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Sometimes the need arises to end an employment relationship quickly. However, it’s vitally important to ensure that you check the employee’s human resources file for potential human rights considerations before making any decisions, as confirmed by a recent decision by the Human Rights Tribunal of Ontario (the “Tribunal”). A failure to take this simple step could have serious repercussions for the business.

Under the Ontario Human Rights Code (the “Code”), employers must be prepared to offer accommodation to employees whose workplace performance is affected by, among other things, an underlying disability. The Supreme Court of Canada has held that the “search for accommodation is a multi-party inquiry” that involves both the employer and employee, among others. This includes a duty upon employees to bring to the attention of the employer the facts relating to discrimination.

Where an employee has not disclosed a human rights issue (such as an underlying medical condition) prior to termination, and the employer was unaware of the human rights issue, the Tribunal will not assume that disability was a factor in an employer’s decision to terminate the employee. However, where an employee has taken steps to inform the employer of an underlying condition, and the employer subsequently dismisses the employee for poor performance that may have been associated with that condition, the consequences can be serious.

For example, in Graff v. Jones Lang LaSalle Real Estate Services, Inc., 2014 HRTO 1459 (CanLII) (“Graff”), Jones Lang terminated Mr. Graff’s employment as a financial analyst after almost six years’ working for the company. The company’s position was that the termination was due to Mr. Graff being overpaid, not working collaboratively and not showing initiative.

However, Mr. Graff had suffered from chronic depression and anxiety for over 23 years before working for the company. Shortly before the end of his second year with the employer, Mr. Graff wrote to the company’s human resources professional, based in Chicago, regarding an underlying medical condition that Mr. Graff felt the employer ought to be aware of. Mr. Graff ultimately provided a note to the human resources professional that stated:

I just wanted to make sure that someone within the company is aware that I have a recurring disability related to Depression and Anxiety – you are the most appropriate person.

Normally, this is either not a problem or only a minor problem, and it should not affect my work, but it is quite possible that at other times, particularly when I am under severe stress in my work or personal life, that this will affect my ability to work and in particular, the quality of my work. As well, this can have an impact on my personality and my ability to work effectively and interact with other people.

In addition, because this can affect my judgment, I might be unable or unwilling to recognize the seriousness of the problem, or to seek treatment when it is appropriate (although I should also note that generally treatment has not been effective in my case).

I do not want this to be common knowledge with the company, as there is still a stigma regarding mental health issues, but I do want this documented and for one or two appropriate people to be aware of this health issue.

The human resources professional received the note and placed it into Mr. Graff’s human resources file. The human resources professional subsequently left the company shortly thereafter.

The company claimed that its decision to terminate Mr. Graff was not related to his medical condition in any way; in fact, the company suggested it had not reviewed Mr. Graff’s human resources file (or otherwise consulted with human resources) prior to making the decision to terminate his employment. The Tribunal rejected this position finding, among other things, that the fact that Mr. Graff’s termination letter referred to details of his employment agreement suggested that there had been some review of his human resources file.

The Tribunal concluded that it was more probable than not that the company knew about Mr. Graff’s disability and its symptoms prior to termination, and that the applicant’s disability caused or contributed to some of the performance concerns relied upon to terminate his employment. As such, the company terminated Mr. Graff’s employment for a disability-related reason and contravened the Code. The Tribunal scheduled a separate hearing to determine what amount of damages would be appropriate in the circumstances

Take Home Lessons

The Graff case underlines how important it is for employers to ensure that it has reviewed all of the facts and circumstances surrounding an employee’s performance before making the decision to end the employment relationship. In nearly every case that I’ve seen, this involves a review of the employee’s human resources file. Where the employee has previously disclosed that he or she suffers from a condition that constitutes a disability under the Code, and where this condition may have had an effect on the employee’s performance, it will be important for the employer to consider this when determining whether termination remains the appropriate course of action, or whether accommodation is a possible alternative.

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