Hough v Pillar Resource Services Inc., 2021 AHRC 121 is an Alberta Human Rights Tribunal decision by Tribunal Chair, Kathryn Oviatt.
The decision involves a pipefitter who sustained a shoulder injury while completing his work duties. Following the workplace injury, Mr. Hough was placed on modified duties until he was medically cleared to return to full duties, at which time the employer terminated his employment. Mr. Hough alleged that the employer discriminated against him on the basis of his physical disability by harassing him during his modified duties and by its decision to terminate his employment. The Human Rights Commission agreed with Mr. Hough and awarded $25,000.00 in damages in addition to lost wages.
Facts
On March 17, 2014, Mr. Hough sustained a shoulder injury after he slipped off pipes as he was crossing to the other side of his workstation. The slip was reported to the worksite safety officer, who instructed Mr. Hough to complete an accident work report and instructed him to seek medical attention. Subsequently, Mr. Hough was diagnosed with a broken shoulder and was directed by his physician to remain off work for one month. Despite this, the employer advised that it had sedentary duties for Mr. Hough to perform and instructed him to attend work. Mr. Hough complied and completed sedentary duties for the first month.
After receiving medical clearance to commence light duties, Mr. Hough was assigned to work duties operating a sub arc welder. Eventually, it was determined that this task aggravated the initial injury and Mr. Hough was then assigned to light duties including garbage clean-up on the worksite and “doping studs”, a highly repetitive task which involved applying a compound to a bolt and threading a nut onto each bolt. At one point, the employer took away Mr. Hough’s chair so that he was forced to stand all day to dope studs.
Mr. Hough was disciplined on several occasions while on modified work duties: for listening to a radio while working, for stopping to refuel his vehicle between travelling between work sites, and for five (5) alleged incidents absenteeism. For the absenteeism, he received a five (5) day suspension. Interestingly, three (3) of the absences sited by the employer were medical-related absences and Mr. Hough had received verbal permissions for the other two (2) absences.
While Mr. Hough was on modified duties, the employer created a safety video and interviewed Mr. Hough regarding his experience after the injury. The final edited video was shown to 40 to 50 employees and included a clip wherein Mr. Hough commented about the physical consequences of the injury, including temporary reduction in sexual capacity. This segment of the clip contained audible laughter in the background. After seeing the final video, Mr. Hough became upset and experienced ridicule from fellow employees.
Immediately after receiving medical clearance to return to full duties, Mr. Hough’s employment was terminated without cause by the company. On the business day prior to the termination, the company advised the Workers’ Compensation Board that they had ample work for Mr. Hough.
Analysis / Conclusion
The tribunal held that Mr. Hough suffered adverse impacts and experienced discrimination from the employer as a result of his shoulder injury and need for accommodation. It was concluded that Mr. Hough sustained harassment from the employer in being assigned demeaning work, in being humiliated within the safety video, and in being inappropriately disciplined. Finally, it was concluded that Mr. Hough’s physical disability was a factor in his termination.
Despite the fact that Mr. Hough was assigned to duties that were within the scope of his medical restrictions, the tribunal found that the type of work was in itself demeaning and indicative of adverse treatment. Ms. Oviatt writes:
[41] Both doping studs and yard clean up were tasks that needed to be done and were within his medical restrictions. However, they were tedious, particularly for weeks on end, and the respondent’s approach supported the complainant’s interpretation that they were assigned to harass him […]
[42] […] I find that the sustained monotonous assignment of doping studs without a chair was adverse treatment and the complainant’s disability was a factor in that adverse treatment.
Regarding the safety video, the tribunal concluded that the employer’s actions were unwarranted and aimed to embarrass Mr. Hough, specifically, the employer’s calculated decision to include in the final video edit Mr. Hough’s comment about the temporarily impact his injury had on his personal sex life. The tribunal stated:
[47] There was very limited educational value in the inclusion of this aspect of the discussion. It was also foreseeable that the complainant would become the subject of ridicule in the workplace after showing this video to the predominantly male, blue-collar workforce.
Effectively, the editing of the safety video, the assignment of demeaning work, as well as the unwarranted discipline for absenteeism, including discipline for injury-related absences, were held by the tribunal to be evidence of adverse impacts sustained by Mr. Hough as a result of his physical disability, as was the termination of his employment.
In making the determination as to appropriate damages, the tribunal indicated that the circumstances and instances of discrimination were “objectively serious”, given the fact that Mr. Hough faced three different forms of harassment, including unwarranted discipline, the video, and the assignment of demeaning work. The tribunal set the damages award at $25,000.00 for injury to Mr. Hough’s dignity, citing Justice Devlin’s comment in Sunshine Village Corporation v Boehnisch, 2020 ABQB 692 at para 24 that “miserly awards minimize the seriousness of discrimination, undermine the core purpose and mandate of the human rights regime, and can themselves perpetuate the discrimination.” In addition to general damages of $25,000.00, Mr. Hough was awarded lost wages for the period of time of termination to the date he started new employment.
My Take
What stands out about this case to me is the tribunal’s finding that the type of work assigned to Mr. Hough, specifically, yard clean up and “doping studs”, was a form of harassment. This decision ought to be a warning to employers that they should consider the quality and repetitiveness of the task before assigning work to employees who are placed on modified work duties, especially if the employee is to perform the work over an extended period of time. The risk to employers who do assign mundane and repetitive tasks to employees on modified duties, is that it could be deemed to be a form of employee harassment.
Another important takeaway is that employees ought not to be unnecessarily disciplined by the employer while they are modified duties. In my view, it was especially poor judgment for the employer in this case to penalize the employee for his absence relating to seeking medical treatment for his injury. It is advisable for employers to be flexible and accommodating when it comes to an employee’s medical-related absences, as is their duty under the applicable Human Rights legislation. On the other hand, it is advisable for employees to communicate any work-related absences to the employer as soon as is practicable and to put any absence requests in writing to minimize the chance of miscommunication.
Finally, this decision by the tribunal makes it clear that discrimination and harassment will not be tolerated even in industrial, “blue-collar” settings. There is a common misapprehension that a different set of moral standards apply to these and other trades-focused settings. The Human Rights Tribunal is responsible for applying the Human Rights Act legislation and violations of the legislation will result in significant damage awards in these settings for discrimination and harassment of employees on the basis of a protected ground.
A published copy of this case can be found at the following link: https://www.canlii.org/en/ab/abhrc/doc/2021/2021ahrc121/2021ahrc121.html?autocompleteStr=2021%20ahrc%20121&autocompletePos=1
