'They didn't bring the evidence that showed they went through this process of analysis as to which person was selected'
“If you know someone's going to check your work, then you're going to be much more consistent with respect to your approach, because you won't have a situation in which you're not confident that a third party will see [a termination] the same way you did.”
That’s the approach employment lawyer Michael Horvat recommends employers take when choosing which employees are to be terminated in a company restructuring. Considering all the factors, particularly discriminatory factors, will help avoid the risk of a human rights complaint, according to Horvat, a partner in the Workplace Law Group at Aird & Berlis in Toronto.
It’s an approach that might have helped Bell Canada after the Canadian Human Rights Tribunal ordered it to pay more than $120,000 in discrimination damages to a worker it let go as part of a corporate restructuring, shortly after the worker returned from a medical leave.
“If Bell knew that this was going to be looked at by the Canadian Human Rights Tribunal, it would have informed their process and they would have said, ‘This is not enough information, we won't be able to demonstrate based on this information to the third party why we selected this individual,’” says Horvat. “But it helps if you know someone's going to check your work, you're more likely to go back and help yourself.”
Health problems, personal loss
The worker joined Bell Canada in May 2016 as a business development manager, responsible for maintaining and developing customer accounts. A few months later, the worker started to have health issues and Bell had no issues with him taking time off to attend to them.
In January 2017, Bell changed their business development structure and the worker was transferred to a new team with a new boss.
The worker was diagnosed with cancer in April 2017. It was a recurrence of cancer from which he had suffered five years earlier. Around the same time, the worker’s father was hospitalized – the worker had been his father’s primary caregiver for five years. The worker informed management when his father went into palliative care and also about his cancer.
The worker took a five-day bereavement leave after his father died in late April, saying the situation was taking a toll on him. When he returned, he worked full-time for a few days to prepare his business accounts for transition to someone else, as he was taking a medical leave for cancer surgery. Bell didn’t offer any support at the time.
The worker went on medical leave on May 5. He returned on a gradual return-to-work plan established by Bell’s third-party insurer in October. Bell didn’t want to disrupt customers, so his accounts remained with others and he worked on a team doing a large project. However, according to the worker, when customers learned that he was back, they began calling him, which led to him being overwhelmed.
The worker raised the issue of his workload to his manager, who suggested he could go on a short-term disability leave.
After another short leave, the worker returned in November. However, he experienced the same problems. Bell didn’t offer any accommodation as the insurer had cleared the worker to work with no restrictions.
Terminated in restructuring
Bell terminated the worker’s employment on Dec. 6, telling him that changes in the organization had eliminated his position. A total of 126 employees were terminated in the 2017 restructuring, but the worker was the only employee from his team that was terminated.
The worker filed a human rights complaint, alleging discrimination on the basis of disability and family status. Bell initially suggested that the worker’s substandard performance was part of the reason for termination, but then maintained that his termination was due to a corporate restructuring and neither his medical leave or his family status were considered in the termination decision.
Read more: A worker’s surgery and lengthy recovery time was a discriminatory factor in the decision to terminate him during a company restructuring, the Ontario Human Rights Tribunal found.
According to the top manager of the worker’s new team, the worker was relatively new and she didn’t think that he was able to meet her expectations. She also claimed that she had him in mind as the top candidate for termination at the next restructuring when he was assigned to her team in January 2017. She was aware at the time of his father’s death, his cancer, and his difficulty returning to work.
Prima facie discrimination
The tribunal noted that the test for prima facie discrimination that the worker had to prove – he had a characteristic protected under the Canadian Human Rights Act, he experienced an adverse impact with respect to employment, and the protected characteristic was a factor in the adverse impact.
The tribunal found that the first part of the test was met for both disability and family status – the worker had cancer that resulted in surgery requiring medical leave and he had to care for and mourn his father.
The second part of the test was also met, with the termination of employment causing an adverse impact on the worker financially, emotionally, and psychologically, said the tribunal.
As for the third part of the test, the tribunal found that the worker advised Bell of his father’s condition only a short time before his death and there was insufficient evidence to show that family status was a factor in his termination eight months later.
No proof disability wasn’t a factor
However, there was no evidence indicating that the termination was due to poor performance or just restructuring, the tribunal said. The worker’s new manager was focused on outcomes and her team’s performance, and it was likely that she felt that the worker wouldn’t be able to meet her high standards or be useful because of his medical condition.
There was no documentation by the manager or Bell on the decision-making process, which left Bell unable to prove that the worker’s disability wasn’t a factor in the termination, said the tribunal.
“The tribunal doesn't expressly state this, but the decision was tainted by acting upon [the worker’s] potential restrictions and absences due to their disability, and the consequence of that is that you've got to bring even more evidence and be more transparent in your decision-making process,” says Horvat.
“In this case, they didn't bring the evidence that showed they went through this process of analysis as to which person was selected and the criteria that was used to determine who were the stronger performers and who were the poor performers.”
The tribunal noted that the manager’s “single-minded pursuit” of her team’s sales and customer focus led her to decide that the worker was a “liability to her goals.”
“Ultimately, you had a situation in this case where this manager had… constructed a team that she wanted, and the individual was on the outs in respect of that team, and then the termination coincided with a restructure,” says Horvat. “So that becomes the problem – you can't just terminate on a restructure, and say, ‘We restructured so we're OK.’”
Backwards approach to termination decision
Bell’s approach to the termination decision was backwards, and it should have properly analyzed objective factors to pick the person to terminate as part of the restructuring, says Horvat.
“I think they were looking for an end result, and then his manager was looking to rationalize her decision-making process as opposed to selecting on the basis of the objective criteria,” he says. “If you're going to make those tough decisions, be transparent about it.”
The tribunal determined that Bell discriminated against the worker on the basis of disability, as his medical leave and condition were factors in his selection as the employee to be terminated in the restructuring. Bell was ordered to pay the worker more than $90,000 as compensation for lost wages until he found a new job, plus $15,000 for pain and suffering and $15,000 in special damages due to Bell’s reckless conduct in terminating the worker while he was suffering from a disability.
Read more: Changing the job duties of a worker on medical leave without giving him a chance to try the modified job before terminating him was discrimination, the Newfoundland and Labrador Board of Inquiry found.
Horvat says it’s not an uncommon situation when a new manager comes in and they have to reduce the team’s size, but that’s where it’s important to be transparent and straightforward about the process while ensuring any potentially discriminatory reasons are not part of it.
“[If] your team is five people but you have to go down to four people, and if [the manager] recruited three of them and one’s a new hire, she's going to easily say, ‘I don't want to keep this guy because he's not one of mine,’” says Horvat. “If that's the reason, then be transparent – that would have been a better reason.”
“Be consistent in your approach and, if you've got a process, be consistent to the process, and then you won't be concerned if it's [scrutinized],” he adds. “It'll be easy when it's challenged, because you will be transparent: ‘Here’s the reason you were selected, here's our analysis. He was not my guy.’”
See Luckman v. Bell Canada, 2022 CHRT 18.