Shift Change and Lay-Off Discrimination in Alberta

By: Joel Fairbrother

Published: 2 May 2022

A construction worker that has been affected by covid-19

Woods v North American Construction Group Inc., 2022 AHRC 26 (Oviatt), is an Alberta Human Rights Tribunal decision where a shift change and lay-off imposed by an employer on an employee with a physical disability were considered to be discriminatory.

This case is interesting for a few reasons: (1) it considers the meaning of “physical disability” in the context of Alberta human rights, and (2) the case found the lay-off to be discriminatory even though it was part of a larger, legitimate lay-off.


Below are the pertinent facts found by the Alberta Human Rights Tribunal:

  • The complainant worked as a maintenance supervisor at a large oil sands site owned by Suncor
  • The complainant had a gastrointestinal disorder (acid reflux, but short of GERD) which required medication and lifestyle management
  • He was off for surgery related to his acid reflux and was away for more than two months
  • His doctor cleared him to return to his ordinary duties, but he was still recovering from surgery and was not able to eat solid food
  • His acid reflux was worse at night, and the shift change was causing him anxiety
  • The complainant’s shift at the Suncor site prior to his surgery was the day shift. While off on leave, the shifts were changed so that employees would work day shifts for a period and then switch to night shifts
  • The complainant wanted only day shifts due to his acid reflux and the fact that he was still recovering from surgery, and this was supported by his doctor who indicated that it was aggravating his symptoms
  • The employer’s doctor disagreed with the complainant’s doctor, and found that the complainant was able to work at night. The employer thought the complainant’s request was a preference and not truly related to his disability
  • The complainant was not placed on day shift as requested. The complainant was able to go on disability leave

After some time on disability leave, the employer laid off a number of employees at about the same time due to shortage of work.  The complainant was among them

Analysis / Conclusion

The Alberta Human Rights Tribunal provided the following guidance respecting whether or not a condition is a protected “physical disability”:

[11]      Similarly, the arbitration board in Capital Health Authority (Royal Alexandra) v United Nurses of Alberta, Local 33 (Royal Alexandra) cited favourably from the textbook The Law of Human Rights in Canada, to explain the principles surrounding the concept of disability:

While adjudicators have always interpreted the definition of disability broadly, in keeping with the mandate to apply a large and liberal interpretation to human rights legislation, it is clear that the concept of disability will not be interpreted so broadly that the purpose behind the legislation will be trivialized.

Where an illness or condition is not enumerated in the applicable legislation, the board of inquiry will have to determine whether the condition complained of is, in fact a handicap or disability within the meaning of the particular legislation. Essentially, only disabilities which affect or are perceived to affect a person’s ability to carry out life’s important functions, including specific aspects of a job position, will be found to be a disability.[9] [emphasis added]

The AHRT concluded that the combination of the complainant’s acid reflux and continued recovery from surgery was a protected physical disability.

The AHRT went on to conclude that the complainant’s physical disability was one of the reasons he was selected for lay-off, therefore establishing prima facie discrimination.  The analysis was as follows:

[52] Although the respondent likely laid off several employees in the summer of 2012 for legitimate business purposes as part of a larger staffing reduction, the complainant’s disability was a factor in the decision to include him in those layoffs. Miller testified that the complainant’s lack of safety ticket was one reason for choosing the complainant for layoffs. However, Miller also admitted that his view of the complainant soured after the events in November 2011 when the complainant requested accommodation and that this negative view was part of why he selected the complainant for layoff.  

[53] […] Miller described the accommodation request as a turning point in his opinion of the complainant, and was one of the reasons Miller assessed the complainant as one of the weaker maintenance supervisors in choosing staff for layoff.

[54] The complainant’s request for accommodation and refusal to work shift work were due to his physical disability. This was at least a factor in the decision to include him in the respondent’s 2012 layoffs. His lack of safety ticket may have been another factor. However, as outlined above, the disability does not need to be the sole or overriding factor as long as it was a factor.

The AHRT’s final consideration was whether the employer was justified in its failure to accommodate, which an employer can establish if it can show that accommodation could not be achieved without “undue hardship”.  The employer’s arguments around this were mostly related to efficiency and the employer’s preference to have everyone on the same shifts.  The AHRT ultimately found that there was not sufficient evidence that the accommodation (day shifts only) would have caused the employer to suffer undue hardship. 

The conclusion was that the employer’s choice to refuse the shift change accommodation, and to then lay-off the employee, were discriminatory.

My Take

The most interesting part of this case to me is the finding that the lay-off was discriminatory even though it was part of a larger, legitimate lay-off.  It is harder to establish discrimination in circumstances like this because the disabled employee does not seem to be singled-out.  However, in this case the AHRC found that although the larger lay-off was legitimate, at least a reason why the employee was included in that layoff was his disability.

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