No Knowledge Saves Employer!

Written by on August 30, 2012 in Employment Law Blog
Setting the Termination date on a calendar with a red pen

In Blake Shearer  v. The Royal Canadian Legion, Campbellford (ON, BR 103) Branch, the Human Rights Tribunal of Ontario concluded that the Applicant had no reasonable prospect of success and dismissed the Application. Mr. Shearer had worked as a bar steward in June 2008 and was terminated on July 9, 2010. He stated that he had been harassed on a personal ground” on July 2, 2010 which resulted in his attending the emergency department of the local hospital. A medical note of the same date prescribed three to five days off work “for medical reasons…pending further assessment by his family doctor”. Mr. Shearer returned to work five days later and was terminated upon his return. A Human Rights Application was brought where Mr. Shearer alleged that he was discriminated on the basis of disability. The Royal Canadian Legion testified that on June 23, 2010 the bar committee met to discuss it’s options to reduce costs. They determined at that time that they would recommend to the Executive Committee that they would terminate one employee, Mr. Shearer, on the basis that he was the last one hired. As the recommendation was made on June 23, 2010 and pre-dated any knowledge of health concerns, the Tribunal concluded that it could not be said that Mr. Shearer’s employment was terminated, in whole or in part, on the basis of a prohibited ground of discrimination.

Impact of Decision on Employers

Employers should ensure that terminations cannot be linked to an absence due to medical reasons. A recommendation to terminate or decision to terminate, even though the actual termination occurs after the absence, may be a sufficient justification to establish that an employer did not discriminate against the terminated employee on the basis of disability. On the other hand, once employers have knowledge of an employee’s absence due to a disability, a termination thereafter may be found to be discriminatory based on disability and a breach of human rights legislation. Employers should always consult with Employment Law lawyers when they are considering terminating an employee and to obtain legal advice with respect to the timing of terminations especially when health issues are involved.

Impact of Decision on Employees

Employees should be aware that if a termination can be linked to a disability or an absence due to a disability, the employer may be found to have discriminated against the employee based on a prohibitive ground of the Human Rights Code. It may be to the employee’s advantage to inform their employer in advance that their absence is due to a disability if that is the reason. Otherwise the employer may succeed in arguing that the termination of a disabled worker is not discrimination due to the employer not having knowledge of the disability. It is always recommended that employees consult with an Employment Law lawyer to have the circumstances surrounding the termination reviewed before signing off on a Release to ensure that they were not terminated based on disability.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s Employment Law issues. Whether you are an employer or employee, we can help. Contact us to see how.

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