At times, employers have to make allowances for employees to care for personal needs. At what point, however, does the impeding of an employee’s personal life on their ability to perform their employment duties justify termination? What is an employer’s duty to accommodate? Consider the case of Best v. Canada (Attorney General).
The employee was a single mother of three. After having her children, she re-enlisted in the Canadian Forces in 1998. At that time, the employee was undergoing counseling from a psychiatrist to help her deal with her divorce. Her counseling was initially considered temporary, but became permanent. The employer sought a medical assessment of the employee and her need for ongoing treatment, which was reviewed and confirmed by her psychiatrist on several occasions.
The employee had a recurring record of absenteeism as a result of her counseling appointments, court appointments, physiotherapy appointments, accommodating her children’s school schedules and her children’s illnesses. The employer made attempts to reduce her absenteeism by asking her to make up her missed hours by working through her lunch hour as she could not work past 3:00 pm, and by removing her phone-in sick privileges. Once the employee had used her allotted sick leave, she was required to take annual leave.
In January, 2004, the employer notified the employee of her pending release based on her need for ongoing specialist care. The employee went on sick leave from February 20, 2004 to March 4, 2004 and again from March 23-31, 2004. The employer then offered the employee part-time employment, which she refused. The employee’s medical release came into effect on October 14, 2004.
In October, 2005 the employee filed a complaint with the Canadian Human Rights Commission alleging discrimination based on disability, sex and family status.
Canadian Human Rights Commission Decision
The assigned investigator determined that the employee’s claim of discrimination based on sex and family status was not established by the evidence submitted. As for the claim of discrimination based on disability, the investigator concluded that the employee’s disability prevented her from performing all the necessary military duties required by the employer’s Universality of Service policy and was therefore not discriminatory to terminate her.
Federal Court Decision
The employee sought a judicial revision of the investigator’s decision with the Federal Court claiming that the investigation was not thorough, as the investigator did not interview her or her proposed witness.
The Federal Court upheld the investigator’s decision regarding the claim of discrimination based on disability as there was extensive research done by the investigator. It was concluded that her disability prohibited her from being able to perform bona fide occupational requirements of her position, as required under the Universality of Service policy.
The court therefore dismissed the employee’s application for judicial review and awarded costs in favour of the employer.
Points of Interest
This decision in the above case refers to the employment concept of bona fide occupational requirements. As is commonly known, an employer is not permitted to terminate an employee because they have a disability. Such a termination may be found to be discriminatory as it would be in violation of one of the protected grounds listed in the Ontario Human Rights Code. However, as is demonstrated in the above case, an employer may be permitted to terminate an employee who has a disability if the disability prevents the employee from being able to perform any bona fide occupational requirements associated with their position. In those circumstances, terminating an employee due to disability may not be discriminatory, even though the employee’s inability to perform the required duty is directly related to the employee’s disability.
Both employees and employers should be aware of the above decision, and others similar to it, as it provides an example as to when a termination related to an employee’s disability may not be discriminatory.
For more details, see: Best v. Canada (Attorney General), 2011 FC 71 (CanLII)
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Related Employment Law Articles
- “Bona Fide Job Requirement or just a Convenience?” Published in CELT (Canadian Employment Law Today Issue No. 527 – February 11, 2009
- “Frustration of Contract – When Does Illness Justify Termination” (Published in Markham Business Magazine)