PSLREB Awards $12,500 in Damages for Failure to Accommodate

On May 11, in its decision in Kirby v Correctional Services Canada, 2015 PSLREB 41, the Public Service Labour Relations and Employment Board ordered Correctional Services Canada (CSC) to pay $12,500 in back-wages and damages for pain and suffering for having discriminated against an employee on the basis of disability.

The employee, Larry Kirby, had been working as an institutional driver for the CSC when he injured his back in 2005 and became unable to perform some of the duties of his position. Initially, the CSC accommodated Mr. Kirby by reorganizing his position so that he could focus solely on duties he was medically able to perform.

In 2009, after three years of accommodating Mr. Kirby, CSC received a Health Canada assessment indicating that Mr. Kirby’s disability was permanent and that he should be accommodated in his current position on a permanent basis. Despite the CSC’s admission that there was sufficient work for Mr. Kirby, and that allowing him to perform it permanently wouldn’t cause undue hardship, CSC sent Mr. Kirby home on sick leave. The CSC alleged that it simply wasn’t its practice to create a position in which to accommodate a disabled employee.

The PSLREB Adjudicator found that that CSC could have continued to accommodate Mr. Kirby on a permanent basis in his former position with modified duties, and that the failure to do so was in violation of the Canadian Human Rights Act and the collective agreement. CSC was ordered to pay $12,500 damages for pain and suffering and wilful and reckless disregard of its obligations under the Canadian Human Rights Act.

Mr. Kirby was represented by David Yazbeck of RavenLaw.