Terminating an employee with a disability

The onus is on the employer to prove the termination was not even remotely connected to the worker’s disability

Stuart Rudner
Many employers are afraid of terminating an employee with a disability, even where they have just cause to do so.

Employers are well advised to proceed with caution because the termination of an employee with a disability is likely to be subject to even greater scrutiny than the average termination. It is easy to run afoul of human rights legislation designed to protect employees with disabilities.

There is an important distinction to be drawn between terminating an employee because of a disability and terminating an employee with a disability. The former is a breach of human rights legislation unless the reason for termination is a bona fide occupational requirement.

Meeting the three-part test

Any termination based upon a protected ground, such as a disability, will be subject to a three-part test designed to determine whether a seemingly discriminatory standard or decision is actually a bona fide occupational requirement:

•whether the employer adopted the standard in question for a purpose rationally connected to the performance of the job;

•whether the employer adopted the standard in question in an honest and good-faith belief that it is necessary to the fulfillment of that legitimate work-related purpose; and

•whether the standard is reasonably necessary to the accomplishment of that work-related purpose.

The third element raises a duty to accommodate the employee to the point of undue hardship. A failure to pass all three parts of the test results in a finding that the termination was contrary to human rights legislation. This is true even if the employee’s disability was only a small part of the reason for termination.

Just cause tough to prove

One of my clients recently expressed frustration with the difficulties of proving just cause for termination. The client exclaimed: “The only way you can fire someone is if they show up for work drunk.”

I braced myself and reluctantly advised her that, even in those circumstances, just cause might not exist. That’s because addiction has been found to be a disability.

Therefore, if the drunk worker is an alcoholic, the employer’s disciplinary options will be considerably limited. An employee suffering from an addiction is entitled to accommodation. Unless the employer can satisfy the elements of the test set out above, the termination of the addicted employee will be a violation of the applicable legislation.

If the decision to terminate is entirely unrelated to the employee’s disability, then the employee is theoretically no different than any other employee and is subject to termination either for cause or upon reasonable notice. But there will be more of an onus on the employer to explain why the employee was terminated and prove the decision was not based upon the disability.

Employers must be careful not to muddy the waters by allowing the disability to enter into the equation at all.

What not to do

An excellent example of how not to proceed is found in the case of Derksen v. Myert Corps Inc., a 2003 decision by the British Columbia Human Rights Tribunal.

Although it did not involve a disability this case involved a termination that was found to be based, at least in part, on a protected ground under the Human Rights Code — freedom of religion.

The case confirms that, even where the employer has just cause for termination, it will breach human rights legislation if the decision to terminate was based even partly on a prohibited ground.

The facts of Derksen are fairly straightforward. Harold Derksen started his employment with the company on July 2, 2002, as project co-ordinator of the youth job directions program. Three days later he asked for a full day off for the celebration of the new moon, which fell on July 10. The request was granted, but Derksen was advised in writing that no further days off would be granted and that he would “need to make other arrangements so that (his) religious commitments do not interfere with work.”

Under Derksen’s direction, the program did not achieve the success that was expected. On Aug. 7, 2002, Derksen’s boss met with him to discuss the dismal progress that had been made. But it was not made clear to Derksen that his job was in jeopardy.

Later that day, Derksen faxed a request for a day off on Aug. 9. When the request was denied, Derksen said he required the day off to celebrate a religious holiday and he would not come in to work. He followed through on this promise and was fired when he returned to work on Aug. 12.

The human rights tribunal noted the record of employment submitted by the employer indicated Derksen was dismissed due to a failure to pass his probation period and due to taking an unauthorized day off. In reaching its decision, the tribunal acknowledged the employer may have had legitimate reason to terminate Derksen due to his poor performance.

But it also found the decision to terminate was made after Derksen took an unauthorized day off and that his doing so was a “contributing event.” This, combined with the notation in the record of employment, led the tribunal to find the day off was one of the reasons for termination and there was a prima facie breach of the Human Rights Code.

The tribunal considered the three-part test set out above and found the first two parts of the test were satisfied. Clearly, a requirement that Derksen attend at work was rationally connected to his job performance. But since the employer made no effort to accommodate Derksen’s religious needs, it failed the third branch of the test. The termination therefore breached the act. Derksen was awarded almost $10,000.

The bottom line: An employer terminating an employee with a disability for reasons unrelated to the disability must be careful and keep this absolutely clear. If the decision to terminate is related to the disability, the employer will have to pass the three-part test and show the decision was based on a bona fide occupational requirement.

For more information see:

Derksen v. Myert Corps Inc., 2003 BCHRT 37.

Stuart Rudner practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672 or by e-mail at [email protected].

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