Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends trouble understanding, processing, and analyzing information — especially spo- ken information. Typically of those suffer- ing from anorexia, the worker didn't realize what was happening to her and she found her difficulties understanding things to be embarrassing. e worker's illness worsened, affecting her analytical skills, social sensitivity, and cognitive functioning. Her family tried to support her, but the worker remained in denial about her condition, despite the fact people were noticing how thin she had be- come. In July 2014, several employees reported that their food was being taken from the refrigerator in the company lunch room. ey told the human resources advisor that they had seen the worker looking through lunches in the refrigerator and removing food that wasn't hers. Some also said they had seen food that didn't belong to her on her desk. Worker's performance declined By early 2015, the worker's supervisor was concerned with the worker's performance issues and excessive overtime. e HR advi- sor met with the supervisor and the worker, and they asked the worker about the food theft issue. e worker denied knowing any- thing about it and said if she had taken oth- ers' food, it was by accident. ey also discussed concerns over the worker's ability to work independently, show initiative, and communicate appropriately — the worker had sent a high volume of emails seeking guidance that she should have been able to find herself. e worker said she had difficulty with work from several different project managers and high-pressure dead- lines so she asked a lot of questions to make sure she got things right. She said no one had said she took too long or her work was poor, but she had difficulty focusing and un- derstanding instructions at times. She didn't mention any disability to her supervisor or the HR advisor. In March 2015, the worker was assigned to a job in the field and she found it more diffi- cult to find food, given the restrictions her ill- ness imposed on her and the time constraints of the job. She was seen wearing personal protective equipment and clothing that were too large for her — a safety concern — and was observed limping — though she said she was fine when asked. On one occasion, she attended a dinner with colleagues and a client where she loudly complained that her dinner was served last. Because of this incident, the HR advisor and the worker's supervisor felt it wouldn't be appropriate for the worker to continue working at that site. After one particular day in the field, the worker was limping with swelling in her face and body, so the company sent her home to obtain a medical note regarding her fitness to work. However, the worker was soon hos- pitalized and diagnosed with severe protein deficiency and an infection. e worker still didn't believe she suffered from anorexia nervosa and wanted to return to work. e worker was approved by a third-party benefits administrator for short-term dis- ability benefits, which she received until ear- ly June 2015. During this time, the adminis- trator researched anorexia nervosa and told the HR advisor that based on her diagnosis, the condition should be mostly physical and shouldn't cause behavioural changes. Near the end of the worker's short-term disability benefits, her doctor expressed con- cern about her ability to work at a high intel- lectual level at her low weight and with her cognitive impairment. e worker's family felt she wasn't ready to go back to work, but the worker was determined. e administrator informed the com- pany that the worker was cleared to return to work on a graduated return-to-work plan beginning with two-to-three-day stretches during the month of June. However, when the worker came back, she felt ostracized by others. is caused her stress and she started to lose weight again. Worker agreed she was fit to work e HR advisor met with the worker and asked if she was fit to return and if she re- quired any accommodation. e worker said she was fit to come back and wasn't suffering from a disability that required accommoda- tion. In late July, after the worker returned from vacation, she was given a letter to sign that said she agreed with the benefits ad- ministrator's assessment that she was "fully fit to return" and she was not suffering from "a disability impacting your ability to work" or needed accommodation. e worker felt pressured and worried she might be fired if she didn't sign it. Soon after, the worker's supervisor told the HR advisor that the worker "was not ca- pable of performing her job duties at a level that would meet expectations." On Aug. 12, the company informed the worker that her employment was terminated effective Aug. 26 because she "was not a good fit." After her termination, the worker realized the impairments for which she thought she was compensating probably played a role in her termination. On Aug. 19, she wrote a letter to her supervisor requesting a leave of absence instead of termination so she could seek treatment for her disability. She said she had returned to work too quickly and need- ed six-months to one year off for intensive treatment. e company responded that it would not reconsider its decision. e worker applied for short-term disabil- ity benefits under the company plan and was assessed to be disabled. She continued to re- ceive benefits after her termination, as it was company practice to pay benefits that began while an employee was employed even after the termination. After the worker was terminated, the food theft continued. e employee actually re- sponsible was caught and fired. e worker filed a human rights complaint for discrimination regarding employment on the basis of mental and physical disabil- ity. e company denied any discrimination and filed an application for the tribunal to dismiss the complaint because it had no rea- sonable prospect of succeeding. e tribunal noted that the worker didn't disclose a disability to the company, but for a good chunk of time she herself wasn't aware of it — typical for sufferers of anorexia ner- vosa. However, there were signs that should have tipped the company off that some- thing was wrong — the worker was a high performer who worked well independently and could figure things out on her own, but suddenly this was not the case. Since her su- pervisor and others at work saw her nearly every day, they were in position to notice the changes in the worker's physical appearance and cognitive abilities, the tribunal said. Other clues that something was wrong included the worker's short-term disability leave from March to June 2015, during which the worker was hospitalized, the benefits ad- minstrator's mention of the worker's diagno- sis, and the HR advisor specifically asking if the worker needed accommodation. "It is clear to me that there are facts that could, if proven at a hearing, support a find- ing that the firm had direct knowledge of the employee's disability," said the tribunal. e tribunal found that regardless of the previous clues, the worker discussed her dis- ability with her supervisor following her no- tice of termination and the fact that it made her a different and less effective person. However, the company refused to change its decision and didn't provide an explanation other than the worker was a poor fit. e tribunal determined that there was sufficient evidence to support a finding that the company knew or ought to have known about the worker's disability, and the disabil- ity — as well as its effects on the worker — was a factor in her termination. e tribunal denied the company's application to dismiss the complaint and encouraged them to find a resolution through mediation before mov- ing to a hearing. For more information see: • e Employee v. e Firm, 2017 Car- swellBC 2943 (B.C. Human Rights Trib.). 6 | November 8, 2017 Worker wasn't initially aware of her mental disability « from TERMINATION on page 1

• Cover