In a recent decision, the British Columbia Supreme Court tackled the issue of an employer’s failure to accommodate a disabled employee’s return to work.
Peter Cassidy is a licensed primary care paramedic employed part-time by the British Columbia Ambulance Service (BCAS), in Clearwater B.C., since 1999. In 2003, following a severe attack of multiple sclerosis, Cassidy took himself out from active service as he was left with mobility problems. His symptoms gradually began to subside, and Cassidy slowly returned to work in April 2004. The only symptom that remained was diminished sensation in Cassidy’s hands that made him unable to palpate pulses, and assess an individual’s condition by feeling their pulse.
Cassidy’s employer was originally very accommodating, instructing other paramedics to assist him, particularly with palpating pulses. Yet, Cassidy’s inability to palpate eventually came to the attention of the new superintendent of the ambulance service for the Interior Region of B.C. This superintendent immediately removed Cassidy from active duty. Assessments revealed that Cassidy was in fact capable of performing his paramedic duties, but that he would need to work with a partner who could feel a pulse. The superintendant disagreed with the results and kept seeking additional opinions while Cassidy remained off work.
In July 2005, Cassidy’s union sought the employer’s agreement to return Cassidy to work but as a driver only. Although the assessments revealed no concerns about Cassidy’s ability to drive, the superintendant rejected the union’s suggestion, citing safety as the concern. In September 2005, the union filed a grievance stating that the BCAS had improperly suspended Cassidy.
In December 2005, BCAS agreed that Cassidy could return to work as a driver only, but he would only be allocated work after all the other paramedics had been scheduled. As a result, Cassidy only worked for three days between May 2005 and June 2006. Following a mediated settlement, the BCAS agreed to return Cassidy to work, as a driver only, but he was paid and scheduled as a paramedic. His position was called a “special driver only.”
Cassidy filed a complaint with the British Columbia Human Rights Tribunal alleging he suffered discrimination based on the protected ground of physical disability, contrary to section 13 of the B.C. Human Rights Code. The Tribunal allowed the complaint in part, holding that the employer was justified in refusing to allow Cassidy to return to work as a paramedic based on finding that the ability to palpate pulses is a bona fide occupational requirement. Yet, the duty to accommodate also includes a procedural component that requires an employer to treat individuals “fairly and with due respect for their dignity, throughout the accommodation process.”
It was determined that both the BCAS and the superintendent breached this requirement by removing Cassidy from his duties in an insensitive and abrupt manner, and by preventing his return to work for a year, even when the accommodation of “driving only” was available. The Tribunal awarded Cassidy $22,500 for injury to his dignity, feelings, and self-respect. In addition, the Tribunal awarded Cassidy $32,224 in damages equal to his salary that he lost during the time before his employer agreed to assign him as a paramedic with driving only duties and a normal schedule.
The employer applied for judicial review, and in a July 2011 decision, the Supreme Court judge overturned the Tribunal’s decision, and ruled that the Tribunal erred in law “in considering whether the BCAS treated Mr. Cassidy ‘fairly, and with due respect, throughout the accommodation process.” Instead, the Judge stated that the Tribunal should have restricted its analysis to whether BCAS could have reasonably accommodated Cassidy up until the point of undue hardship. The judge sent the matter back to the Tribunal for re-determination.
The Tribunal ultimately found that the BCAS had substantially violated the Code by failing to accommodate Cassidy up until the point of undue hardship. Supporting this was the evidence that at least 5% of the part-time drivers in B.C. were drivers only. The Tribunal re-arrived at the same conclusion, and compensated him for his wages he would have earned if he had not sat idle for a year. Furthermore, the Tribunal once again awarded damages for injury to Cassidy’s feelings and dignity.