Case In Point

The HRTO and the Duty to Accommodate: How Far Does an Employer Have to Go?

Case In Point

The HRTO and the Duty to Accommodate: How Far Does an Employer Have to Go?

Date: March 18, 2015

In a helpful decision for employers, Pourasadi v. Bentley Leathers, the Human Rights Tribunal of Ontario (“HRTO”) found that an employer’s duty to accommodate did not extend to altering the essential duties of a position.

In this case, the Applicant, a retail store manager, requested a workplace accommodation for a wrist injury which prevented her from assisting customers with certain products and performing some merchandising and housekeeping tasks when working alone. Bentley Leathers determined that it could not accommodate the Applicant’s physical restrictions and, as a result, referred her to a work transition program with the WSIB and ended her employment.

The HRTO examined Bentley’s duty to accommodate the Applicant in light of the Supreme Court of Canada’s decision in Hydro-Québec, which summarizes the underlying principles of the duty to accommodate as follows:

[14]      […] the goal of accommodation is to ensure that an employee who is able to work can do so. […]

[16]      The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

Based on the Applicant’s physical restrictions, the HRTO decision referenced two possible forms of accommodation.

First, prior to the termination of her employment, the Applicant had requested that Bentley ensure that she not be required to work alone by scheduling a second employee to assist her. Bentley had gratuitously scheduled a second employee to work with the Applicant for a lengthy period of time. At the preliminary hearing stage, the Applicant conceded that the duty to accommodate under the Code does require an employer to schedule another employee to perform the Applicant’s duties.

Second, the Applicant raised for the first time during the HRTO proceeding that if she worked alone she should have been permitted to: (1) turn away customers who required assistance that was outside her physical restrictions and (2) to defer the merchandising and housekeeping tasks that were outside her physical restrictions to other employees.

The HRTO recognized that accommodation cases “often turn upon the identification of the essential duties or requirements of an employee’s work or position.” Here, the parties disagreed on the percentage of her duties that were outside her physical restrictions – that is, the frequency with which the Applicant would need to turn away customers and/or defer duties.

The HRTO concluded that the accommodation now being sought by the Applicant would go beyond Bentley’s duty to accommodate. It was an essential duty of the Store Manager position to assist customers. This duty was required to be performed whenever there was a need for it; it was not sufficient that the Applicant could perform this essential duty “most of the time” as she had submitted. To find otherwise, the HRTO concluded, would be to exempt the Applicant from performing the essential duties of her position as a Store Manager.

This case provides an important reminder that identifying the essential duties of a position is a critical step in the duty to accommodate process undertaken by an employer. A duty is not essential simply because it is assigned to the employee by the employer. Instead, employers should be prepared to provide evidence to support that the duty is in fact essential in the sense that it is a necessary and indispensable function of the position.

The case also demonstrates that once a duty is established to be an essential duty, an employee must be able to perform it whenever it is required, with or without accommodation. That is, while the Code may require an employer to arrange the workplace to allow an employee to perform the essential duties of their position, it does not go so far as to “require permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees.”

Bentley was represented by Hicks Morley’s Jodi Gallagher Healy.