Canada: When Is Enough, Enough? Managing Difficult Employees In The Human Rights Context

Last Updated: June 24 2015
Article by Barbara B. Johnston QC and Chelsea K. Ritchie

Not surprisingly, employers seek to hire individuals who will perform the duties of their job diligently, honestly and faithfully. Unfortunately, instances can occur where employers find themselves facing an unmotivated and/or disinterested worker who accumulates disparate and unrelated absences under the pretense of a disability. When it comes to such "difficult employees", managing the employment relationship can prove challenging for employers.

In the recent decision of Saunders v. Syncrude Canada Ltd.,1 the Alberta Court of Queen's Bench provided clarity on some of the issues that affect employers trying to manage the employment relationship in the face of unsubstantiated and unrelated absences that the employee claims result from a disability. In Saunders, the Court overturned a decision of the Alberta Human Rights Tribunal (the "Tribunal"), confirming the necessary threshold to establish a disability in the employment context and the level of proof required of a complainant to provide objective medical evidence of a "disability".

In Saunders, the complainant was a newly hired process operator. Almost immediately upon commencing employment, the complainant demonstrated excessive pattern absenteeism and a failure to adhere to the employer's policies and procedures. Not only did the complainant's absences consistently fall immediately before or after scheduled days off, but they were largely unsubstantiated. Importantly, on one occasion the complainant requested and was denied time off to attend a music festival. He then called in sick for the exact same days he had been denied time off. The complainant only provided vague medical information to support his absences.

Attendance management procedures had been reviewed with the complainant in his orientation. In a further attempt to manage the employment relationship, the employer discussed the excessive absenteeism with the complainant, but the issues persisted to the point where they negatively impacted the complainant's progress as a process operator. In line with its policies, the employer sent the complainant to health and wellness for an assessment and the complainant was placed on medical tracking. The complainant claimed to have migraines, though he made no requests for accommodation and there was no indication he was unable work. When the pattern absenteeism persisted, the complainant was warned that corrective action would be taken if his attendance did not improve. The complainant then injured and reinjured his hand and was absent from work for approximately five months. The employer ultimately determined the complainant was not progressing in his position and was dismissed for his excessive and patterned absenteeism. At the time of his dismissal, the complainant had been employed by the employer for less than one year.

The complainant brought a human rights complaint alleging discrimination on the basis of physical disability. The employer argued there was no objective evidence of a disability. Throughout the proceeding, the employer requested that an adverse inference be drawn against the complainant for his failure to call his doctor or any attending physician to establish a disability. The employer also challenged the complainant's credibility on the basis of his contradictory and inconsistent testimony, arguing that this impacted the complainant's ability to demonstrate a case of prima facie discrimination. In the alternative, the employer argued that if there was a disability, it had met its duty to accommodate the complainant to point of undue hardship. The employer further argued the complainant failed to facilitate his own accommodation.

The Tribunal found that the complainant suffered from migraines and a broken hand and that he was dismissed on the basis of a physical disability. It further found that there was a case of prima facie discrimination and that the complainant's credibility did not impact his ability to establish discrimination. Importantly, the Tribunal refused to draw an adverse inference against the complainant, stating that the employer could have called the complainant's doctor if it wished to do so. Having found the complainant established a case of prima facie discrimination, the Tribunal concluded that the employer did not accommodate the complainant to the point of undue hardship.

On appeal, the Alberta Court of Queen's Bench applied a standard of reasonableness and found that the Tribunal committed a number of reviewable errors. Firstly, the Tribunal erred when it failed to adequately assess the complainant's credibility. The Court agreed with the employer that the complainant's oral testimony was vague, contradictory and unsupported by the documentary evidence before the Tribunal. The Court held that it was unreasonable for the Tribunal not to consider the complainant's credibility when it found a case of prima facie discrimination had been established.

Secondly, the Court held that the Tribunal erred in finding the complainant's condition entailed the necessary severity and permanence to constitute a disability. The Court agreed with the employer that the complainant's condition did not meet the "disability threshold" and that a "disparate, unrelated and temporary episode of injury" is not a disability under the Alberta Human Rights Act.

The Court further determined the Tribunal erred when it neglected to draw an adverse inference against the complainant for not calling his doctor or any attending physician to give evidence of his alleged disability. In this regard, the Court found that the Tribunal inappropriately shifted the onus to demonstrate a disability from the complainant to the employer when it required the employer to call the complainant's doctor, finding that he was not equally available to both parties as the Tribunal had found. Further, the Court also found that the Tribunal breached the duty of fairness when it accepted medical notes from the complainant's doctor without giving the employer the opportunity to cross-examine the author. Lastly, the Court found there was no perceived disability and that had there been a finding of disability, perceived or otherwise, it would have been impossible for the employer to further accommodate the complainant without undue hardship given the evidence of his patterned absenteeism. The Court declined to remit the matter to another Tribunal, noting "the futility of remitting the matter back to another Tribunal to arrive at the only reasonable result".

The decision in Saunders has broad application for employers struggling to manage "difficult employees" who accumulate a number of disparate and unrelated absences under the guise of a disability. The Alberta Court of Queen's Bench has determined that employers need not accommodate employees whose persistent absences are not supported by medical evidence. While employers remain under onerous obligations regarding the duty of accommodation, Saunders has provided clarity on what is expected of employers in the context of the "difficult employee" and the threshold an employee must meet to establish a disability. The Court not only confirmed that, when it comes to an alleged disability, the onus of proof lies with the complainant, but it found that a disparate and temporary condition does not meet the threshold for protection under human rights legislation.


1 Saunders v. Syncrude Canada Ltd., 2015 ABQB 237, 2015 CarswellAlta 627, rev'g 2013 AHRC 11.

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