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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In this blog post, I reviewed the recent human rights case of Gaucher v. Fraser Health Authority where the Tribunal dismissed Ms. Gaucher’s discrimination complaint. Ms. Gaucher claimed that her gradual return to work (“GRTW”) plan was flawed and she was discriminated against on the grounds of disability in contravention of the BC Human Rights Code. In its decision, the Tribunal considered the duty to accommodate and held that, while the plan was not “perfect”, the employer would be able to prove at a hearing that it reasonably accommodated Ms. Gaucher throughout her GRTW.
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Employers Beware – if you are contemplating retracting an offer of employment from a potential candidate you might want to think again in light of the recent B.C. court decision of Buchanan v. Introjunction Ltd., 2017 BCSC 1002. In this case, the B.C. Supreme Court found that the plaintiff employee was wrongfully dismissed when his employment was terminated shortly after his contract of employment with the defendant employer was executed but before he actually started work. The Court awarded him 6 weeks’ severance pay.
