Be Thorough, Thoughtful and Careful in the Accommodation Process: Rajigadu v. University of British Columbia (No. 3), 2014 BCHRT 157 (McCreary)

Previously printed in the CCH’s Focus on Canadian Employment and Equality Rights Newsletter.

Ron Rajigadu was employed as an electrician at the University of British Columbia (UBC). He filed a complaint with the B.C. Human Rights Tribunal, alleging that UBC discriminated against him on the basis of physical and mental disability by failing to accommodate him and terminating his employment.

Mr. Rajigadu worked in a crew of electricians. He was usually assigned to work with traffic and streetlights and this work required a team of two people, one of whom would work in a bucket lifted from a truck.

In 2009, Mr. Rajigadu missed a significant amount of work on account of illness. In June 2010, his doctor provided a note suggesting that he should avoid working in cold, damp conditions. Mr. Rajigadu’s doctor also advised of restrictions which precluded Mr. Rajigadu from working in the bucket.

After Mr. Rajigadu returned to work, he complained of harassment by his co-workers. UBC investigated the complaint. Mr. Rajigadu provided a note from his doctor which said that he was “unable to work”. The university asked Mr. Rajigadu to have his doctor provide more detailed information about why he could not return to work.

UBC proposed an accommodation which it believed met Mr. Rajigadu’s medical restrictions. In addition, the university’s proposal ensured that Mr. Rajigadu would not come into contact with the co-workers who he had accused of harassing him. Mr. Rajigadu failed to meet to discuss the proposal. Instead, Mr. Rajigadu proposed two alternate accommodation arrangements. UBC considered the requests but determined that neither of them met all of the conditions required to return Mr. Rajigadu to work. Mr. Rajigadu’s trade union agreed that the proposal made by UBC was reasonable and the proposals made by Mr. Rajigadu were not.

UBC then learned that Mr. Rajigadu suffered from an anxiety disorder precipitated by the thought of returning to work. Mr. Rajigadu’s doctor confirmed his patient’s ability to return to work upon resolution of “a labour relations matter” pertaining to the work environment, i.e. fear of continued harassment. The doctor said that he did not consider this to be a medical issue but felt Mr. Rajigadu was unable to return to work until the matter was cleared up.

UBC provided further information about the proposed accommodation to Mr. Rajigadu which addressed his doctor’s comments and his concerns. The university directed Mr. Rajigadu to report to work.

Mr. Rajigadu refused to report to work again, believing the proposed accommodation was unsuitable. UBC advised Mr. Rajigadu that his physician had confirmed his ability to return to work upon resolution of the labour-related matter and also that the university’s view was the proposed accommodation resolved the concerns. Mr. Rajigadu continued to refuse to attend work and was dismissed from employment for job abandonment.

The B.C. Human Rights Tribunal found that Mr. Rajigadu established a prima facie case of discrimination. It then considered whether Mr. Rajigadu had been reasonably accommodated.

The Tribunal found that Mr. Rajigadu was reasonably accommodated prior to the harassment complaint. The Tribunal also found that UBC made reasonable efforts to accommodate Mr. Rajigadu after his harassment complaint but he refused the accommodation without justification. The Tribunal concluded that UBC was entitled to consider Mr. Rajigadu’s job to have been abandoned and dismissed the complaint.

The Tribunal noted Mr. Rajigadu’s evidence that he experienced persistent anxiety and panic when thinking of even attending the worksite and that he could not try out the accommodation because to do so would cause “certain anguish”. The Tribunal stated that Mr. Rajigadu was required to explore the proposal to determine whether or not it would be an appropriate accommodation. Mr. Rajigadu, the Tribunal found, had made up his mind that the proposed accommodation was not appropriate and refused to get the facts about the assignment. According to the Tribunal, Mr. Rajigadu seemed to have developed a “pervasive distrust” of what his employer and union told him about his options and he insisted on crafting his own accommodation.

Tips for HR Practitioners

This case illustrates that thorough, thoughtful and careful work when providing an appropriate accommodation is a respondent employer’s best defence. UBC was especially diligent in evaluating Mr. Rajigadu’s requirements and providing him with information to show that the accommodation met his needs. The employee refused to give serious consideration to the proposed accommodation. His persistent refusal to consider what his employer was proposing caused the Tribunal to conclude that he had refused the accommodation without justification.

This case reaffirms that an employee who requires accommodation must participate in the process and is not entitled to unilaterally craft his or her own accommodation.