WORKPLACE DISCRIMINATION - Dismissal - Duty of reasonable accommodation - Mental or physical disability

Law360 Canada (August 9, 2022, 5:51 AM EDT) -- Application by Babb for judicial review of the decision of an adjudicator of the Federal Public Sector Labour Relations and Employment Board (the Board). In 2002, Babb started working for the Canada Revenue Agency (CRA). In 2006, his health issues linked with environmental sensitivities in the workplace became prevalent. In early 2007, Babb left on short-term sick leave and then on a leave without pay (LWOP) in April 2007. In May 2009, Babb was advised that he could choose to return to duty, to resign or retire on medical grounds, or to be terminated for reasons other than breaches of discipline or misconduct. He was also advised that his failure to select one of the three options by July 10, 2009, would result in termination of his employment. The CRA granted extensions of Babb’s LWOP for more than 11 months beyond the original end date. Despite repeated requests from the CRA, Babb refused to provide information relating to his needs and limitations for a return to work with accommodations. In October 2010, the CRA terminated Babb’s employment for reasons of incapacity. Babb grieved the termination on grounds of discrimination and bad faith. The grievances were dismissed at the final level in September 2011. The grievances were then referred to the Board for adjudication. The adjudicator dismissed Babb’s grievances, finding that the CRA had not discriminated against him and had not acted in bad faith when it terminated his employment due to his incapacity. The Board dismissed the discrimination claim by finding that the CRA’s duty to accommodate had come to an end on the basis that Babb could not return to work in the foreseeable future. Babb took the position that it was unreasonable for the Board to find that hardship existed and that the employer’s duty to accommodate was at an end. Babb submitted that the Board applied an exceedingly high threshold by requiring him to show that the termination “reeked” of bad faith, as opposed to showing that it was “tainted” with bad faith. Babb further alleged that the Board engaged in a selective and piecemeal analysis of the evidence without considering its totality....
LexisNexis® Research Solutions

Related Sections