Zupcic v Saputo Foods Limited, 2022 AHRC 13 is a new Alberta Human Rights Tribunal decision rendered by adjudicator Karen Scott (Chair), which found that a disabled employee failed to participate properly in the disability accommodation process, and her termination of employment was therefore not discriminatory.
This case is illustrative of the principle in human rights that accommodation of a disability requires that both employers and employees participate in the accommodation. In other words, human rights accommodation is a “two-way street”.
Facts
The version of events presented by each side was very different. Below are the pertinent facts which the Human Rights Tribunal accepted as having occurred:
- The complainant employee worked for Suputo Foods in an Edmonton dairy plant from July, 2003 until her termination of employment on November 20, 2015
- The employee’s ordinary job was to operate a “Scholle machine” which fills containers with liquid. Her job involved reaching above her shoulder height to pull and lift the containers, weighing 20 to 50 pounds
- In spring of 2015, the employee was diagnosed with a repetitive strain injury affecting her shoulder. She submitted a WCB claim, and WCB helped put in place a return to work plan
- The employer provided modified duties of various descriptions over a period of about 6 months. These included training supervising the person filling-in on the Scholle Machine, and duties like painting
- During this time, the employee provided various medical notes providing clarifications on restrictions and needed accommodations
- Several times the employee complained that there was some problem or other with the duties assigned to her, and the duties were adjusted several times
- Overall, the AHRC concluded that the employer had reasonably accommodated the employee’s restrictions
- On November 10, 2015, the employer provided the complainant employee with a new return to work offer and plan. It anticipated the employee returning to work on the Scholle machine, but another employee would help with certain lifting tasks, and a step ladder would be provided if necessary. She was asked to sign the RTW plan. She said she would do the work, but would not sign without her union president’s involvement
- The employee did the work contemplated in the plan from November 10-12
- On November 12, they had another meeting, this time with the union president present. The employer asked for updated medical information and the employee said she did not have it yet. The employee refused to sign the new RTW plan at that meeting
- On November 20, they had a further meeting, and she again refused to sign the RTW plan. Her employment was terminated
- The employee’s position was that the termination of employment was discriminatory; the employer’s position was that her employment was terminated for continually refusing to sign the RTW plan
Analysis / Conclusion
One of the main things the tribunal had to consider was whether the termination of employment amounted to human rights discrimination.
The tribunal found that the termination of employment was connected to the disability – because it was for refusal to sign the RTW plan – but that it was not discriminatory, as follows:
[129] There is a clear connection between the complainant’s shoulder injury and her termination. She was fired because she would not agree that her shoulder injury was being properly accommodated. Thus, her disability was “a factor” in her dismissal.
[…]
[141] In the circumstances, on its face, the RTW Offer was a reasonable accommodation.
[…]
[142] Somewhat perplexingly, the complainant offered to, and, in fact, from November 10 to 12, 2015, did perform the accommodated work. She simply refused to sign the RTW Offer and failed to provide any medical information supporting her refusal.
[143] The respondent asserts that signing the RTW Offer was an important aspect of implementing the accommodation. It was not prepared to have the complainant do work that she considered unsafe. Given the respondent’s obligation under the Occupational Health and Safety Act to ensure a safe workplace for the complainant, this is not an unreasonable approach. By refusing to accept the RTW Offer, the complainant prevented the respondent from implementing the otherwise reasonable accommodation. [underline added]
[…]
[146] In sum, the complainant failed to cooperate in the implementation of the respondent’s reasonable accommodations. Accordingly, the Complaint is dismissed.
My Take
This case involves a set of facts that is actually quite common in practice. The process of accommodating disabilities is very challenging, and the two sides often have difficulty trusting each other and being patient with each other.
This case is an excellent illustration of the so-called “two-way street” in accommodation: if the employer proposes an accommodation that is objectively reasonable and the employee either does not accept it or refuses to participate in the process, the employer has not failed to accommodate. The key is that it has to be objectively reasonable. The test is not whether the employee is happy with it; the test is whether the employer has proposed something that an adjudicator later finds was reasonable. The very nature of this test leads to a game of whack-a-mole where employers often propose things that are somewhat reasonable and the employees have to step carefully to avoid being squished.
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