Didn't disclose any disability; insubordinate behaviour sole reason for firing
An Alberta worker’s suspension and termination was for insubordinate behaviour and not any disability that he failed to disclose and provided insufficient evidence to support, the Alberta Human Rights Tribunal has ruled.
The worker was employed in oilfield services operations for Essential Energy Services (EES), an oilfield services provider based in Calgary. He joined EES in 2013. His job was a safety-sensitive position that often required wearing a respirator. He had certificates in respirator training and had to regularly refresh his training without any restrictions on his ability to wear one.
On Sept. 24, 2020, EES assigned the worker to a worksite that required him to wear an N95 face mask in the work area and in work camps, in accordance with the site owner’s COVID-19 policy. The worker texted his supervisor to say that he wouldn’t go there because masks were required. He demanded to be assigned to another worksite that didn’t require masks, saying that he didn’t believe in masking policies in general.
The next day, the worker had an argument over the phone and the worker again said that he would not wear a mask. He did not request accommodation, but he said that he was “digging my heels in” and “I will not be muzzled.” EES temporarily assigned him to a worksite where masks were not required.
Employers shouldn’t be intimidated in asking for medical information they need to make informed decisions about accommodation, says an employment lawyer.
Disciplinary meeting for mask policy
On Sept. 30, EES held a disciplinary meeting with the worker over his refusal to work at the first worksite. The meeting was recorded and the worker demanded to talk to someone about it because he had medical reason for his mask refusal. He acknowledged that he had not previously disclosed any medical restrictions and was told that had he mentioned the possibility of a medical reason for not wearing a mask, the company would have handled the situation differently and he wouldn’t be asked to do anything that put him at risk.
However, the worker said that he didn’t have to tell his supervisor a reason for refusing to wear a mask and admitted to telling his supervisor that he would not be “muzzled.” He also called the supervisor a liar multiple times with profanity, was dismissive towards the supervisor, and kept repeating that he would record every meeting with the supervisor going forward. EES suspended him for 30 days.
The day after the disciplinary meeting, the worker provided a medical note that said he was not able to wear a face mask for medical reasons. This came out of the worker’s visit to his doctor in which he self-reported that he had experienced a traumatic workplace incident in the past while wearing a mask, which made him panic when he wore one. The doctor’s note did not indicate a diagnosis of a disability.
Management discussed the worker’s behaviour at the meeting and decided that it would be difficult for the worker to regain trust or rebuild a working relationship with his supervisor. This was a problem as the supervisor was the worker’s direct report for operational issues, safety concerns, crewing, and other safety-related issues. They also determined that the worker’s behaviour at the meeting was insubordinate.
An employer’s request for more medical information that delayed a worker’s return to work was not discrimination, the BC Human Rights Tribunal said.
Termination for insubordinate conduct
On Oct. 9, EES terminated the worker’s employment without cause, but claimed that it was because of his conduct at the disciplinary meeting.
The worker filed a human rights complaint alleging that EES discriminated against him in the area of employment on the protected characteristic of physical disability.
The Director of the Alberta Human Rights Commission reviewed the complaint and found that the worker did not inform EES that he was unable to wear a mask for medical reasons until he was facing suspension for refusing to work. There was no reason for EES to inquire whether the worker had a disability and the worker provided no substantial medical information until after his suspension. The director dismissed the complaint, finding that the worker’s suspension and termination were solely because of his behaviour, not any disability.
The worker filed a request for review, maintaining that his suspension and termination were discriminatory. He argued that he provided a medical note supporting his disability and the disability was a factor in the suspension and termination.
Terminating an employee for failing to co-operate in the accommodation process was reasonable, an adjudicator ruled.
Little evidence of disability
The tribunal found that it wasn’t clear if the worker had a disability or not, as the medical note provided little information and was based on the worker’s self-reporting of past trauma related to wearing a mask. There was no diagnosis or records from before the suspension that indicated that the worker suffered from a disability, the tribunal said.
The tribunal also found that even if the worker had a disability, his complaint had no reasonable prospect of success because there was “no genuine issue that the alleged disability was a factor in the workplace suspension or in the termination.” It was clear that EES had no knowledge of any disability before the disciplinary meeting, and the worker acknowledged at the meeting that he had not mentioned one previously. In his texted refusal to work and phone argument with his supervisor, he referred to his disagreement with masking policies, but he made no mention of a disability, the tribunal said.
In addition, the tribunal pointed to the written communications, including the worker’s texts and management’s emails, along with the recording of the disciplinary meeting that showed the worker’s behaviour was insubordinate. The evidence supported that EES’s approach to discipline, including the suspension and the termination, was related to the worker’s response to the work assignment on Sept. 24 and then his conduct in the disciplinary meeting and not at all to any disability, said the tribunal in dismissing the worker’s complaint. See Hanley v. Essential Energy Services Ltd., 2023 AHRC 57.
