“Timing Isn’t Everything”: Termination shortly after disability-related absences is not necessarily discriminatory
A common issue in human rights claims is the timing of an employer’s action or decision relative to an employee’s medical leave or illness. Even where an employer takes action or makes a decision that is unrelated to an employee’s protected characteristics under human rights law, the timing often raises questions about the employer’s motivations.
One illustrative decision in this regard is Mou v. MHPM Project Leaders, 2017 HRTO 246, in which the Human Rights Tribunal of Ontario (the “Tribunal”) dismissed a complaint based largely on the timing between (a) the employer expressing concerns about the employee’s disability-related absences, and (b) the termination of that employee’s employment.
Ms. Mou was an employee of MHPM Project Leaders from June 2011 to February 2014. In 2013, Ms. Mou missed ten days of work due to a slip and fall, two days of work after experiencing a miscarriage, nine days of work after her mother-in-law died, and a number of full and partial days (totalling 46 hours) for other health-related reasons. Due to these absences, Ms. Mou did not meet her 1,800 billable-hours target and exceeded her annual entitlement to sick time.
In December 2013, Ms. Mou’s supervisor and a human resources representative met with Ms. Mou to discuss MHPM’s concerns about her absences from work. These concerns were also reflected in her 2013 interim and annual performance evaluations.
On February 27, 2014, MHPM terminated Ms. Mou’s employment. Ms. Mou testified that she was not provided with an explanation for the termination and, when she asked for one, a superior told her to “draw her own conclusions”. In contrast, the superior said that he informed Ms. Mou of the reason for her termination – there was no work, and there was no opportunity to move her to another group. Then, when she did not believe this explanation, the superior told her to draw her own conclusions.
Ms. Mou filed a human rights complaint alleging discrimination based on disability. She argued that her disability-related absences from work were a factor in the termination of her employment.
The Tribunal’s Decision
The Tribunal clarified that to establish discrimination under the Code, Ms. Mou must prove that her disability-related absences were one factor (possibly among many) in the employer’s decision to terminate her employment.
The employer led evidence that Ms. Mou was terminated because there was no work available at her level. MHPM had been engaged by Public Works and Government Services Canada, which had decided to remove the intermediate and senior project managers on the East Block project in December 2013 (which included Ms. Mou). “Shortage of work” was the reason given on Ms. Mou’s Record of Employment, and was substantiated by evidence before the Tribunal, including evidence of a slow-down in the real estate market in 2013-2014 that negatively affected MHPM’s business.
The Tribunal held that the temporal connection between the employer expressing concerns about Ms. Mou’s disability-related absences in December 2013, and the termination of her employment in February 2014, was sufficient to require the employer to provide reasons for the termination. However, the temporal connection alone did not establish discrimination. Based on the evidence of this case, the Tribunal found that Ms. Mou’s absences were not a factor in her termination. As a result, the case was dismissed.
The Ontario Human Rights Tribunal’s decision highlights that a temporal connection between an employee’s termination and circumstances that could suggest discrimination may be sufficient to require the employer to provide reasons for the termination; however, such a temporal connection alone is insufficient to prove discrimination. This is consistent with the British Columbia Human Rights Tribunal’s recent decision in Whitmore v. Dr JT Kelsall Inc. and another, 2017 BCHRT 114, where the complainant’s only evidence of the alleged discriminatory conduct was the temporal connection between the termination of the complainant’s employment and her medical leave of absence.
While these decisions affirm that bad timing itself may not be sufficient to successfully establish discrimination, employers should document the non-discriminatory reason for termination of an employee’s employment, particularly where the dismissal occurs close in time to an event that may be linked to a prohibited ground of discrimination.
If you have any questions about your company’s obligations or potential liability under human rights legislation, please do not hesitate to contact a member of our Labour and Employment group.