Tribunal Finds No Link Between Disability and Dismissal

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Neil Patzwald was an engineer who worked at FMC Corporation from March 2011 to September 2013. His short tenure was marked by multiple lengthy absences for medical reasons, disagreements with his superiors about his abilities and suitability for his position-culminating in an acrimonious end to the employment relationship. Since it became apparent the employee had a disability, the case became centered on the employer’s duty to accommodate Mr. Patzwald. The British Columbia Human Rights Tribunal determined that the company did not discriminate against Mr. Patzwald on the basis of disability contrary to the Code in dismissing him. Patzwald v. FMC of Canada Ltd. and another, 2020 BCHRT 162 (CanLII) provides a helpful overview of the parties’ respective rights and duties in cases where an employee has a disability that may affect their ability to perform their job.

Background

FMC operated a chemical plant in Prince George, British Columbia. Mr. Patzwald began working in 2011 at FMC as Maintenance Team Lead. He was an undisputed highly competent and technically skilled engineer, but he lacked interpersonal skills and leadership. The employer knew that Mr. Patzwald lacked these skills when it hired him but offered him training and coaching once per month. During the first year of his employment, it was clear that Mr. Patzwald and some members of the team he was hired to manage did not get along. In March 2012, Mr. Patzwald went off work for three weeks with a blood disorder. When he returned to work, he claimed that he began to suffer discrimination. People would remark that he looked sick and should stay home. Management met with Mr. Patzwald to deal with complaints that he was holding up the progress on projects. He was told to build rapport with his team. He went on another medical leave a few days after the meeting. Notably, for the Tribunal, Mr. Patzwald did not mention needing any accommodation. At the end of May 2012, Mr. Patzwald was hospitalized for two weeks and when he returned, he was allowed to stay home with pay on Wednesdays as his doctor recommended. At that time, he received his first performance review, where he received a “needs improvement” score targeting primarily his leadership and interpersonal skills. The Tribunal found that FMC had genuine concerns and that the review was not manufactured to support an eventual termination. Mr. Patzwald began a seven-and-a-half month medical leave in October 2012. He needed surgery on his spleen and an open-heart surgery. Before he returned to work, his physician filled out a form stating that he could work without restrictions and limitations aside from requiring “occasional absences for ongoing medical testing/treatment.”

FMC chose Mr. Patzwald’s first day back to work as a chance to give him his second performance review. It was largely similar to the first review. This time, he was placed on a performance improvement plan. Although Mr. Patzwald said the plan contained too many tasks, he did not ask for any accommodation. He never said his health was the reason he would be unable to meet the goals that were set out in the plan. Starting then, he had bi-weekly coaching sessions to help him with his leadership, interpersonal and communication skills. Rather than accept responsibility for self-improvement, Mr. Patzwald tended to blame others for his shortcomings. He worked hard, though, averaging 12-hour days five days per week. He complained about his workload and “hoped” he would be accommodated but never voiced this.

Meanwhile, he continued to have problems with several of his subordinate Engineers in Training or EITs. When the EITs complained, the company began to worry that it would have trouble recruiting EITs if it gained a reputation of management harassing EITs.

A meeting was called in late August 2013 to discuss the EITs’ complaints, concerns about Mr. Patzwald’s ongoing lack of leadership and interpersonal skills and Mr. Patzwald’s management style. Mr. Patzwald did not acknowledge any shortcomings in the meeting-he saw the problems as being made up or not his fault. Tempers flared on both sides during the meeting, but again, Mr. Patzwald never mentioned a relationship between his performance issues and his disability. His behaviour at the meeting in addition to the larger issue of denying responsibility for his performance led FMC to decide to terminate his employment. Perhaps sensing his job was in jeopardy, Mr. Patzwald began a sick leave for an indefinite period. Having made up its mind, FMC dismissed Mr. Patzwald by letter dated September 19, 2013.

The Tribunal’s decision

After making some general comments on the witnesses’ respective credibility and the presentation of the evidence, the Tribunal analysis on discrimination began with a consideration of Mr. Patzwald’s onus. To succeed, he had to show that he suffered an adverse impact on his employment and that it is reasonable to infer that his disability was a factor in the adverse impact. If a complainant successfully sets out a prima facie case, the burden shifts to the other side to justify its conduct.

The Tribunal looked at segments of Mr. Patzwald’s employment, punctuated by each of his medical leaves. It concluded that at the time of his first medical leave and return to work, there was insufficient evidence about what accommodation he would have needed because he felt his work was up to date, and he did not raise any accommodation requests. After returning from his second medical leave, Mr. Patzwald’s negative performance review constituted an adverse impact. However, since the Tribunal found that it was genuinely related only to his work, it was not connected to his disability. Also, there was no evidence that Mr. Patzwald needed any accommodations outside of the ones related to coaching and time off that FMC was already providing. There was no evidence of a negative impact flowing from his disability that was connected to the work plan. Similarly, after the third medical leave, Mr. Patzwald requested no accommodation and he appeared to be healthy. Although he asked for help with his workload, there is no free-standing duty to accommodate. The Tribunal noted that the question of accommodation only arises if the elements of discrimination are made out. In short, Mr. Patzwald failed to show that his disability was connected to his termination.

The Tribunal agreed with FMC that Mr. Patzwald could not insulate himself from their concerns about his performance simply because he had a disability. FMC had genuine and constant concerns about Mr. Patzwald’s performance, and it did what it could to help him improve. In the end, it believed that Mr. Patzwald’s managerial skills would not improve, and that was the reason it dismissed him.

Takeaways for employers

Employers need to realize that the mere fact of a disability does not shield an employee from performance management or legitimate disciplinary action. There is no free-standing duty to accommodate, so it is only when the employee makes out a prima facie case of discrimination that the issue arises. While the law recognizes a duty for employers to ask an employee if they need accommodation if the employer sees a potential need, this case underscores the employee’s role in the process. Employees with less obvious disabilities who feel their ability to do their job is negatively impacted should raise the issue with their employers. By choosing to remain silent on the issue and hope for accommodation, Mr. Patzwald gave the employer no reason to suspect that he required accommodation or that his poor performance was related to his disability. If he had been more open about this issue, one wonders if or how the result, in this case, may have been different.

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