May 28, 2015 By: Jim Anstey
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In Lindor v. Public Works and Government Services Canada, 2014 CHRT 13, the Complainant alleged that Public Works had discriminated against her on the basis of disability. The Complainant had been offered employment as a translator at the government’s Translation Bureau. As a condition of employment, Public Works imposed a learning period (the “Learning Program”), during which time the Complainant had a maximum of two (2) years to obtain translation level TR-02. She was invited to begin her Learning Program in November 2002.

The Translation Bureau presented the Complainant with a two (2) year development plan, as expected. It ran from November 2002 to November 2004. The milestones were essentially qualitative benchmarks and also quantitative benchmarks that increased over the two-year period. The plan noted that an employee recruited into the program would generally require two (2) years of training before achieving the TR-02 designation.

The position was presented to the Complainant as requiring the ability to work under stressful conditions while being flexible, available and possessing the ability to optimize resources. In addition, the plan indicated the Translation Bureau could “terminate his or her employment at any time during the course of the Program if it is clearly established that the employee will not achieve the required level of competence during the course of the Program”.

Assessments were carried out periodically. The Complainant alleged that her manager advised her early on that she did not see a sufficient potential in her to remain in the program but continued to work with her nonetheless. Her first official review at the three-month mark revealed the Complainant had a lot of work to do but that it was “possible for her to progress within the Translation Bureau”. By the second assessment, the Complainant had met certain objectives but was having difficulty submitting translations on time as well as using correct terms and making use of available resources.

By the time of her third assessment (Sept 16, 2003), the Complainant had a new manager. The evaluation indicated the Complainant was no longer progressing and had reached a plateau. The Complainant alleged the new manager placed undue pressure on her. Within two weeks of the third assessment, the Complainant suffered an episode of lost consciousness after waking up with a headache, stomach upset and trembling. Her physician placed her on a three-week medical leave of absence, which was extended for a further period to November 4, 2003. The Complainant did not advise her employer of the reason for her medical leaves (depression and anxiety) but her manager admitted at the hearing she suspected the Complainant’s health problems were stress-related.

Over the following few months, the Complainant was placed on reduced work weeks by her physicians from time to time. In addition, her employer implemented an action plan, though it had no concrete information about the Complainant’s medical condition. Unfortunately, the Complainant’s performance did not improve despite her medical leaves, reduced work weeks and the action plan. Her fourth formal assessment showed that she continued making basic errors.

The Complainant took another medical leave of absence commencing April 16, 2004. By letter dated April 22, 2004, her participation in the Learning Program was terminated.

The Canadian Human Rights Tribunal had no trouble finding the Complainant had made out a prima facie case of discrimination, given the Complainant’s participation in the Learning Program was terminated while she was being accommodated for a medical condition that her employer at least presumed was stress-related.

Nonetheless, the Tribunal found that the employer’s conduct in terminating the Complainant’s participation in the Learning Program was justified. The Tribunal found that the action plan put in place by the employer was a genuine attempt to accommodate the Complainant based on no real medical information. Possibly more could have been done for the Complainant, but she prevented this from taking place due to her failure to provide further direction from her treating physicians.

The Tribunal considered that the Complainant was still unable to satisfactorily perform her duties despite the action plan and the employer’s full cooperation with the leave recommendations of the Complainant’s treating physician. The Tribunal also considered that the Complainant was unable to perform at a satisfactory level even before her diagnosis of depression and anxiety. As such, the Tribunal found that any further accommodation the Translation Bureau could extend would amount to undue hardship and would not be reasonable.

This decision should serve as a cautionary tale to all employees who seek accommodation measures in the workplace. The Courts have consistently taken the view that requests for accommodation require a dialogue between the employer and employee about what is necessary and what is reasonable. In Lindor, the Tribunal echoed the leading cases on accommodation that any measures put in place need only be reasonable, not perfect.

Furthermore, an employee’s treating physician may be required to assist in the process. It is important to note that while the employee’s actual diagnosis does not usually require disclosure, knowing the employee’s functional limitations are key to the accommodation process.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law