Canadian Employment Law Today

August 11, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures a deteriorating business relationship, working notice of dismissal, and a discrimina- tion claim. Summit View Development Corp. operated a business helping companies to obtain tax credits and recovery for scientific research and experimental development expenses. In early 2014, Summit View's owner, Stan Pankratz, met Ashley Kehler at a Christian retreat. They soon started email communications in which they discussed sermons and other religious topics. Pankratz hired Kehler as an independent contractor in May 2014 to perform forensic and administrative tasks related to a legal mat - ter in which Summit view was involved. Their religious discussions continued, with Kehler sometimes leaving biblical passages on Pan- kratz' desk. In September 2014, Summit View hired Kehler as a full-time employee with a writ- ten employment agreement and Kehler's role shifted to more of a focus on sales and business development. However, when the company initially offered the full-time role, Kehler re- quested nearly four times the commission rate that was offered. This didn't sit well with Pan- kratz, who suggested that the offer might be off the table. Kehler apologized and accepted the original offer of employment. However, things weren't the same between them and their rela - tionship began deteriorating in 2015. Pankratz frequently asked Kehler if he had any concerns. Kehler initially said no, but even- tually said there were some issues but he didn't want to talk about them with Pankratz. In January 2015, Kehler sent a report to Pan- kratz that stated that he didn't have a learning disability and had a high IQ, but he met the criteria for attention deficit/hyperactivity disor- der (ADHD). The report provided instructions on how to ensure Kehler understood instruc- tions and to give additional time to complete assignments. According to Kehler, he assumed Pankratz would use the report to develop acom- modations, but Pankratz thought Kehler was just showing him that his IQ was high as he had known about Kehler's ADHD since his hiring and had provided supports such as coaching and feedback on grammar, composition, and other training as part of Kehler's employment contract. On Aug. 2, 2015, Kehler attended a men's bible and fellowship retreat, where he suffered a knee injury after being kicked by a horse. He was still able to perform his job, so he worked half-days for two weeks after the injury and was allowed to attend all his medical appointments without his pay docked. In November, Kehler informed Pankratz that he would need surgery on his knee but he didn't indicate how long he would need to be off work. In early December, Pankratz provided Kehler with working notice that his employment would end on Jan. 29, 2016. The letter stated that the termination was a business decision related to Summit View's financial difficulties from low sales, Kehler's decreased productivity, and missed work that wasn't made up — the letter said that "the bottom line is that the com - pany cannot sustain paying you the salary and benefits that you receive." Kehler filed a human rights complaint alleging discrimination in employment based on religious belief, mental disability, and physical disability. He claimed that Pankratz imposed his religious beliefs on him at work, and Summit View didn't ac - commodate his mental (ADHD) and physical (knee injury) disabilities. YOU MAKE THE CALL Was the termination without cause lawful? OR Did the company discriminate against the employee? IF YOU SAID the termination was lawful, you're correct. The Alberta Human Rights tribunal found that there was no prima facie discrimina- tion related to religious beliefs or mental dis- ability, as religion was a topic of conversation between Kehler and Pankratz since they met. The dismissal occurred prior to any clear communi- cation from Kehler that he didn't want to discuss religious views anymore, said the tribunal. As for Kehler's ADHD, the evidence showed that Pankratz was aware of it from the beginning and took steps to help Kehler with it through coach - ing and feedback. Kehler made no request for ac- commodation either when he sent the IQ report or at any other time, the tribunal found. Things were a little different with Kehler's physicial disability, however. The tribunal noted that Summit View accommodated the injury by allowing Kehler to work half-days initially and attend his appointments, but the termination letter's reference to missed time led to "the infer - ence that the disability was at least a factor in the decision to terminate employment," the tribunal said in finding prima facie discrimination related to the physical disability. However, the tribunal also found that Summit View indicated that the termination was related to the failure to meet certain performance mea - sures set out in the employment agreement and its financial difficulties made it unable to sustain paying Kehler's salary and benefits. Kehler was unable to meet the hours of work, sales goals, and other elements that were part of the employ - ment agreement, said the tribunal. Although Summit View had a duty to ac- commodate, accommodation is a process that requires participation from both sides. Pan- kratz repeatedly reached out to Kehler about any concerns — which satisfied the duty to ac- commodate — but Kehler refused to discuss them. In addition, there was enough evidence to conclude that it would be undue hardship for Summit View to keep Kehler with its finan- cial difficulties, Kehler's failure to meet perfor- mance measures, and the lack of a co-operative relationship, said the tribunal. For more information, see: • Kehler v. Summit View Development Corp. o/a Easy SR&ED Consultants, 2021 AHRC 134 (Alta. Human Rights Trib.). Worker lacks faith in the reason for dismissal

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