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A Cautionary Tale of the Extent of the Duty to Accommodate when Employees Make Bad Work Neighbours

A recent case heard by the Public Service Labour Relations Board provided a reminder to employers that the duty to accommodate is not always satisfied by the employer’s proposed action. In this decision, the Federal Government was required to manage two Ottawa public servants who struggled to co-exist in the workplace. 

Line Emond worked as a statistics and data quality manager at the Parole Board of Canada and in 2009 a new employee, identified as Mr. X, moved into her neighbouring cubicle. Unfortunately, Ms. Emond found Mr. X to be a bad neighbour. Mr. X regularly swore, spoke loudly, made a lot of noise, and most notably regularly washed his feet with vinegar in the office. Ms. Emond found this behaviour to interfere with her ability to work and brought a complaint forward to her supervisor asking to be moved.

The supervisor at first did not move either employee – or take any action at all. Perhaps as a result of this inaction, the situation escalated. In May, 2010, approximately 6 months after Mr. X first moved in, an incident occurred. Ms. Emond was on the phone with a colleague when she was distracted by the noise Mr. X was making. In an effort to get him to stop, she banged on their shared wall. Mr. X came into her office and confronted her by asking “What is your problem?”. Mr. X then went on to warn Ms. Emond not to cross the line on the floor as he was not sure what would happen. Ms. Emond was frightened after this incident and again brought the issue to her supervisor. This time the supervisor offered Ms. Emond mediation and a new office. Ms. Emond accepted the new office but declined any attempt at mediation.

When the two employees were no longer neighbours it appeared that the situation had been resolved. Until 8 months later. At this time Mr. X filed a harassment complaint against Ms. Emond. One element of this complaint was upheld. Ms. Emond did not respond well to the complaint and went on sick leave for depression, fear and anxiety. Ms. Emond would be on sick leave for almost two years.

During the time Ms. Emond was on sick leave her employer continued to try to assist her in returning to work. She was offered an office in the executive suite which could only be reached by individuals with two security cards. This offer was refused, as Ms. Emond insisted that she would only feel safe working in a different building from Mr. X.

At arbitration, the employer relied on the offer of a secure office space as a reasonable accommodation. Unfortunately for employers, this position was rejected by the Tribunal. Adjudicator Gobeil found that Ms. Emond’s stress could only be addressed by relocating her to a different building. The Adjudicator also awarded her wages and benefits that were lost while she was on sick leave.

The Tribunal’s decision should remind employers to be responsive to an employee’s requests for accommodation and expressions of concern in the workplace. However, employers should keep in mind that employees are not entitled to perfect or their preferred accommodation in most cases. Accordingly, if an employer can demonstrate that the concerns and needs of the employee can be addressed by the employer’s proposal the duty to accommodate should be fulfilled.

The lawyers at CCPartners are well-versed in assisting employers with navigating the process of accommodation and handling human rights complaints. Click here for a list of experienced lawyers at CCPartners who can help.