By Graeme McFarlane

The Duty to Accommodate can be a significant burden to employers who are trying to balance often competing business and employee interests. Employer frustration has been mounting with the seemingly unsympathetic decisions issued by Human Rights tribunals across the country. However, the recent decision in Dotchin v. Simply Computing and another (No. 2), 2013 BCHRT 189 moves in the opposite direction and perhaps signals an adoption of common sense.

Simply Stated Upfront

Simply Computing recruited Mr. Dotchin away from his position at an Apple store to be a store manager. During the recruitment process, he told one of the company representatives that he had a genetic disease. The evidence was equivocal about whether he provided Simply Computing with any details about his condition. At the hearing, Mr. Dotchin described his symptoms as including depression and anxiety.

Mr. Dotchin started working for Simply Computing in August of 2009; just over a year later, Mr. Dotchin’s medical condition started to interfere with his ability to discharge his duties as store manager. However, he did not advise any of his managers that his health condition was deteriorating. In late 2010, for health reasons, Mr Dotchin arranged a transfer to a lesser sales position where he did not need to attend the store premises but still had to meet monthly sales targets. In this new role, Mr. Dotchin received salary and commission payments.

Mr. Dotchin was not able to meet his sales targets. He testified that his symptoms, including depression, continued to worsen during this period. He “thought he could plough through his depression and be successful”, and because of this belief he did not seek medical help or call in sick. He held this belief in spite of the fact that he said that his symptoms were so bad that he could not leave the house.

Expectations and Accommodations

By February 2011, Simply Computing had become unhappy with Mr. Dotchin’s performance, and it informed him that it would be issuing a letter of expectations. In response, Mr. Dotchin informed his supervisor that he had a genetic disease that interfered with his work. Simply Computing issued the expectations letter in which Mr. Dotchin was warned that he could be dismissed if he continued to miss his sales targets.

On March 2, 2011, Mr. Dotchin was dismissed from his sales position because he could not perform his required duties. Mr. Dotchin then met with the CEO to discuss alternate arrangements. The parties entered into a subcontractor, commission-based position which also provided access to medical and LTD insurance.

In July 2011, Simply Computing terminated the subcontractor agreement after it discovered problems with purchasing and inventory documents that dated back to the time when Mr. Dotchin was the store manager. Mr. Dotchin did not allege that the termination of the subcontractor agreement was in any way discriminatory. However, Mr. Dotchin filed a complaint stating that Simply Computing’s March 2011 termination action was discriminatory because it was based in part on his disability. The company did not dispute Mr. Dotchin’s medical condition and the issue was whether it had discharged its duty to accommodate.

Tribunal Dismisses Complaint

The tribunal held that Mr. Dotchin had been reasonably accommodated:

Even though Mr. Dotchin had not fully disclosed his need for accommodation, Simply had earlier accommodated Mr. Dotchin’s health-based request to move from the position of store manager. Later, when he could not do what was required as an Account Manager, the CEO had a conversation with Mr. Dotchin and Simply agreed that Mr. Dotchin’s employment would change to that of a sub-contract employee. Mr. Dotchin was worried that he still be eligible for LTD benefits and the sub-contractor arrangement provided that benefit.

I find that it would amount to undue hardship to require Simply to continue to pay Mr. Dotchin for work he could not perform. It had benefits that were accessible to employees facing health problems that rendered them unable to work. Further, I am influenced in my decision by the fact that Mr. Dotchin willingly agreed in writing to the accommodation.

While it did not engage in an elaborate evaluation of Mr. Dotchin’s medical condition and its impact on his employment, I conclude that by its agreement with him, Simply accommodated Mr. Dotchin’s disability. There are other paths it could have taken, such as putting him on unpaid sick leave. However, with the subcontractor agreement, he was to continue to be employed, on the terms that were more flexible and less demanding, and he would continue to be eligible for the LTD benefits he sought.

Mr. Dotchin’s complaint regarding the March 2011 termination was dismissed. The case was dismissed even though Mr. Dotchin was terminated before any subcontract position was even discussed. The tribunal held that the employee’s agreement to the new position as evidenced by his execution of the contract documents provided for the accommodation.

Tips for Employers

This decision provides some guidance for employers dealing with medical accommodation issues:

• First, if an employee raises a medical justification for poor performance, meet with the employee and discuss how the condition may be a factory and explore what might be done to accommodate the position.
• Second, ask the employee for medical confirmation about the limitation or disability (this was not done in the above case).
• Third, try to maintain the employee’s eligibility for medical benefits in any accommodate position.
• Fourth, create a paper trail regarding any accommodation, and obtain the employee’s agreement in writing with respect to any modified arrangement.

Graeme McFarlane is a partner at Roper Greyell LLP, a firm focused on partnering with companies to find solutions to workplace legal issues.

(PeopleTalk Fall 2013)