Changing an Employee’s Shifts After a Medical Leave is Discrimination

Mar 31, 2017

Many employees require a medical leave at some point during their career.  Often the difficult period begins when they return to work and are not supported.

Employees have the right to accommodation to the point of undue hardship.  This means that the employer must make changes to the workplace that assist the employee to complete their duties while dealing with a physical or mental disability.

In Morand v Bank of Nova Scotia (c.o.b. Scotiabank) the Federal Court considered the experience of one bank employee trying to get accommodation.

The Background

Ms. Morand had worked for Scotiabank for several years when she required a medical leave due to back problems. When she could return to work, her doctor recommended that she work only afternoon shifts. Scotiabank sought to change her shifts within three months of her return to work. The change caused Ms. Morand stress. The bank later tried to make day shifts permanent for the Ms. Morand – effectively denying her accommodation.

Ultimately, the employee applied to the Canadian Human Rights Commission (CHRC) alleging discrimination on the basis of disability.

The CHRC determined that the bank did not discriminate against Ms. Morand because there was not objective medical evidence of her need for specific hours. While there was medical evidence, it was outside of the time frame the investigator thought he should consider.

Ms. Morand brought a judicial review to the Federal Court.

The Court Case

A significant part of the Federal Court case was spent determining whether Ms. Morand’s case should be dismissed for delay.  The court decided it would not.

The Court also decided that the time frame the CHRC investigator used was too narrow. It was an ongoing complaint because the bank repeatedly attempted to change Ms. Morand’s shifts.

The Court concluded that Scotiabank failed to accommodate Ms. Morand. The judge found that the bank could not show that giving Ms. Morand afternoon shifts would cause it undue hardship.

Lessons

  • Make sure you know your rights. There is much information available on what rights employees have federally and provincially. For example, see our blog here. Employers are often required to take a number of steps to assist employee returning from medical leaves, make sure you know what these steps are.
  • Make sure you assert your need for accommodation in the right way early. If Ms. Morand had formally expressed that she had a right to accommodation under the Canadian Human Rights Act and required accommodation, the bank may have acted differently.
  • Do not delay. Ms. Morand was lucky that the court found there was not undue delay, but this is not always the case. Every law has different time limits and often employees cannot bring a legal claim if they have missed the deadline.

If you would like to speak to a lawyer at MacLeod Law Firm about a medical or stress leave and what accommodation you need from your employer, you can reach us at [email protected] or 647-204-8107.

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