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CANADIAN HR LAW
Apr 9, 2014

A speck of discrimination can lead to a human rights claim

Employees can win cases if a protected ground is any part of the reason for dismissal – or not getting hired
    

By Stuart Rudner

We all know you can't take prohibited human rights factors — such as age, religion or family status — into account when making hiring or firing decisions.

However, we often see employers make the mistake of dismissing an employee for legitimate reasons but allowing an inappropriate reason to be the trigger or enter into their consideration. It is crucial for employers and employees to understand that, in order to show a breach of human rights legislation, the employee does not have to show the sole reason for the employer’s action was a protected ground. They need only prove that the protected ground was a part of the reason.

In other words, if the decision to dismiss, or not to hire, was made even partly based upon a protected ground, that is a breach. It can be a minute portion of the reason, and a breach will still be found.

In the recent British Columbia Human Rights Tribunal decision in Price v. Top Line Roofing, the allegation was that the complainant was dismissed due to his age. The employer put forward evidence to demonstrate there were legitimate performance reasons for the decision to dismiss, which was not accepted. As the tribunal wrote:

[75] All of Top Line’s witnesses testified that Mr. Price was laid-off because of a “lack of productivity”. They agreed that Mr. Price is skilled and experienced. There were no criticisms about the quality of his work. The issues raised concerned “slowness”, “appearing that he was not happy or did not want to work”, his looking for an easier job when he left the company to work as an inspector, the number of times he was sent home or did so willingly in inclement weather when there was a lack of work, his willingness to be sent home early, and being, according to Mr. McFarlane, the most junior journeyman (having the least seniority) because one was treated as a new hire every time there was a re-hire.

[76] I accept Mr. Price’s evidence that all of these complaints about him were “news to him.” Top Line’s evidence included many complaints about Mr. Price.

On the evidence before me, I am unable to make findings of fact that Mr. Price was laid-off for performance issues or lack of qualification. The same is true for the alleged lack of seniority. It was undisputed that, shortly after Top Line hired new employees, it laid-off older ones. This was inconsistent with the evidence that the practice was to lay-off the most recent hire. This required proof of a non-discriminatory reason for the termination. Generally, the testimony of Top Line witnesses seemed to me to be justifications for Mr. Price’s lay-off that were articulated after the fact.

[77] There is no doubt that age, as in aging and the lack of capacity to perform work, can be inextricably linked. An employer cannot terminate employment based on stereotypic assumptions about age, but there may be circumstances when the reasons for termination are related to declining performance. If job performance is the issue, an employer must treat the older employee with the same respect accorded to all employees, that is, notice of the job performance problems and an opportunity to meet the workplace standard. If a disability is involved, the employer has a duty to accommodate. It is a case-by-case assessment.

[78] In this case, I find that Mr. Price has established a prima facie case of discrimination. The evidence about the hiring of a younger journeyman and two apprentices and, shortly thereafter, the lay-off of Mr. Price and A, allowed me to reasonably infer that age was a factor in Mr. Price losing his job. Top Line’s evidence was not sufficient to allow me to conclude otherwise. Accordingly, Mr. Price established discrimination because of his age contrary to s. 13 of the Code.

As you can see, the courts and tribunals will critically assess any allegations in order to determine whether a protected ground was part of the reason for the employer’s course of conduct. Another example would be the case, a few years ago, in which the court found an employer had perfectly legitimate reasons to dismiss the employee. However, the “straw that broke the camel’s back” was when the employee took an unauthorized day off to observe a religious holiday and was promptly fired. Since that was clearly a part of the reason for the dismissal, the employer was found to be in breach of the human rights legislation.

Tips for employers: If you are going to dismiss an employee, be sure the dismissal is “clean.” Do not allow any human rights issues to seep into the mix, and document the reasons for dismissal clearly. You may need to “prove a negative” — that you didn’t dismiss someone due to a protected ground.

Employees: If you suspect that a protected ground was part of the reason that you lost your job, consider whether you have a legitimate basis upon which to make such an allegation. If you can make a credible claim, then the employer will be forced to respond.

    
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