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Employers duty to accommodate employees.

Judy had been working for a company that recruited people for focus groups for almost 15 years when she lost her hearing. The doctors weren’t sure why but thought it might have been a virus.

The owner of the company was away from work for his own health reasons and had left his general manager in charge. Big mistake.

The management team promptly began a campaign of abuse to try to force Judy out. They would give instructions to her in a manner that intentionally prevented her from lip-reading then call her stupid when she didn’t understand. She was chastised for not answering the phone. At the same time other employees were being encouraged to telephone her rather than talk to her directly so that she would miss the call and be subject to more abuse.

Management said it required a note from Judy’s doctor providing the precise cause of her hearing loss which was an impossibility. When she produced hearing test results instead she was accused of being too cheap to provide a doctor’s note.  It was suggested that she just quit and go on disability.

They refused Judy to have the Canadian Hearing Society come in and perform an accommodation assessment. They would not let her have access to important information in print and her assistance dog was not permitted on the premises although the owner often brought his own dog.

She offered to purchase a special telephone to help her but was refused. The employer would not let her purchase a visual fire alarm or to have someone assigned to tell her if the fire alarm went off. She could not even turn her desk around so she could see people as they approached her. Her request to use a vibrating or light-activated pager was denied.

The general manager said all of these accommodations were unnecessary.
Clearly, this treatment was just malicious.

The employees had voluntarily created their own Toastmasters Club. For one evening’s meeting, Judy helped select the topic but did not give a presentation. The next day the general manager called her a “G**d!*n fool” in front of two other employees and terminated her.

He handed her a cheque for three months’ pay and demanded she sign a release there and then. When she didn’t he took the cheque back and escorted her out of the building in front of her coworkers.
She could not even get her outstanding pay until a legal clinic became involved and her Employment Insurance was delayed because of the employer’s ridiculous suggestion that she had been guilty of insubordination and willful misconduct.

Somewhat uniquely, this matter did not end up in front of the Ontario Human Rights Tribunal. Judy sued through the civil courts adding a claim for violation of the Ontario Human Rights Code.
The amounts that could be awarded to Judy were limited by the total amount claimed by her lawyer in the statement of claim, $240,000.  

Eventually this matter ended up in front of the Court of Appeal and it actually increased the damages awarded to Judy by the lower courts as a result of the malicious treatment.

She was awarded $40,000 in general damages pursuant to the Ontario Human Rights Code, lost wages, punitive damages and a variety of other damages totaling $240,000.

Given that Judy made $12.85 an hour at the time she was terminated, it was a very significant judgement.
With this decision and others it has made in the last few years, the Court of Appeal is sending a message that decision-makers should not be stingy in the damages awarded when human rights violations are involved.
Fortunately, it is rare to see a situation in which a disabled employee is treated with such flagrant malice.
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com