Q&A's Human Rights Issues
After 10 years of service in a supervisory position I was recently terminated by my employer without any explanation. I have received only positive feedback and yet they replaced me soon after I was let go.
Admittedly the job was stressful and over the last few months I was developing an increasingly troublesome tremour in my left hand. I never missed work and could still do the typing I needed to do in my supervisory position. As it got worse I started being assessed for Parkinson’s disease. Before the diagnosis came back, I was let go.
Fortunately, with the loss of stress the tremour has subsided and it looks like there are no serious long-term issues. Given that I don’t actually have a disability, do I still have a human rights claim?
You do. If it can be shown on a balance of probabilities that you were let go because the employer believed that you were going to become a disability issue, that is a violation of the Ontario Human Rights Code
whether you have a disability or not. Punishing an employee in any way for even a perceived disability issue constitutes a violation of the Code.
You have the right to bring a claim before the Ontario Human Rights Tribunal. Separate and apart from any wage loss you may have suffered, you will be awarded general damages for violation of your right to be free from discrimination. Predicting how much would be awarded in any particular circumstances is extremely difficult but the range appears to be from $5,000 to $100,000 or more. Most awards are in the $10,000 to $30,000 range.
Although the burden is officially on you to prove your perceived disability was the motivation behind your termination, things change in hearing room. Once the Vice Chair who will decide the case learns that you were a 10-year employee with a good performance record who was replaced soon after, she will look to the employer. She will expect them to provide a persuasive non-discriminatory reason for your termination. If they come up with performance issues that were never discussed with you, she will rightfully be skeptical of their justification. You have one year from the date of your termination to file that claim and you should. You have nothing to lose. The employer’s legal costs, even if you are not successful, will not be your responsibility.
Two weeks before my five-year receptionist went off on a sudden sick leave for surgery, I made the decision to terminate her employment. It had not happened yet because I needed to find a replacement. While she has been off I have found one. If I terminate her when she is cleared for a return to work, am I going to end up before the Ontario Human Rights Tribunal?
There is a good chance that the allegation is going to be made that this termination was motivated by her disability and absence. If you can prove, however, that the decision to terminate her had been made before there was any notion of a sick leave, she will not succeed. What you are looking for is an email or text between management or a conversation with your legal counsel. Those provide the best evidence possible. If you had a conversation with another member of your management team, that may also suffice. Note that the decision was made before the leave in the termination letter.
A discrimination claim under the Ontario Human Rights Code
is about motivation. If you were motivated to terminate her and made that decision before she became ill then you are protected.
A note of caution. Just having considered terminating her will not do the trick. If the Vice Chair is persuaded that you were thinking about terminating her but had not decided, you will likely be in trouble. If you had not decided that means something must have tipped the scale for you to make the decision. Given that the only intervening event was her absence due to illness, the Vice Chair will probably conclude that her illness and absence was at least part of the reason. It does not have to be all of the reason for you to lose.
Ed Canning is a labour and employment lawyer with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at firstname.lastname@example.org