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Termination deemed discriminatory if connected with human rights grounds in any way

In her short time with her employer, the complainant requested 13 days off work and missed 14 days for different reasons, including her aforementioned medical issues and child-care responsibilities


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The Human Rights Tribunal of Alberta recently ruled that an employer will be found to have engaged in discriminatory conduct if their decision to terminate an employee was in any way connected to a characteristic protected by human rights legislation.

In Smorhay v Goodfellow Law, the complainant alleged that she was discriminated against when her employer terminated her because of a number of absences tied to her hospitalization and child-care obligations.

The complainant was a single mother who worked for her employer as a legal assistant from June 5, 2017, until she was terminated on Sept. 15, 2017.

In her short time with her employer, the complainant requested 13 days off work and missed 14 days for different reasons, including her aforementioned medical issues and child-care responsibilities.

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A few days before the complainant was terminated, she was hospitalized with a ruptured ovarian cyst. As a consequence, she missed five days of work until she was ultimately terminated. On her last day, the complainant received an email stating that she was being let go due to the uncertainty of when she would be returning to work. She also received a termination letter highlighting the numerous days off she requested in a short span of time, as well as the fact that she had not given a date by which she would be able to return.

In spite of what the email and termination letter suggested, the employer’s position was that the complainant was terminated due to a combination of performance issues and excessive absenteeism.

In light of this background, the Human Rights Tribunal had to determine whether the employer discriminated against the complainant on the grounds of disability and family status when it terminated the employee.

Establishing discrimination in the human rights context

In order for an employee to establish that they have been discriminated against by their employer, they must show that:

  • they possess a characteristic protected by human rights legislation, such as a disability
  • they experienced an adverse consequence, and
  • the protected characteristic was part of the reason why the complainant suffered the adverse consequence(s).

Thus, an employee cannot simply allege that they were discriminated against because they suffered an adverse consequence and also had a disability, or other characteristic protected by human rights legislation. Rather, there must be a link between the negative consequence and the complainant’s protected characteristic.

If the employee is able to demonstrate that they have been discriminated against in this way, the burden then shifts to the employer to prove that their conduct was justified.

Furthermore, the Supreme Court of Canada has established that employers have a legal duty to accommodate employee needs to the point of “undue hardship.” Undue hardship will occur if accommodating the employee(s) in question would result in onerous conditions for the employer.

Employer found to have discriminated against complainant

In applying the criteria outlined above, the Human Rights Tribunal held that the employer discriminated against the complainant when terminating her employment.

To begin, the employer admitted that the complainant’s ovarian cyst, which resulted in her hospitalization, was indeed a physical disability. As well, the complainant suffered an adverse consequence when her employment was terminated.

Finally, the Tribunal found that the complainant was terminated for two reasons, one of which triggered human rights protection and one which did not.

On the one hand, the Tribunal accepted that the employer terminated the complainant because of general performance concerns that were not connected to human rights grounds. On the other hand, the Tribunal found that the complainant was also terminated because of excessive absenteeism, which was partially caused by being hospitalized, as well as fulfilling caregiving duties for her daughter.

After determining that the employer could not justify its discriminatory conduct, the complainant was awarded compensation for lost income and damages for injury to feelings.

The key takeaway from this decision is that an employer will be deemed to have engaged in discriminatory conduct if their decision to terminate an employee is in any way connected to a characteristic protected by human rights legislation.

In other words, an employer will be found to be on the wrong side of the law, even if the protected ground is not the primary reason why the employee was terminated, and other factors may justify discharge.

Accordingly, employers should obtain expert legal advice prior to making any decisions that will impact employees, particularly where human rights issues may be involved.

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.

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