Termination for absences related to disability, child care discrimination

Alberta employer claimed performance issues, but termination letter said otherwise

Termination for absences related to disability, child care discrimination

Terminating an employee is discriminatory if a protected human rights ground plays any role in the decision to terminate — even if there are other reasons to fire the employee, according to a recent Alberta Human Rights Tribunal decision.

“It's worth highlighting that the tribunal noted that the protected ground only has to be a factor in the decision to terminate and not even the primary factor,” says Josh Sutherland, an employment lawyer at Harris & Company in Vancouver who has a decade of experience practicing in Alberta.

The worker was a legal assistant for a Calgary law firm. She was a single mother with an eight-year-old daughter when the law firm hired her on June 5, 2017.

Before she started employment with the firm, the worker was told that the hours were from 8:30 a.m. to 5 p.m. — the senior legal assistant/paralegal left at 4:30 p.m. and the firm needed her to stay later. Her daughter went to daycare and she didn’t have any backup, as she had no family members able to take her daughter during the day. She was also told that there was no sick day policy and she should “just take them as you need them.”

The worker’s employment began with a three-month probationary period, after which she would be evaluated.

In mid-August, the worker asked if she could start coming in 15 minutes earlier so she could leave 15 minutes earlier, as she was paying late fees at her daughter’s daycare. However, she was told that she had to stay until at least 5 p.m. and needed to be available for overtime as needed.

The senior legal assistant told her to slow down and be more careful with clients’ names, but there were no formal discussions about the worker’s performance — which isn’t a good idea for an employer who is considering terminating for performance issues, says Sutherland.

“In cases where an employee is terminated for performance-related reasons and the employee alleges discrimination, documented evidence of warnings can be very helpful in demonstrating a non-discriminatory basis for the dismissal,” he says.

Between June 23 and Sept. 8, the worker took nine days off. One of the days was to take care of her daughter, one was to treat lice in her daughter’s hair, and the others were due to the worker herself feeling unwell or for personal reasons.

On Sept. 11, the worker texted the firm to say they she was in the hospital due to an ovarian cyst. She was released the next day but was on medication that made her sick. She regularly updated the firm on her status and sent a doctor’s note on Sept. 12. She remained off work for the rest of the week.

An Ontario worker’s dismissal before major surgery was discrimination, according to a tribunal.

Terminated while off sick

On Sept. 15, while the worker was still off sick, the firm sent her an email saying that “the firm decided to let you go at this moment due to your uncertainty of returning [to] work.” It sent her a termination letter stating that she had requested 13 days off since the start of her employment just over three months earlier and she had not provided a date for her return to work. It added that while the firm understood her situation, it needed “a full-time employee with more reliable time commitment.”

The firm paid the worker one week’s pay in lieu of notice and the worker filed a complaint of discrimination in the area of employment on the grounds of disability, and later added family status.

The firm claimed that it terminated the worker’s employment due to performance issues and the decision had been made before she was in the hospital. The termination was delayed when she texted about her situation on Sept. 11, but when it became uncertain when it could give her the termination letter in person, it decided to proceed.

Sutherland notes that the firm was on shaky ground as it knew that at least some of the worker’s earlier absences were due to her status as a single mother.

“This case is in keeping with other recent cases that have suggested that an employer cannot just passively wait for an employee to request accommodation where it is aware of facts that indicate that the employee may be having difficulties because of a disability or some other protected ground,” says Sutherland. “There is a duty on the employer to take the initiative in such circumstances.”

An employee’s desire to help more with childcare doesn’t invoke the duty to accommodate, according to a labour board ruling.

The tribunal found that the worker’s ovarian cyst was a physical disability under the code and her absence from Sept. 11 to 15 was a direct result of that disability. Although the firm claimed that the termination decision was made before that absence, the termination letter referred to all 13 days she had taken off — including the five days after her hospitalization — as the reason for dismissal. In addition, the email mentioned her absence from work and the uncertainty of her return. This meant that the worker’s absences due to her disability were a factor in the decision to terminate her employment, said the tribunal.

In addition, at least two of the other absences were due to the worker needing to care for her daughter — related to family status — and the firm was aware of the reason. The firm could have told the worker that her absences were a problem and asked her to try to make alternative arrangements or request accommodation, but the absences were approved and no issues were raised, the tribunal found.

While the firm argued that there were performance issues, the termination letter indicated otherwise.

“I don't think it was particularly hard for the tribunal to come to the conclusion that there was a human rights breach because there was very little-to-no evidence to support the employer’s argument that this was performance-based,” says Sutherland. “In fact, the only written evidence before the tribunal as to the reason for the termination was the termination letter itself, which clearly related to the disability and hospitalization, and therefore the termination letter was almost an admission of a human rights breach.”

The tribunal determined that the worker’s termination was discriminatory on the grounds of disability and family status. The law firm was ordered to pay her nearly $10,000 for lost pay and $15,000 in damages for injury to her feelings from the discrimination — an expensive lesson for the firm but a key one that employers can learn how to handle a situation where there’s a potential need for accommodation, according to Sutherland.

“What this case really highlights is the duty to inquire. In scenarios where the employee exhibits concerning behaviours that are a general departure from the employee's normal characteristics, the employer should inquire if it can do anything to assist and then assess whether there's a human rights issue requiring an accommodation, as opposed to discipline.”

See Smorhay v. Goodfellow Law, 2021 AHRC 170.

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