Sunday, April 25, 2010

Human Rights Tribunal awards over $65,000 to a disabled employee

Recently, the HRTO heard a case arising from an Admissions Representative's termination of employment at a college.

Mr. Vetricek was hired in December 2007 for a one-year contract. In Spring 2008 he suffered a shoulder injury while boxing. In May 2008, he asked his employer to provide a headset, which was denied because his phone had a hands-free mode already. (There's some disagreement as to whether or not he advised the employer that the reason he needed the headset was because his shoulder bothered him when using the phone.)

He wore a clavicle splint to work into the summer, and while he may have mentioned pain on occasion, it didn't interfere with his ability to do his job generally.

At the end of June 2008, he had a bad reaction to acupuncture, and suffered severe pain throughout much of his body. He was slated to go on vacation, but instead he stayed at home throughout his holidays. He was still in pain upon his return to work, which pain caused significant anxiety, and sought medical attention. He needed to take some time off. Eventually, on August 11, 2008, he received a medical note stating that he should work reduced hours until the end of September, but did not provide it to his employer right away.

In mid-August, the employer advised him that his position would be eliminated due to "restructuring". He produced the medical note, and the employer decided to offer him part-time employment until the end of September, but without benefits coverage (which had been on the initial contract), and no guarantee of continued employment past the end of September.

In October, they entered into another 1-year contract, again with benefits coverage. In the end of October, Mr. Vetricek still hadn't received his benefits card, and was concerned because he had physiotherapy bills that needed to be paid. He enquired of his employer about the card. (The employer's position is no card was required to make insurance claims, and that Mr. Vetricek knew where the insurance claims forms were.)

In late November, Mr. Vetricek received a CD-ROM with X-Rays his doctor had ordered. He showed these to his employer. On December 1, 2008, Mr. Vetricek showed up to work in the morning and found that his computer login didn't work, and when he asked his employer about was told that his employment was being terminated due to "restructuring".

In a nutshell, the allegation was that Mr. Vetricek was terminated because his employer was concerned about possible absenteeism as a result of his disability.

Despite reasonable attempts to find replacement employment, Mr. Vetricek remained unemployed as of the date of the hearing - December 15, 2009.

The Tribunal found that the termination of Mr. Vetricek's employment had been at least partially motivated by his disability; this breached the Code. The employer attempted to rely on a clause in the contracts allowing for termination without cause at any time, but the Tribunal noted that "a respondent cannot 'contract out' of the Application of the Code".

Mr. Vetricek was awarded lost wages up to the date of the hearing, totaling $52,814.37, and $15,000 for "violation of his inherent right to be free from discrimination, and for injury to his dignity", plus interest.

In addition, the Tribunal ordered that the employer develop and distribute a Human Rights policy.

Points to Consider

Had Mr. Vetricek's employment simply been terminated without cause, but without prohibited intentions under the Code, he would have had little chance of recovering any lost wages beyond the contract end-date (October 2, 2009). Had he not been on a fixed-term contract in the first place, his potential for recovering damages could have been significantly lower still. The violation of his Human Rights causes the accumulation of damages to continue.

The date of the hearing is an arbitrary cut-off for the end of accumulation of damages. Had the hearing been adjourned another six months, and Mr. Vetricek remained unemployed as of that date, one has to wonder if his entitlement would have increased substantially.

The employer was represented by a lawyer. (So was Mr. Vetricek, though I suspect that he availed himself of the free services available through the Human Rights Legal Support Centre.) In addition to the significant liabilities incurred in this process, the employer also likely incurred substantial legal fees.

The employer may need to incur further professional fees in developing the Human Rights policy.

So is there a lesson to be learned here for employers? I would say so: When dealing adversely with an employee where there are Human Rights issues involved, tread carefully. If there's even the most distant prospect of any perception that adverse treatment was the result of a disability, pregnancy, race, gender, religion, or other Code grounds, or in response to the employee's assertion of rights under the Code, then you need to get good professional advice first. Proactive legal advice is almost always cheaper than reactive legal representation.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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