I read a case recently that ended very badly for the employer involved. The Ontario Human Rights Tribunal decided that an employer discriminated against an employee on the ground of disability when it terminated the employee five days before he had to have hip surgery. The employer had to pay $10,000 for injury to the terminated employee’s dignity, feelings and self-respect, plus interest.
In this unfortunate story, the employee, who had been working with the employer for two years had to have hip surgery due to severe arthritis, which would require about eight to twelve weeks off work for recovery. He told the employer, and proposed that he use about three weeks’ accumulated sick time, two weeks of accumulated vacation time, and an advance of his annual vacation time.
Five business days before the surgery, the employee was verbally advised that he was terminated and received a termination letter later.
The employee launched a human rights claim against the employer and members of the “executive” alleging he was discriminated against on the ground of disability in employment. The employee believed that the employer and executives did not want to pay him during his sick time and terminated his employment as a cost-saving measure.
The employer argued that the employee was terminated for financial reasons and poor performance, and there was restructuring of functions and departments going on at the time of the termination, and the employee’s position was made redundant. The employer submitted that it was unfortunate that it occurred at the same time that the employee was about to go on leave to have surgery.
Interestingly, the employee’s primary responsibility was in sales of training products.
The Tribunal decided that disability was a factor in the termination. What’s more, the decision to terminate was made with considerable haste. In fact, the employer did not even take steps to find a replacement to fill the position until a few months after the termination.
It was clear to the Tribunal that there was sufficient evidence to draw an inference that the employee’s pending time off for surgery was a factor in the decision to terminate.
Furthermore, although there may have been a future restructuring of the employee’s position, it would not have occurred when the employee was terminated.
Due to the finding of discrimination, the employer had to compensate the employee for injury to dignity, feelings and self-respect in the amount of $10,000 plus interest.
The big lesson here is – never terminate in haste. It was clear that disability was a factor in the termination, and the Tribunal could see through the employer’s ruse. This kind of behaviour is going to get an employer in trouble and liable for a costly award.
Christina Catenacci
First Reference Human Resources and Compliance Editor
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