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Undue hardship for company trumps discrimination

Employer could find no other positions for employee, tribunal says
About a year after being hired as a short-haul trucker, Goran Petrovic was assigned a different shift that required him to load and unload goods on pallets using a manual pallet jack

A company does not have to accommodate an injured employee if doing so causes the business undue hardship even if a case of discrimination has been proven, the Canadian Human Rights Tribunal ruled Aug. 16.

“The complainant’s disability was a factor in the respondent’s decision not to offer an accommodation for his return to work,” tribunal member Alex Pannu said. But, Pannu added, “his medical limitations were too severe for the respondent to accommodate without undue hardship.”

Bosnian immigrant Goran Petrovic obtained his Class 1 driver’s license and worked as a truck driver from 2005 until 2010.

He suffered a back injury in 2009 but did not report it to WorkSafeBC. 

He started work at TST Express in March 2010 as a short-haul truck driver. He did not have to do any lifting. About a year later, a change in shift found him in a job requiring him to load and unload goods on pallets using a manual pallet jack. Loads could be up to 2,000 pounds. 

In August 2010, Petrovic was injured lifting a bridge for a loading dock and developed severe back pain that radiated down both his legs and into his right thigh. He was unable to work for two days. 

He again did not make a claim with WorkSafe BC. 
In 2011 and 2012 he suffered further injuries that he reported.

The pain worsened, necessitating a neurosurgeon referral then back surgery in July 2012. 

Between May 2012 and April 2013, Mr. Petrovic remained on medical leave from TST while receiving short-term disability benefits from the company’s insurer. 

He unsuccessfully sought benefits from WorkSafeBC. The occupational health and safety regulator found while finding Petrovic was injured, it ruled he did not suffer the injury during the course of his employment with TST. 

Petrovic's physician said that he could gradually return to work as a truck driver with local driving, no heavy lifting and no pushing, pulling or carrying.

On reviewing the medical report, the company said Petrovic remained medically incapable of resuming his full-time driving position. A letter went on to say that TST was currently unable to offer safe and suitable accommodation with medical restrictions. 

As his disability claim ended, Petrovic was on an unpaid leave of absence from TST. He received various benefits and was designated as a person with disabilities. 

A further medical report said he could return to work with restrictions such as driving limited to two hours per day and no lifting. 

After the filing of a union grievance, TST advised it was unable to find suitable accommodation for Petrovic, as the medical restrictions were too limiting and severe to be accommodated. 

TST offered Petrovic $3,500 severance but he declined the offer. Soon, TST considered additional opportunities, including a possible position in the Burnaby office upon receipt of Petrovic's resume.

The tribunal heard the company had looked at options with other companies to assist Petrovic.

The company received nothing and eventually Petrovic’s employment was terminated. It was then that he filed the tribunal complaint where lawyer Sherry Shir represented him. The company was represented by lawyers James Kondopulous and Sylvia Nicholles.