Disabled employees not immune to being fired

An employer can terminate a disabled employee as long as the disability didn’t play a part in the decision to terminate

Though employees with disabilities are protected from discrimination under human rights legislation, it is not impossible to terminate them for legitimate reasons. The British Columbia Court of Appeal recently gave employers leeway in dismissing disabled employees by affirming their ability to terminate an employee with a disability within certain parameters. Specifically, an employer is able to terminate a disabled employee as long as the disability played no part in the employer’s decision to terminate.

Employee admitted to stealing from employer

In British Columbia Public Service Agency v. B.C.G.E.U., the employer suspected the employee of committing theft in the workplace. When confronted, the employee admitted to the theft after he was assured there would be no criminal charges laid. The employee also informed the employer for the first time that he was an alcoholic. The employer terminated the employee for the theft and the employee filed a claim of discrimination on the basis of disability asserting the theft he committed was due to his disability of alcohol dependency.

The arbitrator found “the employee’s termination for theft was prima facie discriminatory because a disability (alcohol dependency) was a factor in that theft.”

Fired for theft, not alcoholism: Court

The British Columbia Court of Appeal disagreed with the arbitrator’s decision, however, finding no suggestion the employee’s alcohol dependency played any role in the employer’s decision to terminate him or refuse his request for lesser discipline.

“The fact that alcohol dependent persons may demonstrate ‘deterioration in ethical or moral behaviour,’ and may have a greater temptation to steal alcohol from their workplace if exposed to it, does not permit an inference that the employer’s conduct in terminating the employee was based on or influenced by his alcohol dependency,” the court said. “That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct.”

The court remitted the matter to the arbitrator to determine whether the firing was excessive punishment for the misconduct independent of the original discrimination finding.

Disability doesn’t make employees immune from termination

The B.C. Court of Appeal’s decision in British Columbia highlights an important consideration regarding employees who have a disability. It may be possible for an employer to terminate an employee who suffers from a disability without the termination being discriminatory. Although an employee may be disabled, her disability does not bar an employer from being able to terminate her as long as the disability played no part in the employer’s decision to terminate. However, if the employee’s disability was a factor in the decision to terminate, then courts will find the employer discriminated against her.

Both employers and employees should be mindful of the decision in British Columbia in order to recognize whether or not a termination is discriminatory. Where an employee’s disability is a factor in the employer’s decision to terminate the employee, discrimination has occurred. However, in some situations, determining whether a termination is prima facie discriminatory when the employee has a disability will be difficult. An employee with a disability may feel as if her disability was a factor in her termination even though the reason given by the employer did not relate to the disability at all. Similarly, an employer may terminate an employee due to her disability but claim it was for some other factor that is completely unrelated. Therefore, it can be difficult for an employee to be assured she was not terminated because of her disability and for an employer to establish disability was not a consideration in the termination of the employee.

For more information see:

British Columbia Public Service Agency v. B.C.G.E.U., 2008 CarswellBC 1941 (B.C.C.A.).

Ronald S. Minken is a senior lawyer and Minken & Associates P.C., an employment law boutique in Markham, Ont. He can be reached at (905) 477-7011 or www.EmploymentLawIssues.ca.

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