Article by: Gabrielle Berron-Styan
Previously printed in the LexisNexis Labour Notes Newsletter.
In Kelly v. Saputo Dairy Products Canada, 2021 BCHRT 128, the BC Human Rights Tribunal dismissed a complaint made by a former employee claiming that his employer failed to take adequate steps to accommodate his disability.
Jeffrey Kelly filed a human rights complaint against his employer, Saputo Dairy Products Canada, and alleged that it discriminated against him in his employment by failing to accommodate his physical disability contrary to section 13 of the BC Human Rights Code.
Mr. Kelly worked in Saputo’s warehouse as a “checker/loader”. His primary function was to pick customer orders and send them to the loading bays for distribution.
In April 2013, Mr. Kelly sustained an injury at work. He fell into an open floor drain up to his knee, injuring his leg and back. He was absent from work for the next two weeks.
From April 2013 to February 2014, Saputo engaged actively in attempts to have Mr. Kelly return to work on light duties. The parties tried a graduated return to work on three separate occasions, but each attempt ended within a short period because it caused Mr. Kelly too much pain.
In March 2014, WorkSafeBC determined that Mr. Kelly’s injury had resulted in a permanent disability. In addition to being unable to walk on cement for greater than an hour, Mr. Kelly was limited in his ability to lift or carry objects over 44 pounds and do repetitive stooping.
Saputo explored accommodated work options for Mr. Kelly, but ultimately determined that it could not identify anything within Mr. Kelly’s limitations. All positions in the warehouse were physical in nature and difficult to modify, and would have required Mr. Kelly to walk on a cement floor all day. The company concluded there was no work that Mr. Kelly could perform safely and, in October 2014, it terminated his employment.
Mr. Kelly wrote to Saputo to request an extension on the decision to terminate his employment. He stated that he felt there were jobs he could do at Saputo. The company agreed to meet with Mr. Kelly and his Union representative to review the positions he thought he could do.
The parties canvassed several positions, but again concluded there was no productive work that Mr. Kelly could perform safely within his physical limitations. The work that Mr. Kelly felt he could do included a list of tasks and not full-time jobs in the warehouse. Saputo confirmed that it could not accommodate Mr. Kelly and his employment was terminated for frustration of the employment contract.
In September 2015, Mr. Kelly filed the human rights complaint.
Decision of the Tribunal
The Tribunal found that Saputo’s decision to terminate Mr. Kelly’s employment was reasonable under the circumstances.
The ability to work, the Tribunal confirmed, is a bona fide occupational requirement. In addition to being able to perform work, employees must be able to do so safely – without a foreseeable and significant threat to their health and safety. In this case, Mr. Kelly could not longer meet that standard because of his disability. There was, in other words, no work that he could safely perform because of his physical limitations.
In concluding that Saputo had met its obligations in the accommodation process, the Tribunal reaffirmed that the duty to accommodate “does not oblige employers to create or assign work that is not productive for their enterprise”. Although employers have to be flexible in considering whether jobs can be modified to allow a person with a disability to work, this does not mean that the employer must hire two workers to do the job of one, or regularly rely on other employees to do the work that the accommodated employee cannot do (as would have been the case here). In the Tribunal’s view, this would be unproductive for the company and not the purpose of an accommodation.
Interestingly, the Tribunal noted that the purpose of a graduated return to work is different than a permanent accommodation. While a long-term accommodation should involve work that is productive for the company, there are no expectations of productivity, the Tribunal suggested, in a graduated return to work and “the worker is essentially supernumerary or surplus”. In light of this difference, the options that an employer presents to an employee as part of a graduated return to work will generally be much broader and more flexible than those presented as a permanent accommodation.
In sum, the Tribunal concluded that there were no further reasonable or practical steps that Saputo could have taken which would have allowed Mr. Kelly to work. In these circumstances, he could no longer perform his end of the employment contract and the company was justified in terminating his employment.
Takeaways for Employers
The decision of the Tribunal provides some useful takeaways for employers on the limits of the duty to accommodate:
- While the employer has a duty to arrange the employee’s workplace in a manner which will enable the employee to do his or her work, it does not have a duty to create or assign work that is not productive for its business.
- The employee must be able to perform the work safely, without a threat to his or her health and safety.
- The process of accommodation is an exercise in common sense and flexibility. It does not have to be perfect.
- Where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future, the duty to accommodate ends.
Gabrielle Berron-Styan is a lawyer at the Vancouver-based employment and labour law boutique of Roper Greyell LLP. She practises in all areas of employment, labour and workplace human rights law. She can be reached at firstname.lastname@example.org. For more information about Gabrielle and the rest of the Roper Greyell team, please visit www.ropergreyell.com.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.