Injured employee entitled to pre-disability position
In order to succeed in an undue hardship argument, however, the employer has to take the time to enter the evidence and show it could not hold the position.
Sam had been working as an Assistant Manager at a fairly large furniture retail company for 3 years when he injured his back helping lift a sofa. After about 6 weeks his treating healthcare workers said he was able to attempt to return to full time work to his old position without limits. The company’s response was to tell Sam that they had hired a new Assistant Manager but they could offer him a job as an assembly worker in production. He would work the same hours and receive the same pay as he had as an Assistant Manager. Sam thought this was a humiliating demotion and that the new job would be harder on his back than his pre-injury job. He filed a complaint with the Human Rights Tribunal.
In it’s defense the company claimed that Sam’s new job was not related to his injury and absence in any way. It said they had performance concerns about Sam even though they had never mentioned them and had never done a performance review. In a letter to Sam explaining his new position the company wrote “You were injured and as such we created a new position”. Sam’s complaint was that in not offering him his pre-disability position the employer had failed to accommodate his disability as required by the Human Rights Code. A defense available to the company was that holding the job open would have been an “undue hardship”. That term is extremely hard to define. In order to succeed in this argument the employer would have had to introduce evidence that filling Sam’s role temporarily would have been an impossibility and the vacancy would have severely affected the business. It did not spend any effort at the hearing introducing that kind of evidence. The boss just claimed that he could not leave the position vacant. That offhand remark did not satisfy the adjudicator that holding the position open would have been an undue hardship.
It is clear from reading this decision that the employer was grasping at straws. It even tried to claim that Sam had not been an Assistant Manager even though he had put a promotion letter in evidence from when he was raised to the position of Assistant Manager. In his pre-disability position Sam had mostly worked in an office and only occasionally helped out with lifting and moving. As an assembly worker Sam would have been standing all day long putting furniture together. The employer’s argument that this new position was actually an accommodation did not fly. At the hearing Sam did not seek lost wages, I suspect that was because he received WSIB payments that covered the majority of his wage loss. He only claimed $10,000.00 in general damages for the injury to his dignity, feelings and self-respect and he got it. He likely should have claimed more.
Employers have an obligation to return disabled employees, whether they were injured at work or not, to their pre-disability position unless holding that position open would be an undue hardship. In order to establish an undue hardship the employer must give clear evidence as to it’s investigation of all the options available to it and why they were not practical or possible. It must also give evidence as to the impact of holding the position open would have on it’s operations.
