Employers are often faced with the prospect of dealing with an employee who is required to be absent from work for an extended period of time due to an illness. Employers must tread a fine line in determining when the employee is able to return to work and on what basis. The employer will often request medical information from the employee’s physician providing an opinion as to the likely return to work. However, in a recent decision of the Ontario Human Rights Tribunal, the risks of being overly zealous in ascertaining when the employee will return to work were highlighted.

In this case, the employee had been experiencing chest pains while at work. He went to his doctor who felt that the pains were precipitated by the requirements of his job, and therefore recommended an indefinite medical leave.

After five months on leave, the employee’s physician provided a note to the employer indicating “he will hopefully return to work after four weeks and hopefully resume work as of September 8, 2008”. However, the applicant did not return to work on September 8th as his employment was terminated on August 29, 2008. The employee brought a Complaint under s. 34(1) of the Ontario Human Rights Code, alleging that he had been discriminated against as a result of disability, contrary to s. 5(1) of the Code. Section 34(1) of the Code provides that “if a person believes that any of his or her rights under part 1 have been infringed, the person may apply to the tribunal for an order under s. 45(2) [which provides for various remedies for discrimination].”

As the employer had not called any evidence before the Tribunal to challenge either the employee’s evidence of his illness, or that of his doctor, the Tribunal found that the employee was suffering from a medical condition that fell within the definition of disability as defined by the Code.

The two issues which the Tribunal then considered were:

• whether the employee had advised his employer of his needs and limitations in the workplace; and,
• whether the employee was terminated because he was ill or because he wanted to take time off due to his illness.

The employer took the position that it had concerns about the employee’s job performance prior to his illness and that it was these concerns that caused the employer to terminate the employment.

The Tribunal held that the employee’s evidence was not credible. However, it also found that the employer’s evidence was not credible either. The Tribunal also drew an adverse inference from the failure of the president of the employer to give evidence, even though he was present throughout the hearing.

The Tribunal held that the only issue was whether the employee’s medical condition was a factor in the decision to dismiss him. The Tribunal considered the employer’s position that the employee had failed to advise when he would be returning to work. The Tribunal relied on evidence in the form of an e mail from the employee to his supervisor in which he states that he will return to work “…as soon as my health condition improves, which I hope will not be too long”.

The Tribunal finds that there were acts of “differential treatment” of the employee by the employer which constituted prima facie discrimination. The act of discrimination relied on by the Tribunal was a requirement that the employee pay his disability insurance premiums during the course of his absence. The employer had taken the position that the decision of whether or not to pay the premiums on behalf of the employee was purely discretionary and was granted only after one year of employment. The Tribunal found that this was not supported by the evidence brought forward by the employer.

The Tribunal concludes that the employee was required to pay the premiums because the employer had decided that it should not be required to pay the premiums of an employee who was on a medical leave of absence. The Tribunal concludes that the termination of a disabled employee while on medical leave was prima facie discriminatory. The employer attempted to convince the Tribunal that there were “non discriminatory explanations for its actions.” The Tribunal rejects this attempt. It finds that the employer was harassing the employee in an effort to force him to quit. One of the instances of such harassment was a request by the employer for new references from the employee even though he had been employed for a number of years.

The Tribunal considered the employer’s assertion that the employee’s failure to communicate with the employer disentitled him from the relief he was seeking. The Tribunal rejects this assertion and finds that “the communication that is integral to the accommodation process is a two way street.” It therefore holds that the employer could have been more proactive in securing up dates from the employee as to his condition by simply contacting the employee and requesting that information. The Tribunal therefore concludes that the employee was, in fact, dismissed due to his disability and that an instance of discrimination contrary to the Code has been made out.

The Tribunal then considers the provisions of the Code which provide for the remedial powers which the Tribunal can use in rectifying the discrimination. The Tribunal is entitled to order the party found to have infringed a right to pay monetary compensation, to make restitution other than through monetary compensation for the losses resulting from the infringement, and to direct any party to the application to do anything which the Tribunal feels will promote compliance with the Code. In this case, the Tribunal awarded thirteen months of lost wages totaling $38,400. It also awards general damages of $15,000 in compensation for “humiliation, hurt feelings, and the loss of self respect”.

As can be seen from this decision, the implications of the obligation to accommodate contained in the Human Rights Code carries significant risks for employers in all areas. Specific advice should be obtained when formulating an accommodation policy, and when implementing that policy. As a rule employers should be proactive in determining the nature and extent of an employee’s illness and the steps which can be taken to accommodate that illness.

Earl Altman
Garfinkle, Biderman LLP