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Oct 6, 2015

No discrimination with hidden disability

Employees with disabilities can be dismissed if there’s just cause and not discrimination

By Jeffrey R. Smith

It’s surprising sometimes that not all employers are aware of the duty to accommodate employees with disabilities. Most are now aware of the obligations they have under human rights legislation to not discriminate against employees based on disability — a protected ground against discrimination — and the need to investigate options for accommodation to the point of undue hardship. Though cases that come before courts and human rights tribunals show there are still some employers that don’t understand.

However, even the most conscientious employers can have difficulties if it’s not completely clear an employee has a disability. It’s been established that if an employer, within reason, ought to know about an employee’s disability, the duty to accommodate kicks in. This means even if an employee doesn’t directly disclose a disability to the employer, if there are clues that a reasonable person should pick up, accommodation is in play.

But when it’s not so clear and the employer has other reasons to send the employee packing, accommodation might not be automatic.

As an example, an Ontario employer faced a tough situation when one of its employees made violent threats to co-workers. Of course, this misconduct was unacceptable to the employer, so it dismissed the employee. After the dismissal, the employee revealed he had a mental disability and his dismissal was discrimination based on the mental disability.

The courts found the employee had disclosed certain disabilities including alcoholism, a thyroid condition and heart issues. However, the employee had kept his mental disability to himself. The trial court found the dismissal was a result of the employee’s misconduct, which had nothing to do with his previously undisclosed mental disability, nor any of his other disabilities of which the employer was aware.

An appeal court agreed, finding the employer’s decision to terminate was based solely on the employee’s threats, which damaged the employment relationship beyond repair. Both the misconduct and the decision to terminate were unrelated to the employee’s mental disability, said the appeal court: See Bellehumeur v. Windsor Factory Supply Ltd., 2015 CarswellOnt 9460 (Ont. C.A.).

So employers don’t always have to worry about dismissing an employee for cause and have the employee come back with a claim of discrimination based on a disability the employer wasn’t aware of — as long as the employer really wasn’t aware of it and wasn’t purposely avoiding the issue, and the reason for dismissal is legitimate and unrelated to the employee’s undisclosed disability.

There can be just cause for dismissal for employees with disabilities as well as for those without, if the decision is fair, nondiscriminatory and unrelated to the disabilities.

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