Canadian HR Reporter

November 2021 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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C O L U M N S 58 T O U G H E S T H R Q U E S T I O N Have a particularly difficult or interesting question? Why not share it with us? Email: Have a question? WHEN A FIRED EMPLOYEE REVEALS A DISABILITY Q What is an employer's obligation if an employee fired for cause reveals a disability after their termination? A From a human rights perspective, the termination of an employee who has disclosed a disability carries significant risk. Even if the termination is conducted in good faith and for legitimate reasons, if the decision was in any way related to the disability it could be discriminatory. What the employer knows about an employee's disability, and when, will impact whether any obligation to accommo- date exists and if there is possible liability for discrimination. A 2015 Ontario court decision, Bellehumeur v. Windsor Factory Supply Ltd., provides some guidance. An employee was terminated after uttering violent threats towards a co-worker and afterwards disclosed that he suffered from a mental disability that he alleged was connected to the reason for his termination. The trial court determined that the employee had not disclosed the disability during his employment and the decision to terminate did not constitute discrimination. It also commented that inappropriate conduct that may be influenced by a disability could still justify a disciplinary response, as long as the same discipline would have been imposed on any other employee for the same misconduct. The Ontario Court of Appeal confirmed the decision. Bellehumeur demonstrates that the duty to accommodate may have its limitations, specifically where the employer does not know that the employee has a disability. However, this may not end the analysis since, at law, employers may be deemed to have "constructive knowledge" of the disability if there were noticeable "red flags." This may especially be the case where there is a mental disability — instances of aberrant behaviour or a change in the employee's attitude or attend- ance may create an obligation on employers to ask questions concerning a possible disability. If ignored, an employer can be "deemed" to have knowledge of a disability when making the decision to terminate. Further, if the employee's misconduct can be deemed to be "causally connected" to a disability, then the analysis may shift to whether the misconduct required accommodation or constituted just cause for termination. In the 2013 Ontario arbitration decision Ontario Nurses' Association v. London Health Sciences Centre, a nurse stole narcotics for her personal use, falsified records, and attended work while impaired. When the employer investigated, the nurse advised the employer that she suffered from drug addictions. The employer terminated the nurse's employment. The arbitrator said that if the case were to be examined strictly with typical just- cause analysis, there would be no hesitation in sustaining the discharge, noting that her misconduct went to the heart of what was reasonably expected of her as a nurse. However, since the nurse suffered an addic- tion and the arbitrator held it was causally connected to the misconduct, the employer was required to satisfy a further burden — that it was unable to accommodate the nurse's disability without undue hardship. The griev- ance was upheld. While this case did not involve a disclo- sure of a disability following termination, it is important to recognize that certain disabilities such as addiction may display characteristics of shame and denial that would impact the requirement to disclose prior to termination. The duty to accommodate has its limit- ations, but employers should nevertheless take a measured approach when the decision is made to terminate for cause, particularly where there could be a connection between the misconduct and a possible disability. This is not to suggest that employers cannot discipline or terminate for cause, but rather that an examination of the conduct as well as the employee's history and any relevant evidence should be part of the process. If there is evidence of a disability, there should be an assessment as to whether there was a causal connection between it and the conduct upon which the termination was based. CHRR When an employee has a disability, the employer has a duty to accommodate to the point of undue hardship. However, that duty may vary if the employer isn't aware of a disability before terminating the employee for just cause, writes Lorenzo Lisi of Aird & Berlis Lorenzo Lisi partner and leader of the Workplace Law Group at Aird & Berlis in Toronto

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