Dismissal before major surgery was discrimination based on disability: Tribunal

Employee told company he needed 8 to 12 weeks off to recover; employer claimed restructuring necessitated dismissal days before operation

An Ontario company discriminated against an employee when it terminated his employment shortly before he was to undergo surgery that would require time off work for recovery, the Ontario Human Rights Tribunal has ruled.

Timothy Pritchard was the director of professional services for Commissionaires Great Lakes, a security services provider in London, Ont. Pritchard was responsible for the Commissionaires’ training academy, which was a new venture for the company, though he was originally hired to sell training. On May 6, 2010, just over two years after he joined Commissionaires, he informed the company that he would be having hip replacement surgery on June 16, 2010, due to his arthritis. The operation required eight to 12 weeks of recovery time, which Pritchard proposed to cover with 23 sick days he had accumulated and two weeks of accumulated vacation time, plus an advance on the rest of the year’s vacation to cover the remainder. He also indicated he might be able to work from home at times to save some vacation days.

On June 7, the company asked Pritchard for a copy of his job offer so it could review his role at an executive meeting the next day. Pritchard asked if the company was looking for his termination clause, but this was denied.

On June 9, 2010, the HR manager met with Pritchard and told him his employment was terminated. However, the CEO was away, so a termination letter could not be provided at the time. Two weeks later, Pritchard received the termination letter stating that he would receive three months’ salary as severance pay, as per employment standards legislation and his employment agreement.

Three months later, Commissionaires posted an ad for a position similar to Pritchard’s, but based in Toronto. Pritchard filed a human rights complaint, claiming discrimination in his employment based on a disability. Commissionaires claimed business had declined in the London area and it needed to restructure. Though it had been aware of Pritchard’s upcoming operation, it claimed that had nothing to do with the termination decision.

The tribunal found that it was entirely possible that Pritchard’s position could have been restructured or moved to Toronto, where the new position was based. However, since the new position wasn’t posted until three months later, there was no evidence that the restructuring wouldn’t have happened some time later. Since the employer was aware of Pritchard’s operation, it was likely that the operation was a factor in the timing of the decision — only a week before the surgery — said the tribunal.

The tribunal also found that Pritchard’s arthritis and recovery time needed after his surgery constituted a disability under the Ontario Human Rights Code. Since the disability played a role in his termination, Commissionaires discriminated against him, contrary to the code. Commissionaires was ordered to pay $10,000 to Pritchard for injury to his feelings, dignity and self-respect. Since Pritchard found work quickly after his recovery in September 2010, his income losses were mitigated and Commissionaires had no liability for salary beyond the three months’ severance it had paid, said the tribunal.

For more information see:

Pritchard v. Commissionaires Great Lakes (July 26, 2012), Eyolfson — Adj. (Ont. Human Rights Trib.).

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