Refusal to Cooperate in Accommodation Process Prevented Reinstatement

Employees must participate in their employer’s accommodation process, even where that process has not produced satisfactory results. In the Alberta Human Rights Tribunal case of Perera v. St. Albert Day Care Society, Theresa Perera found this out the hard way when, due to a disabling injury, she refused to perform the work she was assigned and her employer terminated her for insubordination. However, the tribunal found Perera’s injury was a factor in the termination, and therefore the termination was discriminatory. Nonetheless, the insubordination made reinstatement impossible.

Facts of the case

Theresa Perera was a level 1 assistant at St. Albert Day Care Society in St. Albert, Alberta. The organization runs day care programs at several sites, including the Muriel Martin School. For the academic year 2009–10, Perera was assigned to the Muriel Martin out-of-school program as assistant program co-ordinator.

On September 1, 2009, Perera broke her ankle and had to take a leave of absence from work to recover from her injury. Another person was assigned to replace her during her absence.

In January 2010, Perera was still using crutches, but she attempted to return to work anyway. However, a supervisor saw her sitting with her leg up and moving slowly and cautiously, and told her she couldn’t work until it was determined that she could carry out her duties. According to the supervisor, assistants had to be physically active to engage in activities with the children. In addition, the terrain was uneven and could be slippery in the winter.

On January 20, 2010, Perera provided a medical note recommending: “modified duties … No walking on uneven ground, slippery surfaces. No prolonged walking/standing. Approx. 2 months.”

The employer concluded that the employee could not return to her regular duties and there was no modified work available as all the sedentary or quasi-sedentary positions were occupied. Thus, Perera was rescheduled to return to work on March 8, 2010.

Without notice, explanation or discussion, the employer changed Perera’s job to “society float” (which involved fewer hours and less security), with her wage and benefits remaining the same. Her new duties involved assignments at various locations. The first assignment was for March 8, 2010, at Fountain Park School commencing at 7:00 a.m.

Perera became visibly upset upon receiving news of the reassignment, because it was generally accepted that a float position was a demotion.

In Perera’s new position, her supervisor would call her only on days when she was needed, around 6:30 a.m., assigning her to different locations. Perera became increasingly upset.

In April, Perera missed two weeks’ work with sore feet.

On April 9, 2010, Perera filed a complaint with the Human Rights Commission, claiming that she ought to have been able to return to work in a modified form in January 2010 and on March 8, 2010, and she should have been returned to her pre-injury job.

On April 14, 2010, Perera reported to her pre-injury position, insisting that her sore feet prevented her from working elsewhere. Her supervisor directed her to her float assignment and Perera left. She returned to her doctor and obtained another medical note stating: “return to work … March 8/2010 – Pre injury work.”

The next day, the employer terminated Perera for insubordination and refusing to work where assigned. The employer provided Perera two weeks’ severance pay on an ex gratia basis.

Between March 8 and the termination, there was no dialogue or an individual assessment regarding Perera’s ability to return to her pre-injury position.

On May 4, 2010, Perera added the termination to her claim, asserting this event was further discrimination. This meant that her claim was fourfold:

1. The January 18, 2010, refusal to allow Perera to return to work in any fashion.
2. The March 8, 2010, reassignment of Perera to the float position and refusal to return her to her pre-injury position and location.
3. The employer’s refusal to recognize or accommodate Perera’s assertion that she had sore feet that prevented her from working at other locations, but permitted her to work at her pre-injury location.
4. The April 15, 2010, termination of employment.

Decision

1. The refusal to allow Perera to return to work in any fashion

Although Perera’s broken ankle did qualify as a disability, and she experienced an adverse impact by not being allowed to return to work because of the injury, the Human Rights Tribunal found the employer’s standard for working at the Muriel Martin School was bona fide and the employer would have experienced undue hardship had it accommodated Perera in her pre-injury position.

Requiring assistants to be able to do full duties, including duties requiring a fairly high degree of mobility was a valid standard that was adopted in good faith. No accommodation was possible.

2. The reassignment to the float position

The issue to be decided was whether the transfer to the float position was or was not an adverse impact. The employer argued that it had the management right to transfer employees, and anyway, Perera suffered no loss of compensation.

In the tribunal’s opinion, although there was no loss in compensation, the transfer clearly had an adverse impact on the employee’s state of mind and her employment:

“…adverse impact in the employment context can include conduct or a change in working conditions that causes distress and loss of dignity to employees. Noting Ms. Perera’s career path to date with the respondent, a transfer to the float position does appear to be less desirable than her previous placement, notwithstanding that she received the same level of pay.”

Although the justification and standard were valid, it was not reasonably necessary to the accomplishment of a legitimate work-related purpose. As of March 8, 2010, it would not have caused the employer undue hardship to have returned Perera to her pre-injury location:

“I accept that there was some accommodation by the Society. I also accept that a return of the employee to a previous position may not always be possible. However, the starting point for exploration of accommodation options should be an assessment of a return to work in the employee’s previous position. Employers cannot just place the returning employee into a position which is most convenient for the employer. The Society has not proven that it has accommodated to the point of undue hardship.” (Emphasis added.)

Assigning Perera to the float position and refusing to allow her to return to her pre-injury job on March 8, 2010, without even assessing the possibility was discriminatory.

3. The refusal to recognize or accommodate Perera’s assertion that she had sore feet

The tribunal found that the two-week period when Perera claimed she had sore feet and could not work at the assigned location as a floater but could work in her pre-injury location, could not be considered an adverse impact on the employee’s employment, and therefore the employer’s actions could not be considered discriminatory. The medical notes submitted to justify Perera’s assertion could not be relied upon because they were based on the employee’s assertions.

4. The termination

The tribunal found that the broken ankle was a factor in the transfer of Perera to the float position and, in turn, the adverse impact of the float position assignment led to Perera’s alleged insubordination, which resulted in her termination. However, by refusing to work where she was assigned, Perera failed to participate in the accommodation process:

“Given the circumstances of this case where some accommodation was offered, even though it was not accommodation to the point of undue hardship, Ms. Perera should have continued to engage and participate in the accommodation process. Ms. Perera had the right to file a complaint and on April 9, 2010, she had done so. The Act protects her from adverse action being taken against her.”

Based on Perera’s refusal to co-operate, the tribunal dismissed the complaint in relation to the termination.

Remedy

Usually, in such cases of failure to accommodate, the tribunal would recommend the employee be reinstated, but because of Perera’s insubordination and lack of co-operation in the accommodation process, the tribunal declined to reinstate.

Therefore, the tribunal limited the award to general damages for injury to dignity and self-respect for the transfer of Perera to the float position in the amount of $3,000. In assessing the general damages, the tribunal considered the following factors:

• The pre-emptory manner in which Perera was transferred to the float position
• The lack of any explanation to Perera
• The effect on Perera’s dignity when transferred to the float position

What can be taken from this case?

Even if an employer can show that a company policy or requirement that a disabled employee cannot perform constitutes a bona fide occupational requirement, an employer’s duty to accommodate does not stop with consideration of the employee’s existing job. Employers must be flexible in applying their standards if such flexibility enables the employee to work and it causes no undue hardship. The goal of accommodation is to ensure that those who are otherwise fit to work are not unfairly excluded where working conditions could be reasonably adjusted.

To ensure employers comply with their duty to accommodate to the point of undue hardship under human rights legislation, an accommodation of disability policy and process should be established and communicated, explaining the employer’s obligations and responsibilities, and the employees’ rights and responsibilities under the law. This will prevent any surprises, miscommunications and misunderstandings.

The accommodation process is a shared responsibility. Everyone involved (employer, manager, employee, union, doctor, etc.) should co-operatively engage in the process, share information and avail themselves of potential accommodation solutions.

The procedural duty to accommodate an employee involves asking several questions, including:

• Can the employee be accommodated in some way in order to continue working in the employee’s current job?
• Can the employee be accommodated in a different position with the employer (either completely or in a rebundled manner)?
• Will the employer experience undue hardship if it employs the employee in either of these ways?
• Can the employer reasonably accommodate the employee in some position (existing or created) without undue delay?

Employees should answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed. They should also participate in discussions regarding possible accommodation solutions and co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability. Finally, once accommodation is provided, employees should meet agreed-upon performance and job standards.

Employers should accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise. Employers should also actively investigate alternative approaches and possible accommodation solutions, as part of the duty to accommodate. The process should respect the dignity and privacy of the person being accommodated and must be provided on a timely basis. Accommodation is about removing barriers to enable an employee to perform and contribute his or her skills fully to the organization.

If the employee decides not to co-operate by refusing to provide adequate information, the employer should inform the employee that, appropriate accommodation may not be provided. In these cases, the employer may have met its duty to accommodate. It is important for the employer to document what it has done to try to accommodate the individual’s needs.

Under the duty to accommodate, employers are not required to retain an employee who is unable to meet his or her employment responsibilities despite accommodations. For example, employers are not required to tolerate substandard performance or unpredictable attendance. Employees, once accommodated, are expected to meet bona fide occupational requirements and standards. It is important to ensure that all employees understand performance expectations. Accommodation aims to enable employees to achieve employment and performance standards.

In addition, employers are not required to accommodate an employee’s persistent absences if the absences are unrelated to a disability. This situation is a management issue and must be resolved through proper mechanisms, such as the performance management or disciplinary process, depending on the circumstances.

Written with the assistance of Christina Catenacci