Employer had no documentation of conversations about performance issues
The Ontario Human Rights Tribunal has ordered an employer to pay a worker $80,000 for disability discrimination after the employer fired the worker after he applied for short-term disability (STD) leave.
Although the employer claimed the termination was for performance issues, it didn’t do a good job of documenting the issues – especially since the timing looked bad, says Ted Flett, an employment lawyer at Zubas Flett Law in Toronto.
“The proximity between the notification of the injury, the inquiry about and then the application for short term disability, to the date of termination - that chronology helped to lead the tribunal to the decision that there was discrimination,” says Flett.
Employee performance issues
ABC Group Product Development is a manufacturer of automotive systems and components in Brampton, Ont. The worker joined ABC as an information technology (IT) operations manager on April 3, 2017. The worker’s responsibilities included managing and improving the company’s technology infrastructure, planning and co-ordinating technology products, and implementing company-wide IT initiatives.
Before long, the worker’s boss, the vice-president of IT, started noticing performance issues with the worker. Employees who reported to the worker also expressed concerns about him.
The worker’s boss expressed his concerns to the worker on May 18.
A BC worker was not discriminated against when his employer discontinued his pay and benefits while on medical leave less than three weeks into his employment.
Verbal coaching
However, the performance issues continued, including: multiple projects that the worker abandoned; failing to keep the boss informed of issues that developed with projects; a complaint from a member of the ABC legal department that the worker was condescending to her; not drafting two policies properly; taking additional time on a business trip to visit a facility without approval; taking credit for a project completed by a subordinate employee; and feedback from a meeting with a customer that the worker should never meet with that customer again.
The worker was not disciplined for any of these issues, as his boss chose to informally coach him to help fix the issues. This included several meetings to clarify the worker’s responsibilities and ongoing discussions to identify and correct errors when they happened.
According to the worker, he met with his boss about once per week, but he denied receiving negative feedback about his performance during the meetings.
On Sept. 20, the worker’s boss told him that if he started any more projects without first completing ongoing ones, he would be terminated from his employment with ABC.
On Oct. 6, 2017, the worker was involved in a motor vehicle accident and he was rushed to the hospital, where he needed backboard and collar support for his injuries. He took a week of sick leave, returning on Oct. 14.
During his week off, the worker took high doses of pain medications, which made him drowsy and slowed down his work functions.
The Alberta Human Rights Commission ordered a company to pay a worker $30,000 for family status discrimination after a worker was fired a few days after her husband resigned.
Worker unable to complete project
In late October, the worker was unable to complete a project as scheduled and left without informing his boss or telling him about the issues. The boss had to bring in consultants to complete the work and bring the system back online. The worker said that he left the jobsite due to the drowsy side effects of his medication and his team members told him to go home, assuring him that the work would be finished. When his boss asked him why he didn’t stay until the job was done, the worker felt that he was unconcerned about his health and didn’t offer to help him.
The worker claimed that he told his boss that he wasn’t feeling well since the accident and wanted to go on part-time (STD) leave while working a few days each week, and the boss said he could apply. ABC provided the forms and instructions to apply for STD leave.
On Nov. 2, the worker’s boss expressed his dissatisfaction with the worker’s job performance while bonus cheques were being distributed. According to the worker, he received his bonus cheque but his job performance wasn’t discussed.
On Nov. 11, the worker provided a physician’s statement from his treating physician to ABC’s third-party disability benefits provider. The statement indicated that the worker had “severe back and shoulder pain, inability to rest and stand for long hours.” It also said that the worker was not totally disabled and could work modified hours. Nine days later, he provided a note from another doctor stating that he needed modified work hours and duties due to chronic back and shoulder pain.
Meanwhile, the worker’s boss consulted with the senior director of human resources and determined that the worker was not suitable for the role of IT operations manager due to his ongoing performance issues. On Nov. 15, he authorized termination of the worker’s employment.
An worker could not pursue a disability discrimination claim after signing a settlement agreement, the Ontario Human Rights Tribunal has ruled.
Application for STD benefits
On Nov. 27, the worker told his boss that he had applied for part-time STD benefits. However, the application was not approved. The next day, ABC gave him a termination letter. The letter didn’t provide any reasons, but the boss told him that “It’s not working out” and his projects were delayed.
According to the worker, he experienced frustration, anxiety, and loss of financial security due to the termination. He filed a complaint alleging that the termination while he was in the process of applying for STD benefits was discriminatory.
The tribunal noted that to make a case of prima facie discrimination, the worker had to prove that he had a characteristic protected from discrimination under the Ontario Human Rights Code, he experienced adverse treatment, and his protected characteristic was a factor in the adverse treatment.
The tribunal found that the medical evidence from the physician’s statement and the doctor’s note was sufficient to prove that the worker had a disability stemming from his injuries sustained in the motor vehicle accident. When the worker provided these documents, it was a request for modified work accommodations, the tribunal said.
The denial of STD benefits and termination of employment were adverse effects.
An employer could fire employees receiving LTD benefits as further accommodation with no prospect of returning to work was not possible, a New Brunswick adjudicator ruled.
Employer aware of disability
The tribunal noted that ABC was aware of the worker’s motor vehicle accident, he was receiving treatment, and he had requested STD benefits and modified work, at the time that the worker’s termination was being discussed. Given that the worker had not been formally disciplined for his performance issues, the timing of the termination decision led to “a strong inference that is disability was at least a factor,” said the tribunal.
ABC did not provide any written documentation of concerns with the worker’s performance issues, as the boss had used verbal communication and coaching. Without evidence of the concerns, any formal discipline, or attempts to accommodate the worker’s STD request, the tribunal found that the worker’s disability was at least a factor in the worker’s dismissal.
“Because there was no documentation of the performance issues with the [worker], the [employer] was not successful in asserting that the termination of the [worker’s] employment was based totally on performance issues,” says Flett. “The tribunal simply did not believe that the [employer] had actually had conversations with the [worker] regarding his performance.”
“And because the standard is that the worker only has to show his disability was a factor in the termination of his employment - and not the entirety of the reasons for the termination of employment – the worker was successful in making out a prima facie case of discrimination on the basis of disability,” he adds.
ABC was ordered to pay the worker $30,000 for injury to his dignity stemming from the discrimination and $50,000 for loss of wages and STD benefits, plus a letter of reference and a record of employment.
If dismissal for any reason is being considered and the employee suffers a disability, it’s a good idea to postpone that plan, says Flett.
“If they don't have carefully documented records to suggest that the termination will be related to the performance and not due to the employee's disability, I'd be suggesting this is not the time to terminate the [worker’s] employment,” he says. “Even if there were bona fide performance issues that were documented, my instinct would be to say, ‘Let's hold off, let's wait on this termination.’”
