Is the Duty to Accommodate Unlimited?
In a recent decision of the Human Rights Tribunal of Ontario (Pourasadi v. Bentley Leathers Inc. 2015 HRTO 138), the Tribunal answered “No”. The Applicant was employed by the Respondent as a store manager. She suffered a compensable WSIB injury affecting her right wrist. As a result, she had physical restrictions affecting both her right hand and arm, as well as her left hand and arm due to overuse.
For a period of time, the Respondent agreed to schedule a second employee to work with the Applicant, who was supposed to perform all work outside the Applicant’s physical restrictions. However, at some point, the Respondent determined it was no longer in a position to provide that accommodation.
During the course of the hearing, the Applicant raised for the first time another proposed accommodation, that being that she would be permitted to ask customers to return to the store at a later time if the customers’ requirements exceeded the Applicant’s physical restrictions. Not surprisingly, this was resisted by the Respondent.
It was agreed between the parties that 65% to 70% of the duties of the store manager position involved sales and customer service. Furthermore, the store manager was assigned to work alone for 19.5 hours per week. Based on these facts, the Tribunal found that it was an essential duty of the store manager position to assist customers. The Tribunal went on to find that if a duty is essential, it is a duty that is required to be performed whenever there is a need to perform it.
Relying on the Hydro Quebec case from the Supreme Court of Canada which stated in part that the employer does not have a duty to change working conditions in a fundamental way, the Tribunal reasoned that the duty to accommodate in these circumstances did not require the Respondent to permit the Applicant to send customers away (with an invitation to return when other staff were available) if the servicing of the customers’ needs exceeded the Applicant’s physical restrictions.
It is interesting to note that the Tribunal did not make an express finding that the accommodation proposed by the Applicant constituted “undue hardship” for the Respondent. The Tribunal’s reasoning was simply that the proposed accommodation was not within the scope of the Respondent’s duty to accommodate. Accordingly, this case stands as an example of one of the parameters that have circumscribed that duty, which in general remains an onerous obligation for Ontario employers.
Alan is a former Vice-chair of the Human Rights Tribunal of Ontario.