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You Can’t Always Get What You Want – HRTO Confirms that Accommodation does not have to be Employee’s Preferred Accommodation

Employers are well aware of the significant obligation imposed by the duty to accommodate under the Ontario Human Rights Code. In a recent decision from the Ontario Human Rights Tribunal some good news was provided for employers, as the Tribunal confirmed that there are limits on the duty to accommodate and that employees are not entitled to their preferred accommodation.

In the recent decision, of Essar Steel Algoma Inc, the Tribunal considered an application alleging discrimination on the basis of disability and family status. The applicant was an employee at the steel facility and usually worked a schedule of four days on, four days off on twelve hour shifts. Unfortunately, the employee had a workplace injury that prevented the use of his right hand for approximately one month. During this month the employee was unable to perform any of the positions or duties on his usual shift. The employer did pursue its accommodation obligation by providing the employee with a temporary position – but this position was on a different schedule of five days on, 2 days off on seven hour shifts. Despite continuing to offer the employee work, the employee challenged the accommodation offered at the Tribunal.

At the Tribunal the employee argued that the change in schedule resulted in discrimination on the basis that it impacted a custody order regarding access to his children which was designed around the four days on, four days off schedule and that the change in schedule resulted in a lower rate of pay as there was compensation for only 40 hours over 7 days instead of 48 hours over 8 days and there was a loss of the night shift premium.

It should be noted that the employee did not raise the issue of the custody order until very close to the conflict in dates, and that the employee insisted that the only solution to the conflict was to return to the 12 hour shift schedule as opposed to entertaining any discussion of ad hoc adjustments to the schedule as needed.

The Tribunal dismissed this application and found that the accommodation offered was sufficient to meet the employer’s obligations under the Code. The Tribunal confirmed some positive findings that are useful takeaways for all employers working through their duty to accommodate. Based on this decision, employers can confidently know the following:

• Generally, employees are expected to raise the need for accommodation and only in certain circumstances is there a duty to inquire on the behalf of the employer;
• It is not up to the employee to determine how they will be accommodated, but rather the employer is in the best position to determine how the employee can be accommodated without undue interference in the operation of the employer’s business;
• The employee cannot expect a perfect or their preferred solution for accommodation; and,
• An employer is only required to pay an employee for the actual work performed and it can be permitted to have a change in compensation during the accommodation process.

Managing the accommodation process can be difficult for employers and is full of potential stumbling blocks – including managing the expectations of employees. The lawyers at CCPartners can assist you with managing the accommodation process.

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