Can an employee who discloses a medical issue, or who goes on a medical leave of absence, be dismissed? Contrary to popular belief, the answer is yes. However, to avoid liability, the employer must be able to show that the dismissal was entirely unrelated to the medical issue/leave. Even if there were legitimate business reasons to dismiss the employee, if their medical issue or leave entered the thought process, even a tiny bit, then that would be a breach of the employee’s human rights.
This issue arose in the recent case of Zameel v ABC Group Product Development. Mr. Zameel found himself at the centre of a discrimination lawsuit when he was fired after applying for short-term disability (STD) leave.
His troubles began after a motor vehicle accident on October 6, 2017, which resulted in hospitalization and injuries. When he returned to work after a week of sick leave, his employer accused him of failing to complete a project and leaving the workplace without notifying his supervisor. Zameel explained that he had experienced drowsiness from his medication, and his team members had encouraged him to go home, assuring him that the work would be completed.
On November 27, 2017, Zameel disclosed he had applied for part-time STD benefits. To his shock, ABC terminated his employment the very next day, and failed to provide a clear reason as to why; the employer only stating that “It’s not working out” and referring to the project delays.
The Ontario Human Rights Tribunal Decision
The subsequent legal proceedings shed light on the dangers employers face when dismissing employees who disclose medical conditions. The Ontario Human Rights Tribunal examined the case and found that Zameel’s medical evidence supported his claim of disability resulting from the accident. Moreover, when ABC was considering Zameel’s termination, the company was aware of Zameel’s accident, ongoing treatment, and his request for both disability benefits and workplace accommodations.
The timing of the dismissal, combined with the absence of formal disciplinary action regarding Zameel’s performance issues, led the tribunal to conclude that disability was likely a contributing factor in the termination decision.
ABC was ordered to pay $80,000 in compensation to Zameel. This amount included damages for loss of wages and STD benefits, as well as compensation for the harm caused to Zameel’s dignity. Additionally, ABC was required to provide Zameel with a letter of reference.
Even If Human Rights Ground is 1% of The Reason for Dismissal, It’s a Breach
Remember, while there may be legitimate reasons for the dismissal, if a protected ground such as disability or religion is even 1% of the reason for dismissal, it is a breach of human rights. For a great example, consider the case of Derksen v. Myert Corps. Inc.. In that case, the employee’s performance issues were well-documented. However, things came to a head when he was denied a request for a day off for religious observance.
On August 7, 2002, Derksen’s boss met with him to discuss the dismal progress he had been making at work. Later that day, Derksen faxed a request for a day off on August 9. When the request was denied, Derksen said that he required the day off to celebrate a religious holiday, and that he would not come in to work. He followed through by not showing up, and he was then fired when he returned on August 12. The evidence of company representatives was that the decision to terminate Derksen’s employment was made over the weekend, after the unauthorized day off.
As the Human Rights Tribunal found:
While Myert may have had reason to dismiss Mr. Derksen because of his performance, the decision was made only after he took the unauthorized day off. It, as Mrs. Imbenzi said, was the event that made her say to Imbenzi that they should cut their losses, meaning let Mr. Derksen go. Observation of the New Moon Sabbath was therefore a contributing event. Hence, I cannot find that Myert has provided a complete answer to establish a non-discriminatory reason for its conduct; part of it was discriminatory.
Pith and Substance
These decisions emphasize that if an employer is contemplating the dismissal of an employee with medical or disability issues, they should be prepared to prove that the decision was completely unrelated to those issues. The same applies where other protected grounds are relevant.
For example, if a company is shutting down an entire department, they do not have to continue the employment of one member of that department simply because that employee is on a medical leave; it would be clear that the dismissal had nothing to do with the leave.
However, where the dismissal is for performance reasons, the employer should be sure it has strong documentation of those concerns to refute any potential allegations that the dismissal was related to inappropriate grounds. Otherwise, they should consider postponing the dismissal until they can show that it was unrelated to those grounds.
We work to ensure everyone understands their rights and obligations in these and other situations. We help employers to proceed strategically with discipline and dismissal so as to minimize risk, and we advise employees who believe that they have been wrongfully dismissed or discriminated against.