Written by Daniel Standing LL.B., Editor, First Reference Inc.
Employers of workers with disabilities need to know the ins and outs of their duty to accommodate. The law intends the accommodation process to be collaborative, allowing the employer, union and employee the ability to make suggestions, compromise and, hopefully, arrive at a mutually agreeable solution. In Singh v Dodd’s Furniture (No. 2), 2021 BCHRT 85, the British Columbia Human Rights Tribunal found that a furniture store discriminated against its worker after it received some bad advice about how to go about accommodating him. The furniture store made an “ill-informed mistake” when it gave its worker an ultimatum of either accepting a demotion under the guise of accommodation or being fired. It is a mistake employers can easily avoid by bearing in mind the basic principles of the duty to accommodate.
Manpreet Singh started working at Dodd’s Furniture in 2014 as a customer service representative. Within a few months, he was promoted to Assistant Manager at the company’s Victoria warehouse. The assistant manager job was mostly sedentary, but it involved occasional lifting. In early July 2017, Singh injured himself at work while lifting a sofa.
Mr. Singh made a workers’ compensation claim, which was approved by WorkSafeBC. As a result, he was paid wage loss benefits for two months after his accident. During the time he was away from work, a chiropractor wrote a report stating that Mr. Singh was not capable of doing the full duties of his job right away, but instead could do light duties with frequent breaks. His condition gradually improved to the point where WorkSafeBC’s discharge report authorized Mr. Singh to attempt a full return to work in his pre-accident position without any limits.
The problem at the centre of this case stems from the employer’s decision not to return Mr. Singh to his pre-accident position. The Tribunal found that Dodd’s offered to accommodate Mr. Singh in a position assembling furniture instead of reinstating him in his former job as Assistant Manager. This came as a surprise to Mr. Singh, who was not interested in doing heavy manual labour. He also viewed the assembly line job as a demotion since it had a lower level of responsibility, authority and status. For those two reasons, he refused the position.
Dodd’s refused to budge on the Assistant Manager position, and it emailed Mr. Singh an ultimatum. The message said that unless he reported to the chair assembly position three days later, he would be considered to have resigned. Instead, Mr. Singh became a cab driver. By working modified hours and asking his fares to carry their own luggage, he was able to do the job.
Mr. Singh’s job loss drastically impacted him. He became depressed and lost his self-respect. The loss of employment also put a strain on his marriage and his finances.
The Tribunal’s decision
The Tribunal began by setting out the law on discrimination. In this case, it stated, Mr. Singh had to prove that he has or had a physical disability, that he experienced an adverse impact in his employment and that his physical disability played a role in that outcome. If he was able to prove his case, then the spotlight would move to the employer to justify its conduct.
The Tribunal had no trouble concluding that Mr. Singh’s back injury was a disability within the meaning of the Human Rights Code. This was because the back injury had “some degree of permanence” and it impaired to some degree his “ability to carry out the normal functions of life.” Secondly, the Tribunal found that Mr. Singh suffered an adverse impact when he was kept out of the Assistant Manager job. Although Dodd’s tried to argue that its decision was based on concerns about Mr. Singh’s performance, or as part of a broader restructuring of the workplace, the Tribunal found it was clear that Mr. Singh was “ousted” from his former position as a direct result of his medical leave. In doing so, Dodd’s had acted on bad advice obtained from an outside human resources company. The company’s point about restructuring failed to hold much water given the fact that someone else had been hired to do the Assistant Manager position. These findings led the Tribunal to conclude that Mr. Singh had met his onus; he had proven discrimination.
Now the Tribunal had to consider whether Dodd’s could justify its conduct. The Tribunal explained that the law requires an employer to take all reasonable and practical steps to accommodate an employee in Mr. Singh’s situation. The Tribunal expressed confusion about why Mr. Singh could not be accommodated in his former position. After all, Dodd’s was prepared to modify the assembly worker position to avoid occasional lifting, so its inability to do the same for the Assistant Manager position remained a mystery. The Tribunal also critiqued the employer for the ultimatum it gave to Mr. Singh of accepting the assembly line position or quitting. Instead, it should have consulted Mr. Singh and sought his input. This failure to take all reasonable and practical steps to accommodate Mr. Singh led the Tribunal to conclude that Dodd’s failed in its duty, entitling Mr. Singh to a remedy.
Turning its attention to the appropriate remedy, the Tribunal noted that Mr. Singh made no claim for lost wages. Therefore, the Tribunal ordered Dodd’s to “cease and refrain from committing the same or similar violation of the Code” in the future. Lastly, the Tribunal considered the question of compensation for injury to Mr. Singh’s dignity, feelings and self-respect. Damage awards under this heading are typically made after considering the complainant’s vulnerability, the nature of the discrimination and the effect of the discrimination on the complainant. Here, Dodd’s conduct was found to be less serious than the most egregious cases. Mr. Singh was not bullied, harassed or beat up. But he did experience significant harm because of the discrimination, and for that, the Tribunal awarded him $10,000 in compensatory damages.
The duty to accommodate ultimately belongs to the employer, but the law expects the process to be a collaborative one in which all of the participants can and should give their input. The employer in this case did not follow the template set out by the courts, opting instead to follow bad advice from its external human resources advisor. This “ill-informed mistake” cost it in the end, but this need not be the case for other employers in similar situations. By engaging in a dialogue with the employee (and, when applicable, the union), an employer can set itself up for success. Issuing ultimatums and making drastic changes to an employee’s pre-injury position on the basis of shaky allegations of performance problems or non-existent reorganizations is far from sound strategy.