Disability and termination under the Human Rights Code

February 27, 2017 Kevin Sambrano, Sambrano Legal Services HR Policies and Procedures, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Source Deductions and Reporting, Wages and Compensation

Under the Ontario’s Human Rights Code (the Code), an employee cannot be terminated due to a disability. If the Human Rights Tribunal finds that the termination was based in part or in whole on a disability, this may be considered a breach of the Code. The matter was addressed in one of the first Tribunal decisions of 2017, Ben Saad v. 1544982 Ontario Inc.

Background

The applicant, a migrant worker, was injured on the job some five months after he began work for the respondent. The applicant was terminated in February of 2015 while on light duties. The applicant alleged the termination was as a result of his disability. In a human rights Application, the onus is on the applicant to establish on a balance of probabilities (i.e. more likely than not) that disability was a factor in the termination.

The respondent did not attend the hearing in spite of notices being sent out by the Tribunal.

The applicant testified that on November 4, 2014 he suffered a head injury at work. In spite of having a doctor’s note excusing him from work for a period of one month, he felt pressured to return and consequently only took one week off work, and was given light duties upon his return. He testified that his supervisor pressured him to return to normal duties right up until the applicant was terminated. [i]

When the applicant asked about the reason for the termination, he was told that he simply was not needed anymore. The applicant also testified that following his termination, he found it very difficult to find a job, citing that during a meeting he had previously been told by his employer (the respondent) that if any of them stopped working for them, it would tell other employers these workers were a problem and it would not be easy for them to get a work permit elsewhere.[ii]

Analysis

Under the Code disability means:

“disability” means, (1)(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co–ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device […]

Decision

In the Tribunal decision, the Tribunal stated that:

…the respondents let the applicant go because of his attendance, which was affected adversely by his disability. The discriminatory act was…making the decision to terminate the applicant on its view that he had very poor attendance, as set out in the January 26, 2015 human resources memo, which I find he would not have had if he had not been injured. I accept the applicant’s uncontroverted testimony in that respect.[iii]

Remedies

Among other damages, the applicant was awarded $20,000.00 for injury to dignity, feelings and self–respect. The respondent was also ordered to retain the services of a consultant with expertise in human rights to assist with human rights training and the developing of a Human Rights Policy.

Takeaway

The takeaway for employers is that it may be prudent to first seek legal advice when addressing any termination, especially if it may contain a human rights component.

[i] Ben Saad v. 1544982 Ontario Inc., 2017 HRTO 1

[ii] Ibid., para. 33

[iii] Ibid., para. 47

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Kevin Sambrano, Sambrano Legal Services

Paralegal at Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more