As we all know, employers are required to accommodate individuals to the point of “undue hardship” where the need for accommodation relates to a ground protected by human rights legislation, such as disability. The employer’s duty to accommodate is often triggered when an employee requests accommodation. But what happens when an employee does not request accommodation but the employer knows, or ought to know, that the employee has a disability and may need to be accommodated? What is the employer obligated to do then? Is there a duty to inquire?

Facts

In an arbitration decision, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCT), Local 406 v Bonté Foods Limited, 2017 CanLII 12517 (NB LA) (“Bonté Foods”), an employee who had been working at the company for approximately 14 years was terminated for cause for violating the safety policy.

The employee had a good employment record, although it had deteriorated in the last few years before his dismissal, during which he was disciplined for breach of policy and received some workplace training and retraining. The company put a Last Chance Agreement in place which required him to follow company policies, especially relating to food safety and health and safety.

After the Last Chance Agreement was put into place, the company gave him a warning and also suspended him twice. Subsequently, the company terminated his employment for violating the food safety policy.

The union brought a grievance and the employee filed a human rights complaint alleging discrimination on the basis of disability.

A few months after the dismissal, the employee provided the company with a doctor’s note stating that he had been diagnosed with Adult Attention Deficit Disorder (ADD) in 2011 and that he had been on medication since then. While this was the first time the employee had provided medical documentation of his diagnosis to his employer, he had mentioned that he had ADD to his supervisor a few years before his dismissal. The Union knew about his ADD but did not request any accommodation on his behalf during the term of his employment. Post-dismissal, the employee also met with a psychologist who found that he met the diagnostic criteria for Attention Deficit/Hyperactivity Disorder (ADHD) and that “ADHD was a central participating factor to his work performance issue”. The employee was “an otherwise excellent employee having trouble following routine rules and making mistakes”.

Analysis regarding the duty to accommodate

The arbitrator found that “the evidence establishes a human rights discrimination case calling for accommodation duty inquiries”: the employee’s ADHD played a role in his breach of the company policy, which led to his dismissal. In addition, the arbitrator found that the employee had told his supervisor that he had ADHD, and even if he had not, the employer should have considered his actions to be a red flag. That is, the employee’s disability “either was known and/or on reasonable inquiries made ought to have been known”.

The arbitrator wrote as follows:

I find that Bonté’s “procedural obligations” under the duty to accommodate were triggered by [the Employee’s] disclosure of his disability to his immediate supervisor…in and around 2011…

While satisfied that Bonté was advised and must be taken to have known of [the Employee’s] disability, I am satisfied that this Employer also ought to have known that recurring mistake events called for reasonable inquiries of [the Employee] as to the cause of his observable problems, particularly on the circumstances going to the last incident preceding his discharge.

            …

I conclude on the evidence heard that Bonté therefore both knew and, if reasonable inquiries made as to the several mistake events showing, ought to have known of [the Employee’s] disability as a related problem – as a causal link.  I find that Bonté ought reasonably to have posed the questions: “What is going on? Is there a problem? Is what is happening linked to the/a disorder”?

In this case, by failing to engage in any accommodation inquiries at all, and to not take any “active steps” to inquire into or seek information about [the Employee’s] disorder, or to ask as to whether his evident problems might inform a decision to continue to employ him, I find that Bonté breached the procedural aspect of the duty to accommodate.  I further find that in moving to terminate him Bonté discriminated against [the Employee] because of his disability…

The arbitrator ordered reinstatement, but in a different work environment. In addition, the arbitrator directed that the parties make efforts to implement strategies to assist the employee in his workplace re-entry.

Takeaway

This decision highlights an employer’s obligation to make inquiries if they are made aware of an employee’s disability or if they ought to know of an employee’s disability (e.g. if there are any red flags). Since the employee had disclosed his diagnosis to his supervisor, the employer’s duty to accommodate was triggered and the employer should have inquired into whether the disability had any role in the recurring mistakes being made by the employee. Even if he had not told his supervisor, this decision confirms that an employer cannot bury their head in the sand and choose not to inquire, in order to avoid a duty to accommodate. The employer’s failure to take active steps to inquire as to whether there was a duty to accommodate was therefore a breach of its duties under the applicable human rights legislation.

Employers and employees alike must remember that the accommodation process is to be a two-way dialogue. Employers are obligated to genuinely consider any request for accommodation and to take active steps to make inquiries where the employer knows or ought to know of a need for accommodation. Employees must participate in the accommodation process by providing sufficient information so their employer can make an informed decision about appropriate accommodations and how they can be meaningfully implemented.

By Nadia Zaman and Stuart Rudner, Rudner Law