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No “give and take” required by employee in accommodation under the Human Rights Code

dutytoaccommodate1The applicant, Michele Macan, filed a human rights application alleging discrimination with respect to employment due to disability. The respondent, Stongco Limited Partnership, rejected the allegations, instead submitting that the applicant’s disability was “not a reason, a factor, or even considered in its decision to terminate the applicant”.[1]

The respondent alleged that her termination was a result of a restructuring within the applicant’s department. The hearing was held over the course of 3 days.

Background

Prior to the applicant being hired, the applicant had been diagnosed with a chronic medical condition which required frequent time off from work. At the time of her termination, the applicant had worked with the respondent for approximately 3 years. The applicant testified that due to her disability, she was required to attend a series of medical appointments during the workday.

During a meeting in late September of 2010, the respondent was called into the office to address her attendance issues. The applicant testified that during the meeting it was brought to her attention that she was taking too much time off work, which was a “burden” on the department and “unfair” to other employees.[2] The respondent denied this had been said. The respondent testified that during the conversation the applicant was told that the respondents need to be “fair to everyone”, and if the applicant needed time off there needed to be both “give and take”.

The applicant was eventually terminated on January 6, 2011, citing “restructuring” as the reason, and as such, the applicant’s position had been eliminated.

The issue

Was the applicant’s disability a factor in the respondent’s decision to terminate the applicant?

The decision

In its decision, the Tribunal wrote,

…it is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason.”[3]

The Tribunal found that it was more probable than not that the applicant’s disability was a factor in the respondent’s selection of her to be terminated.

Among other considerations in the decision, the Tribunal accepted the applicant’s evidence that her absences, including her late arrivals and early departures for medical appointments, had become a “burden” for the respondent as told to her by the respondent. Although the respondent denied using the word “burden”, there was testimony by the respondent that the words “fair” and “give and take” were used, which in the opinion of the Tribunal, suggested that the respondent was prepared to give the applicant something to which she was not otherwise entitled, provided that the applicant gave something back to it.[4] Under the Code, the employer is required to accommodate disability to the point of undue hardship, it is simply something that does not require “give and take” on the part of the applicant.

Damages

Among other remedies ordered by the Tribunal, the applicant was awarded $15,000.00 as monetary compensation for injury to her dignity, feelings, and self-respect, in addition to lost wages.

Macan v. Strongo underscores the price employers may pay when found in breach of the Code. The decision also reminds employers that there exists a duty to accommodate an employee with a disability to the point of undue hardship, and that the decision-making process must be based on an objective standard rather than connected to an employee’s disability.
 


 
[1] Macon v. Strongco, 2013 HRTO 841 (CanLii) para. 16

[2] Ibid., para.39

[3] Ibid., para.100

[4] Ibid., para. 109

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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