Employer Faces Costly Consequences After Terminating an Employee on Disability Leave

Written on behalf of Peter McSherry
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For many Canadians, the thought of being terminated from a job because of an injury or illness unrelated to the workplace can be cause for concern. While it is possible for an employer to terminate an employee while they are on short-term disability benefits, an employer cannot terminate an employee if the termination is related to the employee’s disability.

A recent decision from the Human Rights Tribunal of Ontario serves as an example of what an employer must consider if they seek to terminate an employment contract of an employee who is off of work on short-term disability without violating that employee’s human rights.

Employee injured in accident outside of work

In Zameel v. ABC Group Product Development, the respondent employer was an automotive systems and components manufacturer. The applicant employee began working for the employer in April 2017 as an IT Operations Manager. At the time of his termination, the employee earned an annual salary of approximately $100,000, in addition to annual bonuses of approximately 5%, and he was a member of his employer’s group insurance benefits.

About six months into his employment, the employee was involved in a motor vehicle accident. He subsequently spent the night at the hospital and was discharged on October 7, 2017. The employee took one week off of work as a sick leave and returned to work on October 14, 2017.

Employee terminated while on short-term disability leave from work

Despite returning to work, the employee stated that he continued taking strong pain medication, which made him drowsy at work and slowed down his daily productivity. As a result, he talked to the employer, who agreed to the employee’s request to go on leave for short-term disability.

On November 11, 2017, the employee submitted a letter from his treating physician to his employer, who described him as suffering from “severe back and shoulder pain, inability to rest and stand for long hours.” The physician also wrote that the employee “is not totally disabled, needs modified work hours.” The employee provided another doctor’s note, dated November 20, 2017, which stated the same information.

The employee was terminated on November 28, 2017, while he was still on short-term disability leave.

Employer says termination was related to performance issues

The employer told the Tribunal that performance-related issues were noted regarding the employee’s work before his accident. The employer claimed that the first issue was recorded in May 2017, which was five months before the accident. The employer further claimed that the employee showed “significant and repeated performance deficiencies” in his role, and these concerns continued until his termination. The personal representative of the employer stated that he told the employee’s mentor of these concerns in May 2017 but did not act on them until November 2017 because he wanted to give the employee more time to meet his performance expectations.

The employer shared a handful of examples of times when the employee had not adequately performed his job as evidence of their performance concerns. The employer’s personal representative also testified that in September 2017, he told the employee that he would be terminated from his employment if he did not complete projects that were in flight before starting new ones.

The employee told the Tribunal he had no performance issues and that the employer had discriminated against him based on his disability. He testified that he had successfully completed all of his projects, and if there were any issues with them, they were beyond his control.

What constitutes a disability under the Human Rights Code?

The Tribunal began its analysis by noting that the Human Rights Code states that “no person shall infringe or do, directly or indirectly, anything that infringes a right under this part.”

Disabilities are protected under the Human Rights Code and are defined as,

“(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 coordination, 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,

(b) a condition of mental impairment or a developmental disability,


(e) an injury or disability for which benefits were claimed or received under the insurance

plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”).”

The Human Rights Code also states that an employer has a duty to accommodate an employee’s disability.

Was the employee’s termination related to his disability?

In order to determine if discrimination has occurred, the applicant (in this case, the employee) has to establish a prima facie case of a violation of the Human Rights Code. The Tribunal stated that this can be “described as a factual foundation for allegations which provide a complete and sufficient basis for finding in the applicant’s favour, before considering any responding evidence.” Once this occurs, the respondent (in this case, the employer) takes on an evidentiary burden to demonstrate on a balance of probabilities that the applicant’s allegations do not constitute a violation of the Human Rights Code.

The Tribunal found that the employee had established a prima facie case of discrimination, highlighting that the employee was terminated from his job while he was on short-term disability leave.

Employer ordered to pay employee over $80,000 in compensation

The Tribunal then looked at whether the employer had established that the termination resulted from poor work performance and not related to the employee’s disability. The Tribunal found that there was no written documentation concerning any of the employee’s performance issues, no performance reviews, and no notes in the employee’s performance plan to suggest any deficiencies or improvements.

The Tribunal ultimately found that discrimination on the basis of disability was probable and was at least a factor in the employee’s termination. The Tribunal ordered the employer to pay the employee $30,000 in compensation for infringement of the employee’s rights and resulting injury to his dignity, self-respect, and feelings, in addition to $50,000 as compensation for lost wages. The Tribunal further ordered the employer to provide the employee with a letter or reference and ordered that the employer’s personal representative and Human Resources staff must complete Human Rights Code training.

Peter A. McSherry, Employment Lawyer in Guelph Advises Employees on Claims of Wrongful Terminations and Human Rights Code Violations in the Workplace

The trusted employment law team at Peter A. McSherry understands that being terminated from your job can have substantial and long-lasting impacts for you and your family. In cases where there has been wrongful termination, unfair severance packages, or discrimination in the workplace, we will advocate on your behalf to ensure that your rights are protected, and fair compensation is received. To speak with a member of our team regarding your wrongful termination concerns, call us at 519-821-5465 or contact us online to schedule a confidential consultation.