'There must be a connection [with the disability] for the termination to be discriminatory': lawyer
“A disability doesn't mean that the employer can’t terminate an employee where there are objective grounds for termination.”
So says Michelle McKinnon, a partner in the Employment and Labour Group at Cassels in Calgary, after the Alberta Human Rights Tribunal upheld a decision to dismiss a worker’s complaint that her employer discriminated against her after she was fired for time theft while on modified duties.
“There's always an increased risk when terminating an employee with a disability, but if there’s concrete evidence that establishes reasons other than the disability, then it's just going to come down to the evidence,” says McKinnon. “But an employer can absolutely discipline and terminate an employee for disciplinary reasons, even if they have a disability.”
The worker was an employee of Mind Alive, a manufacturer of brain stimulation devices in Edmonton. In 2018, she slipped on ice in the company’s parking lot and fractured her ankle. She successfully applied for benefits to the Alberta Worker’s Compensation Board (WCB).
The worker had two surgeries on her ankle in 2021 and resulting medical restrictions, so Mind Alive accommodated her with modified duties, reduced hours, and removing the shipping part of her job to reduce her walking and climbing of stairs. The WCB determined that the worker could not perform shipping duties except on an emergency basis.
Modified duties
In February 2022, Mind Alive asked the worker if she could perform some shipping tasks that were within her restrictions and didn’t involve physical activities. The worker agreed and didn’t express any medical concerns.
Mind Alive took a bit of a chance by asking the worker if she could perform additional duties without new medical information, but because the worker agreed it mitigated the liability risk for the company, according to McKinnon.
“The worker was agreeable and said, ‘Yes, but these are my limitations,’ and the company completely worked within those limitations,” she says. “And it looks like there were continuous conversations between the employee and the employer about restrictions, modifications, and accommodations - accommodation isn’t a static process, and an employee may have restrictions at one point but then with medical treatment, they improve and their restrictions change.”
Late in February, Mind Alive discovered a problem with the worker’s timesheets in which she had consistently over-reported her hours worked. This resulted in 30 extra hours in the prior three months for which she had been paid.
On March 17, the worker informed the company that she was experiencing pain in her ankle and she wouldn’t be able to continue shipping tasks. She said she had been afraid to tell the owners, but one of them emailed her to say he was “open to hear from you” and “we need to discuss this further if it means you cannot do shipping any longer as that is part of your job description.”
The worker said she would seek medical advice and the owner offered to modify her duties or replace her in shipping. The worker replied that she could still do shipping if someone else prepared the order, so they agreed that two other employees would help her on a rotating basis.
Performance review
The worker had her annual performance review on April 6. The issue of her incorrect timesheets was brought up, as well as the fact that the worker was watching Netflix while working, which slowed her down. In addition, the worker was having difficulty getting along with a co-worker and there was concern of her refusal to do shipping tasks that were within her restrictions.
According to management, the worker became defensive and belligerent in the meeting, asking why they were “picking on” her and if they were tracking the timesheets of other employees. The company was concerned that the worker wasn’t taking responsibility for overcharging her hours worked and her other issues.
The next day, April 7, Mind Alive terminated the worker’s employment for time theft. The worker then provided a doctor’s note dated three weeks earlier indicating “no shipping,” but said, “I never said I can’t do shipping, I said I can’t do it alone.”
The worker filed a human rights complaint alleging that Mind Alive discriminated against her on the ground of physical disability, claiming that her termination was because of her inability to perform shipping duties.
The Director of the Alberta Human Rights Commission found that Mind Alive had taken significant steps to accommodate the worker and the evidence was likely to show that the worker was terminated for her overreporting of hours worked, not anything related to her disability. The Director dismissed the worker’s complaint for having no reasonable prospect of success in a hearing.
Human Rights Tribunal
The worker filed a request for review on the grounds that the Director made conclusions and there were unresolved issues with the credibility of the parties that should be addressed in a hearing.
The tribunal found that Mind Alive was “clearly open to accommodations” and did, in fact, accommodate her from 2018 through 2022. The company adjusted her duties in response to medical needs and documentation such as emails and meeting minutes indicated that Mind Alive offered modifications to the worker’s shipping duties and responded promptly to her communications, said the tribunal.
The tribunal noted that the worker didn’t provide additional medical documentation indicating “no shipping” until the day of her termination for time theft. There was no supporting evidence to show that the worker had communicated unresolved concerns or additional accommodation requests when she indicated difficulty with shipping tasks on March 17 – for which the company arranged help – up to her termination on April 7, the tribunal said.
In the accommodation process, employers should ensure that they’re acting based on medical advice, says McKinnon.
“The medical information, including through the workers’ compensation process, included recommendations about restrictions on what the worker could do, and [Mind Alive] was responsive to that information,” she says. “And I think they really went above and beyond to accommodate her and to make changes to her workplace duties, to take into account that she has restrictions because of her workplace injuries.”
Documentation supported grounds for termination
The tribunal also found that Mind Alive’s documention highlighted a timesheet discrepancy and it was a central topic during the performance review. Meeting minutes from the session detailed concerns including inaccurate time reporting, interpersonal issues with colleagues, and job performance concerns, which the company all cited as reasons for termination.
“There must be a connection [with the disability] for the termination to be discriminatory,” says McKinnon. “But the board said it was just speculation - there's no way to say concretely that the employer terminated the worker because of the medical note, but there was also concrete evidence that the worker had overcharged her hours.”
“That's a very serious offense, stealing from an employer, so there was clearly an objective basis to support the termination that had nothing to do with the medical note,” adds Mckinnon. “If they wanted to terminate her because of the disability, they probably would have done that a long time ago.”
The tribunal noted that the worker had a responsibility to inform her employer of any limitations or need for accommodation, and to provide medical documentation as required. The evidence demonstrated Mind Alive’s ongoing efforts to accommodate the worker over several years, so the termination wasn’t linked to a refusal to accommodate but rather to performance and conduct issues, said the tribunal, adding that there was no proof that the company took the position that it could no longer accommodate the worker after more than three years of doing so.
“There was a significant amount of evidence of the worker raising issues about her ability to work and restrictions, and the company always being responsive to those communications,” says McKinnon. “And the communications with the worker were always very compassionate – it was always responsive to her needs, and they made various accommodations and changes within the workplace to accommodate her - ultimately, that’s the duty to accommodate.”
The tribunal affirmed the Director’s decision that a full hearing wasn’t warranted given the absence of sufficient merit to the worker’s complaint.
Accommodation process
The case not only highlights the importance of ongoing communication in the accommodation process, but also that employees have a positive obligation in the process, says McKinnon.
“It's not just about what the employer ought to do, but the employee also has a corresponding obligation to communicate with the employer to consider all reasonable changes within the workplace that the employer proposes,” she says. “The worker raised an issue that she couldn't do shipping duties, but she had agreed she could perform certain shipping duties with assistance – the company was acting on that information, and it’s another example of how Mind Alive was responsive to the issues that the worker raised.”
