In Complex Services v Milloy ( 2018 ONSC 3590) Justice Conway, on appeal, had the following situation:
Ms. Milloy worked for Complex at its Niagara casino for 10 years, initially as a hostess and later as a table games dealer. In February 2007, at the request of her doctor, Ms. Milloy was placed on modified duties due to a work-related repetitive injury to her right shoulder. She had surgery in July 2007 and returned to work. By April 2008 her doctor told her that her injury was permanent and she could no longer work as a table games dealer.
3 Ms. Milloy was given modified duties in various departments at the casino for another two years. During this time, Complex told her to seek alternate employment within the casino that was not a table games dealer position. Ms. Milloy applied for 16 to 22 jobs at the casino, including positions that she had previously held and for which she had received excellent reviews. However, her applications resulted in three interviews and no job offers.
4 On June 3, 2010, Complex terminated Ms. Milloy on the basis of frustration of contract. Ms. Milloy sued for wrongful dismissal.
The Employer took the position that the plaintiff’s employment was frustrated because she could not perform any job at the casino. However as noted above, the reason she did not obtain an accomodated position is because the employer chose someone else for a position which the plaintiff presumably was both qualified for and capable of doing. The Court assumed that the reason the Employer did this was because the other person may have been more qualified than the plaintiff.
The trial judge called this ” self induced frustration”, presumably because it was the Employers’ actions which prevented the plaintiff from finding an alternative position within her medical restrictions.
The trial judgement was upheld and it was found that the plaintiff had been wrongfully dismissed.
Lets us assume that the Employer truly believed that the person they hired to do the job was superior to the plaintiff but that the plaintiff did still meet the qualifications of the job.
Under normal circumstances, in a non- union environment the Employer is free to hire the best candidate .
However, as this was a situation involving the placement of a disabled employee through the process of accommodation, does not the Ontario Human Rights Code require accommodation to the point of undue hardship?
Surely it is not an undue hardship for an employer to place a qualified disabled employee into a vacant position ahead of a superior non-disabled candidate.
It does not appear that this was argued at the trial. If this had been framed as a human rights violation as well as a wrongful dismissal action then the possible award could have been much higher. In fact it could have involved an order to reinstate the employee as well as monetary damages.