Bad Optics: Looking Beyond First Impressions in Discrimination Cases

By Daniel Standing LL.B., Editor, First Reference Inc.

When an employee who is off work due to a disability is terminated, there are typically red flags signaling a potential situation of discrimination. The Canadian Human Rights Tribunal’s decision in Fick v Loomis Express, 2022 CHRT 2 (CanLII) confirms that it is not always as it seems. Despite bad first appearances, the employer’s actions can be found legitimate, countering a claim of discrimination.

Background

Warren Fick worked as a delivery driver for Loomis Express in Slave Lake, Alberta. He did so without incident from 1997 until 2006, when he had a heart attack that put him off work for three months. A decade later, he suffered a second heart attack which led to a medical restriction on driving for three months. During that period, Loomis assigned relief drivers to cover his delivery route.

Around the same time, Loomis’s financial outlook was not good. To reduce the pressure, it negotiated reduced rates with its drivers, including Fick, who grudgingly accepted the new terms in a letter that his boss found to be inflammatory. In fact, the letter upset Fick’s boss so much that he decided to fire Fick, stating that Fick sought to discredit him, causing him to lose trust in Fick, and also citing the messy condition of the warehouse that Fick operated out of (in which a gun was discovered) as grounds for termination.

In response, Fick filed complaints under the Canada Labour Code, alleging that he was discriminated against based on the prohibited grounds of disability and age.

The Tribunal’s decision

The Tribunal began by setting out the legal framework that applies when discrimination is alleged. First, the complainant must prove a prima facie case. This means the complainant must prove three things on a balance of probabilities: (a) they have a protected characteristic; (b) they suffered an adverse impact; and (c) the protected characteristic was a factor in the adverse impact.

Applying these factors, the Tribunal quickly noted that a heart attack qualifies as a disability under the Canadian Human Rights Act. As to age discrimination, however, Fick presented no evidence, so the Tribunal dismissed that portion of the complaint.

Next, the Tribunal considered the question of adverse impact. It determined that such an impact existed on the facts, flowing from the termination of the business relationship. Previously, Fick earned about $80,000 annually. After he was fired, he got a job at a dry cleaner at which he earned about $20,000 less annually.

The third factor is typically where most of the debate focuses. In this case, the Tribunal found that Mr. Fick’s heart attack was not a factor in Loomis’s decision to terminate his employment. Tribunal member Alex Pannu reviewed the entire context to highlight how the termination arose for reasons that were separate from Fick’s disability. For example, Loomis applied its cost reduction measures in a broad way, reducing expenses in other areas, as well, like cleaning contracts. Also, there was no compelling evidence that Loomis intended to replace Fick in the months following his absence.

The Tribunal found that there simply was insufficient evidence to make out the required connection between Fick’s disability and the dismissal to amount to a prima facie case of discrimination. It all pointed toward a finding that Loomis had arranged for temporary drivers to cover Fick’s route until he returned to work. Borrowing the phrase from a previous decision, the Tribunal stated that it was not able to detect the “subtle scent of discrimination” in Loomis’s actions.

A secondary issue that required determination was Fick’s employment status: Was he an independent contractor, or an employee under the Canadian Human Rights Act? Only in the latter case would he theoretically benefit from the Act’s protection against discrimination. Although it had already dismissed Fick’s claim, the Tribunal determined that Fick was not an employee under the Act. In the absence of a written employment contract, the Tribunal relied on the fact that Fick never received pay stubs showing source deductions or benefits from Loomis. Fick’s personal taxes showed deductions for truck repairs, gas, accounting and home office expenses, none of which are normally claimed by employees. Additionally, Fick enjoyed complete discretion in how he delivered the freight; he was not subject to disciplinary processes or a collective agreement, wore no uniform, could drive whatever truck he wanted and he barely had any contact with managers. He only started characterizing himself as an employee when he realized that he had to be considered as such to get relief under the Act.

Key takeaway

Terminating an employee who has a disability or is on sick leave is sometimes a risky proposition. Questions can arise about the employer’s bona fides, especially if the timing of the employer’s actions coincides with recent disability-related events. Even in such situations, the employer can manage its operations by ensuring that there is no connection-even a tenuous one-between its operational decision and the employee’s protected characteristic. If genuine business reasons underpin an action that adversely affects an employee in this situation, the employer can take comfort in knowing that the risk of a negative outcome is minimized

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