A technology executive, fired shortly after being injured in a car crash, has been awarded $80,000 by the Ontario Human Rights Tribunal — including $30,000 in damages for loss of dignity and injury to his feelings.
The worker, the vice-president of information technology (IT) at ABC Group Product Development, had only been on the job about seven months when he was let go after asking for accommodation, based on advice from his doctor, via a shortened work week and to be put on short-term disability.
The professional, AZ, was hired by the company — an automotive systems and components manufacturer in Ontario — on April 3, 2017.
He was fired on Nov. 28, 2017, due to alleged unsatisfactory performance. At the time of termination, he was paid a salary of about $100,000 per year; a bonus of about 5% of his base; and entitlement to group insurance benefits, including health, dental and disability coverage.
The car crash
On Oct. 6, 2017, AZ was involved in a car accident and was taken to the emergency room at Brampton Civic Hospital. He left the hospital the following day after being discharged.
He took a week off work as sick leave, from Oct. 9 to Oct. 13, returning to work on Oct. 14. He was taking high doses of medication to alleviate his pain, which made him drowsy at work and slowed him down.
In early November, AZ asked to be granted leave to go on short-term disability and, on Nov. 21, 2017, HR gave him the required forms and instructions on how to apply for STD.
An attending physician’s statement from his doctor, prepared for the third-party benefits provider, stated that AZ had “severe back and shoulder pain” and was unable to rest or stand for long hours. It noted that the “patient is not totally disabled, needs modified work hours.” AZ also submitted a note, dated Nov. 20, 2017, from another doctor stating he was in “need of modified work hours and modified work duties due to his chronic back and shoulder pain.”
On Nov. 22, 2017, AZ applied for STD. It was not approved due to the termination of his employment.
The performance issues
The employer argued that AZ’s performance issues began almost immediately after being hired. It said he exhibited significant and repeated performance deficiencies in virtually all aspects of his job.
It also noted there were concerns from employees who reported to him about his performance. It said there were “fears of mutiny,” which was documented in an email sent on May 17, 2017. But ABC decided not to terminate him at the time because it wanted to give AZ more time to meet performance expectations.
The company outlined a number of specific examples where he didn’t complete projects, was late with projects or made errors.
The tribunal’s ruling
The Ontario Human Rights Tribunal, though, said his disability was a factor in the termination. It noted the termination occurred while he was in the process of applying for STD due to injuries from the car crash.
At the time he was fired, AZ had a disability, it said. To establish discrimination, AZ needed to show he had, or was perceived to have, a disability; that he received adverse treatment; and that the disability was a factor in his termination.
At this point, the burden shifted to ABC to provide a credible and rational explanation for the decision to terminate his employment. There was no doubt AZ requested accommodation on Nov. 22, 2017 — based on his doctor recommending 24 to 30 hours of work instead of 40 for a two-month period.
The result? He was fired less than a week later.
“The timing of the applicant’s termination gives rise to a strong inference that his disability was at least a factor in the respondent’s decision to terminate his employment,” it said. “In reaching this conclusion, I have carefully considered the fact that it was not disputed that the respondent was aware that the applicant had a motor vehicle accident, that he was under treatment and that he had requested STD.”
The tribunal noted that the company testified AZ was not a “good fit” for the role. But there was no written performance review, no written warnings or a written performance improvement plan (PIP).
ABC was not able to demonstrate any efforts made to accommodate AZ’s STD leave request, it said. It ruled that discrimination based on disability was a “more probable cause or at least a factor” in his dismissal rather than substandard performance.
Accommodation to the point of undue hardship
The tribunal pointed out employers are required to accommodate workers to the point of undue hardship.
“There is no evidence that from the time of applicant’s motor vehicle accident to the time of termination the respondents actively engaged in the accommodation process other than casually referring the applicant to apply for STD leave directly with the third-party disability benefits provider,” it said.
The tribunal accepted AZ’s submissions regarding the mental stress and humiliation he experienced due to the denial of accommodation and termination of employment.
It noted AZ had only worked for seven months and was terminated at time when he was ill and disabled from working full time. It settled on $30,000 for loss of dignity and the injury to his feelings.
It also awarded $50,000, less appropriate deductions, as monetary compensation for his wage loss and in lieu of STD benefits, the cost of which he contributed to during his employment with ABC.
It also ordered the company to provide AZ a letter of reference detailing the jobs he did and the dates he was employed. It also said it should provide a record of employment (ROE) with Code K (Other) as reason.
And it said members of the company, including the HR team, needed to complete the Human Rights Code 101 training found on the Ontario Human Rights Commission’s website within three months.
It did not order an apology, noting that it generally does not do so and that any apologies “should come naturally without any external pressure.”
For more information, see Zameel v. ABC Group Product Development, 2023 HRTO 533 (CanLII)