When an Alberta ski patroller and safety technician who had worked at a ski hill for 17 years was not re-hired in the same capacity in 2013, she claimed the employer had discriminated against her on the basis of age, sex, and perceived physical disability. The issue recently made its way to the Court of Queen’s Bench of Alberta, where the court upheld the Human Rights Commission’s award of damages to the employee.

17 years of employment come to an end

The employee had worked as a ski patroller for the employer for 17 years between 1991 and 2013 (with a five-year gap between 2002 and 2007). During this time she received positive evaluations from her supervisors and was one of the top performers in her role. Despite this, there was concern from the employer about injuries the employee sustained, including those at her work. She had made a number of claims to the Worker’s Compensation Board (“WCB”).

Things came to a head during the 2012-2013 ski season. The employee had surgery during the offseason in 2012 to repair her shoulder. When she reported for work in the fall of 2012 she was told that she was no longer a good fit for the snow safety technician roles and that she would have to satisfy a Physical Demands Analysis (“PDA”) before returning to work. She completed the PDA, which said she was able to perform in her role, but her employer denied having received it. Eventually, the employee was offered a dispatch position, which she did not accept.

Human Rights Tribunal finds discrimination

The issue first made its way to the Alberta Human Rights Tribunal, which issued a decision in support of the employee’s claims that she was discriminated against. The tribunal found that

“(The employer) led the complainant to believe that she would be re-hired into the Ski Patroller 3 position but unilaterally decided that the complainant was physically unable to perform the duties of her job.  Instead of allowing the complainant to provide evidence of fitness, the respondent simply offered to re-hire the complainant into a position that they knew she would not accept.”

The ruling was made on the basis that internal communications between management showed that the employer had an agenda and made plans to ensure that the employee would not be able to return to her previous position. The tribunal ordered that the employee be paid damages of $25,000 for pain and suffering as well as $27,236, equal to one season of lost wages.

Employer appeals tribunal decision

The court ultimately agreed with the Tribunal and found that the employer did not offer her a position that a reasonable person would accept. The evidence showed that the employer did not properly review her injury history or take measures to understand how she could continue in her role. Instead, the court agreed that the employer’s actions were driven by a desire to get the employee “off the WCB gravy train.” The court agreed with the tribunal in finding “that working an office job in dispatch, when she had not shown to be unfit to be a ski patroller, would have been personally devastating and demoralizing.”

The court upheld the tribunal’s decision and its award.

To make an appointment with one of the experienced employment lawyers and get advice about an employment matter, including wrongful or constructive dismissal claims related to human rights, call HMC Lawyers at 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.