Terminated while on disability leave
When it comes to establishing a violation of the Ontario Human Rights Code a little dab of motivation will do you. The law has long been that if an employee is subjected to any kind of negative treatment which relates, even in part, to a prohibited ground of discrimination, a violation of the Human Rights Code is established as if it was the entire motivation.
The Code prohibits discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Let’s imagine that you have worked for a company for ten years as a customer service representative. Every one of your performance reviews has been either satisfactory or better. Six months ago, you had to go off work as a result of major surgery. You are about to return to work in a month but have learned that there have been cutbacks at the office. Five out of 20 customer service representatives have been terminated. You are one of them even though you were third highest in seniority.
Strictly speaking, when you are not in a union, seniority is irrelevant. Sometimes companies let the highest paid workers go, even though they are most senior, to save more money from the terminations. If that were the sole motivation, while it as a rather thankless approach, it is not a human rights violation.
But you know the identity of the other four people let go. You know that they were newer employees who would have made significantly less than you in the pay grid so firing the highest paid workers could not be what’s driving the employer. If it was, all of the top earners would have been let go. Although you may have been offered a reasonable severance package based on your age, seniority and level of responsibility, that is not necessarily enough. You should speak to a human rights lawyer about the possibility of filing a complaint with the Ontario Human Rights Tribunal.
If the matter proceeds to a hearing it is up to you to establish on a balance of probabilities that at least part of the motivation for your termination was that you were off work as a result of disability at the time of the cutbacks. The reality is, however, that once the above-noted facts are outlined to an adjudicator, they are going to look to the employer to explain why you were picked to be one of the five out 20 let go.
If they want to argue that it was performance related then they are going to have to produce the performance reviews of everyone who was kept to compare them to yours.
If your human rights complaint is successful the court will award lost wages for the period that you remain unemployed while looking for work far beyond what would usually be awarded as a normal notice period by the courts in a wrongful dismissal suit. The court will also award general damages for the violation of the right to be free from discrimination which ranges, most often, from $10,000 to $30,000, although that number is going up as the years go by.
While I have seen many employers trying to hide terminations motivated by a disability in amongst general cutbacks at the company sometimes the job is legitimately gone. Just because you are back to work with modified duties doesn’t mean you get to be treated any better than employees without a disability.
The Ontario Human Rights Code requires employers to accommodate employees to the point of undue hardship. In the case of disabilities, the employer does not have to terminate somebody else (unless they are a short-term or temporary worker) or create a position or work that they don’t already have or don’t need. If, as a result of restructuring the workplace, there are no jobs left that you can do with your limitations that are not already filled, the employer can terminate you without human rights liability.
Unfortunately for complainants, nobody ever writes a memo that the complainant can get their hands on confirming that part of the reason for the termination related to a prohibited ground of discrimination. That does not mean, however, that a violation of the Code cannot be established. It just takes some digging.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at email@example.com