Recently, Ted Flett was featured in a case commentary in Canadian HR Reporter. The story discussed a recent decision of the Ontario Human Rights Tribunal, Zameel v ABC Group Product Development, 2023 HRTO 533. (“Zameel”) and is summarized below.
In Zameel, on April 16, 2023, the Ontario Human Rights Tribunal ordered the employer to pay the employee $80,000 for discrimination on the basis of disability after the employer fired the worker after he applied for short-term disability (STD) leave.
The employer, ABC Group Product Development (“ABC”), is a manufacturer of automotive systems and components in Brampton, Ontario. Zameel joined ABC as an Information Technology (IT) Operations Manager on April 3, 2017. Before long, the employer, allegedly observed performance issues with Zameel. ABC submitted to the Tribunal that Zameel’s direct reports also expressed concerns about him.
On October 6, 2017, Zameel was involved in a motor vehicle accident and was hospitalized for his injuries. He took a week of sick leave, returning to the workplace on October 14, 2017.
According to ABC, among other performance issues, Zameel was unable to complete a project as scheduled and left the workplace without informing his supervisor. The employer claimed that they had to bring in consultants to complete the work and bring the system back online. Zameel said that he left the jobsite due to the drowsy side effects of his medication and his team members told him to go home, assuring him that the work would get finished. When Zameel’s supervisor asked him why he didn’t stay until the job was done, Zameel felt that he was unconcerned about his health.
On November 27, 2017, Zameel told the Company that he had applied for part-time STD benefits. The next day, ABC terminated Zameel’s employment. The letter did not provide any reason for termination, but ABC told him that “It’s not working out” and that his projects were delayed.
The tribunal found that the medical evidence was sufficient to prove that Zameel had a disability stemming from his injuries sustained in the motor vehicle accident. When the worker provided a doctor’s note, it was a request for modified work accommodations, the tribunal said.
The tribunal noted that ABC was aware of (1) Zameel’s motor vehicle accident, (2) that he was receiving treatment for injuries, and (3) that he had requested STD benefits and accommodation at the time that the employee’s termination was under consideration. Given that Zameel had not been formally disciplined for his performance issues, the timing of the termination decision led to “a strong inference that his disability was at least a factor.”
“Because there was no documentation of the performance issues with Zameel, ABC was not successful in asserting that the termination of Zameel’s employment was based totally on performance issues,” said Flett in the article. “The tribunal simply did not believe that ABC had actually had conversations with Zameel regarding his performance.”
“And because the standard is that the employee only has to show his disability was a factor in the termination of his employment – and not the entirety of the reasons for the termination of employment – Zameel was successful in making out a prima facie case of discrimination on the basis of disability,” he added.
ABC was ordered to pay Zameel $30,000 for injury to his dignity stemming from the discrimination and $50,000 for loss of wages and STD benefits, plus a letter of reference and a record of employment.
“If dismissal for any reason is being considered and the employee suffers a disability, it’s a good idea to postpone that plan,” said Flett. “If they don’t have carefully documented records to suggest that the termination will be related to the performance and not due to the employee’s disability, I’d be suggesting this is not the time to terminate employment. Even if there were bona fide performance issues that were documented, my instinct would be to say, ‘Let’s hold off, let’s wait on this termination.’”
If you have any questions or inquiries regarding discrimination based on disability, contact Zubas Flett Law at 416-593-5844 or firstname.lastname@example.org.