Any employer who has faced an accommodation-related claim understands that assessing the scope and extent of their duty to accommodate is often a challenging process.
Some helpful direction arrived in Poursadi v. Bentley leathers (2015 HRTO 138), which pitted Ms. Robabeh Poursadi, a retail store manager, against her employer, Bentley Leathers Inc. (Bentley), in a case which ultimately turned on the identification of the employee’s essential duties.
The decision from the Human Rights Tribunal of Ontario (HRTO) provides employers with some further guidance for navigating the often murky waters of accommodating employees, particularly when an employee’s essential duties are in dispute (which is often). One key to success in these cases, as this decision illustrates, is being prepared to provide a sound evidentiary basis for what constitutes an employee’s essential duties.
With over 300 small retail shops across Canada, Bentley promotes itself as a pioneer in the luggage, handbag, and related accessories industry. Ms. Poursadi began working for Bentley in 2005 and, by 2008, she was a store manager at the Promenade Mall location in Thornhill, Ontario.
In August 2008, Ms. Poursadi injured her wrist on the job while unpacking boxes. She made a successful WSIB claim and eventually continued working full time, subject to a certain set of restrictions and modified duties. She later underwent related surgery, which did not improve her condition. Due to her ongoing physical restrictions, Bentley came to believe that Ms. Poursadi was unable to perform all of the duties of a store manager, which included assisting customers to retrieve merchandise from in-store shelving units.
By July 2012, Bentley concluded that it could no longer accommodate Ms. Poursadi, and referred her to a WSIB work transition program and terminated her employment.
At the HRTO, Ms. Poursadi argued that Bentley could indeed have accommodated her. In brief, she proposed the following accommodation: while working alone, if a customer needed assistance that went beyond her restrictions, she could request that the customer return to the store at a later date.
Bentley took the position that this was untenable. They argued that it is essential that a store manager be able to assist customers whenever there was need for such assistance. If Ms. Poursadi could not perform certain essential tasks, Bentley contended that they were not required to provide further accommodation.
The Tribunal’s Decision
The HRTO Adjudicator, Jo-Anne Pickel, agreed with Bentley and held that they could not be expected to accommodate Ms. Poursadi by allowing her ask customers to return to the store at a later date if they wished to see or purchase items that required her to go beyond her physical restrictions. In brief, the accommodation sought by Ms. Poursadi would, in the Adjudicator’s words, “not enable her to meet the essential duties of her position.”
As the Adjudicator put it, the duty to accommodate “does not require permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees.” In reference to the specific facts of the case, the Adjudicator held that it was an essential duty of a store manager to assist customers at all times while on duty, not “most of the time.”
In reaching this decision, the Adjudicator cited the Supreme Court of Canada’s decision in Hydro-Quebec v. Syndicat, 2008 SCC 43 at para. 16 in which the Court stated, “the employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.”
In this case, the evidence suggested that customer service formed 65 – 70% of a store manager’s duties and that store managers were expected to work alone in their shops for close to 20 hours per week. As such, the Adjudicator concluded that customer service, which included assisting customer with requests to view merchandise, was clearly an essential component of Ms. Poursadi’s role.
The Adjudicator made some additional general instructive statements regarding the accommodation process, as follows:
- each accommodation case must be decided upon the particular facts of that case;
- the accommodation process is an individualized process and accommodation cases must necessarily turn on their particular facts, including the precise nature of the work being performed, the nature of the employee’s restrictions, and the nature of the workplace;
- accommodation cases often turn on the identification of the essential duties of an employee’s work; and
- evidence will be required to determine whether a duty is or is not essential.
This case highlights how important it is for employers to identify the essential duties of a position at the outset of any accommodation process. If challenged at the HRTO, evidence, in the form of notes, job descriptions, assessments, and other supporting facts, will need to be marshalled to illustrate that a particular duty is in fact “essential” to the job, i.e. that the duty is vital, necessary and indispensable.
Ultimately, this case helps to support the position that the duty to accommodate does not require a fundamental change to an employee’s essential duties.
As with all advocacy, preparation is the key to success. For counsel, when making an argument about the essential duties of a given job, it is critical to be well prepared with cogent supporting evidence in order to successfully persuade an adjudicator of the employer’s position.