Shift change and firing of employee with acid reflux was discriminatory: Alberta tribunal

Woods v. North American Construction Group Ltd.

Earlier this year, the Alberta Human Rights Tribunal (AHRT) ruled that an employer’s shift change and decision to layoff an employee with a physical disability were considered to be discriminatory.

The AHRT found Woods’ disability was a factor in his employer, North American Construction Group Ltd. (NACG), preventing him from engaging in meaningful employment when he was able to, which consequently impacted his pay and leave entitlements. The AHRT found that NACG failed to properly accommodate Woods.

Facts

The key facts that the AHRT considered in reaching its decision include:

• Woods was employed as a maintenance supervisor at a large oil sands site owned by Suncor.
• He suffered from a gastrointestinal disorder that required medication to manage. Woods had surgery to address acid reflux caused by his condition, causing his absence from work for over two months. Following his surgery, his physician, Dr. Chan, permitted him to return to work on regular duties, despite being in post-surgery recovery.
• During Woods’ leave for surgery, NACG introduced a shift change of fourteen shifts on, seven shift off, and alternating between day and night shifts on each rotation. The shift change caused the employee anxiety because his acid reflux was worse at night. For the previous 10 years, he had worked exclusively day shifts.
• Dr. Chan provided Woods with a medical note for accommodation to work day shifts only on a 10-day-on 4-day-off rotation, citing that to do otherwise would aggravate his acid reflux and cause him mental stress.
• NAGC’s medical experts found that while Woods preferred to work only day shifts, his disability did not prevent him from working night shifts.
• Woods was denied his accommodation request to work only day shifts, but was permitted to go on a leave of absence for his disability.
• Woods was fired while on disability leave, as part of a larger layoff due to shortage of work. NACG’s Director of Equipment Maintenance admitted that his requested accommodation was a factor in choosing to terminate him as part of the wider legitimate layoff.

AHRT Analysis and Decision

The AHRT considered the definition of “physical disability” and decided that Woods’ acid reflux combined with his post-surgery recovery amounted to a physical disability. The tribunal noted that while disability under Alberta human rights legislation should be interpreted broadly, it must also affect or be perceived to affect a person’s ability to carry out life’s important functions, like job duties.

• LEARN MORE: Construction workers and severance pay

The AHRT also found that Woods’ physical disability was a factor in his termination, deeming NACG’s actions discriminatory on the ground that NACG failed to prove that accommodation of Woods’ disability would have caused undue hardship to the business. The case was set for an additional hearing to determine a remedy.

Lessons for employees

• Seek legal advice: If you think you may suffer a disability as a result of your medical condition, and have been discriminated against, reach out to a lawyer at Samfiru Tumarkin LLP for help. Disabilities must be considered on a case-by-case basis, and could include a variety of different medical conditions, pre-defined and otherwise. Like Woods, employers must try to accommodate you to the greatest extent possible to preserve your ability to work.
• Don’t accept changes: Don’t be too hasty to accept changes to your job, such as a significant shift change. Consult with our team first to find out what the implications may be – and what your rights are. You may be owed a full severance package, which could be as much as 24 months’ pay in Alberta.
• Raise concerns: Talk to your employer, preferably immediately if they make significant modifications to your job, like those mentioned above.

Lessons for employers

• Understand discriminatory actions: Employers should be aware that the AHRT determined that even a wide-ranging and otherwise legitimate layoff can be discriminatory as against an individual employee, whether they are singled out or not.
• Duty to accommodate: NACG’s failure to accommodate Woods’ shift request was also discriminatory. The AHRT found that NACG’s arguments related to decreased efficiency caused by employees working un-uniform shifts was insufficient to establish undue hardship. Employers should be careful to consider any circumstances that may present obligations for accommodation, and fulfil their duty to accommodate to the point of undue hardship to avoid discriminatory action.

For further help, contact a lawyer at Samfiru Tumarkin LLP, who can guide you through the changes that can occur in the workplace. As Canada’s most positively reviewed employment law firm, we have helped tens of thousands of clients get results.