Lack of accommodation leads to $25,000 award

Employer fails to respond to warehouse worker's disclosure of alcoholism

Lack of accommodation leads to $25,000 award

A forklift operator/warehouse worker who was an alcoholic has won damages from his former employer after he was dismissed and claimed discrimination.

James Gregg was awarded $25,000 in general damages plus lost wages for four months by the Alberta Human Rights Tribunal, after being fired on May 6, 2016 – with no reason given.

Admission of alcoholism

Gregg was hired for a full-time position on Feb. 1, 2016 by CanWel Building Materials. But in late March, he disclosed his alcoholism to his supervisor, who gave him an EAP brochure and also informed his manager of the disclosure.

On the day before the termination, Gregg also told his supervisor he wanted to get treated for his addiction. Again, the supervisor said he told his manager but he admitted at the hearing that he had no training on how to address substance abuse uses issues of employees.

This doesn’t matter, said Sharon Lindgren, chair of the Alberta Human Rights Tribunal, in her Feb. 28, 2022 decision:

“A lack of training regarding employer obligations in the face of disclosure of a disability does not remove an obligation on this respondent to engage in a discussion with the complainant regarding the disability. In my view, expression by a complainant to attend one form of disability support (here the supervisor's evidence that the complainant expressed a desire to return to AA meetings) does not mean other avenues of treatment or support should not be canvassed.”

The supervisor also acknowledged at the hearing that, as far as he knew, the company didn’t conduct an investigation or inquiry regarding Gregg’s disclosures even though they were passed along to respondent personnel who “would know what to do.”

Absence concerns

Soon after Gregg was hired, he began having numerous absences, typically on weekends close to paydays. These were coded as “sick unpaid” on a record of attendance by CanWel.

A newer attendance policy required workers to call in one hour before the start of a shift if they were going to be absent. There were times when Gregg did not call in when required, but the company was not able to provide detailed records.

But at the termination meeting, CanWel did not mention a violation of the attendance policy being an issue --- this only came up at the human rights hearing in February 2022.

“A failure to call in is not mentioned in the [human rights] complaint, the respondent's reply to the complaint… or any submissions filed for the hearing. All materials filed reference the complainant's absenteeism as the reason for dismissal,” said Lindgren.

“I place little weight on a separate alleged violation of policy in relation to a failure to call in to work by this complainant as a reason for the termination of employment.”

Gregg also talked about seeking treatment on the date he was terminated, but claimed the manager told him “it was too late for that.” Gregg also said the employer refused to allow him to attend treatment.

While the supervisor claimed there were processes in place for dealing with disciplinary matters, the company produced no documents referencing Gregg’s disclosure of alcoholism, dates of any meetings, verbal reprimands or steps taken, found Lindgren.

“In these circumstances, I am not persuaded this respondent dealt with this complainant as an employee it considered culpable for absenteeism or a policy violation for failing to call in about an absence.”

The lack of supporting documentation also raised questions about the reliability and credibility of the company’s position, she said.

“A large organization with established processes dealt with this complainant in a very atypical fashion by not recording any alleged failure to call in, by coding absences as ‘sick unpaid,’ by failing to put a reason for termination in the termination letter, and by failing to produce any documentation to record what it says was a termination for excessive absenteeism that justified termination from employment.”

3 criteria for discrimination

The first stage of analysis required in all discrimination claims is based on three criteria found in the 2012 Supreme Court of Canada case Moore v British Columbia (Education), said Lindgren:

“Did the complainant establish, on a balance of probabilities, that he had a mental or physical disability?... Did the complainant establish, on a balance of probabilities, that he had experienced an adverse impact?... Did the complainant establish, on a balance of probabilities, that his disability was a factor in the adverse impact?”

The answer is yes to all three, said the tribunal.

“[CanWel]'s awareness and affirmative belief of the complainant's disability gave rise to a duty to inquire and assess whether the complainant's disability could be accommodated. It did not do so. Discrimination is established.”

In assessing damages, Lindgren determined Gregg suffered from the company’s actions or lack thereof:

“The particular effect on [Gregg] included the constant companion of shame and feelings of worthlessness for a significant period of time following termination of employment. This was exacerbated by the longstanding position of the respondent that they had no disclosure of alcoholism, which was conceded at the hearing given the supervisor's testimony. The respondent also alleged this complainant was merely trying to extract money from the respondent, which allegation further reflects disparagement of the complainant. Just as in Kvaska, the loss of employment and failure of the respondent to conduct any inquiry renders this complaint objectively serious. In all of the circumstances, I award $25,000 in general damages to the complainant”

Gregg also wanted 16 months of lost wages, saying his alcoholism made him unemployable for a period of time, and if he had been accommodated, he would have received income support during treatment from the company’s benefits programs.

However, Lindgren said she was unable to fully assess Gregg’s mitigation efforts and could not determine if the absence of discrimination would have resulted in him attending treatment and then maintaining employment.

As a result, she discounted the 16 months by 75 per cent “to reflect the uncertainty regarding mitigation, uncertainty regarding disability benefits income top-up, uncertainty regarding what would make the complainant whole, and uncertainty regarding how long the complainant may have been able to consistently maintain his recovery.”

 

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