In a recent decision, the Alberta Human Rights Tribunal provided an important clarification on the scope of an employer’s duty to inquire about an employee’s medical disability.

Employee With Mental Disability Experienced Continuous Issues at Work

The employee worked for a service department with the Government of Alberta as an administrative staff supervisor.

Soon after beginning her employment with the government, she developed a mental disability. She took a significant amount of time off from work with accommodation by her employer. After several failed attempts, she was finally able to return to work in early 2016 with reduced hours and duties.

Before returning to work, the employee sent an email to her managers detailing several concerns about the workplace. Her managers attempted to address the concerns on her first day back, but a disagreement arose, and the employee had a panic attack. She filed a grievance and respectful workplace complaint about the meeting, alleging bullying and harassment. Both the grievance and respectful workplace complaint were dismissed.

Employee Requested Demotion, Employer Suggested Training

Upon her return, the employee was assigned to supervise a work area. The employee felt overwhelmed by the new assignment and, as time went on, felt that she was being unfairly criticized for her work.

The employee made several suggestions that she be demoted to a lower-ranked position because she felt overwhelmed by her workload and the responsibilities in her assigned role. She did not frame these suggestions as requests for accommodation or indicate that they were medically necessary. The employer did not accede to these requests but instead communicated that it would support her in her role.

Over the following months, the employee continued to struggle in her role. In September 2016, the employee and the employer met and agreed on a learning plan to support the employee in her supervisor role. The employer indicated it wanted to provide the employee with training to enable her to remain in the position. The employee was satisfied with the outcome of the meeting.

Employee Resigned from Job and Filed Human Rights Complaint

In early October 2016, the parties met again, and the employer presented its draft learning plan to the employee. The employee viewed the plan as disciplinary rather than supportive. She became upset and left the meeting. The employer believed it would reschedule the meeting, but the employee resigned.

The employee subsequently filed a human rights complaint against the employer, alleging that it had discriminated against her in her employment on the grounds of mental disability, contrary to s. 7 of the Alberta Human Rights Act.

Tribunal Found Employee Failed to Prove Adverse Impact

At the outset, the Tribunal set out the elements the employee had to prove on a balance of probabilities, as established by the Supreme Court of Canada in Moore v. British Columbia (Education):

  1. She had a protected ground;
  2. She suffered an adverse impact; and
  3. The protected ground was a factor in the adverse impact.

Concerning the first element, the Tribunal noted there was no dispute that the employee had a mental disability, which is a protected ground under the Alberta Human Rights Act.

Turning to the second element, the Tribunal reviewed the employer’s conduct as it related to the employee’s complaint. It found that while there were several events leading to the employee’s resignation in 2016, none of them constituted adverse impacts under human rights case law.

For instance, the Tribunal found the employee had not been bullied and harassed during the meeting on her first day back to work, instead, describing the incident as a “miscommunication and misunderstanding.” Additionally, despite the employee’s perception, the Tribunal held the decision to place her in a supervisory role was not an adverse impact but rather an “objectively a neutral management decision.”

Turning to the employee’s failed requests for a demotion, the Tribunal stated:

“Again, this was not an adverse impact. The complainant made a proposal for the workplace which was not workable in her manager’s eyes, and they communicated about it. That was a normal workplace interaction, not an adverse impact.”

Finally, the Tribunal made a similar finding regarding the learning plan and the employee’s resignation, holding that neither constituted an adverse impact.

Tribunal Clarified Employer’s Duty to Inquire

While the employee’s claim failed on the second element of the Moore test, the Tribunal still reviewed the third element of the test. In doing so, it provided an important clarification to employers regarding the duty to inquire.

The employee argued that the employer had failed in its duty to inquire about her mental disability, even though she had provided the employer with multiple medical notes about her condition. She stated that the employer had failed to inquire about the connection between her disability and work performance despite the following alleged facts:

  • The employer had been aware of the nature of her disability;
  • The employer had observed her visibly upset in the workplace on numerous occasions; and
  • The employer knew she was struggling in her role and saw she was distressed about her resignation.

In response, the employer argued that there was no duty to inquire because of the ongoing, regular medical updates that the employee provided.

The Tribunal agreed with the employer’s position. It stated the duty to inquire is not a “standalone duty” but arises when the employer knows or reasonably ought to know there is a connection between the employee’s work performance and disability. The Tribunal noted this usually occurs when the employee is unaware of the existence or extent of their disability, but their conduct is noticeable and raises concerns of a disability to others.

The Tribunal explained that the employer’s duty to inquire is an exception to an employee’s obligation to disclose all relevant information and participate in the accommodation process.

In the employee’s case, the Tribunal held that the employer’s duty to inquire had not been triggered because the employee had provided regular, ongoing, and updated medical information that suggested that her disability was not a factor in her work performance issues. As such, the employer was entitled to rely on the medical information provided and was under no duty to inquire further. The Tribunal, therefore, dismissed the employee’s complaint.

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