Discrimination? Worker claims employer did not accommodate his disability

Court resolves worker's challenge against tribunal's decision

Discrimination? Worker claims employer did not accommodate his disability

The Court of King's Bench of Alberta recently dealt with a case involving a worker seeking judicial review of a decision made by the Chief of the Commission and Tribunals (CCT) pursuant to the Alberta Human Rights Act.

The worker, who had been employed by a large industrial company, alleged that his employer's practices resulted in adverse treatment on the grounds of physical disability. However, the CCT determined there was "no reasonable basis in the evidence to proceed to a hearing", and the worker's complaint was dismissed.

The case centred around the worker's claim that his employer had discriminated against him due to his physical disabilities, which included injuries sustained in a motor vehicle accident and a subsequent ankle injury at work.

The worker argued that the CCT's decision was incorrect and unreasonable on several grounds, including the determination of what constitutes a "disability" under the Act, the weighing of credibility in resolving factual disputes, and the conclusion that the employer had accommodated the worker's disabilities at all material times.

Allegations of disability discrimination

In his original complaint, the worker alleged that his employer had sought medical information to which it was not entitled, failed to accommodate his physical disability, demoted him, and that his disability was a factor in his termination.

The worker raised a number of issues in his application for judicial review, contending that the CCT applied an improperly high standard of evidence required for a complaint to proceed to a tribunal hearing and made an incorrect determination of what constitutes a "disability" under the Act.

The worker also argued that the CCT employed excessive and unreasonable weighing of credibility to resolve certain factual disputes, which ought to have been resolved with reference to viva voce evidence and a full weighing of credibility at a hearing.

He claimed the CCT disregarded his evidence in favour of determinations not supported by any evidence, particularly regarding the nature of the work assigned to him, his participation in the accommodation process after March 2018, and the events immediately following his ankle injury at work.

Furthermore, the worker asserted that the CCT incorrectly concluded that the employer had accommodated his disabilities at all material times and that he had failed to cooperate in the accommodation process.

He believed his assignment to a different crew was a demotion and that his flu in the days prior to his termination was severe enough to constitute a disability under the Act.

The court’s analysis

The court reviewed the CCT's decision and the Record of Proceedings to determine whether the conclusions reached were reasonable on the facts and law.

The Court found that the CCT had adopted the appropriate standard of evidence, as outlined in Mis v Alberta Human Rights Commission, which is to assess whether there is a reasonable basis in the evidence for proceeding to a hearing before a Tribunal.

Regarding the worker's flu, which caused him to be absent from work for several days without notice in November 2018, the Court agreed with the CCT's finding that it did not constitute a physical disability under human rights law.

The information and medical notes indicated that the worker's flu was a temporary condition resolving in a matter of days. As the Court noted, "Indeed, the [the employer] points to a number of decisions expressly confirming that the common flu does not meet the s. 44(1)(1) definition of disability."

The court also found that the CCT's determinations were not made purely on credibility contests but rather on the evaluation and consideration of evidence beyond merely weighing the credibility of conflicting assertions.

The court stated, "None of the CCT determinations raised by the [worker] appears to have been made purely on a credibility contest finding." In each of the impugned determinations, the CCT explained why the worker's position was rejected, most often because the CCT found there was a preponderance of evidence that clearly supported the CCT's decision.

The employer’s accommodation

The court determined that the CCT reasonably concluded the employer had accommodated the worker's disabilities. Regarding the worker's ankle injury, the CCT stated, "In this case, the [employer] provided accommodation based on the information it had available, including work that incorporated forklift responsibilities in line with the [worker’s] regular duties."

The court noted that the worker had provided a physician's note confirming the need for modified duties with a gradual return to work, and the CCT considered evidence regarding his duties.

As for the worker's flu, the court agreed with the CCT that it was not a disability requiring accommodation. "Thus, with no disability, there was no obligation for [the employer] to accommodate the [worker] regarding compliance with the absenteeism policy," the Court explained.

The court’s conclusion

Ultimately, the court found that the CCT's decision was reasonable and defensible based on the evidence before it. The Court emphasised that "the evidence before the CCT provided a reasonable basis on which each of these issues was determined."

The court also noted that the worker had provided no support for his assertion that his bout with the flu was a factor in his termination. "The CCT Decision points to documents provided by both the [worker] and the [employer] which indicated the flu was not a factor in the [worker's] termination," the court stated.

In conclusion, the court dismissed the worker's application for judicial review, finding that the CCT's conclusions were "acceptable outcomes which are reasonable on the facts and law." The decision serves as a reminder of the importance of providing sufficient evidence to support allegations of discrimination and the need for employers to engage in reasonable accommodation based on the information available to them.

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