A recent Ontario Human Rights Tribunal case offers a clear message to employees: you have to make your employer aware of a disability if you want to trigger the employer’s duty to accommodate. In this case, the tribunal found that the employee may have been suffering from stress and depression as he claimed, but he did nothing to bring it to the attention of the employer, even though he had multiple opportunities to do so. As a result, the tribunal found that the employer did not discriminate against the employee on the ground of disability, and did not fail to accommodate the employee.
The employee was a program coordinator in a residential facility offering care and therapeutic services to persons with neurological disabilities and injuries. The position involved therapeutic as well as administrative and supervisory functions.
In a nutshell, his performance was less than stellar.
The employer had many meetings with the employee, provided many letters outlining the concerns regarding his performance, and even prepared a performance improvement plan. The poor performance continued, until one day the employee did not give a resident required medicine and left a vulnerable resident in the bathroom unattended.
That was the incident that convinced the employer it was necessary to terminate the employee due to poor performance. According to the employer, the employee never mentioned he was suffering from stress or depression. The employer had no way of knowing.
The employee claimed he was being discriminated against on the ground of disability because he suffered from stress and depression. In fact, he claimed that he told his supervisor repeatedly about being stressed out and suffering from depression.
The tribunal had to make some credibility findings and concluded the following:
- There was no evidence that the employee repeatedly asked his manager for time off due to stress and depression
- There were no documents or emails showing a disabling condition related to stress or depression, or any accommodation requests relating to a disabling condition
- It was “surprising” that there were no employer requests for further medical information or documentation regarding the impact of the disability or the employee’s ability to perform his job
- The employee never raised the existence of a disability or functional limitations during any of the performance evaluation processes
- The employee only had medical notes dated after the termination; he provided no test results or any information about his functional limitations, not even a year after the hearing took place
The tribunal concluded that the employee did not establish that he had a disability, and did not establish that his termination had anything to do with a disability.
Thus, the message is clear: when a termination has nothing to do with a disability as claimed, the employer will not be found to have discriminated against the terminated employee. Also, the duty to accommodate is triggered when the employee makes the employer aware of a disability and the associated accommodation needs. If the employer does not even know about a disability and has no reason to have known, the employer will likely not be faulted for not accommodating an employee.
Christina Catenacci
First Reference Human Resources and Compliance Editor
Christina Catenacci, BA, LLB, LLM, Ph.D.
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