Written on behalf of Peter McSherry
The Canadian Human Rights Commission recently found discrimination based on disability in a case where a Bell Canada employee was terminated while recovering from cancer. In Luckman v. Bell Canada, the employee was diagnosed with cancer and had to take medical leave to recover from surgery. Upon returning to work, Bell Canada did not provide adequate support for Mr. Luckman’s full recovery. He was terminated less than a month later.
The Commission found that Mr. Luckman’s illness was a factor that contributed to his termination. As a result, Bell Canada was required to pay both lost wages and damages to the former employee. The Commission sanctioned Bell’s actions by awarding willful or reckless conduct damages to the employee.
Employee terminated after returning from cancer-related medical leave
The employee began working for Bell Canada in May of 2016 as a Business Development Manager. At that time, the employee was the primary caretaker for his father. The employee started experiencing health issues in mid-2016. In April 2017, Mr. the employee’s father was hospitalized and eventually passed away. The employee was subsequently diagnosed with cancer.
Initially, the employee took five days of bereavement leave after his father’s death. He subsequently went on medical leave at the beginning of May 2017 to undergo surgery for his cancer. He attempted to return to work in October 2017, but his return to work was unsuccessful, and he went on medical leave once again. In November 2017, he returned to work, only to be terminated at the beginning of December 2017.
Employee made discrimination claim based on disability and family status
Section 7 of the Canadian Human Rights Act reads:
7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
The employee raised two grounds of discrimination: disability and family status. He had a return-to-work plan that his supervisors did not respect. They were supposed to monitor his workload but failed to do so. He was quickly overwhelmed from being “bombarded with calls from clients” upon his return. Bell Canada did not offer any other support to ease the employee back into the workplace, such as more flexible hours, a lighter workload, or the option to work from home.
Employer considered medical restrictions before termination
Bell claimed that the termination resulted from company restructuring and that the employee was the weakest team member. However, the Canadian Human Rights Commission found that the employee’s illness was indeed considered as part of the criteria Bell used to select employees for termination, as evidenced by Bell’s Statement of Particulars:
“The Complainant was a short-service mediocre employee who was likable, but also underperformed during times when he was fit-to-work and had no medical restrictions or accommodation needs. Accordingly, his role was selected to be eliminated, and this was reflected in his termination letter.”
As a result, the Commission found that Bell did discriminate against the employee based on his disability. Although successful on this ground, the Commission did not accept the employee’s claim of discrimination based on family status. Bell only knew about his father’s condition for a very short time, and his eventual termination occurred eight months after his father’s death.
Employee awarded lost wages and damages
As the Canadian Human Rights Commission found that Bell had discriminated against the employee based on disability, it ordered multiple remedies.
First, the Commission awarded the employee his lost wages, equal to $91,052.40. These were the wages the employee would have earned had he not been terminated up until he began his new job. Bell attempted to argue the employee failed to mitigate his losses by not trying to find a job more quickly, but the Commission found evidence that the employee took all of the necessary steps to secure a new job.
The Commission also awarded $15,000 in damages for the employee’s pain and suffering due to the termination. Finally, they awarded another $15,000 in damages for Bell’s willful or reckless conduct. These damages are a remedy used as a deterrent for those who deliberately engage in discriminatory action.
The employee attempted to claim his legal fees of $30,000. However, the Commission declined to order these as legal fees do not fall under the definition of expenses.
Connect with Employment Lawyer Peter A. McSherry in Guelph for Employment-Related Human Rights Advice
Peter A. McSherry Employment Lawyer regularly helps employees who have faced discrimination based on grounds protected by provincial and federal human rights laws. We will advise you on your rights and entitlements under the law and will prime your case for success. A skilled and knowledgeable employment lawyer, Peter A. McSherry regularly assists employees on a variety of employment-related issues, including wrongful dismissal and severance issues. Our office is conveniently located in Guelph and represents clients throughout the Greater Toronto Area. To schedule a confidential consultation, contact us online or by phone at 519-821-5465.