Alberta Law Firm Discriminated Against Employee

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

Hindsight is always 20/20, but in reading the decision Smorhay v Goodfellow Law, 2021 AHRC 170 (CanLII), one wonders how the employer did not foresee serious problems on the horizon. Corinne Smorhay was a legal assistant. She had worked in law offices before but had no construction law experience. Despite this, a headhunter recommended her to Goodfellow Law, a construction law firm that needed a secretary who could hit the ground running. When she was the only applicant who showed up for the interview, she got the job.

No performance problems were ever officially brought up, but a minor conflict arose when Smorhay asked for some scheduling leeway so she could get her daughter from daycare without incurring late fees. Although Smorhay had no family she could rely on to get her daughter, the law firm denied the request because an early absence would leave the desk unattended for half an hour.

In the following months before she was terminated, Smorhay missed thirteen days. Some were due to illness, including five days while she was hospitalized because of a ruptured ovarian cyst, and some were missed on account of her daughter.

In a move that Smorhay called “super unprofessional,” the firm emailed her while she was out and fired her because it was uncertain when she would return to work from her medical issue. In response, Smorhay filed a human rights complaint alleging that the termination was discriminatory on the grounds of physical disability and family status.

The Tribunal’s decision

The Alberta Human Rights Tribunal had little difficulty in finding that Smorhay established a prima facie case of discrimination. While Goodfellow Law dismissed Smorhay partially because of its concerns about her poor performance, which is a non-discriminatory ground, the Tribunal determined that the dismissal was primarily based on Smorhay’s excessive absenteeism. After all, it was the only point mentioned in the termination letter. The requirement that Smorhay prove that she had suffered an “adverse impact” flowed directly from the dismissal.

Considering the legal burden that shifted to Goodfellow, the Tribunal found that the law firm failed to justify its conduct. By basically burying its head in the sand about the reasons for Smorhay’s absences, it should have tried to accommodate her. Examined individually, the reason for each absence established the required nexus to the ground of family status or physical disability. It was no excuse that Smorhay never explicitly made this request, or that Smorhay was on a probationary period at the time.

Lastly, as to remedy, the complainant was entitled to compensation for lost income amounting to almost $10,000, and an award of $15,000 in general damages for injury to feelings, plus interest.

Key takeaways

The wilful blindness technique that is stereotypically attributed to ostriches does not mesh with an employer’s accommodation responsibilities. Employers need to be vigilant for signs that their workers may require a form of accommodation and they need to follow up on those observations. There are times when an employer has to take the initiative in this regard, even if the employee is initially silent on the issue.

The other main point, in this case, concerns the legal burden for proving a prima facie case of discrimination. Employers must remember that the entirety of an action will be tainted with discrimination if it is only partially based on a prohibited ground. This means that waiting until the last minute to address performance concerns at a time when the duty to accommodate is squarely engaged is generally a good way to complicate things very quickly.