CCPartners | Blog

Tribunal Finds Employee Failed to Meet Onus of Demonstrating Firing was Discriminatory

A recent Ontario Human Rights Tribunal decision confirms that not every complaint of discrimination will find a sympathetic ear at the Tribunal.  In Kendjel v. Strategic Mapping Inc.  the Applicant employee alleged that she was discriminated against on the basis of disability when she was dismissed from her employment.   The Applicant, who largely held an administrative role for the Respondent Company, had fractured her wrist at work.  After a period of recovery and some modified duties, the Applicant returned to her pre-injury duties where she worked for another year before being fired on a without cause basis.   The Applicant claimed that she was fired because she could no longer work overtime with her injury.   The Company claimed that the Applicant’s attitude had become negative even prior to the injury over a dispute with her salary and that she had already been working reduced hours prior to the workplace injury.  This change in attitude, coupled with some performance issues just prior to the dismissal, led to the decision to dismiss the Applicant from her employment.

In assessing the evidence before the Tribunal, the Adjudicator confirmed that the Applicant’s onus was not to show that she was dismissed only because of a disability but only that the disability was a factor in the decision.  The Applicant also bore the onus of demonstrating that she in fact, had a disability at the time of the dismissal.    The Adjudicator determined that the Applicant had not met either onus in the circumstances of this case.  First, the Applicant could not establish that she had an ongoing disability as she had attended physiotherapy for only three months after her cast was removed and could not provide any medical documentation of follow-up appointments or medical opinions that she continued to be disabled.  She did not require or seek any form of accommodation once the cast was removed and the Adjudicator accepted the Company’s evidence that while she wore a wrist brace for a few months she stopped wearing it well before the dismissal.   The Adjudicator concluded that even if she continued to have issues with her wrist, the Company was not made aware of these issues and therefore could not have relied on any alleged ongoing disability in its decision to dismiss.

The Company was also able to point to several non-discriminatory factors that supported its decision to dismiss, including support for their position that the Applicant’s attitude had become negative as well as legitimate performance concerns that arose just prior to the dismissal.   By all accounts, the Adjudicator was satisfied that the Applicant had been accommodated while her wrist fracture healed and had been treated fairly by the employer.  Importantly, the Adjudicator held that even if the Company was wrong in its assessment that the Applicant was responsible for the accounting errors that led to her dismissal, that error was not discriminatory under the Code, although it may be relevant to allegations of wrongful dismissal.

This case underscores the importance of being able to demonstrate that the decision to dismiss is unrelated to any alleged disabilities.  Here, the employer could have chosen to dismiss the employee sooner given the Applicant’s negative attitude and some of the difficulties they encountered in her return to work through the WSIB.   If they had done so closer to when the Applicant had injured herself they likely would have had more difficulty defending the dismissal as non-discriminatory.   Allowing the plaintiff sufficient time to reintegrate into the workplace and evaluate performance and attitude once her wrist had healed served this employer well.

Navigating performance issues with employees who have been off work or previously accommodated can be a challenge.   The lawyers at CCP have significant experience assisting employers with their accommodation obligations and assessing whether a dismissal will pass the Tribunal’s “no non-discriminatory factor” test.  Click here for a list of lawyers who can assist you with your workplace accommodation issues.