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Company Terminates Employee During a Medical Leave Without Discrimination

March 4, 2024

In Complainant v. Company and others, 2024 BCHRT 23, The Tribunal dismissed an employee’s human rights complaint alleging discrimination on the basis of sex and a physical disability after being terminated while on a medical leave.  

Facts

The complainant, a female carpenter,  was employed with a general contractor company for 11 months before being terminated.  At the time she was the only female carpenter and was initially given a raise and increased responsibilities to be a lead carpenter within a short period of time. However, over time there were some concerns about her performance and the company had changed her role back from lead carpenter to carpenter.

On July 1, 2019 the complainant broke her foot and was unable to work as a carpenter until she was cleared by a doctor. The complainant offered to do administrative work while she was injured. The company said there was no administrative work available for her to do so the complainant remained off work. On September 23, 2019, the company terminated her employment. The company said the reason for the termination was because their volume of work was decreasing, and it was not because of her injury.

The complainant filed a human rights complaint alleging the company did not accommodate her by providing her with alternative work when she was unable to work due to an injury and she was subsequently terminated. The complainant also felt she was discriminated against on the basis of her sex when her extended health benefits coverage was delayed, when she was refused reimbursement of expenses, and when she was not provided a letter of employment.

The company argued it was not possible to accommodate the complainant when she was injured by giving her alternative work.  The company also said her termination was not related to her disability or sex.  Further the company said the complainant’s sex was not a factor in how they treated her.

After hearing the evidence, the Tribunal dismissed the complaint.

Decision

In dismissing the complaint, the Tribunal concluded there was no evidence to support an inference that the company discriminated against the complainant based on her sex.

In dealing with the allegation of failing to accommodate the complainant, the Tribunal concluded that the company could not have accommodated the complainant by providing her with alternative work without incurring undue hardship. The complainant did not claim she could do any aspect of her existing carpenter job.  The Tribunal accepted that there was no administrative work for the complainant to do.  The Tribunal also concluded that the company was not obligated to have the complainant do administrative work that they preferred to have done by legal counsel or take work away from the company’s assistant, or create work for the complainant where none existed.

The Tribunal re-iterated an employer’s duty is to reasonably accommodate an employee. This means taking reasonable and practical steps to assess whether working conditions can be changed to allow an employee to do their work, and if not whether there is work they can do.  This is a collaborative process and requires participation and cooperation from both the employee and employer. Undue hardship will be reached when reasonable means of accommodation are exhausted and the only options for accommodation are unreasonable or impractical.

With respect to the termination of the complainant, the Tribunal concluded the termination was unrelated to the complainant’s injury. Specifically, the evidence supported that the company was already considering terminating the complainant before she was injured and there was a shortage in work at the time of the termination. It was also noted that the company did not hire another carpenter to replace the complainant.

Takeaways for employers

This is a rare case where an employer terminated an employee during a medical leave but was still able to establish the termination was unrelated to the employee’s medical condition.  For employers considering a termination during or immediately after a medical leave, they would be wise to seek legal advice first.    

This case also reinforces that an employee is not entitled to any accommodation that they request.  An employer is only required to take reasonable steps to accommodate the employee.   For example, in this case it would have been unreasonable for the employer to create administrative work for the employee when no such work existed.  The circumstances for the employee and employer will be very important in each case to determine the extent of accommodation required. 

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Expertise

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: March 4, 2024.

©Harper Grey LLP 2024

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