'The employer had an obligation to inquire,' says employment lawyer
“If you have an employee that is [acting] out of character, you'd be well-advised to just speak to them and say, ‘Is there anything that we need to be aware of?’”
So says Jackie Laviolette, an employment and labour lawyer at Mathews Dinsdale in Calgary, after the Alberta Human Rights Tribunal found that the firing of a worker who reported for work intoxicated was discriminatory because the employer didn’t give the worker a chance to disclose his mental disability.
“Such an open-ended question shows compassion and care for your employees, but will also illustrate that you are alive to the possibility that people may be suffering from a disability that might impact their ability to work.”
The worker was a clerk at a South Country Co-op liquor store in Medicine Hat, Alta., hired in November 2020. There were no issues with his performance over the first two months of his employment.
On Jan. 27, 2021, the worker arrived for his shift and his supervisor observed him acting strangely. He seemed to be confused and was staggering around, knocking garbage cans over in the back of the store and falling on the ground.
The supervisor determined that the worker was intoxicated, so she and another employee sent him home in a taxi.
Worker tried to apologize about behaviour
Later that day and early the next day, the worker called his supervisor five times to apologize, but he was unable to reach her and his messages weren’t returned. He went to the store on the morning of Jan. 28, but the supervisor said that she couldn’t discuss the previous day’s events with him.
Later on Jan. 28, the worker met with a bankruptcy trustee, accompanied by his niece’s spouse, and began personal bankruptcy proceedings. He also completed intake forms and screening at Alberta Health Services Addictions and Mental Health Adult Community Services.
The supervisor completed an incident report and upper management reviewed the matter. Management informed the HR advisor that they had a zero-tolerance approach to their alcohol policy and the worker’s employment was to be terminated.
The policy prohibited employees from being intoxicated at work and stated that violations would result in “disciplinary action, up to and including termination of employment.” The policy also said that South Country would provide access to assistance programs and provide accommodation if “it is revealed that the impaired employee has a substance dependency.”
In addition, the policy stated that investigations were required for all violations.
Policy listed investigation steps around fit for work
The policy outlined the steps to follow if an employee was believed not to be fit for work, including:
- Escort the employee to a safe place.
- Ensure the employee is not left unattended and, if an alcohol or drug test is needed, escort them to the test site.
- Interview the employee and provide them with an opportunity to explain their condition.
At a Jan. 29 meeting, the worker was told that South Country had decided to terminate his employment and was asked if he had anything to say. The worker disclosed that he had mental health issues and had booked a counselling appointment, but the HR advisor replied that he “should have said something sooner.” They signed the termination letter and the worker was escorted out of the building.
According to the HR advisor, she was uncomfortable with the termination decision, but the vice-president of HR said the worker had failed to disclose any disability before the termination decision was made and he was on probation, so the decision was final.
The worker continued to reach out to South Country, sending emails and a medical note in early February with details of his disability. However, South Country sent him a letter on Feb. 23 stating that it would not consider accommodating him or reconsider the termination decision.
The worker filed a human rights complaint alleging that South Country discriminated against him on the grounds of mental disability. However, on April 2, he passed away from suicide.
South Country denied that the worker’s mental disability was a factor in the termination decision, as the decision had been made before the meeting and the worker didn’t disclose his disability before then. It argued that the termination was based on the strict application of its zero-tolerance policy.
Complaint allowed to proceed by tribunal
The tribunal noted that the Alberta Human Rights Act does not address whether a deceased complainant’s complaint can be continued by their estate. Although a 2010 decision ruled that the death of a complainant ends the complaint, another decision three years later found that a proceeding can continue if evidentiary thresholds can be met and it doesn’t prejudice the proceeding against the respondent.
Noting that South Country didn’t object, the tribunal determined that the complaint could proceed with the worker’s estate serving as the complainant.
The tribunal referred to the test to establish prima facie discrimination, which requires a characteristic protected under the act, an adverse impact suffered by the complainant, and a link between the adverse impact and the protected characteristic.
The tribunal found the worker’s mental disability was a protected characteristic and his dismissal was an adverse impact, meeting the first two elements of the test.
The tribunal also found that the supervisor “simply ignored” the drug and alcohol policy’s interviewing, testing, and investigation requirements when she sent the worker home in a taxi.
Duty to inquire by employer
As for when the worker disclosed his disability, the tribunal noted that an employer’s duty to inquire can be triggered even after termination. In this case, South Country had a duty to inquire when the worker disclosed his mental disability at the meeting, the tribunal said. Before giving the worker his termination letter, the HR advisor “should have paused to reconsider the duty to inquire and whether accommodation could be provided,” said the tribunal.
An employer’s duty to inquire is always easier to find in hindsight, but it’s a good idea to inquire when there is something out of the ordinary, says Laviolette.
“Anytime you have an employee who is acting extremely out of character, you shouldn't assume that there's a disability at play or anything like that, but maybe there is an opportunity to say, ‘You appeared out of character on this day, is there anything you would like us to know or that we should know?’” she says. “That's a very basic duty to inquire that I always think puts the employer in the position of illustrating care and attention to their employees.”
“But very clearly in the termination meeting when [the worker] disclosed his disability, I think that crystallized at that time very clearly that the employer had an obligation to inquire,” adds Laviolette.
The tribunal also found that South County failed to make any inquiries to determine if the worker had an alcohol addiction that may have contributed to his conduct at the time of the misconduct. The company failed to interview the worker, make any inquiries, investigate the matter, or seek medical information – all of which were required in the drug and alcohol policy, said the tribunal, adding that the failure to answer or return the worker’s calls and emails “effectively prevented” the worker from disclosing his disability before his termination.
“That was a missed opportunity, not listening to the individual when they disclosed that information and not stopping the termination meeting – that was an opportunity to inquire before actually delivering the termination letter,” says Laviolette.
Disability a factor in termination
The tribunal determined that the worker’s misconduct was caused by his mental disability, so the disability was a factor in his termination, which met the third element of the discrimination test. In addition, South Country did not demonstrate that it had accommodated the worker to the point of undue hardship – in fact, it didn’t attempt to accommodate him at all, said the tribunal.
“The timeline of events suggests that the disability [was a factor in the termination], so in the absence of any evidence to the contrary, the employer failed to prove [otherwise],” says Laviolette. “It goes back to this idea that an employer has to be not only perfect in terms of asking the right questions, but they have to be perfect procedurally and they have to make sure that they follow the procedure that leads towards termination.”
The tribunal directed South Country to refrain in the future from contravening the act. It didn’t award any damages since human rights damages are meant to compensate a victim for the effects of the discrimination and make them whole. The estate was not a person who could be placed in the same position they were in before the discrimination occurred, said the tribunal.
