Accommodating Disabilities: The Duty To Consult

Author:Mr Brandon Hillis
Profession:Borden Ladner Gervais LLP

Edited by Jennifer M. Fantini and Naomi E. Calla

An essential component of the accommodation process is engaging in a thorough inquiry as to the limitations of an employee, a significant aspect of which is consultation with the employee in need of accommodation. Consultation is necessary to determine the employee's limitations, obtain medical information and assess what forms of accommodation are necessary and practical. In the absence, an employer is unlikely to have the information necessary to determine whether the point of undue hardship has been reached. As a pair of recent British Columbia decisions illustrate, a failure to engage in such consultation can have a significant impact on the outcome of a case.

In Mould v. JACE Holdings (No. 2),1 the Complainant, who had been on disability leave for 30 months, was terminated in June 2010 by the Respondent employer on the basis that her employment had been "frustrated" by her disability. Upon receiving this notice, the Complainant contacted the Respondent to ask whether she could be accommodated by working shorter shifts with modified duties. In reply, the Respondent simply told her that she could not be accommodated and failed to elaborate, despite the Complainant's repeated attempts to engage in such a dialogue.

In its reasons, the Tribunal acknowledged that given the Complainant's restrictions it was altogether possible that the Respondent could not accommodate the Complainant without undue hardship. However, the Tribunal could not come to this conclusion, due largely to the fact that Respondent had failed to make any inquiry into whether the Complainant could return to work. Attention was drawn to the fact that, among other things, the Respondent failed to entertain any discussion as to her accommodation and failed to ask the Complainant for medical information, even in the face of the Complainant initiating discussions about accommodated employment. Without doing so, it was not found that the Respondent had accommodated the Complainant to the point of undue hardship.

A similar finding was made in Brewer's Distributor Limited.2 As part of a return to work agreement following serious injuries, the Grievor was placed in a modified position, working limited hours and limited duties, with the ultimate goal being a return to his original position. After a year with no improvement in...

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