FAQ's Cases - Stewart McKelvey

4) Did the respondent meet its duty to investigate the applicant’s complaint ofharassment and discrimination under the Code?5) Did the respondent meet its duty to accommodate the applicant up to thepoint of undue hardship when it required that the applicant return to a positionon the afternoon shift?6) Was the decision to terminate the applicant’s employment discriminatory or inreprisal for the applicant exerting his rights under the Code?1) Did the respondent meet its duty to accommodate the applicant’s disability upto the point of undue hardship in April and May 2007?2012 HRTO 1455 (CanLII)[52] An employer must reasonably accommodate the needs of an employee with adisability unless accommodation would result in “undue hardship”. The Supreme Courtof Canada has accepted that the duty to accommodate has both a procedural and asubstantive component. See British Columbia (Public Service Employee RelationsCommission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) andBritish Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council ofHuman Rights), [1999] 3 S.C.R. 7868. The procedural component requires that therespondent employer take steps to understand the employee’s disability-related needsand undertake an individualized investigation of potential accommodation measures toaddress those needs. The substantive component of the analysis considers thereasonableness of the accommodation offered or the respondent's reasons for notproviding accommodation. It is the respondent who bears the onus of demonstratingwhat considerations, assessments, and steps were undertaken to accommodate theemployee to the point of undue hardship, see Meiorin.[53] In deciding whether the respondent met its duty to accommodate the applicantduring the period April 23 to May 31, 2007 I would first note that I am satisfied, basedon the evidence before me that the respondent did assign the applicant modified dutiesin response to the functional abilities form the applicant provided on April 22. Theevidence is that the applicant was assigned to pick special orders that required reducedlifting. He was assigned additional cleaning duties and, it appears, additional workloading and unloading trucks. However, the more difficult issue is whether the applicant16