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November 6, 2012

Noteworthy Cases – Mould v. JACE Holdings Ltd. (Thrifty Foods) (No. 2), 2012 BCHRT 77

In March 2012, the B.C. Human Rights Tribunal decided that the employer had breached the B.C. Human Rights Code when it terminated a disabled employee who had been absent from work for 30 months.

Ms. Mould began working at Thrifty in 1996 and worked her way up to assistant manager. In December 2007, she went on medical leave. She had surgery on her left knee in January 2008 and on her right knee in June 2009. During this period, she received disability benefits (LTD).

In June 2010, the insurance carrier found that Ms. Mould could return to work in a limited capacity, and it terminated her LTD benefits. Ms. Mould appealed the insurer’s decision and provided additional medical documentation to support her claim. However, her appeal failed, and the insurer notified Thrifty that, in its view, Ms. Mould was able to do sedentary work and thus her LTD benefits would have to end.

Thrifty did not respond or make arrangements for Ms. Mould to return to work. Instead, on May 26, 2010, Thrifty’s wrote to Ms. Mould informing her that since she had been off work since December 2007 and would be unable to return to work before June 17, 2010, they considered her employment to be “frustrated”. As such, her employment with the company had ceased.

In response, Ms. Mould requested to be accommodated back to work for 4-5 hour shifts per day or to do only specific tasks from her original job. Thrifty refused, saying that she had not provided any medical information to allow it to make an accommodation decision. Ms. Mould then filed a complaint against Thrifty with the B.C. Human Rights Tribunal.

The Tribunal found that the employer had failed to make any meaningful attempt to accommodate Ms. Mould’s return to work. As such, it had breached its duties under the Human Rights Code. The fact that Ms. Mould had been on medical leave for 30 months, did not give the employer the right to ignore its duty to accommodate her return to work.

This case is a reminder to employers that they must take active steps to determine how they can accommodate an employee’s return to work. The mere fact that an employee has been off of work with a bona fide disability or illness for a lengthy period does not give an employer the right to treat the employment relationship as being over. In all cases, employers must ensure that they have taken meaningful steps to satisfy their duty to accommodate under the applicable human rights legislation.

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