Terminating a disabled employee can be a costly decision

By: Cedric P. Lamarche
A recent decision from the Ontario Human Rights Tribunal serves as a reminder that employers should tread carefully when dealing with employees suffering from disabilities.
Elsa Torrejon, a 51 one year old single mother, was employed with Weston Property Management Corp. of Toronto as a leasing agent.  In late January of 2009, Torrejon was diagnosed with stage II breast cancer and her physician recommended that she undergo treatment as soon as possible.  In light of the diagnosis and the treatment recommended by her physician, Torrejon advised her employer that she would require an indefinite leave from work in order to undergo surgery and treatment.  She advised Weston that she was well enough to remain at work until the day before her first scheduled surgery.  In response, Weston advised that her last day at work would in fact be her last day of employment with the company, merely 8 months after commencing work with Weston.  On her scheduled last day, Weston handed Torrejon her last paycheque, her T4 and her Record of Employment.
Claiming that she had been discriminated against on the basis of her disability, Torrejon brought an application before Ontario’s Human Rights Tribunal.
The Tribunal did not hesitate to find that in terminating her employment, Weston had discriminated against Torrejon on the basis of disability.  Specifically, the Tribunal concluded that Weston had failed to accommodate Torrejon by allowing her to take a leave of absence while she underwent treatment.  Based on the evidence at the hearing, it was clear that Weston did not understand an employer’s obligations under the applicable human rights legislation.  Weston openly admitted that it believed that it could legally terminate Torrejon’s employment as a result of her illness.
In order to compensate Torrejon for Weston’s violation of her human rights, the Tribunal ordered Weston to pay Torrejon $20,000.00 in general damages and for lost wages.  The Tribunal also required Weston to undergo human rights training due its complete lack of appreciation for an individual’s human rights.
In Ontario, employees are protected from discrimination and harassment in the workplace on the basis of disability.  This includes, past, present and perceived disabilities.  Pursuant to the Ontario Human Rights Code, employers have an obligation to accommodate disabled employees short of undue hardship.  This duty includes accommodating a disabled-related absence of work, such as the one Torrejon had requested from Weston.
The law recognizes that accommodation is a shared responsibility.  Everyone involved, including the person seeking accommodation, should cooperate, share information and attempt to find mutually agreeable solutions.  Many accommodations can be made easily and at little cost.