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Terminating an employee with a disability (Part II)

disability2Is it possible to terminate an employee who suffers from a disability and not commit a human rights violation? I recently read a case that made it clear that employers can do so when there is a justifiable reason to terminate not involving the disability, or after all efforts to accommodate the employee have been exhausted. But employers must be able to show this with evidence.

What employers cannot do is what the employer did in a case out of British Columbia: it became clear to the BC Human Rights Tribunal that although the employer may have hired the employee knowing that she had a physical disability (a back problem that affected her mobility and necessitated her alternating between a standing and a sitting position), when the employer saw the extent to which it was required to accommodate her, the employer changed its mind and terminated her employment. The employer humiliated the employee during the four days she worked there by asking her to perform inappropriate tasks, and insensitively terminated her in front of another worker.

Since the employer could not provide any documentation or evidence of a justifiable reason for the termination, or any attempts at accommodation whatsoever, the employer was found to have discriminated against the employee based on the ground of disability.

Simply put, the employer could not prove that it terminated the employee solely for a non-discriminatory reason. It was no excuse to claim that the employee was new and on probation—the Human Rights Code applies to all types of workers, including those on probation.

The tribunal awarded the employee $4,140 for wage loss, $78.81 for other expenses incurred due to her complaint, $8,000 as damages for injury to dignity, feelings and self-respect, and pre- and post-judgment interest.

It is clear that employers need to be careful when terminating employees who suffer from a disability.

I’m wondering, has your company ever been concerned about the human rights implications of terminating an employee who suffers from a disability? Have you been faced with the challenge of accumulating documentation of a non-discriminatory termination?

Christina Catenacci
First Reference Human Resources and Compliance Assistant Editor

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Christina Catenacci

Christina Catenacci, B.A., LL. B., LL.M.,has been the content editor to The Human Resources Advisor Ontario, Western and Atlantic editions (print and electronic) published by First Reference Inc. since February 2005. Christina obtained her Professional LLM specializing in Labour Relations and Employment Law from Osgoode Hall Law School of York University in 2013. Read more
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3 thoughts on “Terminating an employee with a disability (Part II)
  • Karen Swolfs says:

    Thanks Yosie, I had posted the comment in the hopes that someone else in the HR field had encountered a situation similar to mine.

  • Yosie Saint-Cyr says:

    Hi Karen,

    The blog is for general discussion and we cannot provide any advice specific to a case. You would need to contact a lawyer for that.

    There is no set rules that fit every case… the circumstances of each case will factor in the opinion provided by the lawyer.

    However, the discussion on human rights and disability is not yet over, and other general guidelines will be provided. You can also read case law commentaries that may help you understand the implications on HRinfodesk at http://www.hrinfodesk.com

  • Karen Swolfs says:

    I had an interesting situation with a client. An employee was off on disability. Payment of disability benefits from group insurance provider had been exhausted. How long does the employer have to consider this person as an “employee”? The employer was continuing to pay for the employee’s group benefits even though he was no longer receiving disability benefits. Can the employer terminate the employee if they are unable to return to work?