Yahoo Finance Howard Levitt: Large companies face extremely high bar for firing an employee with a disability
By Howard Levitt and Peter Carey
One of the most common phrases we utter to clients is that Ontario (and most, but not all, of Canada) permits employers to fire non-union employees at will.
This means, we explain, that an employee’s employment can be terminated for any reason provided that the employee is paid appropriate notice and/or severance, except — and a big “except” it is — you cannot discriminate against anyone based on an enunciated category in the applicable Human Rights Code.
Some of these categories are obvious, such as race, creed and religion, but the categories that seem to generate the greatest deal of litigation, at least in the employment milieu, are disability and family status.
You cannot discriminate against an employee based on family status or disability. In fact, an employer must accommodate any employee who has a disability. The larger the employer, the greater contortions it must go through to accommodate the employee. Obviously, a small enterprise consisting of a few individuals need not go to the same lengths as a major enterprise, such as Bell Canada (a little foreshadowing here).
This brings us to the knotty issue of what to do if an employer really wants to fire a disabled employee for reasons unrelated to their disability. This is a very tricky situation for an employer. As always, the flip side of this equation is what to do if you feel you are being fired for your disability but the reason for termination is being disguised as a “reorganization” or some other justification, as it always will be. No employer will ever admit to human rights discrimination.
The short answer is that if you are an employer, you better have convincing evidence that the reason for the termination of employment had nothing to do with the employee’s disability. Because even if the disability is only one of several reasons, and the most minor one at that, it will be a violation of human rights legislation.
Let’s look at a recent case in which a business development manager was fired from Bell Canada. The man, who was also the sole caregiver for his elderly father, was unfortunately diagnosed with cancer at about the same time that his father passed away. Shortly thereafter, he underwent surgery and went on a medical leave to recover. Subsequent to the surgery, the man attempted to return to work but that was unsuccessful and he went on a second medical leave. A month later, he returned to work albeit with some dispute about the nature of his return. A month after that, he was fired without cause.
He commenced a proceeding against Bell in the Canadian Human Rights Tribunal, alleging that he had been discriminated against because of his family status (looking after his father and taking bereavement leave upon his passing) and his disability (his cancer). Bell said that he was fired due to a corporate reorganization. There was indeed a corporate reorganization, however the question was how the man was selected to be fired and whether his disability or family status played any factor in that selection.
The Canadian Human Rights Commission held that family status played no role in his selection but that his disability did.
To put it charitably, Bell did not do itself any favours when it presented its evidence. Initially Bell said that the man had been selected because of poor performance, except that it had little evidence of that Instead, the evidence was that he was near the top of his group on the basis of key performance indicator reports. This resulted in Bell changing its position at the end of the hearing attesting that the man had not been selected due to poor performance. Much more damning was that Bell could not explain exactly how the man had been selected for termination as opposed to his colleagues, some of whom had less seniority. This led to the inexorable inference that he had been selected due to his cancer and Bell’s concern that it would impair his performance in the future.
Bell had clearly not thought through its case in advance as every party and counsel must do and paid dearly for that poor preparation.
Bell should have realized that since it was firing a disabled employee, it had to have iron clad evidence that his termination had absolutely nothing to do with his disability.
The man was awarded $91,052.40 for lost wages. He was also awarded $15,000.00 for pain and suffering and an additional $15,000.00 in special damages.
The moral of this story is that if an employer wants to fire an employee who is arguably disabled then it better have extremely convincing evidence as to why the selection of that individual had nothing whatsoever to do with their disability.
Are your employees really working or are they delegating to ChatGPT?
In AI age workers must learn to coexist or be rendered obsolete
On the flip side, if a disabled person is fired and believe it is due to their disability or that their disability was even a factor in their being fired, then they have effective recourse.
Any evidence that a disabled employee’s termination had anything to do with their disability will almost certainly lead to a successful claim by the employee against the employer. Quite apart from a case’s intrinsic merits, both judges and Human Rights Tribunals have inherent sympathy for a disabled litigant and the employer always will start the case facing an uphill battle.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Peter Carey is a partner at Levitt Sheikh.
