It is not only taking action against an employee because of an actual disability that can get an employer in hot water under the Human Rights Code. Where the employer takes action because of a perceived disability, trouble can also follow. Such was the case in McLean v. DY 4 Systems.
Background
The applicant, who was a diabetic, had been employed at the respondent’s factory for approximately seven years when her employment was terminated on December 3, 2008. According to the Tribunal, the employer's position was that:
"... the applicant was dismissed because she came in to work thinking that she had tuberculosis, with a reckless disregard for the health and safety of others, and because she made a remark that appeared to indicate a prejudiced attitude toward a co-worker (VN) who is Vietnamese in origin. The applicant alleges that she was dismissed for reasons that included a connection with disability."
The applicant believed she had Tuberculosis and that it had been contracted at work. She went to her supervisor, with a pamphlet from the Lung Association, in November. She admitted having said, "“I have TB and I'm told that a lot of Asians have it. I'm sure I got it from [VN]. She’s been coughing for two weeks and her kid is sick.”.
The employer was surprised that the employee had been cleared to return to work (she had been hospitalized).
By December 1, 2008, the employer "had been reassured that the applicant did not have active TB. This was confirmed on the morning of December 2 when the applicant brought in the note" from her doctor.
A physician called on behalf of the applicant testified that "the applicant's December test for tuberculosis was negative, and that this was confirmed with the applicant" She testified that she believed the applicant understood at this point that she did not have TB".
The applicant was terminated on December 3.
According to a number of cases, including Chen v. Ingenierie Electro-Optique Exfo the definition of disability under the Code:
The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), 2000 SCC 27 (CanLII), [2000] 1 S.C.R. 665, 2000 SCC 27 (CanLII) [reported 37 C.H.R.R. D/271]. For example, if an employer believes that an employee's condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54 (CanLII), 2005 HRTO 54 (CanLII) [C.H.R.R. Doc. 05-738]. emphasis added)
The employer argued that the applicant had "inactive TB" which it analogized to an everyday illness and, according to the Tribunal, the focus of the employer's submissions was "on whether inactive TB is a disability". The Tribunal observed that, in this case, "there was more than one health problem at issue in this Application" notably the applicant's diabetes and:
In addition, there is no dispute that the applicant thought, albeit incorrectly, that she had contracted some form of tuberculosis. However, the respondent maintains that the applicant was never perceived to have a disability.
The Tribunal considered a number of cases that dealt with when an employer could be said to have enough knowledge of an employee's disability to trigger responsibilities under human rights legislation. Citing Wall the Tribunal noted:
As stated in other cases dealing with the test for establishing a prima facie case of discrimination, the question is whether the respondents knew or ought reasonably to have known that the complainant was suffering from a disability. For those purposes, there is no absolute requirement that a complainant communicate the nature of the disability to her or his employer: Sylvester v. British Columbia Society of Male Survivors of Sexual Abuse (2002), 43 C.H.R.R. D/55; 2002 BCHRT 14, at para. 35 (summarizing the authorities).
When dealing with a corporation (as was the case here), the Tribunal held that "it is appropriate to look at the knowledge of decision-makers within the corporation". The Tribunal cited the following in support of their conclusion that the employer had requisite knowledge:
All the involved Directors and Ms Cox of the Human Resources Department were on notice as of November 28 that the applicant had stated that she had been “sick for the past year”. In addition, Mr. McGrath knew that the applicant had multiple health-related problems. The Human Resources Department clearly had information on record that the applicant had used all of her available sick days, as well as having worked make-up hours because she had used more than her sick day allotment; she justified her absences with doctor’s notes as required. Indeed, Human Resources admitted that the applicant's doctor had been contacted directly earlier in the year, apparently in an attempt to verify whether she did in fact have an appointment with her doctor. This indicates that the applicant’s absences from work were under some scrutiny by the respondent. In these circumstances, it was clearly open to the respondent to ask the applicant for the information concerning her health status.
Clearly, decision-makers at all levels of the respondent corporation were also aware that the applicant might have inactive TB at the time the decision was made to fire the applicant. It was not until well after the applicant had been fired that anyone could be sure that she did not have TB at all. Further, the respondent’s witnesses were aware that the applicant intended to pursue a Workers’ Compensation claim, which indicates that the applicant, at least, thought that her ability to continue regular attendance at work and handle her normal workload was in doubt for health-related reasons.
The Tribunal found that the "position of the respondent is that it dismissed the applicant solely for her “poor judgement” in coming in to work when she might have had a condition that might be dangerous to the health and safety of others in the workplace, and a remark that the respondent considered racist, and as implicating its anti-harassment policy".
The Tribunal noted, that the logical thing for an employer to do when it hears that aracist remark has been made was to "investigate the circumstances surrounding the remark to be as sure as possible about what was said, and to investigate (for example by questioning other employees) whether any other racist conduct has occurred". According to the Tribunal "there was no effort to determine exactly what was said, and no effort to speak to any other employees, including VN. The absence of such follow-up raises doubt about whether the respondent was concerned as alleged".
In the end the Tribunal found that the employer had breached the Code when it terminated the applicant:
I conclude that at least one reason for the rapid decision taken by [the employer] was concern that the applicant would need still more time away from work, at a very busy period, to deal with disability-related medical needs.
Orders
The Tribunal made various Orders and made a number of observations in doing so that are worth noting
The Tribunal made an order for loss of salary and benefits for 13.5 months from the date of termination to the last day of the hearing (less amounts paid) plus RRSP ($111 per month) and $300 month for extended medical insurance.
The most troubling aspect of this case is the Tribunal's discussion of prospective orders.
The applicant was 62 years of age at the time of her termination and says she would have remained at work until age 65 (29 months after her termination and 11 months after the date of the decision of the Tribunal).
The following comments are of interest:
"This is certainly not a type of order that is frequently made, but in this case, there are circumstances that support it."
"The contemplated period is fairly brief."
"It is foreseeable that a person in these circumstances might have great difficulty finding alternative employment. The applicant’s experience in her attempts to mitigate have borne this out."
"I conclude that she is not likely to find permanent employment prior to her 65th birthday".
The employer asked that the Tribunal apply a contingency factor of 20% if it was going to make a prospective order. The Tribunal commented (it is not clear if it refused):
By contrast, all the evidence here was that the respondent was in the fortunate position of doing extremely well and hiring more staff. Further, in this case the respondent had no concerns with the applicant’s performance on the job; while she may not have received as much in bonus payments, she may have received some such payments or a raise in pay, which possibility will not be reflected in this order.
Though making all of these statements and observations, the Tribunal indicated that it would allow the parties to make representations about whether such an order was appropriate in the circumstances.
The Tribunal also ordered the employer to pay $20,000 in compensation for the intangible harm caused by the infringement of her rights under the Code. In doing so, it applied the following:
- Quantifying intangible loss and distress is a difficult exercise.
- The impact of the discriminatory action on the individual applicant’s subjective experience clearly has considerable weight in arriving at a compensatory order, although the impact may be difficult to assess, both because of individual differences and because of ways of self-expression, some of which may be linked to personal characteristics protected under the Code.
- The concepts of “dignity” and “self-respect”, while certainly including factors that are subjective in nature, import considerations that are broader than the individual’s reaction to how he or she was treated.
- It is also appropriate to apply a degree of objectivity in recognising and evaluating the importance of a violation of the Code.
- The Tribunal has recognised that it should not set the quantum too low, since doing so would trivialize the social importance of the Code by effectively creating a "license fee" to discriminate
Conclusion
Once again, this case, while important for its discussion on the merits, is most illuminating in the discussion of remedies and orders. It's actually a fascinating discussion and may signal, along with the other recent cases, a direction in awards that is being taken by the Tribunal. If that is so, it should be of concern to employers.
