Documentation is important for those who experience human rights violations at work
November 8, 2022
In Alberta, employees are covered by the Employment Standards Code as well as the Human Rights Act, which acts together to potentially protect them against wrongful dismissal, constructive dismissal, harassment, and human rights violations. When it comes to people suffering from mental or physical disabilities, there is something known as a duty to accommodate, which means at a high level that employers must act reasonably to try to find a way for someone to be able to continue to work despite experiencing a disability.
There are tests used to determine if that duty has been met, and there are limits on an employer’s responsibility, but that might be best left for another time. In this article, we look at a recent decision from the Alberta Human Rights Commission that serves as a good example of the importance of documenting a disability in order to show that a duty exists or, in some cases, to demonstrate that discrimination occurred.
Employee alleges harassment and bullying led to disability
The employee’s claim was rooted in what she described as her employer’s failure to accommodate her mental and physical disabilities. She had worked for the employer, a municipality in Alberta, in their Parks department since 2013. She said she had started to experience bullying and harassment that same year and that this behaviour led to her developing a mental disability.
The employee went on unpaid medical leave from March 2017 until July 2018. During this time, she worked with the employer’s return-to-work coordinator. The second relevant period was August 2018-May 2019. During this time, the employer explored accommodation options, and the employee attempted (unsuccessfully) to return to work. A failure to see a return occur led to the employee retiring.
Complaint was filed years after harassment was alleged to have started
The employee filed the Complaint on March 28, 2018, about a year into the first period mentioned above. However, the events included in the Complaint date back to 2013, when she started working for the employer. She said this behaviour was ongoing up to her date of retirement.
According to the employer, the Human Rights Act’s limitation periods applied to events one year before the Complaint was filed.
The Tribunal noted that the Act creates a one-year limitation period for bringing complaints and stated that it had been strictly interpreted by the courts, which have stated the Human Rights Tribunal does not have the discretion to waive or extend those periods. With that said, courts can consider evidence outside of the limitation period if done so in order to provide context to a complaint that otherwise falls within the time limits. With this understanding, the Tribunal allowed the details from more than a year prior to the Complaint to be heard.
As far as allegations of events that occurred after the Complaint was filed, the Tribunal stated that so long as the complaints of the same nature are directly connected to the Complaint, they can be included. To not allow the employee to do so would mean that a complainant would have to file a potentially endless number of complaints if the alleged behaviour leading to it continued after the original filing.
Medical leave complicates duty to accommodate
The Tribunal stated it was a matter of fact that the employee had both a mental disability and a physical disability, and the employer agreed (at least as far as a mental disability is concerned). However, questions about whether the employee experienced adverse impacts (or discrimination) as a result of these disabilities were put into question.
The Tribunal wrote that if the employee had been able to show that she was forced to take unpaid leave or that the employer refused to accommodate her reasonably, there could have been an adverse impact. However, the Tribunal stated that the employee must have been fit to work in some capacity in the first place. This was an opinion shared by the Supreme Court of Canada in a 2000 decision in which it said, “The goal of accommodation is to ensure that an employee who is able to work can do so,” adding that the duty to accommodate is to “ensure that persons who are otherwise fit to work are not unfairly excluded….”
After reviewing evidence, the Tribunal found that the employee was not fit to work during that first stage of her leave, and therefore the employer did not fail to accommodate during that time.
The Tribunal reviewed a large amount of evidence and was ultimately satisfied that the employer had tried to help the employee return to work during that period and had done what was reasonable to accommodate her based on the information it had available. Ultimately, there was no evidence that the employee was pressured into retirement.
Contact HMC Lawyers If You Feel You’ve Experienced Discrimination In The Workplace
When you work with an experienced employment and human rights lawyer at HMC Lawyers, you can rest assured that you can access trusted, affordable legal advice whenever a workplace issue arises. We can advise companies with operations in Alberta or anywhere else in Western Canada. Let our team help your business run more efficiently. Call 1-800-480-3534, or contact us online to make an appointment.