Accommodation before Termination
If you are an employer contemplating terminating an employee who has been off a very long time on disability, it is extremely important that you fully investigate the possibility of accommodating that disability before pulling the plug. Even if it turns out that a proper investigation of the employee’s medical status and consideration of work available would not have changed the decision to terminate, you can still end up on the wrong side of human rights legislation.
Kate worked for a grocery store for 10 years and held the position of assistant manager. She was in charge of the other cashiers when she was on shift and sometimes was asked to act as a manager. At the age of 57, Kate’s knees started to give out and she had to go off for surgery, first on one knee and then a year later on the other.
The disability insurer had paid her for the first two years because all she had to prove was that she was incapable of doing her own job, which she was clearly was. After two years, however, in order to keep getting paid she had to prove that she could not do any job.
The insurance company had her assessed and it was found that she had all kinds of restrictions relating to walking, bending, standing or sitting for long periods. It did decide, however, that she was capable of doing a sedentary job and told her that she could no longer receive disability benefits. Insurance companies do not make money by saying yes to people and employees who are told they are being cut off disability benefits should almost always consult a lawyer.
Kate appealed the decision that said she was not totally disabled and the employer was copied on that information.
Without further ado, it sent Kate a letter indicating that since it did not appear likely she would be returning to work in the foreseeable future they were ending the relationship.
The employer had never seen any of the medical assessments done by the insurance company and never asked Kate for one iota of information from her treating physician.
It failed in what is called the procedural aspects of its obligations under human rights legislation. It was obliged by law to collect all the information available with respect to Kate’s limitations, assess any jobs and/or work that were available in its organization and determine whether Kate could be accommodated. It was not obliged to terminate any permanent employees to make room for Kate or pay for work it did not need to have performed.
Kate filed a human rights complaint and the employer paid for a lawyer to represent them at the hearing.
At the end of the day, Kate had applied for a disability pension under the Canada Pension Plan and received it and once all of the medical evidence was presented, it did not appear that the employer would have had a position for Kate even if it had taken the trouble to examine the issue.
Kate won her human rights complaint but the adjudicator decided there were no lost wages since Kate likely couldn’t have returned to work anyway. Kate was awarded, however, $5,000 in damages for injury to her dignity, feelings and self-respect.
The saying, “No harm, no foul” does not hold true in human rights law. Even though there would not have been work available that fit Kate’s physical limitations, the employer was found to have violated her human rights by not even asking the appropriate questions or considering options. It lost because it failed to even try to do the right thing.