Workplace Discrimination on the Basis of Disability

Written on behalf of Peter McSherry

Every employee in Canada is entitled by law to be free from workplace discrimination on the basis of any of the grounds found in the Human Rights Code legislation. In Ontario, these grounds include, amongst other things:

• race
• creed
• ethnicity
• age
• sexual orientation
• gender
• sex; and
• disability

In the event a person does experience discrimination in their employment on the basis of one of the listed grounds, they may pursue recovery of damages before the provincial or federal Human Rights Tribunal. Such tribunals are empowered to award damages for those who have experienced discrimination; including monetary compensation for injury to dignity, feelings and self-respect, and issuing orders that any offending party cease its offensive behaviour.

In the context of disability discrimination in the workplace, the victim may also seek compensation for reasonable notice damages and wages lost as a result of the discriminatory actions, if such actions included termination of the victim’s employment.

Disabled Employee Terminated for Alleged Time Theft

The recent decision Buckel v St. Joseph’s Healthcare Hamilton involved a complaint of disability discrimination in the workplace. The case involved a complainant who worked for the respondent employer for approximately 12 years, from October of 2005 until the termination of her employment by the respondent in October of 2017. Importantly, at all relevant times, the complainant was a unionized employee and was subject to a collective agreement dictating the complainant was to be paid for working 7.5 hours of each of 5, 8-hour workdays, which included 1 unpaid 30-minute lunch break and 2, 15-minute paid breaks.

Throughout her tenure with the respondent, the complainant was required to submit the time of her arrival, breaks taken, and departure from the premises each day to her supervisor. The supervisor would then enter the complainant’s information into the record-keeping system to ensure she was paid for all hours worked. As such, the complainant was not herself responsible for submitting her own timesheets or records of hours worked.

A Leave From Work

In October of 2017, the employer positioned a different employee as supervisor of the complainant. The supervisor held a meeting with the complainant in October of 2017 during which the complainant advised her supervisor that, due to ongoing health issues, she needed to undergo surgery which would necessitate a leave from work for some amount of time to allow adequate time for healing and rehabilitation post-procedure.

Undisclosed Workplace Investigation

Thereafter, the employer became aware that the complainant was not working all of the hours she was contracted to work, and that she was regularly arriving late and leaving before the end of her scheduled shifts.

Without advising the complainant, the employer undertook a workplace investigation in which it reviewed several months of the complainant’s recorded hours and matched those records to payroll records, schedules and video recorded evidence of the complainant’s arrival and departure from company premises. After completing its investigation, the employer concluded that the complainant had engaged in time theft to the tune of 164 hours, meaning that the complainant had been paid for 164 hours that she had never worked.

The Termination

According to the investigation, the complainant arrived late to work and to left early which, when all tolled, amounted to significant overpayment of the employee. The employer terminated the complainant immediately upon receipt of the investigative report, and did not allow her the opportunity to explain herself or to counter the evidence gathered in the investigation. Moreover, even when the complainant advised during her termination meeting that she could explain many of her absences had been approved by previous managers and were related to her need to attend medical appointments related to her disability, the employer took no steps to confirm the validity of her statements and completely ignored her disability.

The Employee Commences a Complaint Alleging Discrimination in Employment on the Basis of Disability

The complainant commenced a claim post-termination in which she alleged that she had been discriminated against in her employment on the basis of her disability. Specifically, she contended that the employer had terminated her employment because she required accommodation in the form of time off in order to undergo and recover from surgery. She argued that this was the ‘real reason’ for her termination. In support of her claim, the complainant provided evidence to counter the findings of the investigative report with respect to the hours she had actually worked versus the hours she had been paid for working. In total, the complainant was able to successfully demonstrate that for at least 16 of the 164 hours claimed as overpayment in the report, she was, in fact, working at her job.

How to Prove Discrimination Before the Ontario Human Rights Tribunal

In order to make a successful claim of discrimination before the Human Rights Tribunal of Ontario, a complainant must demonstrate, on the balance of probabilities (i.e., to a certainty of 51%) three things:

1. that the complainant possesses one of the protected characteristics listed in the Human Rights Code,
2. that the complainant experienced some kind of different, adverse treatment, and
3. that the complainant’s Code-protected ground was a contributing factor to that adverse treatment.

Where it concerns an allegation of discrimination in employment, the complainant must demonstrate that discrimination was a factor in the decision to terminate her employment. The complainant must prove that it is more likely than not that the reason for the termination of her employment was one of the grounds enumerated in the Human Rights Code.

Importantly, discrimination need not be the sole reason for the termination (or other offensive behaviour), but rather it must only constitute one of the reasons for termination, and the discriminatory behaviour in question need not be intentional. As such, it is entirely possible for the tribunal to find workplace discrimination even if the person who engaged in the offensive behaviour was unaware their behaviour was unacceptable and did not understand it to be discriminatory.

Was the Termination of the Complainant’s Employment Discriminatory?

Investigation Found To Be Discriminatory

After reviewing all of the applicable circumstances and evidence, the tribunal was satisfied that the termination of the complainant’s employment was indeed discriminatory. The tribunal noted that it found the investigation instigated by the employer to have been flawed. This was because the investigation relied upon the accuracy of timesheets and payroll records which were not the complainant’s responsibility to maintain.

Moreover, the complainant had not been provided an opportunity to explain why some of the absences recorded would not have accurately reflected what actually occurred on the dates in question. For example, if the investigation revealed that the complainant arrived 30 minutes late for work one day, she could have explained that on the date in question, she worked through her lunch break period with the approval of her previous supervisor in order to make up the time such that she had worked the appropriate number of hours.

Valid Reason For Investigation

That said, the tribunal was satisfied that the employer had valid reason to investigate the discrepancies between the hours paid to the complainant and the actual hours worked. Regarding the complainant’s disability, the tribunal noted that there was no doubt that the complainant had appropriately advised all necessary supervisory and management personnel of her need for time off to accommodate her upcoming surgery.

Accommodating the Disability

The tribunal was satisfied that this information should have triggered management to accommodate the complainant’s limitations arising from her disability/injury and consider that perhaps some of her so-called unexplained absences from the workplace could be explained by her need to attend medical appointments during working hours. Unfortunately, the employer did not properly understand its obligation to accommodate the complainant’s disability, and it terminated her employment instead.

The tribunal concluded that some of the absences alleged to be instances of time theft were in fact related to the complainant’s disability. Those absences had not only been approved by the employer, but were necessary in order to enable the complainant’s attendance at various medical appointments related to her disability. As such, the complainant’s disability was a factor in the decision to terminate her employment, even if the employer did not explicitly consider it as such.

The complainant was awarded $15,000 in compensation for injury to her dignity, feelings and self-respect.

Contact the Law Office of Peter McSherry Today for Assistance with Your Human Rights Claim

If you have faced workplace discrimination based on a protected ground, such as disability, pursuing a human rights complaint can be a critical step toward justice. Effective legal representation is essential to asserting your rights and navigating this process. Whether you are dealing with a wrongful dismissal, constructive dismissal, or an unjust noncompete agreement, Law Office of Peter McSherry is dedicated to providing its clients with skilled advocacy.

Based in Guelph, Ontario, we proudly serve employees across Southern Ontario with comprehensive strategic legal support tailored to your unique situation. Contact us online or by phone at (519) 821-5465 to schedule a confidential consultation and take the first step toward resolving your employment law matter.