A recent Ontario Human Rights Tribunal decision confirms that
not every complaint of discrimination will find a sympathetic ear
at the Tribunal. In
Kendjel v. Strategic Mapping Inc. the
Applicant employee alleged that she was discriminated against on
the basis of disability when she was dismissed from her
employment. The Applicant, who largely held an
administrative role for the Respondent Company, had fractured her
wrist at work. After a period of recovery and some modified
duties, the Applicant returned to her pre-injury duties where she
worked for another year before being fired on a without cause
basis. The Applicant claimed that she was fired because
she could no longer work overtime with her injury. The
Company claimed that the Applicant's attitude had become
negative even prior to the injury over a dispute with her salary
and that she had already been working reduced hours prior to the
workplace injury. This change in attitude, coupled with some
performance issues just prior to the dismissal, led to the decision
to dismiss the Applicant from her employment.
In assessing the evidence before the Tribunal, the Adjudicator
confirmed that the Applicant's onus was not to show that she
was dismissed only because of a disability but only that the
disability was a factor in the decision. The Applicant also
bore the onus of demonstrating that she in fact, had a disability
at the time of the dismissal. The Adjudicator
determined that the Applicant had not met either onus in the
circumstances of this case. First, the Applicant could not
establish that she had an ongoing disability as she had attended
physiotherapy for only three months after her cast was removed and
could not provide any medical documentation of follow-up
appointments or medical opinions that she continued to be
disabled. She did not require or seek any form of
accommodation once the cast was removed and the Adjudicator
accepted the Company's evidence that while she wore a wrist
brace for a few months she stopped wearing it well before the
dismissal. The Adjudicator concluded that even if she
continued to have issues with her wrist, the Company was not made
aware of these issues and therefore could not have relied on any
alleged ongoing disability in its decision to dismiss.
The Company was also able to point to several non-discriminatory
factors that supported its decision to dismiss, including support
for their position that the Applicant's attitude had become
negative as well as legitimate performance concerns that arose just
prior to the dismissal. By all accounts, the
Adjudicator was satisfied that the Applicant had been accommodated
while her wrist fracture healed and had been treated fairly by the
employer. Importantly, the Adjudicator held that even if the
Company was wrong in its assessment that the Applicant was
responsible for the accounting errors that led to her dismissal,
that error was not discriminatory under the Code, although
it may be relevant to allegations of wrongful dismissal.
This case underscores the importance of being able to
demonstrate that the decision to dismiss is unrelated to any
alleged disabilities. Here, the employer could have chosen to
dismiss the employee sooner given the Applicant's negative
attitude and some of the difficulties they encountered in her
return to work through the WSIB. If they had done so
closer to when the Applicant had injured herself they likely would
have had more difficulty defending the dismissal as
non-discriminatory. Allowing the plaintiff sufficient
time to reintegrate into the workplace and evaluate performance and
attitude once her wrist had healed served this employer well.
Navigating performance issues with employees who have been off
work or previously accommodated can be a challenge. The
lawyers at CCP have significant experience assisting employers with
their accommodation obligations and assessing whether a dismissal
will pass the Tribunal's "no non-discriminatory
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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.
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