The B.C. Supreme Court has ordered the human rights tribunal to reconsider a ruling involving a worker for TELUS Employer Solutions whose contract was not renewed after she asked for accommodation of a disability.
The woman said she was having allergic reactions to working in a particular building, and asked to work from home. But TELUS balked at that request, citing her poor performance, and eventually let her contract expire without renewing it — before she had finished pursuing her medical diagnosis.
The court, in sending the ruling that TELUS initially won back to the tribunal, also noted that it can take a long time to see a specialist to obtain a diagnosis.
“(She) was still investigating the cause of her disability when her contract ended and… made (TELUS) aware of this fact,” the court said. “To suggest that she should not be given an opportunity to present evidence of her actual diagnosis would create an arbitrary cut-off date which would be impossible to meet given the time it takes to get an appointment with a specialist to investigate a disability.”
Background
DM was a client service advisor for TELUS Employer Solutions (TES) from Nov. 21, 2016, until May 31, 2018. TES provides outsourced HR and payroll services to companies across Canada.
She was a contract employee hired on a series of temporary employment contracts. She was asked to sign a new contract every few months under the same terms. Prior to joining TELUS, DM was diagnosed with anxiety.
In January 2018, DM began to experience some unexplained health problems, including headaches, fatigue, low mood and “brain fog.” The symptoms seemed to flare up at work, and she initially thought it was something in the building that was triggering her. She told TELUS about the issue and requested an accommodation of her disability.
Work from home program
TELUS has a work-from-home policy that it calls the “Work Styles Program.” Eligibility depends on employee performance, it said. This was to ensure workers who require more help are able to access that support easily on-site.
TELUS denied DM’s request to work remotely because she was not meeting performance standards.
On Jan. 23, 2018, DM gave TELUS a note from her doctor. It stated that, for health reasons, a “trial of work from home is recommended.” TELUS said the note was vague in terms of the recommended trial, but that its human resources department would review it and determine how to proceed.
DM continued to report allergic reactions and made further requests to work from home. She also asked to work from another TELUS location, but was told it was not an option due to client confidentiality. The company told her that if she was able to work, she was expected to attend the workplace. Once it had information from her doctor, TELUS would then consider options identified by its benefits administrator.
Feb. 5, 2018, was the last day DM came into the workplace. On that date, she told TELUS that due to her allergy symptoms she would no longer come into the office and would work from home. TELUS told her it required a completed form so its third-party benefit administrator could consider possible accommodations — and she was placed on an unpaid leave.
‘Unexplained, vague, general symptoms’
On Feb. 14, 2018, TELUS received a completed form and letter from her doctor. It said she was suffering from “unexplained, vague, general symptoms.” The doctor indicated he was unable to formulate a treatment plan because he had limited contact with DM and there were no obvious functional limitations or medical restrictions.
On Feb. 23, 2018, DM’s request for accommodation was denied on the basis there was no confirmed medical diagnosis and she was not undergoing “reasonable” treatment. TELUS noted that the HVAC system in the building where she worked was current and hospital grade.
On March 20, DM advised she was moving to another town to live with her parents until the “situation resolved.” Nearly one month later, on April 17, TELUS asked if she planned to return to work or if she was resigning her position. DM replied that her medical assessment was on hold, as it would take nine months to see a specialist. She also said that her doctor did not recommend she return to the workplace until her medical issues were understood or resolved.
DM’s contract expired, as scheduled, on May 31, 2018. TELUS did not offer her a new contract.
Diagnosis and human rights complaint
During DM’s employment with TELUS, she pursued a diagnosis — but did not receive one. But, after moving to another town, a new family doctor referred her to an internist who did diagnose her condition.
In July 2018, DM was diagnosed with chronic fatigue syndrome and myalgic encephalomyelitis (CFS/ME). That internist completed a medical report in support of her application for provincial disability benefits.
On July 5, 2018, DM filed a human rights complaint against TELUS on the grounds of mental disability and physical disability. TELUS brought an application to dismiss that complaint arguing that, even if proved, DM’s allegation was not a violation of B.C.’s Human Rights Code and that it had no reasonable prospect of success. It also asked for costs and a warning to be issued to DM under the code.
On March 23, 2022, the tribunal dismissed DM’s complaint and found it had no reasonable prospect of success. But it declined to award costs to TELUS or issue a warning to her.
On May 20, 2022, DM appealed the ruling of the tribunal to the Supreme Court of British Columbia.
The appeal
The court tackled a number of issues in its ruling, one of which was the new medical evidence that DM obtained — and that the tribunal subsequently ignored.
“The evidence also supports the conclusion that her work performance had deteriorated and this was the reason that TES was not intending to renew her contract,” it said. “The triable issue is whether her deteriorated performance had something to do with her disability.”
It noted that TELUS said it was unfair for it to have to address new medical evidence which created a “moving target” to respond to. But the court said the balance of unfairness favours DM, pointing to the fact she was still investigating her disability when the contract ended — something that TELUS was aware of and tacking on the earlier comment about an arbitrary cut-off date and the time it can take to get an appointment with a specialist.
It concluded that the tribunal exercised its discretion arbitrarily in the following ways:
- not considering the failure of Telus to renew the fixed-term contract as ground for termination
- not considering substantial medical evidence provided by DM after the contract was not renewed
- failing to consider the argument that this was a new issue and new evidence requiring an amendment to the complaint
- not considering the employer’s duty to give DM reasonable time to investigate her disability before deciding not to renew her fixed-term contract when it knew that she alleged mental and physical disabilities and was still investigating their causes.
The court set aside the decision to dismiss the claim and remitted it back to the tribunal for reconsideration. It also awarded costs to DM from TELUS, but not from the tribunal.
For more information, see McNeil v British Columbia (Human Rights Tribunal), 2023 BCSC 481 (CanLII)
