WINNIPEG, Man. — There’s a fine line between safety and making reasonable accommodations for employees; a lesson Lucinda Brummitt experienced first-hand when she was let go by a Manitoba trucking company for allowing her service dog to travel with her in-cab while on the road.
Landing a driver position in September 2015, Brummitt was fired shortly after by Jade Transport for having her service dog, Mr. Big, ride with her in the truck.
Brummitt said the company was aware she had a service dog, and the dog had even accompanied her on several trips with an owner-operator the Winnipeg-based company had used at the time.
“We made sure that Jade Transport knew we had my service dog with us in the vehicle, as we were crossing borders and going to chemical plants,” Brummitt said. “We filed a waiver with Jade for our travel. We took Mr. Big on lots of trips totaling over three months of on the road time with no issue.”
However, Brummitt was not originally hired to be a driver for Jade, but rather as a dispatcher. Brummitt said that during the interview process, the fact that she had a service dog was part of the discussion, and that having a service dog in the office ‘would have been a non-issue.’
Brummitt, who is a US army veteran, moved to Canada when she met her husband in North Dakota, who is also a truck driver and a Manitoba native.
“When I got in the country to fill out the paperwork for my visa and permanent residence that they had contracted to pay, they changed the plan to me driving a truck in order to get to work faster,” Brummitt said.
Brummitt claims she was moved into a driver position without her prior knowledge, but in an effort to make the transition into Canada, she accepted with the hopes that she would be transitioned back to the dispatcher position after a six-month review.
During orientation, Brummitt said her service dog tagged along, but once assigned a truck, she was asked to leave Mr. Big at home while on the road and was told of the ‘no dog’ policy the company has had in place for over 25 years.
Brummitt said she suffers from post-traumatic stress disorder (PTSD) from her time serving in the Army, and the service dogs she has had, including Mr. Big and another named Cookie, help her stay healthy by getting out of the truck for exercise, keep her company while on the road, warn her when she is overtired and even nudge her when they knew she was dealing with stress.
“They have both been highly attuned to the people, places and surroundings, allowing me to relax and not be so hypervigilant, which is a great help,” Brummitt explained. “They both have been my best friends in life.”
On her first day of work, Brummitt said she was told to drive a different truck than the one she was told previously – the same owner-operator’s truck she had accompanied when first starting – which she claims a safety officer and immigration attorney warned her would violate Canada’s Labour Market Impact Assessment (LMIA) conditions, which is conducted before a Canadian employer can hire a temporary foreign worker.
Brummitt said she was “forced” to drive the owner-operator’s truck, who was subsequently told to drive a company truck because they did not want the service dog in one of their own vehicles.
Brummitt claims that the company has also retained her wages, something she says is wrong because according to the LMIA, she was hired to work for Jade Transport, not the owner-operator.
Brummitt said she has had conversations with the Labour Board officer who is reviewing her case.
Asked to comment, Carmen Devereaux, communications advisor with the communications and outreach branch of the Canadian Human Rights Commission, did not address the allegations directly.
“Anyone who is eligible to file a complaint with the Canadian Human Rights Commission and who feels that they have been discriminated against is encouraged to file a complaint,” Devereaux said. “This includes foreign workers with valid status.”
Anyone who feels they have been treated unfairly should first determine if the Human Rights Commission can accept their complaint. If it is, the complaint will be investigated by the commission by an investigation officer who may speak with both parties, interview witnesses, review supporting documents and determine whether there is evidence to support the allegations in the complaint.
Devereaux underscored that the parties involved could decide to engage in mediation, which is voluntary and confidential.
“It gives each side the opportunity to explain their understanding of the story, and then attempts to resolve the concerns that led to the complaint,” she said. “If the mediation works, then both sides must sign a settlement agreement.”
Once the investigation is complete, commission members review the report to determine if the complaint should be dismissed, sent to conciliation, or referred to the Canadian Human Rights Tribunal for a decision.
As for whether an employer is obligated to accommodate a disability, Devereaux said they must to the point of undue hardship, but added that there is no standard formula or precise legal definition of undue hardship.
“Under the Canadian Human Rights Act, an employer can only claim undue hardship when adjustments to a policy, practice, by‐law or physical space would cost too much or create health or safety risks,” Devereaux said. “Each situation should be viewed as unique and assessed individually. The point of undue hardship varies for each employer and for each accommodation situation.”
A claim of undue hardship must be supported with facts, with the employer providing evidence as to the nature and extent of the hardship, Devereaux explained.
“They should also be able to show that all reasonable means of accommodation have been exhausted,” she said.
When safety is raised as the basis for undue hardship, Devereaux said employers must consider whose safety is at risk and the magnitude of the risk, and whether that employee can be moved to a non-safety sensitive position.
“Once undue hardship is demonstrated,” Devereaux said, “the employer is no longer required to accommodate the employee.”
The Canadian Human Rights Commission does not comment on specific cases which are under review. Brummitt filed her case in January 2016, and it is currently being reviewed by the commission.
Truck West reached out to Jade Transport, which did not respond as of press time.