An Alberta human rights tribunal dismissed a disability discrimination complaint against Loblaws after finding a former employee failed to communicate with her employer for nearly two years following a workplace injury.
V.T. worked as a part-time salad bar clerk at Loblaws from December 2011 until she was deemed to have abandoned her position in July 2020. She suffered a work-related shoulder, elbow and arm injury in October 2018 and never returned to work after leaving early on Oct. 22, 2018.
The complainant filed her human rights complaint alleging discrimination based on physical disability. However, the Alberta Human Rights Commission found she failed to establish that her disability was a factor in her termination.
Communication breakdown
The tribunal found V.T. last personally contacted Loblaws on Nov. 1, 2018. After that date, her husband took over handling her employment matters, including speaking on the phone for her.
Despite numerous attempts by Loblaws to reach V.T., she never again communicated directly with the company. The employer made repeated phone calls, sent letters by courier, contacted her union, and even arranged for police to conduct a wellness check when she became unreachable.
“The respondent made concerted, repeated, and reasonable efforts to ensure the complainant was aware of her obligations with respect to communication and providing medical support for her absence,” the tribunal found.
Between November 2018 and July 2020, Loblaws left multiple voicemails that V.T. never returned. In December 2018, the company sent a letter reminding her of her obligation to maintain contact with the employer. V.T. confirmed during cross-examination that she was aware of this obligation.
Multiple accommodation offers ignored
Throughout V.T.’s absence, Loblaws made several offers of modified work based on medical information it received. The company offered accommodations on Nov. 1, Nov. 8 and Dec. 4, 2018, including customer assistance, checking code dates, clerical duties, cleaning, housekeeping, facing products on shelves, signs and labels, and inventory control.
V.T. did not respond to any of these accommodation offers.
The tribunal found that medical evidence consistently showed V.T. was fit for modified duties, even though she couldn’t perform her pre-accident work. Medical reports from various dates indicated she had restrictions on lifting, pushing, pulling and overhead reaching, but could perform other tasks like sitting, standing, walking and bending.
Workers’ Compensation Board correspondence also supported that V.T. was capable of modified work. In March 2020, WCB wrote that medical reporting supported her ability to work modified duties and that she needed to participate in her return to work.
Misunderstanding of medical clearance
The tribunal found V.T. and her husband incorrectly equated being unfit for pre-accident work with being unfit for any work at all.
“Either the complainant and her husband truly believed that because the complainant could not return to her ‘pre-accident’ position that meant she could not return to any work at all, or the complainant and her husband were purposefully ignoring the medical providers’ opinion that she could engage in modified duties,” the decision stated.
When presented with medical documentation during cross-examination showing she was cleared for modified work, V.T. repeatedly responded that her doctors did not say she was fit to return to work, or said she didn’t remember because her husband would know.
The tribunal found these responses contradicted the clear language in the medical reports and were not supported by the evidence.
Final warnings and termination
In March 2019, Loblaws wrote to V.T. warning that if she didn’t contact the company by March 24, 2019, her employment would be processed as job abandonment. She responded through legal counsel, which paused the termination process.
However, V.T. continued to fail to engage with the return-to-work process. She didn’t attend a WCB-arranged planning meeting in March 2020 and didn’t respond to additional accommodation offers in March and April 2020.
By May 2020, WCB had suspended V.T.’s benefits due to her lack of communication and failure to participate in return-to-work efforts.
In June 2020, Loblaws sent a letter requiring updated medical information by July 10, 2020. V.T. didn’t accept delivery of this FedEx letter and never picked it up from the depot.
On July 22, 2020, Loblaws terminated V.T.’s employment, stating she had “abandoned your position by failing to provide your employer with the appropriate supporting documentation and acceptable communication for your ongoing absence.”
No evidence of discrimination
The tribunal found no evidence that V.T.’s disability was a factor in her termination. The company’s human resources business partner testified the decision was based solely on V.T.’s failure to communicate and provide documentation, despite repeated attempts to reach her.
“There is no evidence (direct or circumstantial) that the complainant’s disability was a factor in the respondent’s decision,” the tribunal concluded.
The tribunal also found that even if discrimination had been established, V.T. failed in her duty to cooperate with accommodation efforts. Employees have an obligation to assist in securing appropriate accommodation and facilitate implementation of reasonable proposals.
Duty to cooperate in accommodation
The decision emphasized that accommodation is “a multi-party inquiry” requiring cooperation from both employer and employee. V.T. failed to communicate with Loblaws, didn’t accept or attempt to engage with offered modified duties, and didn’t obtain further medical evidence if she truly couldn’t perform the offered work.
“Any failed accommodation was not a result of the respondent’s inaction, but was because of the complainant’s failure to fulfil her duty to cooperate,” the tribunal found.
The complaint was dismissed.
For more information, see Thakor v Loblaws Inc., 2025 AHRC 75 (CanLII).
