The Rural Municipality of Baildon discriminated against former office administrator Diane Vivian Gronvold because of her disability and must pay her more than $122,000 in damages, a judge has ruled.
In a decision released recently, the Hon. Madame Justice B.L. Klatt determined that the RM did not consider Gronvold’s disability — a concussion — and had a duty to accommodate her challenges, while it did not establish during a trial that accommodating her disability would result in hardship for the organization.
Gronvold worked for the RM from Oct. 7, 2013 to Sept. 27, 2016 and was injured in a non-workplace accident in November 2014 where she suffered a serious concussion. She attempted to return to work twice but was unsuccessful due to headaches.
Her doctor approved her return to work gradually, but in 2016, the RM told her it would not support her back-to-work plan and that nothing short of full-time employment would work. Gronvold later filed a complaint about her treatment.
Based on income lost from July 18, 2016 to Dec. 31, 2018, Justice Klatt ordered the RM to pay Gronvold:
- $78,010.67 for lost income and wages
- $31,388.18 for lost income in hail insurance commissions potentially earned in 2017 and 2018
- $2,658.86 for out-of-pocket expenses for drug and replacement health plan premiums
- Remit the employer’s share of CPP contributions on $78,010.67 during the loss period, while Gronvold would pay the employee’s share
- Remit the employer’s share of MEPP contributions on $78,010.67 for the loss period, while Gronvold would pay the employee’s share
- $10,000 in special compensation
Excluding the CPP and MEPP contributions, the RM of Baildon must pay Gronvold $122,057.71 in damages.
“There is no debate here that Gronvold suffered a disability that attracts the protection of the (Saskatchewan Human Rights) Code and the (Saskatchewan Employment) Act. … there is also no question she suffered adverse treatment by the RM,” Klatt wrote.
Gronvold asserted that the RM discriminated against her by failing to accommodate her disability, while its “stalwart” and “intransigent” position was always that nothing but full-time employment was acceptable, the justice said.
Meanwhile, the RM argued that accommodating her gradual return would cause hardship since it would have to create a new position for her. Also, by refusing to engage in an external health assessment, Gronvold allegedly frustrated her job contract.
Klatt determined that Gronvold suffered from a disability that attracted protection under the legislation and suffered from the RM’s adverse treatment. That treatment included the RM sending Gronvold letters asking about her condition in an aggressive and threatening tone.
“I find that at no time did the RM support Gronvold in returning to work on anything less than a full-time basis; nor did it make any attempt to,” the justice wrote.
Gronvold returned to work part-time on April 20, 2015, per her doctor’s authorization. However, the next day, then-Reeve Wilfred Yuke and then-Deputy Reeve Robert McLarty told her the arrangement was not working and was too hard on co-worker Christine Breitkreuz.
They remained in her office for two hours, “hammering her with questions” about her efforts to obtain better medical advice and treatment.
“I accept Gronvold’s evidence entirely as to what transpired in her office. (Meanwhile), Yuke’s attitude and sentiments on a gradual return-to-work plan did not improve over time. Nor did those of McLarty or anyone else on council for that matter … ,” the justice continued.
Klatt noted that Gronvold’s disability was the only factor in the RM’s decision to fire her.
Duty to accommodate
An employer’s duty to accommodate an employee to the point of undue hardship arises from section 2-41 of the Act, while the onus to do so is high, Klatt said.
“There is no evidence that the RM even considered what was possible and what was not. In fact, because of its inflexible position, it categorically rejected any kind of accommodation at all,” she wrote, noting the “inescapable conclusion” was the RM failed to explore innovative ways to help Gronvold carry out any of her duties as administrator.
The RM’s proposal that Gronvold undergo an external health assessment by a consultant who could prepare and evaluate a return-to-work policy was a “thin ‘Hail Mary’ attempt to comply with the statutory duty to accommodate,” wrote Klatt.
The RM had enough information about Gronvold’s condition and knew computer work triggered her concussion-induced headaches. The organization also knew what Dr. Jan Vermaak — Gronvold’s physician — thought about concussions and that determining whether an employee was fit for work was to do the job.
Gronvold’s injury did not lend itself to the RM’s desire for certainty, while the organization did not provide evidence about how the external assessment would provide better insight into a back-to-work plan, the justice said.
Therefore, Klatt added, the RM discriminated against Gronvold because of her disability and failed to accommodate her condition and return-to-work plan.
Gronvold now works for the RM of McKillop.