In Canada, it is well-established that employers cannot simply terminate employees whose work performance is negatively impacted by disability. Rather, an employer must attempt to accommodate the employee to the point of undue hardship. But what happens when the employee fails to notify the employer of his disability? Further, what accommodation does an employer need to provide to an employee who is still within a three-month probation period?
A recent Alberta Court of Appeal case, Telecommunications Workers Union v. Telus Communications Inc., addresses these questions.
Background
In August 2010, Telus hired an individual with Asperger’s syndrome to work as an agent in its call center. There was disagreement about whether Telus was aware of the disability. After completing his training, the employee was hired and began his 90-day probationary period.
Performance issues arose during the probationary period. Near the end of this period, management met with the employee to discuss his performance issues. During this meeting, he told the manager that any performance issues were related to his “condition.” The manager disregarded this statement as an “11th hour statement.”
Shortly after the meeting, and during the probationary period, the employee was terminated. The union grieved the termination, alleging that Telus had terminated the employee because of a disability.
Arbitration decision
The arbitrator found that while there was a sufficient connection between the employee’s performance difficulties and his Asperger’s syndrome to suggest prima facie (sufficient on its face) discrimination, he had not proved that Telus knew of his disability. As a result, the duty to accommodate was not triggered.
The arbitrator also concluded that even if the duty to accommodate had been triggered, Telus had met this duty. He found that the employee was unable to meet the requirements of his position and no accommodation could be made that would allow him to meet the requirements. The arbitrator also determined that Telus had no duty to find the employee a different position within the company as he was a probationary employee. The grievance was dismissed.
Court of Queen’s Bench decision
The union sought review of the arbitrator’s decision to the Court of Queen’s Bench. The court upheld the arbitrator’s decision that Telus had not known of the disability and had no duty to accommodate. The court also upheld the arbitrator’s finding that Telus had no obligation to accommodate the griever by finding him a different position outside the call center.
Court of Appeal decision
The union appealed to the Court of Appeal claiming that “knowledge” was not part of the test for prima facie discrimination and there had been an unreasonable application of the test for bona fide occupational requirements. Ultimately, the Court of Appeal agreed with the union on the first point but not on the second, and the appeal was dismissed.
On the first point, the Court of Appeal found that this case involved adverse-effect discrimination and, as such, the employee did not have to prove that the employer knew of the disability. As the court stated, “adverse-effect discrimination is the uniform application of a neutral employment policy to all employees, regardless of whether some employees have protected characteristics.” The test for adverse-effect discrimination requires:
- The claimant has a characteristic that is protected from discrimination under the applicable human rights legislation;
- The claimant has experienced an adverse impact; and
- The claimant must show that the protected characteristic was a factor in the adverse impact.
Applying this test, the requirements for prima facie discrimination were met and the employer’s knowledge of the disability was irrelevant.
With the prima facie discrimination test met, the court considered whether Telus had accommodated the employee to the point of undue hardship. The court found that Telus had exhausted accommodation options for the position for which the employee had been hired. It further relied on the arbitrator’s factual finding that accommodation (even in another Telus job) was not possible. The court noted that it did not need to rule on whether an employee’s probationary status affected the company’s duty to accommodate the employee.
Lessons for employers
There are two important takeaways for employers in this case:
First, employers should be aware that a lack of knowledge of an employee’s disability does not protect the employer in the face of an adverse-effect discrimination claim.
Second, this case may open the door for an argument that an employer only has to accommodate a probationary employee within the role for which the employee was hired. The Court of Queen’s Bench upheld the arbitrator’s decision on this point. While the Court of Appeal stated it was not ruling on this point, it did note that the authorities “suggest that probationary employees need only be accommodated within the scope of the position for which they were hired.” We will continue to monitor developments in this area.
