Not Every Failed Return to Work is a Failure of the Duty to Accommodate

December 2019

Article by: Jennifer Devins

In Gaucher v. Fraser Health Authority and others, 2019 BCHRT 243, the Human Rights Tribunal dismissed without a hearing the human rights complaint of a nurse regarding her attempts to return to work following an extended disability leave.  In reaching that decision, the Tribunal made several helpful comments about the scope of the duty to accommodate and what constitutes harassment under the Human Rights Code.

Ms. Gaucher was an emergency room nurse who was returning to work following health issues resulting from a traumatic incident at work.  Ms. Gaucher’s return to work was managed through the Health Authority’s Enhanced Disability Management Program with assistance from WorkSafeBC and a union representative.  Ms. Gaucher’s manager, Ms. Gall, who became a personally named respondent to the human rights complaint, was also part of the disability management team.

Ms. Gaucher alleged that when she returned to work, Ms. Gall was confused about the return to work plan and failed to adequately inform another manager who temporarily filled in for Ms. Gall.  Ms. Gaucher also alleged that she was asked to do work that was outside the scope of her return to work plan.

Ms. Gaucher’s first attempted return to work lasted six shifts, after which she once again went on disability leave.

Before her second attempt at returning to work, Ms. Gall met with Ms. Gaucher to ensure that Ms. Gaucher would feel supported in her return to work.  Ms. Gaucher alleged, however, that Ms. Gall was dismissive of her concerns and made inappropriate comments about her return to work.

Ms. Gall said that Ms. Gaucher’s behaviour was disrespectful, and she later issued a letter of expectation to Ms. Gaucher in that regard.

Ms. Gaucher’s second attempted return to work lasted three shifts.

Ms. Gaucher returned to work a third time, but after approximately one month she advised the employer that she was transferring to a different hospital. Several months later she filed her complaint with the Tribunal.

At the Tribunal, Ms. Gaucher did “not allege that the substantive terms of her gradual return to work plan were discriminatory”, but said that throughout the process, the respondents “failed to treat her fairly and with due respect to her dignity” (at para. 55).  She said that her managers “were confused and ill equipped to oversee her successful return to work” and engaged in conduct that amounted to bullying and harassment (at para. 55).

The Tribunal dismissed the complaint and in doing so confirmed that there is no separate procedural element to the duty to accommodate: “human rights law does not impose a separate obligation on employers to treat employees fairly and with due respect for their dignity during accommodation” (at para. 57).  While treating employees fairly is, of course, a best practice, failure to do so will not, by itself, amount to a breach of the Code.

The Tribunal also considered Ms. Gaucher’s claim of harassment by Ms. Gall.  In doing so, the Tribunal adopted arbitral jurisprudence regarding the distinction between harassment and workplace management.

The Tribunal held that an individual’s “subjective feelings are not enough to prove that harassment has occurred.  There must also be an objective element to the assessment as well – one that distinguishes between reasonable conduct arising from management of a workplace and conduct that is degrading or otherwise demeaning of an employee’s dignity” (at para. 62).

With respect to the letter of expectation, the Tribunal held that it “could not amount to harassment.  It is within the scope of Ms. Gall’s duties and rights as a manager and was responsive to Ms. Gaucher’s own alleged behaviour” (at para. 78).

The Tribunal confirmed that Ms. Gall was entitled to manage Ms. Gaucher’s behaviour, noting that “none of Ms. Gaucher’s return to work plans contemplated that she would be exempt from the usual behavioural and professional standards that applied to all employees and from being accountable to those standards” (at para. 109).

The Tribunal held further that the evidence suggested that all of Ms. Gall’s conduct “falls within the reasonable exercise of her duties as a manager, and has a legitimate, non-discriminatory explanation.  Even if Ms. Gall was wrong in how she handled Ms. Gaucher’s conduct, “supervisors have a right to be wrong”” (at para. 80).

In the result, the Tribunal held that there was no reasonable prospect that Ms. Gaucher could prove discriminatory harassment contrary to the Human Rights Code or that Ms. Gall’s efforts to manage her behaviour were a failure to reasonably accommodate her.

With respect to the substance of Ms. Gaucher’s attempts to return to work, the Tribunal considered the entire history of the matter.  On that basis, the Tribunal dismissed the complaint, despite acknowledging that after a hearing, a Tribunal member “could ultimately conclude that conditions in the workplace were not optimal for Ms. Gaucher’s successful return and that the experience would have been difficult for her” (at para. 97).  Those difficulties, however, would not amount to a failure to accommodate in this case.

The Tribunal summarized the matter in this way: “Ms. Gaucher’s experience of returning to work process was difficult, and it was not perfect.  However, human rights law does not require it to be perfect” (at para. 3).

Advice for Employers

This case stands as an important reminder for employers and employees that the accommodation process is just that:  a process.  It can take time, and may not always proceed as expected at the outset.  The standard of accommodation is not perfection, it is reasonableness.

What may subjectively feel like a “failure” to an employee, may not be a breach of the Code if the employee is expecting perfection.  Employers, unions, and employees would be well served by managing expectations from the outset of the accommodation process, confirming the obligation of all parties to reasonably participate and to accept a reasonable outcome, even if it is less than perfect.

For employers, this case demonstrates the importance of thoroughly documenting the accommodation process.  In this case, the employer was successful in dismissing the complaint on a preliminary basis through affidavit evidence alone, without the need for a full hearing.  A successful application to dismiss a complaint on a preliminary basis depends on contemporaneous documents and records that allow the Tribunal to make a decision without the need for a hearing.  Where those documents are created in the accommodation process, they are of great assistance in responding to a complaint if it is made to the Tribunal.