Gahagan v. James Campbell Inc. 2014 HRTO 14 (CanLII) is a decision of the Human Rights Tribunal of Ontario that illustrates the interaction between the employer’s inability to accommodate an employee’s disability and frustration of the employment agreement.

Facts of the Case

The applicant, Ms. Gahagan, injured her back in May 2009 while working for one of the employer’s McDonald’s restaurants.  Ms. Gahagan applied for and received WSIB benefits from the date of her injury.  Six months later in November 2009, the WSIB Return to Work Specialist met with Ms. Gahagan’s physiotherapist and the employer’s representative to determine whether or not Ms. Gahagan could return to work.

At the time, Ms. Gahagan’s physical restrictions included: no lifting above 10 pounds, no twisting or bending, no more than 10 minutes of standing, no more than 3 hours per day and 3 days a week with a rest day in between.  The employer took the position that Ms. Gahagan could not be accommodated because it had no capacity to provide shadow coverage to assist her and the restaurant’s fast-paced environment did not allow for the opportunity to rest or sit and take breaks.

In July 2010, one year after her injury, Ms. Gahagan completed a WSIB labour market re-entry program.  WSIB concluded that she had returned to her pre-injury earnings and terminated benefits in August 2011, a decision that Ms. Gahagan appealed.  In September 2011,  Ms. Gahagan filed an application with the Tribunal alleging discrimination on the basis that the employer failed to participate in the Return to Work process in 2009.  Later that month, Ms. Gahagan applied for long-term disability benefits from her insurer and was approved for benefits from September 2009 to September 2010.  She was not entitled to benefits prior to that time because she was in receipt of WSIB benefits at that time.

In October 2011, the employer terminated her employment on the basis that the employment agreement was frustrated after 2 1/2 years with no prospect of a return to work, with or without accommodation.  Later that month, Ms. Gahagan filed a second application with the Tribunal claiming reprisal against her when the employer terminated her employment and failed to complete the Employer’s Statement for the LTD application.

Issues Before the Tribunal

There were two issues before the Tribunal with respect to Ms. Gahagan’s consolidated application:

1. Did the employer discriminate against Ms. Gahagan in failing to participate in the Return to Work process and accommodate her physical restrictions?
2. Did the employer reprise against Ms. Gahagan by terminating her employment and delaying the submission of the Employer’s Statement for the LTD application?

The Tribunal concluded that there was no evidence to show that the employer engaged in any process to determine whether or not Ms. Gahagan could have been accommodated.  However, section 17 of the Human Rights Code provides that a right is not infringed if the employer is able to show that the employee is incapable of performing the essential duties of a job with accommodation.  At paragraph 27 of the decision, the Tribunal reiterated the principle that the duty to accommodate does not require an employer to make work or create a job that is not productive or that does not need to be done.  The Tribunal found that, even if the employer had accommodated Ms. Gahagan’s restrictions, she would not have been able to perform the essential duties as part of the staff at the McDonald’s restaurant.  As a result, the Tribunal dismissed this part of the application.

With regard to Ms. Gahagan’s claim of reprisal, the Tribunal noted that, at the time of termination, Ms. Gahagan had not worked for almost 2 1/2 years and her physical restrictions that prevented her from returning to work still existed.  The Tribunal also noted that she received LTD benefits from September 2009 to September 2010, and CPP disability benefits from October 2010 onwards, suggesting that she was still unable to work.  As for Ms. Gahagan’s claim that the employer delayed the submission of the Employer’s Statement for the LTD application, the Tribunal accepted the employer’s submission that it incorrectly believed that it had no obligation to submit it after employment had ended, but the delay did not prejudice Ms. Gahagan’s application in any event.  Based on this, the Tribunal dismissed the balance of Ms. Gahagan’s application.

Practical Considerations

For the employee, the take-away from this decision is that a HRTO application on the basis of disability is less likely to succeed if the employee has applied for or is in receipt of benefits, whether from WSIB, an LTD insurer or CPP.

For the employer, the take-aways from this decision include the following:

1. It is important for an employer to properly paper its efforts to facilitate an employee’s return to work, or its efforts to do so at the very least.  A failure to do so could lead to a finding of discrimination.
2. A Return to Work plan does not mean that the employer must create a job that is not productive or involves tasks that do not need to be done.
3. In order for a frustration argument to be successful, one of the keys is to be able to show that the employee is unable to perform the essential duties of the job even with accommodation.

Workplace injuries and employee illnesses can sometimes lead you into a maze of complicated and confusing decisions.  It is essential to seek out good advice in order to move in the right direction to get out of that maze.

This article is intended only to provide general information and does not constitute legal advice.  Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.