Human rights law is a minefield for many employers. No area is more complicated than the duty to accommodate employee disabilities. Mistakes can be costly. In a recent case, the BC Human Rights Tribunal ordered MacDonald’s Restaurants to pay a former employee more than $50,000, including the highest award in respect of compensation for injury to dignity, feelings and self-respect – $25,000.
Ms. Datt immigrated to Canada in 1981 with her family. That same year, she found employment with MacDonald‘s as a crew member, rotating between different work stations – serving the public, food preparation, cashier and the drive though. Over time, her responsibilities increased and she took on certain management duties. Ms. Datt loved her work and the work place. MacDonald’s found her performance excellent.
In a restaurant food safety is paramount. MacDonald’s is subject to the Health Act and associated regulations, requiring, among others, hand washing to prevent food contamination. MacDonald’s has policies requiring all employees, including managers, to wash their hands “frequently” and after restroom breaks, touching door knobs and the like.
In January 2002 Ms. Datt developed a painful skin condition on her hands and went on short term disability, provided by GWL, MacDonald’s disability carrier. She returned briefly for a few weeks in April and eventually went on LTD. Ms. Datt was under the care of a skin specialist. He advised that she was unable to return to work. After some improvement in her condition, Ms. Datt tried a second return to work in January 2003. Her condition flared up and she went on LTD. A third return to work in July 2003 did was not successful either. During the attempts to return to work, her duties were not modified.
Her skin specialist wrote several reports to GWL. The thrust of these reports were that Ms. Datt could not do “wet work or frequent hand washing” or restaurant work. She also could not wear plastic gloves. Ms. Datt believed she could do certain jobs at MacDonald’s, such as hosting or cashier.
In August 2004, GWL provided Ms. Datt was provided with a 3 month job search program and LTD. MacDonald’s terminated her on November 8, 2004.
There was no dispute that Ms. Datt had a disability and that the disability had adversely affected her employment. MacDonald’s argued that it had met its obligation to accommodate to the point of undue hardship, and that its hand washing policy – that all employees must wash their hands – was a bona fide occupational job requirement.
The Human Rights Tribunal agreed with Ms. Datt’s complaint that MacDonald’s had failed to accommodate her disability. There was no doubt that hand washing was rationally connected with the performance of her job. The policy was adopted in good faith and to fulfill a work-related purpose, prevention of food contamination.
Undue hardship means that some hardship is acceptable, considering the size of the employer, the financial costs and other factors. An employer must take the necessary steps to inform itself of the nature of the employee’s medical condition, the prognosis and the employee’s capacity for alternate work. An employee must assist the employer in this process.
The panel member stated that it is necessary both to consider the procedure of the employer’s inquiry and the substantive result of those inquiries, i.e. can the employee be accommodated, to determine if the Human Rights Code has been breached. MacDonald’s could not rely on GWL for the primary responsibility to accommodate Ms. Datt’s disability.
While Ms. Datt’s skin specialist had found that she could not do restaurant work or do “frequent hand washing,” the panel was critical of MacDonald’s for failing to follow up with him to find out what he meant by the terms “frequent hand washing” and “restaurant work.” The panel found the skin specialist’s opinions to be equivocal. Thus, MacDonald’s did no ask the right specific question. It did not turn its mind to the possible ways to accommodate Ms. Datt. The Tribunal found that MacDonald’s made no real attempt to see if there was any work available for her.
With respect, on the evidence, it was clear that there was no job for Ms. Datt at MacDonald’s at end of the day. The employer failed to ask the “right” specific question. The panel did not cut MacDonald’s any slack. It is crucial for employers facing a situation with an employee with a medical condition to carefully consider what to do.
The panel awarded wage loss for the time between the termination and the hearing, $35,000 less mitigation. Importantly, the panel also gave Ms. Datt the highest award to the present time, $25,000, based on little other than her testimony of the emotional and financial stress of having been terminated.
Mental Distress Damages
In a case released by the Supreme Court of Canada in August, Fidler v. Sun Life, the Court has clarified that damages for mental distress resulting from a breach of contract are payable “where such damages were in the reasonable contemplation of the parties at the time the contract was made.” It is not necessary for such damages to be founded on separate actionable conduct on the part of the employer, for example, defamation, fraud or oppression. The Court upheld a $20,000 mental distress award from an Ontario trial court to a woman suffering from chronic fatigue syndrome, whose disability benefits had been terminated by the insurer because it was of the view that she was capable of working. On appeal, the Ontario Court of Appeal added another $100,000 in punitive damages to the trial judge’s award. However, that award was set aside by the Supreme Court. Punitive damages are not compensatory but designed to address retribution, deterrence and denunciation. While the insurer’s handling of the claim was “overwhelmingly” inadequate, it did not (on the factual findings of the trial court) amount to bad faith. The court noted that to attract punitive damages, the impugned conduct must depart markedly from ordinary standards of decency — the exceptional case that can be described as malicious, oppressive or high-handed and that offends the court’s sense of decency.
Human Rights Damages Increasing
A recent case from the B.C Human Rights Tribunal, Toivanen v. Electronic Arts (Canada) Inc., illustrates the need for employers to deal with disabled employees. Video game makers Electronic Arts terminated an employee diagnosed with stress and depression in connection with a request for a medical leave of absence. Unable to work, the employee went on to receive long term disability payments. The damages ordered by the Tribunal included almost $70,000 for lost value of the employee’s stock options, $20,000 in severance pay (with no deductions for LTD benefits), and — in one of the highest awards in B.C. under this heading — $20,000 for “injury to dignity, feelings and self respect.” The Tribunal noted that the employer should have investigated the change in the (previously good) employee’s behaviour. The Tribunal’s decision emphasized that the dismissal was the most disturbing act by the employer, exacerbating her illness. The employee’s career was her life and the termination “blew her life apart.”