Ontario worker's termination discriminatory, despite potential just cause

All absences, not just non-disability related ones, factored into termination decision

Ontario worker's termination discriminatory, despite potential just cause

A breach of a last-chance agreement often can be grounds for termination. However, if any potential discriminatory grounds are part of the decision to terminate, there might be trouble – as the City of Ottawa’s transit agency, OC Transpo, found out as both the Canadian Human Rights Tribunal (CHRT) and the Federal Court determined that it discriminated against a worker whom it fired for excessive absenteeism.

“OC Transpo would likely have been successful had it demonstrated that the decision to terminate [the worker’s] employment was based solely on his breach of the Continuing Employment Agreement,” says Chris West, an employment lawyer with Sherrard Kuzz in Toronto.

“Instead, the CHRT found that when OC Transpo decided to terminate [the worker’s] employment, it considered his entire history of absenteeism, including periods for which his absence was related to his disability.”

The worker was a bus operator for OC Transpo, the transit division of the City of Ottawa, starting in 2001. He was diagnosed with irritable bowel syndrome in 2004 and also experienced musculoskeletal pain. Both conditions flared up intermittently and caused him to miss a large number of shifts.

The worker’s doctors indicated certain medical restrictions that made it hard for the worker to drive a bus, so OC Transpo agreed to let him miss work when his disabilities prevented him from performing his job duties. OC Transpo had an attendance management program, but it agreed to not count the worker’s disability-related absences against him as part of an accommodation plan.

Overall, the worker accumulated a large number of absences, although sometimes he missed work for reasons not related to his disabilities. Occasionally, he also said he was absent due to a disability, but he didn’t always provide medical documentation.

In 2012, the worker was absent from work for an extended period of time with no supporting medical evidence. OC Transpo came up with a new plan, called the continuing employment agreement (CEA), which had rules aimed at helping the worker’s attendance improve. The CEA required the worker to contact his manager if he was going to miss a shift so the manager could offer him alternate duties if any were available. If the worker failed to call in, he would be terminated. The CEA was signed on Dec. 28.

Over the next year, the worker’s attendance improved, but he still wasn’t calling his manager before missing a shift. OC Transpo first issued verbal warnings and then written warnings when this happened.

Termination following absence

On Jan. 29, 2014, the worker missed a shift because he was sick with the flu and didn’t call his manager. The manager wrote a memorandum to senior managers referring to the worker’s “continued excessive absenteeism,” including all of the worker’s absences – those related to his disability as well as those that weren’t – and recommended that the worker’s employment be terminated.

OC Transpo fired the worker on March 10. The termination letter stated that the worker had breached the CEA on several occasions and he failed to honour its terms.

Eight months later, the worker filed a complaint alleging discrimination based on disability.

Read more: An employer can fire a disabled employee as long as the disability didn’t play a part in the decision to terminate, writes Ronald Minken.

The CHRT found that the accommodation plan and the CEA were reasonable and not discriminatory, and the worker didn’t co-operate when he failed to comply with the CEA.

“OC Transpo acknowledged [the worker’s] disability, obtained medical information regarding work restrictions from his physicians, and agreed that any disability-related absence would not be counted against him for the purposes of its attendance management system,” says West.

However, it also found that when OC Transpo made the decision to terminate the worker, it considered all of his absences and didn’t treat his disability-related absences differently – the evidence showed that the worker’s total absenteeism was 39 percent, but excluding his disability-related absences put it at 30 percent. While 30 percent absenteeism could have met the burden of undue hardship, OC Transpo didn’t present any evidence that it had made such an assessment before firing the worker. As a result, the worker’s disability-related absences were a factor in his termination and OC Transpo failed to meet its duty to accommodate, the tribunal determined.

While the termination letter indicated the non-discriminatory reason of breaching the CEA as the reason for termination, management’s discussions leading up to the decision to terminate raised questions, says West.

“Although the termination letter stated the reason for the termination was the violation of the CEA, the CHRT reviewed additional evidence that suggested otherwise,” he says. “This included a summary of [the worker’s] attendance which listed the number of days per year he had been absent from work, including during years when the absences were disability-related, and an internal memorandum that recommended termination due to the violation of the CEA and ‘continued excessive absenteeism.’”

“OC Transpo explained that the reference to the disability-related absences was merely to provide background and was not relied upon for the termination, but the CHRT did not accept this evidence.”

The City of Ottawa made an application to the Federal Court seeking an order to dismiss the complaint.

The Federal Court agreed that the worker had a disability and he suffered an adverse impact when he was terminated. It also agreed with the CHRT that the worker breached the CEA and that breach was unrelated to the worker’s disabilities.

Read more: An Ontario court upheld the termination of a disabled worker with no prospect of returning to work.

The court also agreed with the CHRT that, following the manager’s memorandum, OC Transpo considered the worker’s whole history of absences when it made the decision to terminate. As a result, the finding of prima facie discrimination was reasonable, the court said.

The court also determined that it was reasonable for the tribunal to find that OC Transpo did not prove it had met the point of undue hardship in trying to accommodate the worker. The city’s application was dismissed.

It’s a good reminder for employers to be careful around the termination of an employee where a disability could be involved, says West.

“A decision maker will look beyond a termination letter and review contextual evidence to determine why an employee was terminated,” he says. “If a disability, or any ground protected under human rights legislation, is a factor – it need not be the only or principal factor – there is a risk that the employer will be found to have discriminated against the employee.”

See Ottawa (City) v. Todd, 2022 FC 579.

 

Latest stories