Employer Discriminates by Dismissing for Disability-Fueled Absenteeism

Written by Lewis Waring, Paralegal, Student-at-law (last year), Editor First Reference Inc.

In Cyncora v Axton Inc (“Cyncoxa”), an employer discriminatorily dismissed its employee with a disability despite the employee’s undisputed absenteeism. The fact that the employer had some legitimate concerns about the employee’s fitness for its time-sensitive workplace did not remove the reality that one of the underlying reasons for its struggles with the employee was his ongoing struggle with depression and anxiety.

Background

The employer in this case was a global heavy industrial steel manufacturing company. The employer’s workplace is allegedly very time-sensitive, with penalties often levied against the employer for the tardy completion of projects. The employee worked for the employer as a probationary employee as a shop helper in its fabrication department. The employment relationship lasted from the employee’s hire in January 2019 until his dismissal with cause for reasons of absenteeism in April 2019.

Soon after he began working for the employer, the employee began missing work for reasons of depression and anxiety. The employee did not provide advance notice of any upcoming absences. However, the employee did not openly disclose these issues in the workplace for fear of suffering associated stigma. In reality, the employee had had symptoms of these mental health conditions for most of his life, impacting his ability to get out of bed or carry on a conversation. Accordingly, the employee also had a history of seeking medical treatment for depression and anxiety, having been provided with prescribed modified scheduling in prior jobs. However, the employer’s mental health issues had repetitively interfered with his ability to hold a steady job and resulted in a pattern of seeking stable employment only to leave the job at a later time to cope with his mental health issues.

This pattern eventually led the employee to seek work with the employer in this case. The employee felt his symptoms of depression and anxiety had become manageable to the extent that he felt capable of holding a steady job. Unfortunately, despite this initial motivation, the employee continued to struggle with the symptoms of his disability, ultimately resulting in the employer’s discriminatory dismissal of him as a result of disability.

The employee’s absenteeism

It was clear that the employer dismissed the employee in this case due to his repetitive absenteeism. However, the reasons for the majority of the employee’s chain of dismissals were directly related to his suffering from a mental disability. While he also skipped work as a result of having flat tires and food poisoning, the employee’s issue of absenteeism was undeniably the employee’s attempt to cope with the symptoms of his anxiety and depression.

Furthermore, the employer demonstrated that they had been aware that the employee’s absences were connected to mental health issues but chose not to discuss it with him. Instead of taking action to learn whether the employee had a disability that was impacting his ability to work before it dismissed him, it decided instead to dismiss him. The employer’s failure to communicate with the employee before taking the most severe option of dismissing him took advantage of the employee’s disability in violation of the British Columbia Human Rights Code.

Discriminatory dismissals

The prohibition of dismissals for discriminatory reasons under human rights legislation generally places strict limits on an employer’s ability to dismiss employees. These limits seek to prevent the dismissal of employees when they are in any way undertaken for discriminatory reasons. Even if an employer may have legitimate complaints about one of their employees, they are not thereby permitted to add to that real issue another issue that has to do with issues related to disability, gender, or any other human rights ground.

This restriction is crucial for employers to understand as demonstrated in Cyncoxa. In this case, there was no dispute that the employee had a “casual” approach to attending the workplace and was consistently and flagrantly in breach of his duties as an employee. On its own, such conduct could certainly coalesce into a valid reason to terminate an employee for cause. However, the presence of a legitimate reason to dismiss an employee will not prevent a costly damage award if it is discovered that, in addition to such legitimate issues, an employer also intended to dismiss their employee because of issues caused by a disability or other human rights concern. The presence of discriminatory reasons for dismissal, even when in the context of overwhelming non-discriminatory reasons, such as tardiness or unprofessionalism, is sufficient to result in a finding of discrimination under human rights legislation throughout Canada.

Suspecting human rights needs

Overall, it is crucial that employers take seriously their obligation to make themselves aware of the human rights needs of their employees. While the limits of their duty to understand the presence of an ongoing human rights concern are not always defined, what is clear is that an employer is often not permitted to argue ignorance when an employee clearly displays human rights need. As this case shows, an employee suffering a disability has a right to be accommodated and this right may require the employer to take action even if the employee never explicitly states that he or she has a disability. If an employer can reasonably tell that an employee of theirs is suffering from a disability, they are under an obligation to make reasonable attempts to accommodate the employee.

What this means in practice is to ensure that the lines of communication remain open between the employer and its employees in the workplace. If an employer learns or suspects that an employee may have a human rights issue, it is proper for the employer to attempt to learn more about its nature and any unmet needs the employee may have.

However, while seeking to understand whether an employee may have a human rights issue and how it may help, an employer should never breach the privacy of that employee. Employers should refrain from engaging in any public discourse around suspected human rights issues in the workplace with other employees or with the person themselves. Instead, the employer should investigate the presence and nature of any human rights concerns in a private setting. It is furthermore important to ensure that any investigation of possible human rights grounds is undertaken in the spirit of accommodating any needs that can be handled up to the point of undue hardship. Employers should be careful never to engage in harassment while attempting to better understand an employee’s possible human rights grounds.

Finally, employers investigating human rights grounds should ensure that all interactions and steps taken are documented in a confidential manner. Taking such steps ensures that a record is created that is crucial to ensuring that an employer can always demonstrate, when necessary, the fulfillment of their duty to accommodate a human rights need.