Published on January 25, 2010 by Donna Seale
We all write notes for ourselves at some point or another, for one reason or another. Whether it be a ‘to do’ list, a goal list, a diary entry of what we did that day or a reminder to pick up eggs at the store, notes help us in innumerable ways in our daily lives. Notes are also critical in our work lives as well. They keep us on task. They help us remember what has been said or done in the past. They establish expectations.
Yes, notes are important for a whole host of reasons, both personal and professional, but from my perspective they are absolutely critical if you, as a manager/supervisor/employer become aware of a potential human rights issue in your workplace. By writing down what an employee has told you they have concerns about and what you did in response along with relevant dates and times and places, notes become key defense tools should questions ever be raised down the road about whether management appropriately handled a human rights issue, regardless of what it relates to.
Created pre-complaint, notes are often considered to be one of the most reliable pieces of evidence to be considered during a formal process. Certainly, when I am brought in to investigate a complaint I ask everyone and their dog if they made notes and I ask to see them right away. Often, the notes can short-circuit the investigation process, making it more efficient than it would have been without them. For example, let’s say a complainant employee is contending that they told their manager they were being subjected to racially-based harassment and the manager did nothing in response. Let’s also say that when I interview that manager, the manager recalls a conversation with the employee and also recalls going to the accused employee to tell them to stop their inappropriate conduct but she has not a single note of any of this. Now, I have a credibility issue I have to resolve. Who do I believe, the complainant employee or the manager? I then have to embark on asking a whole bunch of questions of potentially a whole bunch of people to learn about the complainant employee and the manager so that I can then step back at the end of the investigation and make a call as to whom, of the two, is the most believable. If, instead, that manager had notes, the situation is much different. I can then focus on the notes and go back to the complainant employee and ask them specific questions flowing from those notes. The manager’s credibility is enhanced by those notes. That is not to say that the credibility question is a slam-dunk in favor of the manager but it is certainly miles ahead from where it would have been without the notes.
When it comes to defending the actions that you, as a business took, regarding a human rights issue raised in your workplace, you never want to be left in a position where you have to reconstruct events or have to rely on memories that, for most people, are notoriously unreliable. The jigsaw puzzle type of analysis that has to be done when no notes exist leave an organization very vulnerable from a liability management perspective.
So, my advice is no matter how seemingly insignificant an employee comment or concern made to you about a potential human rights issue might appear at the time, write it down. Remember that age-old, but oh so still relevant saying — an ounce of prevention is worth a pound of cure.
Published on June 1, 2009 by Donna Seale
In the course I teach for the Manitoba Human Rights Commission on “The Duty to Accommodate in the Workplace”, I spend a good chunk of time talking about how important it is for employers to implement a policy/process in their workplaces establishing how they will respond to requests for accommodation by employees. In particular, I talk about how critical it is for employers to be able to demonstrate, at the end of the day, that they have thoroughly examined and considered all of the possible ways that they can provide accommodation for an employee before they even think about jumping on the ’sorry we can’t do this’ band wagon. In addition, I stress how critical it is for employers to understand that their duty to accommodate is separate and distinct from any determinations made about the employee by a third party such as an insurance provider.
The fact is, if you do not have a process in place to reasonably assess accommodation requests, you will not successfully defend against a human rights complaint alleging a failure of the duty to accommodate. Same goes if you have a process in place and then choose, for whatever reason, not to follow it. Ditto if you choose to simply follow on the coat tails of a third party payer to decide how you should go about accommodating your employee. Unfortunately, there are still a lot of employers out there who are not getting these messages. Case in point, Jodoin v. City of Calgary, a November 2008 decision of the Human Rights Panel of Alberta.
The facts in brief
Mr. Jodoin began working for the City of Calgary in 1999. In September 2002, while he was working in the waste and recycling department as a driver/labourer, he injured his lower back. He subsequently made a successful claim for workers’ compensation benefits. From September 2002 to February 2003, Mr. Jodoin underwent a number of medical tests and was determined by his physician to be unfit for work during this time. In early February 2003, he underwent spinal decompression surgery. It wasn’t until June 2003 that Mr. Jodoin’s doctor recommended a gradual return-to-work. His return was not successful, though, as the job he was placed in was too strenuous. He went off work again to undergo further testing and obtain an accurate assessment of the impact of his disability.
In March 2004, it was determined that Mr. Jodoin’s condition was such that he would only be able to do sedentary work in the future. One of Mr. Jodoin’s specialists sent the City a list of Mr. Jodoin’s work restrictions and asked for the City to determine whether it could accommodate him in a permanently modified or other suitable alternate position.
The City began using the work restrictions identified by Mr. Jodoin’s doctor in order to attempt to find long term accommodation for him. In the meantime, the Worker’s Compensation Board, which was also involved, determined that it was not satisfied that Mr. Jodoin could only do sedentary work and, instead, came to the conclusion that he ought to be able to perform work that simply did not require heavy lifting. As a result of the WCB re-assessment of Mr. Jodoin’s work abilities, the City changed his restrictions from sedentary to medium-type work. The City sent out some e-mails to supervisors in Mr. Jodoin’s department and to human resources and return-to-work coordinators requesting accommodation for him. No potential jobs were uncovered.
WCB subsequently determined that Mr. Jodoin was not participating sufficiently in their job search program and, as a result, terminated his re-employment assistance benefits. The City then sent him a letter indicating that his benefits had been terminated by WCB for failing to cooperate in the rehabilitative process. The City further advised Mr. Jodoin that they were prepared to grant him an unpaid leave of absence for 30 days to rectify the situation with WCB. Mr. Jodoin was instructed to complete a leave of absence form and return it within 7 days. The City’s letter went on to say that if Mr. Jodoin failed to return the form or be reinstated by WCB his employment would be terminated.
Although Mr. Jodoin asserted that he cooperated to the best of his abilities with WCB and he wrote a letter to the City setting this out, he received no response. Mr. Jodoin did not sign the leave of absence form, believing that he was being “pushed out the door because he was sick.” The City subsequently wrote to Mr. Jodoin in July of 2004 advising him that they considered him to have “voluntarily resigned.”
Decision
The Alberta Human Rights Panel determined that Mr. Jodoin did have a physical disability as defined by the Alberta human rights legislation and that the City was well aware of his disability.
The City accepted that it had a duty to accommodate Mr. Jodoin but argued that it had provided that accommodation by making available to him four “safety nets” (Workers’ Compensation Benefits, Long Term Disability, Supplementation of Compensation under the collective agreement, and the possibility of a Leave of Absence). The Panel rejected this argument, pointing out that the availability of these types of benefits to employees did not necessarily bear on whether the employer had met its duty to accommodate.
Contrary to the employer’s contention, the Panel concluded that the City failed to make reasonable efforts to accommodate their employee for the following reasons:
Finally, the Panel concluded that the CIty provided no evidence that it would have suffered undue hardship by continuing to employ Mr. Jodoin in a sedentary position.
Remedy
Finding that the City of Calgary failed to meet its duty to accommodate Mr. Jodoin, the Panel ordered that the City pay to him $5,000.00 in general damages and lost wages in the amount of $17,307.69 (less statutory deductions) plus interest.
What to take from this case:
Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
