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Employee unable to show dismissal was discriminatory

discriminationThe British Columbia Human Rights Tribunal recently denied an employee’s complaint alleging that his employer discriminated against him on the basis of a physical disability.

What happened?

The employee was hired as a bartender and also served as an assistant manager.

The employer had a policy prohibiting the use of drugs by an employee while on shift. The policy made clear that failure to comply would result in immediate dismissal. The employee was aware of such policy

One day the employee was observed by one of his superiors using marijuana on his shift. The next day, the employee was terminated. The employee claimed that his use of marijuana was to deal with a chronic pain condition. However, according to the employer, the employee never advised that he suffered from or was diagnosed with chronic pain or that he used marijuana for medicinal purposes. Plus, the employer submitted that the employee was dismissed because he showed poor work performance and attitude, had irreconcilable conflicts with his superior and conducted himself inappropriately toward female employees. According to the employer, their decision to terminate the employee was made before discovering the employee’s use of marijuana on his shift.

Decision and analysis

Section 27(1)(c) of the Human Rights Code (Code) creates a gate-keeping function that permits the Tribunal to conduct a preliminary assessment in order to remove matters that “do not warrant the time and expense of a hearing”. The Tribunal exercised its ability when it denied the employee’s complaint because there was no link between the employee’s alleged chronic pain and his use of marijuana.

The Tribunal explained that the preliminary assessment conducted under s. 27(1)(c) is a discretionary exercise by the Tribunal and does not require factual findings. Complainants must only show that their claim is not just speculation or conjecture. The Tribunal further explained that the role of the Tribunal, on a s. 27 application, is not to determine whether the complainant has established a prima facie case of discrimination. Rather, its role is to assess whether or not there is a reasonable prospect the complaint will succeed based on the material presented.

As noted above, while the Tribunal is not required to determine whether the complainant has established a prima facie case of discrimination, its assessment can include an analysis of the prospects of doing so. According to the Tribunal, that analysis can be of assistance in determining the s. 27(1)(c) question.

In order to succeed with his complaint, the employee would be required to demonstrate prima facie discrimination. The test for prima facie discrimination requires complainants to show that:

  • they have a characteristic protected from discrimination under the Code;
  • they experienced an adverse impact with respect to employment (in this case termination); and
  • the protected characteristic was a factor in the adverse impact.

According to the Tribunal, even if the employee was successful in establishing that a factor in his termination was that he smoked marijuana while on shift, there was no evidence presented that showed the employer was aware that the employee’s consumption of marijuana was related to a physical disability.

The only support that the employee brought forth of a degenerative disc disease was a diagnosis that seemed to have been made two days after the employee’s termination. The Tribunal noted that, at no point did the employee suggest that his employer was aware that the reason he took marijuana was because of his degenerative disc disease. The Tribunal went on to state that, the employee failed to provide information to support that, even if he required marijuana to manage pain arising out of his disability, it was necessary for him to consume that marijuana during working hours. The Tribunal reaffirmed that before a duty to accommodate can be triggered, an employer must be aware of an employee’s disability, or ought reasonably to be aware.

Employer takeaways

The following are a few tips employers should consider from the above case and when it comes to the topic of disability and the duty to accommodate in general:

  • Section 27(1)(c) of the Human Rights Code creates a gate-keeping function that allows the Tribunal to conduct a preliminary assessment in order to remove matters that “do not warrant the time and expense of a hearing”. While the Tribunal is not required to determine whether the complainant has established a prima facie case of discrimination, its assessment can include an analysis of the prospects of doing so.
  • Once a disability within the meaning of human rights legislation is established, the complainant has the burden of showing a prima facie case of discrimination. According to the above case, the Tribunal affirmed that the test for prima facie discrimination requires complainants to show that:
    • they have a characteristic protected from discrimination under the Code;
    • they experienced an adverse impact with respect to employment (in this case termination); and
    • the protected characteristic was a factor in the adverse impact.
  • If an employer can show that a discriminatory standard, policy or rule is a necessary requirement of a job (i.e. bona fide occupational requirement (BFOR)), discrimination may then be allowed. Like the employer in the above case, an employer can claim a BFOR if a complaint of discrimination is made against them. The onus would be on the employer to demonstrate that it would not be possible to accommodate the employee without undue hardship. See paragraphs 26 to 31 of the above case.
  • In order for an employer’s duty to accommodate to be triggered, an employer must be aware of an employee’s disability, or ought to be reasonably aware.

Cristina Lavecchia

Cristina is an editor and researcher at First Reference. She is a licensed paralegal and obtained a Bachelor of Arts degree, Political Science major at York University. During Cristina's paralegal and undergraduate studies she studied employment standards, occupational health and safety, and workplace safety and insurance. Read more

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