Employers: Be Prepared to Show Why an Employee’s Human Rights Protected Ground Was Not a Factor in Termination Decision

September 12, 2022

Rudy Ticzon

In Luckman v. Bell Canada, 2022 CHRT 18, the Canadian Human Rights Tribunal (“Tribunal“) ordered the employer, Bell Canada (“Bell“), to pay more than $120,000 in damages to a former employee who was recklessly terminated by Bell. The Tribunal held that the respondent employer discriminated against the complainant contrary to section 7 of the Canadian Human Rights Act, RSC 1985 c H-6 (the “Act“) and was entitled to compensation of $91,052.40 for lost wages. The complainant was also entitled to $15,000 in damages for pain and suffering and damages of $15,000 for the respondent’s “reckless” conduct. This is a high price to pay for terminating an employee who had worked for the employer for a period of one and a half years.

Background

Mr. Luckman started working for Bell Canada as a Business Development Manager on May 9, 2016.  In mid-2016, Mr. Luckman started experiencing health challenges and he sought medical attention in December 2016 when he discovered a lump in his groin. He was formally diagnosed with cancer on April 8, 2017.

In January 2017, Bell made changes to its business structure and transferred Mr. Luckman to a new team. Mr. Luckman claimed that this placed additional stress at work as the transfer required a second “ramp up” to learn the processes of his new team.

Mr. Luckman’s father was hospitalised in April 2017 and passed away later that month. Mr. Luckman had been the caregiver for his father for the previous five years. Mr. Luckman took a five-day bereavement leave to look after his father’s death.

On May 5, 2017, Mr. Luckman commenced a medical leave to have surgery. He attempted to return to work on October 2, 2017. There was a gradual return-to-work schedule put in place by Bell’s insurer. However, the return to work was unsuccessful and Mr. Luckman returned to medical leave. In November 2017, Mr. Luckman returned to work for a second time. The parties again disputed the exact nature of this return-to-work. At this point, Mr. Luckman felt overwhelmed by the work due to his worsening medical condition and raised the issue with his supervisors. Rather than provide further accommodations, Bell terminated the employment agreement, first citing performance as the reason, then shifting its defence in its closing to claim that Mr. Luckman was going to be selected for termination at the next Bell restructuring regardless of his performance or any disability.

Bell Canada terminated Mr. Luckman’s employment on December 6, 2017 citing the elimination of his position due to corporate restructuring. Mr. Luckman subsequently filed a human rights complaint, alleging discrimination on the basis of disability and family status.

Decision

Tribunal Member, Mr. Pannu, found Mr. Luckman’s disability (his cancer) was a factor in his termination, and thus Bell’s termination was discriminatory. Having found that the respondent’s conduct constitutes discrimination, the Tribunal turned to the question of the appropriate remedy.

Lost Wages

The Tribunal ruled that Mr. Luckman is entitled to be compensated for the wages he would have received but for his termination of $91,052.40. The respondent did not dispute the amount claimed. Bell said in its closing submission that had the corporate restructuring not occurred, Mr. Luckman would still have been employed. Mr. Pannu held that, “since he found that the complainant’s termination was based, in part, on discrimination because of his disability, he is entitled to lost wages until the time he found a new job.” Mr. Luckman secured new employment that started November 12, 2018.

Family Status

On the issue of Mr. Luckman’s family status, Mr. Pannu did not accept the complainant’s claim of discrimination on the basis of his family status – namely his father’s health:

“The time between Mr. Luckman’s advising Bell of his father’s condition and his death was a short period. Although Mr. Luckman was undoubtedly adversely affected by his father’s condition and it added stress to his work performance, there was insufficient evidence that it was a factor in his termination which occurred eight months later.”

Pain and Suffering

Mr. Luckman was awarded $15,000 in damages for pain and suffering. In Mr. Pannu’s view:

“Bell’s conduct was a serious transgression of the Act. They terminated an employee who was still recovering from cancer surgery. They made no inquiries as to whether his disability continued to affect his ability to work. In addition to the physical suffering and stress from his cancer recovery, Mr. Luckman was forced to endure the humiliation of being fired and being forced to find a new job on top of all his problems.”

Reckless Conduct

And finally, Mr. Pannu found the respondent’s conduct was reckless rather than wilful in selecting him for termination while he was suffering from a disability:

“Despite Bell’s sophisticated human resources processes and policies, it does not appear to me that anyone considered whether firing an employee recovering from cancer surgery might be discriminatory. Ms. Galvis (Bell Human Resources) testified that she simply checked her database to see that Mr. Luckman had returned without medical restrictions. Ms. D’Ambrosio (Mr. Luckman’s manager) was aware of Mr. Luckman’s medical limitations but never raised it to anyone at Bell during the termination process.”

Further, Mr. Pannu viewed “Ms. D’Ambrosio’s single-minded pursuit of maintaining her team’s sales and customer focus left no doubt in her mind that Mr. Luckman with his medical limitations was a liability to her goals.”

Key Takeaway for Employers

• Clearly document the decision-making process when making termination decisions to prove that an employee’s human rights protected grounds are not factors in your termination decision.
• Be objective, consistent, and transparent in your decision-making processes in terminating an employee.
• Prepare sufficient evidence: If the respondent had been able to establish that Mr. Luckman’s poor performance was the reason he was selected for termination, it might have been able to persuade the Tribunal that performance was a valid non-discriminatory reason.

Key Takeaway for Employees

• Know your rights: Understand the protected grounds in the Ontario Human Rights Code or the Canadian Human Rights Act. Human Rights protected grounds may be factors that could affect your job performance and may play a role in your employer’s decision-making process to terminate your employment on the basis of performance issues or corporate restructuring.
• It is important to clearly communicate your accommodation needs to your employer. Work with your employer to discuss an accommodation plan that meets your accommodation needs. Document all discussions and communications regarding your request for accommodation and its implementation.
• If you think you have been recklessly fired and believe your termination of employment may be based on one or more of the protected human rights grounds, consult with an experienced human rights and employment lawyer.

---