Conflicting accounts played into a B.C. Human Rights Tribunal decision to allow a discrimination complaint against a Salmon Arm employer to proceed to a hearing.
In their March 17, 2023 decision on an application to dismiss the complaint, Tribunal member Shannon Beckett explained that Stephanie Evans, the complainant, worked at the Salmon Arm Buckerfield’s for approximately three-and-a-half years, and her employment was terminated on Aug. 8, 2019.
“In the months leading up to the termination, Ms Evans had injured her right elbow and had, for a time, been performing ‘light duties,” reads the decision.
Following the Aug. 8 termination, Evans filed a complaint with the Human Rights Tribunal alleging Buckerfield’s Ltd. (the respondents) and her former supervisor had discriminated against her on the basis of physical disability. The respondents deny this and applied to dismiss the complaint prior to a hearing.
According to the decision, the respondents argued Evans had no reasonable prospect of proving her physical disability was a factor in their decision to terminate her employment, or that they failed to accommodate her injury.
Evans said her complaint should proceed to a hearing, arguing she “provided substantial evidence of a connection between her physical disability and the adverse impacts she experienced when the respondents failed to accommodate her injury and then terminated her employment.”
Evans said that in May 2019, she began to experience significant pain in her right elbow and, on May 31, she provided her employer with a medical note indicating she was unable to perform her regular duties “due to injury,” her doctor recommending modified duties that did not involve heavy lifting. Evans was assigned light retail duties. On June 20, a second medical note was provided, explaining Evans was able to return to full duties; however, if her symptoms returned she would need to switch back to modified duties as soon as possible.
“Ms. Evans asserts that after returning to her full duties as a Retail Staff Assistant, she frequently had difficulty restocking dog food or soil due to her injury,” reads the decision. Evans claimed her employer never checked in regarding her ability to perform the heavy lifting tasks. The employer claimed the opposite, that after receiving the July 20 note, they checked in regularly to see how Evans was doing.
Both parties agreed with dropping the complaint against the supervisor (but not Buckerfield’s Ltd.), which Beckett supported. However, after reviewing the evidence, Beckett chose to dismiss the argument that the complaint has no prospect of success.
Beckett explained evidence of the key witnesses on both sides “is in direct conflict on a number of key issues, and a hearing is required to “determine the factual basis which will inform both the issue of connection between the disability and the adverse impacts, and the question whether the Respondents reasonably accommodated Ms. Evans.”
Beckett said a case manager would be in contact with the parties to discuss setting a hearing date and offer mediation services if there is interest in resolving the matter by mutual agreement.
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