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Perils of terminating staff with medical conditions: Worker, fired after being injured in car crash, awarded $80K

Zameel v ABC Group Product Development, 2023 HRTO 533, is a recent Ontario Human Rights Tribunal decision that highlights the difficulty and dangers of terminating an employee who has disclosed medical conditions (or other protected grounds under the Human Rights Code.)

The employee, A.Z. , was hired by ABC Group on April 3, 2017. On or about Oct. 6, 2017, A.Z. was involved in a motor vehicle accident that resulted in a hospital trip and injuries. A.Z.’s employment with ABC Group was terminated on Nov. 28, 2017.

Throughout the month of November 2017, A.Z. discussed going on short-term disability (STD) leave with his employer, submitted documents from his physician in connection to his work limitations, and applied for part-time STD leave prior to his termination.

At the same time, ABC Group was having issues with A.Z.’s work performance from as early as May 2017. These performance issues continued throughout his employment. However, no formal discipline was ever issued to A.Z.; rather, there were repeated informal attempts to guide and coach A.Z.

Overview of discrimination cases

In discrimination cases, the party alleging discrimination (the applicant) has the onus of establishing a prima facie case of discrimination. This means that the applicant must establish that they have the characteristic of a protected grounds (for example, disability) under the Human Rights Code; that they have experienced adverse treatment; and that the protected characteristic was a factor in the adverse treatment.

The characteristic does not have to be the sole reason for the adverse treatment, it merely needs to have been a factor.

Once a prima facie case of discrimination has been established, the defending party has the onus of establishing that the applicant’s allegations did not amount to a violation of the Code (for example, by showing that the protected characteristic was not a factor in the adverse treatment, that there was no adverse treatment, that there had been accommodation for the characteristic, etc.).

In a discrimination case, the standard of proof is “on a balance of probabilities.” This means that the tribunal will look at the evidence provided by both parties and assess whether it was more likely than not that a Code violation did (or did not) occur.

The tribunal’s decision

In this case, the tribunal found there was a prima facie case of discrimination on the basis of disability. The timing of events gave a strong inference to the assessment that A.Z.’s medical issues were a factor in the termination decision, as the termination occurred very shortly after A.Z. became disabled and he applied for STD leave.

Further, ABC Group had not properly assessed A.Z.’s accommodation request, which required more than directing an employee to apply for STD leave.

The tribunal stated that there was a lack of documentation regarding the alleged performance issues that began as early as May. There was no written documentation such as performance reviews, written warnings, or a performance improvement plan.

This lack of documentation meant that there wasn’t enough evidence to support ABC Group’s defence that A.Z.’s termination was based solely on the performance issues. As such, the tribunal determined that it was more likely than not that A.Z.’s disability was at least a factor in, if not the reason for, his termination.

As a result, ABC Group was ordered to pay A.Z. $80,000 plus interest. This amount included back-pay for wages lost, as pay in lieu of STD benefits, and compensation for infringement of rights and the resulting injury to dignity, feelings, and self respect.

Lessons for employers

This case highlights the dangers and difficulties an employer will face if they want to terminate the employment of someone who has disclosed a medical condition (or a characteristic of other protected grounds).

While an employer is still allowed to terminate that employee, they will need to ensure that they have sufficient documentation and evidence to establish that the decision to terminate was completely unrelated to the disability (or other protected grounds).

When it comes to the dismissal of a specific employee who has a disability, an employer should keep careful and detailed documentation of their concerns with the employee and how those concerns have been addressed with the employee. The stronger and more thorough the documentation, the more likely the employer will be able to establish that a termination (or other discipline) was based solely on those concerns and was completely unrelated to the protected grounds.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.