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The employee’s responsibility under the “Code”

LeBlanc v. Haugen’s BBQ Ltd.

Accommodation under the “Code” is a bridge where both parties must meet. What happens if a reasonable effort is not made on the part of the applicant? This issue is discussed in the recent case of LeBlanc v. Haugen’s BBQ Ltd.

The applicant was a worker, who had requested time off for sick leave. Upon being able to resume her job, she noted no shifts had been assigned to her and believed that she had been terminated.

The applicant filed an application at the Human Rights Tribunal of Ontario alleging discrimination based on the prohibited ground of disability. Eventually, the Tribunal found that the applicant had not been terminated, clarifying the employee’s responsibility to communicate with the employer.

The matter

The employee had requested time off for disability-related reasons, indicating her return to be July 12, 2016. The day before returning to her work, a co-worker sent the applicant a photograph of the upcoming schedule indicating the applicant had not been scheduled for that week.

At the Tribunal, the applicant argued that the fact that management had deliberately left her off the schedule was proof that she had been terminated, as such, discriminated against on the basis of disability.

The respondents submitted that the applicant had not been terminated, as they were unsure of the employee’s exact return day, the respondents had drawn up the schedule in full knowledge that should the employee contact them, or should the sick leave be extended, they could do so. In short, stating it was easier to add to the schedule than to remove a person. In other words, the employee had not been dismissed.

The analysis

As per the decision, the Tribunal indicated the Test for Discrimination at paragraph 7:

  • [7] The test for discrimination as set out by the Supreme Court can be summarized as follows:
    • The applicant has a protected characteristic under the Code;
    • The applicant suffered disadvantage or adverse impact; and
    • The protected characteristic was a factor in the disadvantage or adverse impact.

Much of the case rested on the applicant’s responsibility to work collaboratively with the respondents. In this case, the applicant did not appear to make any efforts to clarify her concerns with the schedule or to contact management. Generally speaking, one must make a reasonable effort to “build” the bridge of accommodation. The Tribunal stated “…Removing someone from a schedule, however, is not an indicator of discriminatory conduct in and of itself.”

The decision

Further, the applicant testified that she made no effort to contact the respondent after reviewing the schedule where she was not listed. As there was no communication from the applicant, the respondents concluded that the applicant did not wish to return to her position, and as such, was not added to subsequent schedules.

The tribunal concluded that absence from a schedule was not necessarily indicative of discrimination and pointed to the applicant’s duty to have contacted the respondent to confirm or at the very least inquire why she was not on the schedule. Based on the evidence before the Tribunal, the application was dismissed.

The takeaway

Accommodation does not necessarily mean that both parties should meet in the middle, but to make reasonable efforts on the part of the employee, and accommodation to the point of undue hardship in regard to the employer.

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Kevin Sambrano, Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more
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