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Media Centre :: Levitt's Corner ::

Employee Must Prove Disability

By: Howard Levitt Financial Post: Wednesday, July 30, 2008. All Rights Reserved.

The times, they are a'changing
      — Bob Dylan, 1964

It is frustrating. Employers with solid defences ceding defeat, exclaiming the courts are too pro-employee to receive a fair hearing. Part of this timorousness is the by-product of overly cautious lawyers or ones with little trial experience, training, and in turn, a generation of human resource managers on overstated risks of litigation. Another factor is the increasing role played by mediation and the resulting ubiquitous view that any settlement is better then an imposed decision. In my experience, the reverse is true. There is nothing like a courtroom win to remind employees an employer's behaviour was appropriate. Settlements too hastily contrived or proffered, on the other hand, only beget further challenges.

This view of the judiciary was never entirely true. But what pro-employee judicial predilection existed is rapidly disintegrating. When employers look back, they will surely say July, 2008, represented a long-awaited sea change.

The Supreme Court Honda decision narrowed the scope of Wallace and aggravated damages, reduced the irrational exuberance of the lower court's findings and reminded employers they are entitled to run their own workplaces. The Supreme Court approved employers dealing with their employees directly, rather than through lawyers. It also found employers could challenge employees' superficial medical notes and claims to disability and require them to be examined by employers' specialists if there is reason for suspicion.

There has been no issue more taxing for Canadian employers in this millennium, than dubious sick leave claims supported by barely legible and non-explicative medical notes. Companies had to tread carefully.

Disability is protected under human rights legislation, firing an employee for absenteeism was forbidden and the courts required employers to invent new jobs to facilitate employees' return to work. An opening in this abyss was created by a Nova Scotia human rights tribunal which found, in late 2006, in a decision involving Michelin Canada, that "employees have the burden of substantiating a disability" and of "providing a diagnosis and treatment plan to their employer." Last week, the Supreme Court of Canada inveighed on the same issue.

More than 7 1/2 years before dismissal, Manon Laverriere, a 24-year-old clerk with Hydro Quebec, averaged 130 days a year of absences and she did not work for the last 5 1/2 months before her dismissal. Her doctor recommended she stop working until her work-related dispute, which was causing her stress, was resolved. She had gone through an injury, several bouts of depression and two suicide attempts. None of Hydro Quebec's attempts to accommodate her were successful. It was clear accommodation would have to be constantly adjusted. As a result, she was fired. The Quebec Court of Appeal found she had to be accommodated and therefore was dismissed in violation of the human rights code, noting accommodation was not an "undue hardship" for a large company such as Hydro Quebec.

Canada's Supreme Court agreed disabled employees must be accommodated if their working conditions could be adjusted to permit that without undue hardship on the employer. However, it also said accommodation must not "completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration." The court added "the employer does not have a duty to change working conditions in a fundamental way." It concluded Hydro Quebec had every right to fire Laverrierre since it had attempted to accommodate and she still could not resume work in the foreseeable future. Similarly, it concluded, if the proper operation of the business would be hampered excessively, an employee need not be accommodated. After all, it said, "there is a rule 'employees must do their work.' "

This begins to reverse the excesses of human rights law affecting the disabled. Employees can be required to work and employers need not go through paroxysms to accommodate them.