In Hitchcock v. Lafarge Canada Inc., 2015 HRTO 1296 (CanLII), the Human Rights Tribunal of Ontario reiterated the limits on the employer’s duty to inquire regarding an employee’s disability and need for accommodation, and the corresponding obligation on employees to keep their employers informed.
Stanley Hitchcock was a “Ready Mix” truck driver with three years’ service with Lafarge Canada Inc. He had a history of absenteeism and discipline. After he left work midway through his shift, his plant manager telephoned him to remind him that he would need a medical note to support his absence. Mr. Hitchcock replied that his doctor was on vacation for three weeks. The plant manager then requested a meeting with the employee, during which he was given a three-day suspension for being absent without authorization, as well as a letter stating that he was required to provide a physician’s certificate substantiating his absence. In the letter, he was also advised that, if the requested information was not received by the deadline (being approximately one week after the absence), he would be considered to have abandoned his position, and his employment would effectively be terminated.
Unbeknownst to Lafarge, and completely unrelated to Mr. Hitchcock’s employment, on the day by which he was supposed to have provided his physician’s certificate, Mr. Hitchcock was arrested by police and taken into custody.
Since the employee thus had not provided medical evidence to support his absence from work by the stated deadline, he was terminated by letter the following day.
Mr. Hitchcock filed an Application with the Tribunal, in which he alleged discrimination in employment on the basis of disability. Particularly, he alleged that Lafarge had failed to accommodate his disability, an alleged kidney stone condition, by failing to accommodate his disability-related absence, placing unreasonable requirements on him regarding the provision of medical documentation in relation to that absence, and ultimately terminating his employment.
The Tribunal found that, while kidney stones constitute a disability within the meaning of the Human Rights Code, it was unclear whether this disability gave rise to an actual need to be absent from work on the day in question. Even assuming Mr. Hitchcock did have a disability-related need to be absent, the Tribunal found that the duty to accommodate did not arise in this case, as the employer was not reasonably aware that there was a need for accommodation: Mr. Hitchcock did not tell the plant manager he had kidney stones, nor did he request any form of accommodation or make any disability-related needs known.
With respect to the termination of employment, the Tribunal concluded that disability was not a factor. The Tribunal found that Mr. Hitchcock’s employment was terminated, not because he had a (potentially) disability-related absence, but rather because the employer had not been able to reach him to see whether he had obtained a medical note, given that the employee was in police custody. Accordingly, Mr. Hitchcock was found to have abandoned his position, and his application to the Tribunal was dismissed.
Mr. Hitchcock then filed a request to the Tribunal to exercise its discretion to reconsider its own decision, arguing that the Tribunal had been influenced by irrelevant and prejudicial information about his arrest, and that Lafarge had not met its duty to inquire. In this case, however, the Tribunal found that the employee did not meet the threshold criteria justifying reconsideration.
After dismissing the allegations that the evidence surrounding his arrest was prejudicial, the Tribunal considered the extent of an employer’s duty to inquire into an employee’s medical condition and need for accommodation. The Tribunal confirmed its earlier ruling, stating:
In my view, the present case is quite different from cases where an employer is aware, or reasonably ought to be aware, that there may be a relationship between an employee’s disability and performance, and makes an adverse decision based on performance without inquiring into the possible relationship between the employee’s disability and performance. […]
In the present case, the Tribunal found that it was not clear that the applicant had a disability-related need to be absent from work […], but that, if he did, the respondents would not have reasonably been aware that he had any disability-related needs requiring accommodation.[…] and he was not able to communicate with them about the requirement to provide a medical note for his absences, because he was in police custody, and not for any reasons related to disability. The applicant was deemed to have abandoned his position, after he was absent and did not reasonably communicate with the respondents.
This decision provides guidance with respect to the limits of the duty to inquire about an employee’s illness or injury, and the importance of the employee’s role in providing adequate information regarding her or his disability when requesting accommodation.