March 31, 2014
The plaintiff (“employee”) worked as a Business Analyst, a middle management position with modest responsibility, at the defendant food services company (the “employer”). The employee was terminated without cause after only 16 months of employment, purportedly because a division of the employer’s business had been sold and which rendered the employee’s position redundant.
In the four month period leading up to her dismissal, the employee had complained about back pain from working long hours and was absent for a number of days. Doctors notes were provided when requested by the employer, including one in which a gradual return to work was suggested. However, the employer insisted on a full recovery prior to returning. There was no discussion or offer of any accommodation for the employee at any time.
The employee brought an action for damages for wrongful dismissal. She also alleged that she was terminated due to her back pain, constituting discrimination due to disability, contrary to Ontario’s Human Rights Code.
The Court noted that a decision to terminate an employee based in whole or in part on the fact that the employee has a disability is contrary to the Code. The Court concluded that the employee’s ongoing back problem was an important factor in the decision to terminate. This was evidenced by a change in attitude toward the employee after the initial complaints about back pain, the insistence on full recovery prior to returning to work, and the lack of any communication about the divestiture to the employee before it happened. The Court noted, “The plaintiff’s condition enabled the defendant to nudge the problem across the divestiture finishing line and provided the defendant with an excuse to terminate her.”
In the result, the employee was awarded with three months of pay in lieu of notice, and $20,000 in compensation under the Code, recognizing the importance of the right that was infringed and the impact of the employer’s conduct on the employee.