Canadian HR Reporter - Sample Issue

CANADIAN HR REPORTER November 27, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View Order your copy today. Visit www.store.thomsonreuters.ca or call 1-800-387-5164 for a 30-day, no risk evaluation ONTARIO LAWYER'S PHONE BOOK 2018 Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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(prices subject to change without notice) Your instant connection to ONTARIO'S LEGAL NETWORK Termination of anorexic worker discrimination, finds B.C. tribunal Clues were there for employer as reason for ill employee's decline in performance A British Columbia company's application to dismiss a discrimination complaint by a terminated employee with anorexia ner- vosa has been denied by the BC Human Rights Tribunal. e worker was hired by the com- pany in May 2014 following a suc- cessful university career in which she finished third in her class. e worker had very good references from previous employers and the company quickly found out she was able to work very well inde- pendently and with very good results. However, things changed in the latter part of 2014 when the work- er developed anorexia nervosa, an eating disorder characterized by obsessive attempts to lose weight, often to the point of starvation. As a result, the worker became malnourished and began to have trouble understanding, process- ing and analyzing information — especially spoken information. Typically of those suffering from anorexia, the worker didn't realize what was happening to her and she found her difficulties under- standing to be embarrassing. e worker's illness worsened, affecting her analytical skills, so- cial sensitivity and cognitive func- tioning. Her family tried to sup- port her, but the worker remained in denial about her condition, de- spite the fact people were noticing how thin she had become. Performance declines By early 2015, the worker's su- pervisor was concerned with the worker's performance issues and excessive overtime. e HR advi- sor met with the supervisor and the worker and discussed con- cerns about the worker's ability to work independently, show initia- tive, and communicate appropri- ately — the worker had sent a high volume of emails seeking guid- ance that she should have been able to find herself. e worker said she had dif- ficulty with work from several different project managers and high-pressure deadlines, and she asked questions to make sure she got things right. She said no one had said she took too long or her work was poor quality, but she had diffi- culty focusing and understanding instructions at times. She didn't mention any disability to her su- pervisor or the human resources advisor. In March 2015, the worker was assigned to a job in the field and she found it more difficult 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 con- cern — and was observed limp- ing , though she said she was fine when asked. On one occasion, she at- tended a dinner with colleagues and a client where she loudly complained that her dinner was served last. Because of this inci- dent, the human resources advi- sor 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 ob- tain a medical note of her fitness to work. However, the worker was soon hospitalized 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 disability benefits, which she received until early June 2015. During this time, the ad- ministrator researched anorexia nervosa and told the HR advisor the condition should be mostly physical and shouldn't cause be- havioural changes. Near the end of the worker's short-term disability benefits, her doctor expressed concern about her ability to work at a high intellectual level because of her low weight and cognitive impairment. e worker's fam- ily also felt she wasn't ready to go back to work, but the worker was determined. The administrator informed the company that the worker was cleared to return to work on a graduated return-to-work plan starting 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. e HR advisor met with the worker and asked if she was fit to return and if she required any accommodation. e worker said she was fit to come back and wasn't suffering from a disability that required ac- commodation. In late July, after the worker returned from vaca- tion, she was given a letter to sign that said she agreed with the ben- efits administrator's assessment that she was "fully fit to return" and she was not suffering from "a disability impacting (her) ability to work" or needed accommodation. e worker felt pressured and worried she might be fired if she didn't sign it, so she did. Soon after, the worker's super- visor told the HR advisor that the worker "was not capable of performing her job duties at a level that would meet expecta- tions." On Aug. 12, the company informed the worker that her employment was terminated ef- fective Aug. 26 because she "was not a good fit." After her termination, the worker realized her impairments probably played a role in her ter- mination. On Aug. 19, she wrote a letter to her supervisor request- ing a leave of absence instead of termination so she could seek treatment for her disability. She indicated she had returned to work too quickly and needed six months to one year off for inten- sive treatment. e company said it would not reconsider its decision. e worker applied for short- term disability benefits under the company plan and was assessed to be disabled. She continued to receive ben- efits after her termination as it was company practice to pay benefits that began while an employee was employed even after the termination. e worker filed a human rights complaint for discrimination re- garding employment on the basis of mental and physical disability. e company denied any discrim- ination and filed an application for the tribunal to dismiss the com- plaint because it had no reason- able prospect of succeeding. Tribunal weighs in e tribunal noted that the work- er 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 nervosa. However, there were signs that should have tipped off the company that something was wrong — the worker was a high performer who worked well inde- pendently and could figure things out on her own, but suddenly this was not the case. Since her supervisor and oth- ers at work saw her nearly every day, they were in a position to notice the changes in the worker's physical appearance and cognitive abilities, said the tribunal. Other clues that something was wrong included the work- er's short-term disability leave from March to June 2015, during which time the worker was hos- pitalized, along with the benefits administrator's mention of the worker's diagnosis, and the hu- man resources advisor specifi- cally asking if the worker needed accommodation. "It is clear to me that there are facts that could, if proven at a hearing, support a finding that the firm had direct knowledge of the employee's disability," said the tribunal. Regardless of the previous clues, the worker discussed her disability with her supervisor fol- lowing her notice of termination and the fact that it made her a different and less effective per- son, said the tribunal. 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 there was sufficient evidence to sup- port a finding that the company knew or ought to have known about the worker's disability, and the disability — and its effects on the worker — was a factor in her termination. e British Columbia tribunal denied the company's applica- tion to dismiss the complaint and encouraged it to find a resolution through mediation before moving to a hearing. For more information see: • e Employee v. e Firm, 2017 CarswellBC 2943 (B.C. Human Rights Trib.). Jeffrey Smith is the editor of Canadian Employment Law Today. For more information, visit www.employment lawtoday.com. "It is clear to me... the firm had direct knowledge of the employee's disability."

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