Company proved poor performance was reason for dismissal, not earlier complaints of bad hygiene
The termination of a British Columbia worker was not because of bad hygiene related to his disability, but simply poor performance, the B.C. Human Rights Tribunal has ruled.
Nigel Southwell was hired as a temporary employee in March 2016 by CKF, a manufacturer of food service and packaging products based in Langley, B.C. Southwell’s position was that of a thermoformer operator, part of the manufacturing process of food packaging. When Southwell started, he underwent significant training on food safety and personal hygiene, as did all CKF employees due to the nature of their products and the company’s requirement to adhere to strict food safety guidelines.
To ensure CKF maintained its strict guidelines and to ensure the packaging it produced wasn’t exposed to contamination, the company underwent regular compliance audits. In addition, new employees like Southwell were required to undergo a pre-employment medical screen, background criminal checks, and certifications before starting their employment with CKF. He was also subject to a 600-hour probationary period.
During Southwell’s training and medical screening, he didn’t advise that he had any medical conditions that could potentially cause problems with his job.
Soon after Southwell began working at CKF’s facility, other employees began complaining to management about his hygiene issues. They reported he spit on the plant floor, he blew on a product before returning it to the packing table, he brought a beverage other than water on the plant floor (contrary to company rules), he had bad body odour, and he didn’t remove himself from other employees before experiencing flatulence.
CKF management met with Southwell on March 15, 2016, and Southwell was told he should report any medical issues to his manager. Since the company knew of no medical conditions, he was given a letter summarizing the complaints against him and indicating expectations of improvement.
Over the next one-and-one-half months, there were no reported issues with Southwell’s hygiene. On April 30, Southwell met with his supervisor for a performance evaluation. The supervisor raised concerns over Southwell’s performance and his ability to follow instructions. Southwell was rated as requiring improvement on most of his performance criteria.
On May 16, CKF terminated Southwell’s employment while he was still on his probationary period, claiming his continued unsatisfactory performance and failure to demonstrate improvement was the reason for dismissal.
Three months later, in August 2016, Southwell was diagnosed with a disability that caused his body odour and excessive flatulence. He then filed a human rights complaint, arguing his disability played a role in the decision to terminate his employment, contrary to human rights legislation.
The tribunal noted that CKF acknowledged the possibility that Southwell had an underlying medical condition that contributed to his issues of body odour and flatulence. However, when the company asked him to take steps to address these issues, Southwell chose not to see a doctor. This wasn’t the fault of CKF and the company fulfilled its duty to inquire into the possibility of a disability, said the tribunal.
The tribunal found that there was no indication Southwell suffered from a disability at the time of his dismissal, as he had made no such claim and there was no way CKF could have known he had one. In addition, if Southwell’s body odour and flatulence were caused by his disability, there was no evidence they were related to his termination, said the tribunal.
“Mr. Southwell points to the March letter, wherein the issues of his body odour and flatulence are raised, as evidence that his disability was a factor in the termination of his employment,” said the tribunal. “However, that letter was issued about two months prior to the termination of his employment, and those issues were never raised again – not in any of the notes or other documents in evidence.”
The tribunal determined that CKF had a “reasonable non-discriminatory explanation” for Southwell’s dismissal — poor performance. There were concerns about his performance right from the start and his performance evaluation was consistent with that issue. CKF presented a series of reports of Southwell’s training and evaluation throughout March 2016 that showed continued performance issues. There were some occasional improvements, but these were marginal. In addition, after the March 15 letter, there was no reference to Southwell’s medical condition or hygiene issues.
