Bus driver re-instated with seven years pay

Canadian Human Rights Tribunal orders OC Transpo to bring back worker it fired seven years ago for chronic absenteeism — also awards $3,500 for mental suffering

An Ottawa bus driver has had his job re-instated, along with seven years of back pay plus interest, by the Canadian Human Rights Tribunal.

Alain Parisien worked as a driver for the Ottawa-Carleton Regional Transit Commission, also known as OC Transpo, for 18 years before he was fired for chronic absenteeism in February 1996. Throughout the course of his employment, he was absent from work for about 1,664 full days and 33 partial days.

Most of those absences were attributed to post-traumatic stress disorder and ailments related to it. Parisien filed a complaint with the Canadian Human Rights Commission alleging OC Transpo failed to employ him because of a disability — post-traumatic stress disorder.

Parisien said a number of events might be responsible for his disorder. In 1979 his relationship with a woman to whom he was engaged ended suddenly. In 1980 his mother died of cancer. A few months later, he was the victim of a violent assault while he was driving his bus. His father passed away suddenly in 1987. In 1989 he was threatened by a male passenger who said he was going to kill him.

He was repeatedly on and off the job over the next few years, and was under the care of a number of doctors and psychiatrists. In mid-1994 he returned after an absence. Shortly after, he was confronted on the bus by several teenagers in a manner he thought was threatening. He said he felt scared and vulnerable, and that somebody was always out to get him.

He was eventually let go on Feb. 15, 1996, shortly after he had been cleared by doctors to return to work following an extended absence. OC Transpo thought his chronic absenteeism would recur, and that it was an undue hardship to accommodate him.

Under the Canadian Human Rights Act, it is a discriminatory practice to refuse to continue to employ an individual, or to treat an employee in an adverse differential manner, on the basis of a prohibited ground of discrimination. Disability is included among prohibited grounds for discrimination, and is defined as “any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.”

The only exception is where the employer can prove its differential treatment is a bona fide occupational requirement.

Athanasios D. Hadjis, the member of the Canadian Human Rights Tribunal who heard the case, said OC Transpo’s decision to terminate Parisien was based on his absenteeism, which stemmed from his post-traumatic stress disorder. In a nutshell, this meant OC Transpo breached the act when it let him go because of his chronic absenteeism.

“I am convinced (OC Transpo’s) decision to dismiss (Parisien) was an assumption that he would likely suffer from some sort of recurrence of prior illnesses, which would in turn result in additional absences from work,” said Hadjis. “Conduct that is based on an actual or perceived possibility that an individual may develop a disability in the future constitutes discrimination on the basis of disability.”

OC Transpo said its motive, at all times, was to manage the attendance within its workforce. Hadjis said labour relations law recognizes the right of an employer to dismiss an employee due to excessive innocent absenteeism provided the employer satisfies the test of demonstrating that the employee has a record of undue absenteeism in the past and that he is incapable of regular attendance in the future. But he said that was irrelevant to the tribunal.

“If the application of a labour relations policy has an unintended affect — the adverse differential treatment of an individual based on a proscribed ground of discrimination — there may still be a finding of discrimination against the employer who is implementing the policy,” said Hadjis.

OC Transpo argued this effectively meant an employer would never be allowed to dismiss an employee whose level of disability-related absenteeism is unacceptably high. Which would mean, in essence, the employer would be compelled to keep an employee who is unable to fulfill his end of the employment bargain — the performance of his work.

But the tribunal said those concerns were unwarranted because there are two issues to be considered in such cases:

•Did the employer meet the tests set out in labour relations jurisprudence to establish a case of non-culpable absenteeism?

•Did the employer’s conduct contravene the applicable human rights legislation?

The latter issue is resolved by conducting a bona fide occupational requirement analysis, the approach for which was most recently set out in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. [1999] 3 S.C.R. 3. The third step of this test maintains an employer’s right to dismiss an employee in such cases, provided the employer demonstrates it cannot accommodate the employee without imposing undue hardship upon itself.

The tribunal failed to see how tolerating future absenteeism would not be an acceptable type of accommodation.

“Aside from the mention of the possible, though unlikely, additional stress on overtime employees, I was not provided with any insight as to how accommodating (Parisien’s) potential future absenteeism would affect other employees,” said Hadjis. “Certainly, all employers must be prepared to accept some level of absenteeism from all employees as it is inevitable that they will be unable to attend their work from time-to-time.”

Since OC Transpo failed to prove undue hardship in accommodating Parisien, it was the tribunal’s duty to attempt to restore Parisien to the position he would have been in if not for the discrimination. It ordered him reinstated to the position of bus operator, together with the commensurate seniority and benefits of a full-time permanent employee, retroactive to the date of his dismissal.

The tribunal ordered OC Transpo to assist Parisien in returning to work. OC Transpo normally helps employees returning from extended leave in their reintegration into the workforce. This assistance includes the provision of training as well as aid in the reacquisition of any necessary driving permits.

It also awarded Parisien $3,500 in special compensation for hurt feelings. Under the act, it has the ability to award up to $5,000 for such damages to victims of discrimination who had suffered in respect of feelings or self-respect.

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