship can be more easily reached when trying to accommodate a prospective em- ployee, said the board. e board also noted that reasons the NSHA rescinded the job off er were that her hiring would not have met the hospital's need for nurses to work night shifts, and hav- ing her work shorter days and evenings only would require others to work more nights, raise costs for the NSHA, raise safety con- cerns, and have a negative impact on morale. However, the board found the issues with morale and safety were speculative and not enough to be used as reasons against accom- modation. It also found there was no con- crete eff ort to determine what the actual cost of accommodation would be and whether it would constitute undue hardship. Finally, the board found insuffi cient evi- dence that having Yuille work only rotating shifts every six weeks and few night shifts would create undue hardship on the unit. ere were more than 20 nurses on the unit and an accommodated schedule for one shouldn't create a problem, said the board. Even though Yuille didn't help meet the need for night nurses, the ability to work nights could not be used as a bona fi de occupation- al requirement, the board concluded. e board determined that the NSHA dis- criminated against Yuille when it rescinded the job off er without accommodating her. e NSHA was ordered to pay general dam- ages of $15,000 plus special damages for fi - nancial losses when she gave up her previ- ous job. e board also ordered the NSHA to off er its next available nursing position to Yuille with reasonable accommodation. See Yuille and Nova Scotia Health Authority, Re, 2017 CarswellNS 615 (N.S. Bd. of Inquiry). Employer giveth to job candidate, then taketh away THIS EDITION of You Make the Call in- volves a nurse who was off ered a job and then had it rescinded when she reported she had epilepsy. Melanie Yuille was a nurse who started having epileptic seizures in 2010. At the time, she was working as a research co-ordinator. She received treatment, but had diffi culty working on a rotating shift schedule. She went on sick leave for a while before leaving her position and joining a private long-term care facility that had shift scheduling that was easier on her. By early 2015, Yuille felt she was losing her acute care skills and wanted to fi nd a job where she could hone those skills. Her epi- lepsy was mostly under control, so she ap- plied for a nursing job at Dartmouth General Hospital in Dartmouth, N.S., that was oper- ated by the Nova Scotia Health Authority (NSHA). e position was in an acute-care unit with patients who were seriously ill. She was accepted for an interview on March 6. During the interview, the health services manager for the unit said there were three vacant positions and there was an urgent need for nurses on the night shift. Yuille didn't mention that she had any restrictions on a rotating shift schedule as she didn't think that was a bona fi de occupational re- quirement and, if she was otherwise quali- fi ed, the NSHA would have a duty to accom- modate her. She had also been advised in support groups not to disclose her epilepsy too early in the job interview process so it wouldn't factor into the decision. Either way, she didn't have a problem working nights, just having frequent changes in her shifts. On March 26, the NSHA off ered Yuille a conditional job off er. She was given an em- ployee health questionnaire on which she disclosed that she had epilepsy. She then met with the occupational health nurse two weeks later, who by then had received reports from Yuille's doctors that stated her shift ro- tation should change no more frequently than every six weeks and she shouldn't work night shifts as part of her regular rotation. Yuille was pleased with the doctors' re- ports, as she took them to mean she was cleared to work with only the restriction lim- iting regular night shifts. She gave her notice of resignation at the long-term care facility in anticipation of starting at the hospital. However, on April 21, a couple of weeks after she gave her notice of resignation, the NSHA sent her an email rescinding the job off er. Yuille contacted the human resources department, but all they said was she was free to apply for other jobs and it wasn't the de- partment's role to oversee accommodation. e following month Yuille fi led a com- plaint of discrimination based on disability. Soon after, NSHA posted three full-time nursing positions that were identical to the one for which she had applied — except for the added wording that rotating shifts was a job requirement. In September 2015, a resolution con- ference was called between Yuille and the NSHA. e NSHA indicated shift work was a requirement for the nursing position and it did not have a duty to accommodate new hires, only existing employees. However, it had some alternative jobs that it was pre- pared to off er Yuille — a night shift job and a part-time day shift job on a transitional care unit at the hospital, and a 0.8 temporary full- time equivalent job (days and evenings only) on the acute-care unit. Yuille rejected the temporary position and, while she was con- sidering her options, the NSHA withdrew the two other positions as they were no lon- ger available for budgetary reasons.

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