Case Summary: Employers only have to try so hard: terminating employment after an employee fails to engage in the accommodation process and fails to respond to related correspondence is not retaliation
Where an employer can establish it has accommodated an employee to the point of undue hardship, and the employee chose to withdraw from the accommodation process, termination of employment is not properly characterized as retaliation.
Administrative law – Decisions reviewed – Human Rights Commission – investigations – Disability – Discrimination – Employment law – Wrongful dismissal – Judicial review – Application – Appeals – Procedural requirements and fairness – Standard of review – Reasonableness
Wojtasiewicz v. Alberta (Human Rights Commission),  A.J. No. 81, 2020 ABCA 23, Alberta Court of Appeal, January 23, 2020, P.T. Costigan, F.L. Schutz and J. Strekaf JJ.A.
The appellant was a long-term former employee of Alberta Health Services, working as a residential health care worker. He had an accident at work which rendered him permanently unfit to return to his job. After being told he could not be accommodated in his same position, the appellant filed a complaint with the Alberta Human Rights Commission, alleging discrimination based on physical disability.
The appellant’s employer met with him and offered him an administrative position in a different department. The appellant rejected that position as not being in line with his skills, education, and experience. The appellant failed to attend a follow up meeting with his employer regarding its offer, and did not respond to a further letter from his employer providing a deadline to accept the offered position. His employment was terminated six days after that deadline as no response had been received. The appellant therefore claimed wrongful dismissal and retaliation.
The matter was investigated and a report was sent to the appellant. The report found no reasonable basis to proceed with his complaint as there was no information to support an allegation of retaliation, and his termination was found to have resulted from his refusal of reasonable accommodation and ceasing communication.
The appellant sought review of that decision. It was upheld by the Chief’s delegate, in finding the employer had offered a suitable replacement position and accommodation had been made to the point of undue hardship, the appellant withdrew from the accommodation process, and there was no link between his termination and his complaint. The chambers judge denied the appellant’s application for judicial review of that decision.
On appeal, it was held that the correctness standard applies to the chambers judge’s identification and application of the applicable standards of review. It was held that the chambers judge correctly applied a reasonableness standard in finding the Chief’s delegate’s reasons were transparent, intelligible, and supported by a review of the evidence. It was further held that procedural fairness is determined with reference to all the circumstances, and there was no error made in the chamber judge finding procedural fairness had been met as the appellant was provided with the initial report, given the opportunity to review the decision, and his response was duly considered. It was held that reaching a decision consistent with the employer’s decision did not equate to a decision which merely adopted the employer’s position.
This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Mollie A. Clark at email@example.com.