The Human Rights Tribunal of Ontario (the “Tribunal”) recently considered the delicate balance between accommodating employees with disabilities and managing performance issues. The decision Karim v Workplace Safety and Insurance Board [1] serves as a valuable reminder for employers navigating the complexities of workplace accommodations and termination decisions.
What Happened?
The employee alleged discrimination based on disability after being terminated during their probationary period.
The employee began working on July 15, 2019, as a Senior Associate in Corporate Compliance for the Workplace Safety and Insurance Board. Their employment contract included a six-month probationary period. In September 2019, the employer met with the employee about their poor attendance record and concerns regarding their performance, following which the employee filed a request for accommodation through the employer’s Healthy Workplace Centre. The employee submitted that their physical and mental health conditions necessitated additional paid time off and working from home on an as-needed basis. They did not specify any frequency or duration for such accommodations, nor did they collaborate with the employer in its attempts to inquire about the employee’s needs and the way it could provide support. Subsequently, the applicant consulted with a Disability Management Consultant of the employer’s Healthy Workplace Centre, which was followed by an assessment from an independent medical consultant.
The independent medical consultant neither endorsed the employee's work-from-home request nor found medical justification for the frequent absences. On December 12, 2019, following the independent medical review, the employee was terminated due to performance deficiencies and culpable absenteeism.
What Did the Tribunal Decide?
The Tribunal ultimately dismissed the application, finding no evidence that the employee’s disability was a factor in their dismissal. Although there was some evidence of disability, it was not sufficient to prove that it affected the employee’s job performance in a significant way.
The Tribunal found that the applicant failed to convincingly establish the connection between their disability and the adverse impact they experienced as a result of their termination.
The Tribunal reaffirmed the procedural duty of employers to engage in a meaningful investigation once an accommodation request is made and reiterated that the employer’s duty to accommodate is a cooperative process. While initial medical evidence is not always necessary to trigger the duty to accommodate, employers are entitled to request further medical information to substantiate accommodation requests. The evidence in this case indicated that the employer engaged in appropriate steps by involving the Healthy Workplace Centre and obtaining an independent Medical Consultant Review to understand the employee’s needs. The Tribunal found that the employer’s actions in this regard met the procedural duty to accommodate, despite the lack of clear communication from the employee about their needs.
The Tribunal further accepted the employer’s argument that the termination was based on legitimate performance issues and culpable absenteeism, which were well documented. Employer witnesses substantiated the performance issues, revealing discussions held with the employee regarding their work quality and poor attendance record. The Tribunal also noted the lack of cooperation from the employee in clarifying their accommodation needs.
Ultimately, the Tribunal did not find the timing of the employee’s termination to be indicative of a discriminatory motive. Instead, it was explained that the decision had been made prior and was timed with the end of the probationary period.
Takeaways
- Duty to accommodate: This case emphasizes the importance of clear communication and cooperation between employees seeking accommodation and their employers. Employers must ensure they thoroughly investigate accommodation requests and document their efforts to fulfill the procedural duty to accommodate.
- Terminating probationary employees: Probationary periods are critical for assessing employee suitability. Employers must use this time effectively to monitor, evaluate, and communicate performance expectations clearly. The Tribunal's decision underscores the lawful right to terminate employment during probation if the employee does not meet the job's expectations, provided it is not tainted by discriminatory considerations.
- Performance records: This decision highlights the necessity of maintaining detailed records of employee performance, expectations and interactions on performance issues management.
On a broader scale, this case reinforces the principles of human rights in the workplace within the Canadian legal landscape. Employers are reminded to review their policies and procedures to ensure compliance with human rights legislation and to support their employees appropriately.
