In Mackenzie v. Jace Holdings Ltd., doing business as Thrifty Foods, and Lisa Trotter (“Thrifty Foods”), the British Columbia Human Rights Tribunal determined that an employer discriminated against an employee suffering from depression when the employer terminated the employee due to the negative impact of her disability on her performance while at work.
The employee, Sharon Mackenzie (“Ms. Mackenzie”) had been employed with Thrifty Foods for approximately 8 years in the Floral Department when she was terminated without notice due to poor performance. Specifically, Thrifty Foods complained that Ms. Mackenzie was curt and abrupt towards co-workers and management, she exhibited mood swings, refused to take responsibility for her performance issues, engaged in gossip, was manipulative, disruptive, demotivating and that her behaviour was unlikely to change. Although Thrifty Foods was aware that Ms. Mackenzie suffered from depression and that she had been away from work on stress leave for approximately 2 months shortly prior to termination, Thrifty Foods did not investigate whether Ms. Mackenzie’s behaviour was linked to her depression and whether Ms. Mackenzie required any accommodation as a result of her disability. Ms. Mackenzie commenced a Human Rights Application against Thrifty Foods alleging, among other things, discrimination due to disability and seeking damages for unpaid wages for a period of 6 months as well as damages due to injury to dignity, feelings and self respect.
The Tribunal considered all of the circumstances leading up to Ms. Mackenzie’s termination, including Thrifty Foods’ knowledge of her disability. Although the Tribunal noted that Ms. Mackenzie did not seek any accommodation from Thrifty Foods, no evidence was presented by Thrifty Foods to demonstrate that it would have been impossible to accommodate her without imposing undue hardship on the company. The Tribunal determined that, given Thrifty Foods’ knowledge of Ms. Mackenzie’s disability, it had a duty to inquire into whether Ms. Mackenzie’s behavioural issues were related to her disability and whether she required any accommodation in the workplace. The Tribunal concluded that Thrifty Foods failed to fulfil this duty and that its actions in terminating Ms. Mackenzie due to her behaviour, specifically mood swings, irritability and being manipulative, which were symptoms of her depression, were discriminatory and a breach of the Human Rights Code. As a result of Thrifty Foods’s discriminatory conduct, Ms. Mackenzie was awarded 6 months of lost wages, being $17,616.06, $5,000 for damages to injury to dignity, feelings and self respect plus interest.
Impact of Decision on Employers
When considering taking disciplinary action, including termination of an employee, employers should ensure that they inquire into any potential health issues which could be affecting the employee’s behaviour in the workplace. If an employer is aware that an employee has a disability, they are obligated to inquire as to whether the disability is affecting work performance and whether any accommodation may be required. It is always in the employer’s best interests to consult with an experienced Employment Law lawyer prior to taking any action against the employee which could be in violation of Human Rights legislation and may give rise to the employee pursuing a Human Rights Application.
Impact of Decision on Employees
Employees with disabilities, whether mental or physical, should be aware that they have certain protections under Human Rights legislation. Although some employees may prefer not to disclose particulars of their disability to their employer, some disclosure is necessary to trigger an employer’s duty to accommodate and to inquire as to the potential link between poor performance and the health issue experienced by the employee. Employees should consult with an experienced Employment Law lawyer to discuss whether a disability should be disclosed to an employer and the amount of information to be communicated to ensure that the employee’s rights are protected in the workplace.
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See also, “Failure to accommodate costs employer more than $22,000” published in Canadian Employment Law Today.