Background
The applicant applied for a job and was invited to complete a short tryout to assess his suitability. He was asked to perform a task using a hammer drill. While doing so, he injured his hand, dislocating fingers and requiring medical treatment, including splinting, physiotherapy, and temporary work restrictions.
In the immediate aftermath, there were communication issues between the applicant and the employer. The applicant went to the hospital, and shortly afterward, communication between the parties deteriorated. The employer requested the return of company property (vehicle keys). The applicant became uncooperative and did not attempt to return to work or discuss next steps.
The applicant later brought a human rights application alleging failure to accommodate a disability, discriminatory termination and a poisoned work environment.
The Decision & Award
The outcome of the decision was mixed. The Tribunal determined that the employer had discriminated on the basis of disability, but only in a limited way. The discrimination arose from the employer’s failure to meet its legal obligation to inquire about the applicant’s condition and possible need for accommodation after his hand injury. The Tribunal determined that once the applicant was injured, the employer knew—or should have known—that he might have temporary limitations. By not asking about his condition or exploring whether he could continue the tryout with modified duties, the Tribunal determined that the employer breached its obligations under the Human Rights Code.
The Tribunal found there was no discriminatory termination since the applicant left the work site of his own accord, did not request accommodation or communicate an intention to return to work and did not cooperate in follow-up communications. The claim of a poisoned work environment also failed.
The Tribunal awarded the applicant $7,500 in compensation for injury to dignity, feelings, and self-respect. It did not award lost wages or other financial losses, because it found that discrimination was not a factor in the end of the working relationship.
Overall, the case fell at the low end of seriousness, on both the conduct and impact scales, due to the very short relationship, narrow breach of the duty to accommodate (failure to inquire), no failure to accommodate in practice, finding of harassment, or discriminatory dismissal. The applicant’s failure to request accommodation or attempt to continue the relationship, also limited the employer’s liability and the remedy in this case.
Key Takeaways
The case highlights that even a brief working relationship—such as a tryout—creates accommodation obligations under human rights legislation. In this case, the Tribunal confirmed that “employment” is interpreted broadly and includes tryouts, casual roles, verbal agreements and pre-hiring assessments. As such, employers should treat all such situations as covered by the Code.
This decision also reinforces that employers have a duty to inquire where they are aware of facts that indicate that an employee may require accommodation due to a disability. In this case, the employer was aware that the applicant had been injured while performing work, yet, according to the Tribunal, failed to take meaningful steps to follow up on the applicants limitations or whether he could continue with modified duties. The case highlights that failing to make these basic inquiries can result in a breach of the Code, even in short or informal work arrangements.
This case also reminds us that accommodation is a shared responsibility. While employers must initiate the process, employees also have responsibilities to communicate their needs, cooperate with reasonable efforts and participate in return-to-work planning. Where a worker fails to engage, it may reduce the employer’s liability but does not eliminate the initial duty to inquire.
