The Human Rights Tribunal of Ontario’s Decision in Gahagan v. James Campbell Inc., 2014 HRTO 14.
The respondent, James Campbell Inc. (the “Respondent”), operated nine McDonald’s restaurants across eastern Ontario. One of these McDonald’s locations was in Lakefield, Ontario (“Lakefield McDonalds”). The applicant, Cathy Gahagan (the “Applicant”) worked at Lakefield McDonald’s for seven years, mostly at the grill station. The Applicant was skilled at her job.
On May 26, 2009, the Applicant injured her back while lifting a filter pan under a vat. As a result, the Applicant was received full loss of earnings benefits by the Workplace Safety and Insurance Board (“WSIB”) from the date of injury.
On September 8, 2009, the Applicant’s physiotherapist (the “Physiotherapist”) advised the WSIB that the Applicant was beginning an 8-week occupational rehabilitation program. The physiotherapist recommended that the applicant gradually return to work in weeks 6-8 of her program.
On November 10, 2009, the WSIB Return to Work Specialist (“WSIB Specialist”) attended at the Lakefield McDonald’s with Physiotherapist to determine whether the Applicant could return to work. Present at the assessment was Terry Van Zant (“Ms. Van Zant”), the co-owner of the Respondent. The Applicant had a number of physical restrictions in November 2009, which continued at the time of the decisions included, for example: no lifting above 10 pounds and ability to work 3 hours per day, 3 days per week with a rest day in between.
On November 11, 2009, the WSIB Specialist prepared a memo. The memo noted that Ms. Van Zant had advised the WSIB Specialist that the Respondent would be unable to accommodate the Applicant. Further, the WSIB Specialist stated that Ms. Van Zant would not allow the WSIB Specialist to go behind the counter to investigate the work site.
The WSIB Specialist concluded that the Respondent had failed to cooperate in the return to work process. Meaning, the Applicant was entitled to a labour market re-entry (“LMR”) plan. The Applicant was sponsored in an educational upgrading program. The Applicant began the LMR training program in March 2010.
After completing the LMR plan, a WSIB case manager determined that the Applicant was restored to her pre-injury status. As such, the Applicant’s WSIB benefits ended on August 19, 2011.
In September 2011, the Applicant applied for Long-Term Disability Benefits (“LTD”) through her insurer. In addition, in October 2011, the Applicant was approved for a disability pension through Canada Pension Plan (“CPP”).
On September 13, 2011, the Applicant filed an application alleging discrimination by the Respondent for failing to participate in the Return to Work process in 2009.
The Respondent terminated the Applicant’s employment on October 3, 2011. The Respondent did not believe that the Applicant would return to work, and as such, that the employment contract between the parties was frustrated.
On October 26, 2011, a second application was filled by the Applicant. The Applicant claimed that she had been reprised against by the Respondent. Specifically, the Applicant alleged that when the Applicant was terminated because of she filled her original application with the Tribunal.
On September 4, 2012, the Tribunal, through an Interim Decision, consolidated the two Applications.
The relevant issues to this discussion before the Tribunal was whether the Respondent:
- discriminated against the Applicant when it failed to participate in the return to work process and failed to accommodate her restrictions; and
- reprised against the Applicant when it terminated her employment in October 2011.
HUMAN RIGHTS TRIBUNAL OF ONTARIO’S DECISION
The Tribunal broke its decision down into three central topics. The following two will be discussed: failure to accommodate in November 2009; and termination of employment.
Failure to Accommodate in November 2009
Under section 17 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19 (“Code”), a right is not infringed where the person claiming the right is incapable of performing the essential duties of a job with accommodation. Here, the Respondent bears the onus to prove incapacity of the Applicant to perform her essential duties with accommodations.
The Tribunal first acknowledged that the Applicant had significant physical restrictions in November 2009. Specifically, that the Applicant could not twist or bend, she could only stand for 10 minutes and sit for 5 minutes. The Tribunal noted that these physical restrictions impeded the Applicants ability to work at the grill assembly-line process. The tribunal did not accept the Applicant’s suggestion a chair could have been placed in the grill area to enable her to alternate between sitting and standing given the nature of the workstation.
The Applicant also suggested that the Respondent could have had a staff person help her at the grill station. The Tribunal noted that in effect the Applicant’s argument would require the Respondent to hire someone to shadow the Applicant. The Tribunal explained that “[t]he duty to accommodate does not require an employer to provide “make work” or to create a job that is not productive or that, in the employer’s view, does not need to be done. Chadwick v. Norfolk (County), 2013 HRTO 2101 (CanLII) at paragraph 42 and Saucier v. Smart Lazer Grafix, 2009 HRTO 1053 (CanLII) at paragraph 19” (para 27).
Ultimately, the Tribunal concluded that the Applicant was incapable of performing the essential duties of her job with accommodation in November 2009 because of the nature of her physical restrictions at that time. Further, the Tribunal found that the Respondent could have accommodated the applicant by providing three-hour shifts every other day, but, the Applicant still would have been unable to perform the essential duties of her job on that modified schedule. The Tribunal considered that the Respondent hiring a shadow for the Applicant and/or putting a chair in the grill station would not have been feasible, and would have created an undue hardship for the Respondent. The Respondent had met the burden of establishing that the Applicant was incapable of working in November 2009 with accommodation and as such, this complaint is dismissed.
Termination of Employment
The Applicant submitted that her termination from her employment with the Respondent was a reprisal for her filing her application with the Tribunal. To succeed in a reprisal claim the Tribunal relying on the principle set out in Noble v. York University, 2010 HRTO 878 which stated, “an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the “Code” (para. 32).
From this and based on the evidence presented, the Tribunal found that the Applicant’s employment was terminated when the Respondent determined that the Applicant could not return to work with or without accommodation because of her permanent physical restrictions. Specifically, the Tribunal took note that at the time of termination, the Applicant had not worked for almost two and a half years.
As such, the Tribunal held that the Applicant could not work in 2011 when her employment was terminated with the same physical restrictions that persisted on the date of termination. Further, the Applicant received LTD from 2009 to 2010 and CPP disability pension from October 2010 onwards. The Tribunal noted that to obtain these benefits, she was acknowledging her inability to perform her job and that she had a severe and prolonged disability. Therefore, the Tribunal found that the Applicant could not work with accommodation at the time of termination.
The Tribunal determined that the Respondent terminated the Applicant’s employment because the parties employment contract was frustrated, not as a result of the Applicant application to the Tribunal. Therefore, the complaint was dismissed.
The above discussion is a reminder that if an employee becomes disabled, an employer can legally terminate that employee if they can demonstrate that the they would be unable to accommodate the employee’s disability unless they experience undue hardship.
Despite the result of the above case, it is important to bear in mind that each case turns on the facts. An employer bears the burden to prove that the disabled employee is incapable of performing their essential duties with accommodations and that to accommodate them would cause undue hardship.
As such, employers should be advised to be cautious when considering terminating an employee who has not been able to work because of injury or illness. While the above case was found in favour of the employer, there are cases where frustration was not found regardless of even lengthier absences from work than the Applicant’s absence was at the time of her termination.