Date: 2010
Author: Daniel A. Lublin
Publication: Metro

Employers must ask themselves a few questions

Employees and employers make all types of wrong assumptions about the law. Seldom do their “perceived” rights exist. Often they rely on rules that have long been rejected by the courts and legal doctrines that are now invalid. Sometimes they just ignore their lawyer’s advice. As one Ontario company just learned, however, ignorance of the law is no excuse.
When Elsa Torrejon learned that she had breast cancer, she hoped her employer, Weston Property Management Corp., would be sympathetic. Instead, when Torrejon asked for a leave of absence, she was told that her last day at work would be her final day with the company.
Claiming that she had been discriminated against by the company on the basis of her disability, Torrejon commenced a human rights Application (which is equivalent to a lawsuit). At the hearing, the Human Rights Tribunal did not hesitate to find that Weston discriminated against Torrejon for its failure to accommodate her disability. In an attempt to absolve itself from liability, Weston openly admitted that it was blind to its obligations under the applicable human rights legislation. Needless to say, this argument fell short of impressing the adjudicator.
Weston was ordered to pay $20,000 in damages to Torrejon. Also, as a result of its disregard for the applicable human rights law, Weston was ordered to undergo human rights training.
What can employers do to avoid similar findings?
First, Canadian employment law requires that ill or disabled workers be accommodated. This requires an extensive examination of the employee’s work related restrictions and their ability to provided modified work. Asking a few questions is seldom sufficient. Both employees and employers must consult with experts and determine the level of accommodation required.
Second, employees with disabilities can be dismissed – and they often are. However, courts and human rights tribunals will quickly draw a connection between the firing and the illness. If there are other reasons that precipitated the dismissal, they better be clear and unrelated to any health concerns.
Finally, don’t shoot first and ask questions later. Instead, obtain advice from an expert. There is no substitute for experienced counsel.