The Alberta Court of Appeal affirmed an arbitral award upholding
the termination of a probationary employee with Asperger's
syndrome in Telecommunications Workers Union v Telus
Communications Inc., 2014 ABCA 154. The arbitrator had
acknowledged that the grievor's disability was a contributing
factor to his failure to meet the performance standards required of
him and to his resulting termination. She went on to conclude that
the employer had no duty to accommodate the grievor where
accommodation had not been sought and the employer was unaware of
the nature of the disability or that accommodation was
Finally, she accepted, as did the union, that no accommodation
of the grievor's condition would have been possible.
The Court held that two different standards – correctness
and reasonableness – applied in reviewing the decision. The
former applied to the assessment of the stated test for prima facie
discrimination and the latter applied to the application of that
test to the facts.
In relation to the content of the test, the arbitrator and the
lower court had incorrectly added a requirement for employer
knowledge of the grievor's disability to the test for prima
facie discrimination. Only 3 elements need be established for
proof of a prima facie case of disability discrimination: (1) a
protected characteristic (Asperger's); (2) an adverse impact
(termination); and (3) proof that the protected characteristic was
a factor in the adverse impact (Asperger's contributed to the
performance difficulties that resulted in the termination).
Although a prima facie case of adverse effect
discrimination had been established on the facts, that case was met
by the finding that no possible accommodation could have been made
unless the employer had a duty to consider transferring the grievor
to a different, more suitable position within its organization. The
arbitrator had found that no such duty existed in the case of a
probationary employee. The Court found no need to address the
reasonableness of that finding, given that no suitable positions
had been identified. The employer did not have an independent
procedural obligation to embark upon a search for a suitable
position where substantive accommodation was impossible.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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