Duty to Accommodate – Perfection Not Required
By: Michelle QuinnIn Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243, Carrie Gaucher (“Ms. Gaucher”) worked as a nurse for the Fraser Health Authority (“Fraser Health”) since 2007 at the Royal Columbian Hospital. In June 2017, Ms. Gaucher sustained a workplace injury and was off work for a few months.
In November 2017, she commenced a gradual return to work plan (“GRTW”). In total, Ms. Gaucher participated in three separate attempts to gradually return to work. Ultimately, she completed her return in April 2018.
Ms. Gaucher filed a human rights complaint (the “Complaint”) with the BC Human Rights Tribunal (the “Tribunal”) against Fraser Health and several management employees alleging that they harassed her and negatively treated her throughout her GRTW. She alleged that she was discriminated against on the basis of her disability contrary to the BC Human Rights Code (the “Code”).
She did not allege that the substantive terms of her GRTW were discriminatory. Rather, she believed that, throughout the process, her managers failed to treat her fairly and with due respect to her dignity.
Fraser Health applied to have the Complaint dismissed on the grounds that there was no reasonable prospect of success under the Code.
The Decision
The Tribunal determined that, based on all the evidence before it, there was no reasonable prospect that the Complaint will succeed at a hearing.
With specific regard to the GRTW plan and, while the conditions in the workplace were “not optimal” for Ms. Gaucher’s successful return, it did not amount to a failure to accommodate. Her experience of the GRTW was difficult, and it was not perfect. However, the standard for accommodation is not perfection. It is reasonableness (para. 87).
The Tribunal held (at para. 95):
If you have any questions about this case or the duty to accommodate generally, please contact any member of the Employment and Human Rights Group.
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Over the past year, the B.C. government introduced many changes that have affected both employees and employers, such as, the increases to minimum wage and amendments to the Employment Standards Act. Last year, the government introduced several amendments to the Employment Standards Act including changes to parental and maternal leave. In late May 2019, the Employment Standards Amendment Act, 2019 was made law with additional amendments centered on the government’s priorities to better protect children and support workers.
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2018 has seen a series of decisions from the courts in BC which illustrate that short-term employees can be awarded longer periods of notice than their counterparts with lengthier terms of service. Generally speaking, long service imports a relatively long notice period, but short service does not require that the notice period be proportionately shorter. In this post, we take a closer look at those decisions.
