These days more employees are willing to disclose their disabilities to their employers to trigger the employers’ duty to accommodate in accordance with Human Rights legislation. This creates a greater understanding between the employers and the employees of the specific circumstances facing the employee in the workplace and adjustments can then be made to ensure a more productive working environment for all. But what happens when an employee does not disclose a mental disability until after violent threats are made in the workplace? What rights does the employee have in that situation? What obligations does the employer have towards the employee? Would the employer’s act of terminating the employee for cause be upheld or be viewed as an act of discrimination?
In the recent Ontario Court of Appeal decision of Bellehumeur v. Windsor Factory Supply Ltd., the Court agreed with the Trial Judge that the Employer’s termination of the Employee for cause due to violent threats made by the Employee was justified and was not an act of discrimination.
Although the Employee had disclosed some of his disabilities to his Employer, including alcoholism, a thyroid condition and heart issues, the Employee did not disclose his mental disability. The Employer accommodated the Employee for the disclosed disabilities as required by the Ontario Human Rights Code.
One day, the Employee made violent threats in the workplace to his co-workers. As a result of these violent threats, which were unrelated to his disclosed disabilities, the Employer terminated the Employee for cause. The Employee brought an action seeking damages for wrongful dismissal, taking the position that he should not have been terminated for cause due to his mental disability and that the Employer’s termination was an act of discrimination.
At Trial, the Judge determined that because the Employer was not aware of the Employee’s mental disability until after termination and the decision to terminate was based on the violent threats in the workplace only, the Employer was justified in terminating the Employee for cause and the termination was not discriminatory.
The Employee appealed this decision to the Ontario Court of Appeal.
The Court of Appeal reviewed the facts and ultimately dismissed the appeal on the basis that the Employer was not aware of the Employee’s mental disability at the time of termination and the Employee’s conduct, being violent threats, resulted in a breakdown of the employment relationship justifying the Employee’s termination for cause in accordance with principles outlined in the Supreme Court of Canada’s decision of McKinley v. BC Tel. The Court noted that the Employer “fired him as they would any employee who engaged in such workplace misconduct.” Accordingly, the Employer’s conduct in terminating the Employee was not an act of discrimination and there was no violation of the Human Rights Code.
Lessons for Employers
This decision demonstrates that an employer’s duty to accommodate is specific to each disability in that an employer’s awareness of one disability does not imply that the employer is aware of all the employee’s disabilities. It is the obligation of the employee to disclose all disabilities they wish an employer to accommodate and to take into consideration in their dealings with that employee. An employer will likely not be expected to accommodate an employee for a disability the employer is not made aware of by the employee. In an abundance of caution, employers should seek out the advice of Employment Law Lawyers for guidance prior to taking disciplinary action against any employee to determine whether there are any obligations on the employer to be considered prior to taking action.
Lessons for Employees
Employees should be aware that while Human Rights legislation offers protections to workers and places certain obligations on their employers to accommodate, disclosure of the disability is required to trigger those obligations. If an employee does not disclose their disability, the employer will not be expected to take that into consideration when implementing discipline, including termination, or in their overall conduct towards the employee. While it is understandable that some employees may not want to disclose their disability to an employer, not disclosing may have greater negative consequences than sharing that information with their employer. Prior to disclosing a medical condition to an employer, it is recommended that the employee consult with legal counsel to weigh the pros and cons of disclosure.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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