Workplace Wire

A common and difficult situation that faces employers is how to approach terminating an employee when some other event raises the risk that the termination will result in a human rights complaint.

We often see cases in which an employee is terminated while off on maternity leave or sick leave or shortly after returning from such leaves. And in those cases the almost universal response of the employee is a discrimination claim.

Although in such situations the employee has the ultimate onus of proving that the termination was tainted at least in part by discrimination, the employer will often be called on to explain itself, to demonstrate a sound non-discriminatory reason for the termination.

Although these sorts of cases are common and the principles are well settled, it is useful to revisit how the Human Rights Tribunal of Ontario applies them from time to time, to recall what sorts of facts will assist an employer in defending itself from such discrimination claims.

A good recent example is Hummel v. Transport Training Centres of Canada Inc.

The applicant in that case had been employed by a predecessor company since 1997, which was purchased by Transport Training Centres of Canada Inc. in 2009. He then suffered a slip and fall accident in February 2010 and was permanently laid off two weeks later. The applicant indicated that he had no prior notice that his job was in jeopardy and that he had been a good, reliable worker at all times.

The Tribunal had no problem finding that the applicant had a protected disability – he was off on WSIB benefits for 18 months following his accident.  Further, the Tribunal noted that the “termination of the applicant’s employment within two weeks after his slip and fall accident may raise suspicions of discrimination, and understandably so.”

However, the Tribunal also noted that the principal question was whether the applicant’s disability was in any way a factor in the decision to terminate his employment.

In answering that question in the negative, the Tribunal noted email evidence confirming that the decision to terminate had been made a full month or more before the injury that resulted in the disability. Further, the evidence showed that the termination was a business decision tied to the purchase of the applicant’s former employer.

Significantly, the Tribunal found that the conclusion of no discrimination was also supported by surrounding evidence of the employer’s actions,  “in terms of not hiring replacement employees, re-assigning responsibilities and/or the general re-structuring that ensued”.

For the Tribunal, the applicant’s suspicions and the unfortunate timing of his termination, on their own, did not prove that the termination was tainted by discrimination.

As the Tribunal also noted, it “lacks the authority to provide remedies for unfair treatment generally” and “also does not have the general power to decide whether the respondent … treated the applicant fairly and appropriately”. Such cases are  “not about whether the applicant was a “good”employee” nor are they about “whether the respondent should or should not have created a new position for the applicant or found some other way to keep the applicant employed”.

Such cases are solely about whether there is sufficient evidence to find, on the balance of probabilities, that there was any discriminatory basis for the decision to terminate. Keeping in mind what the Tribunal looks for in answering this question will help employers to stay compliant with the law of human rights.