A recent ruling by the Nova Scotia Labour Board underscores the lengths employers are required to go to accommodate a worker with a disability.
Lunenburg Foundry & Engineering (LIFE) found this out after it fired a welder, injured on the job, following a two-year accommodation effort. The board ruled that increased costs alone — unless they threaten the viability of a business — will not support a finding of frustration of contract.
And employers have a duty to explore every option, and need to prove the worker isn’t suitable for other positions, before removing them from the payroll.
The background
Devon Dauphinee was a welder at Lunenburg Foundry & Engineering Limited (LIFE). It’s a shipyard that is in the business of maintaining, repairing and refitting vessels.
Dauphinee was a long-term employee, with about 22 years’ service. In 2009, he suffered a serious injury on the job. He fell more than 20 feet, fracturing bones in his right arm, injuring his hand, knee and back.
About 10 years later, on Feb. 28, 2019, his arm gave out as a result of those injuries. He was unable to weld using his right arm. He went on workers’ compensation and began physiotherapy as he tried to regain his ability to work.
On July 15, 2020, he returned to LIFE on an “ease back” plan, working four hours a day and performing light duties. He also practiced welding with his left arm. His duties consisted of COVID cleaning and stock-room chores.
A job site analysis was undertaken to determine if Dauphinee could return to work as a welder. It found it was unlikely as the job was deemed to be “heavy to very heavy work.” He was limited to light-duty work.
LIFE determined it could not provide permanent accommodation and terminated his employment on April 14, 2021.
Frustration of contract ruling
Dauphinee filed a complaint under Nova Scotia’s Labour Standards Code.
A Labour Standards Officer (LSO) found the contract between the employer and the employee had been frustrated and, therefore, there was no violation of the code.
That ruling was appealed to the Nova Scotia Labour Board by the worker.
The worker’s position
Dauphinee’s position was that he was unjustly terminated from his job. He suffered a workplace injury that resulted in a physical disability, and therefore his employer had a duty to accommodate him. There were jobs, such as welding supervisor or painter, he could have done.
There were also quality control and administrative assistant roles, posted shortly after his termination, which he could have filled, he argued.
Alternatively, light duty jobs could have been bundled together, such as cleaning, firewatch and stockroom duties.
The employer’s position
LIFE said accommodation would have resulted in undue hardship. It was a small business and most of its positions required a person to be able to perform heavy duty work in order to perform the job safely, it said.
The painting job, for example, required the worker to climb and paint in high locations, and required fall arrest training. The firewatch role required going into small, contained spaces while carrying a fire extinguisher.
There was no full-time cleaning or stock positions, and creating one would be prohibitively expensive, it said. And the admin assistant and quality control roles were not available at the time of accommodation, and he was not qualified regardless.
LIFE tried accommodation for two years, participated and co-operated with the WCB back to work program and found him temporary jobs. It gave Dauphinee the chance to practice welding with his other arm, but ran out of options. The employment contract, therefore, was frustrated, it said.
The board’s ruling
The board concluded, on a balance of probabilities, it was unlikely Dauphinee could continue to work as a welder. LIFE had fulfilled the accommodation process with respect to that position.
But the duty to accommodate didn’t end at that point, it said.
“Once it was determined (he) could not continue his job as a welder, a permanent accommodation in another position or other job functions must be explored,” the board said. “It is not sufficient simply to consider the disabled employee for job openings that may arise.”
Increased costs to the business do not necessarily translate to undue hardship, it pointed out.
“To satisfy a claim of undue hardship on the basis of cost, the financial impact of the accommodation would typically have to be so great that it would either change the essential nature of the organization’s operation, or it would substantially impact the employer’s financial viability,” it said.
LIFE was not at that point, it ruled.
It also noted that the admin assistant and quality control roles were posted “very close” to the termination date. It raised the question of whether those duties were available, or reasonably foreseeable, while Dauphinee was still on the payroll.
LIFE did not provide objective evidence that he would be unable to fill those positions. There was no job evaluation presented in evidence and nothing to suggest Dauphinee was tested or assessed in any way to see if he could fill those roles.
“It may very well be that this was the case, but the duty to accommodate requires that the employer actually evaluate in some way the (worker’s) abilities and determine objectively that he cannot perform requirement of the job,” it said.
It ruled LIFE did not fulfill its duty to accommodate to the point of undue hardship and the contract was not frustrated. Therefore, Dauphinee was terminated without cause.
The award
The board noted Dauphinee had more than 20 years’ service, was older and the likelihood of him finding similar employment with his physical constraints in the the Lunenburg, N.S., area was low.
It awarded him 12 months’ notice, or $48,984, for wrongful dismissal. From that it deducted two weeks’ pay he was given at the time of termination.
For more information, see Dauphinee v Lunenburg Foundry & Engineering Limited, 2023 NSLB 12 (CanLII)
