Employer’s Conduct Constitutes a Repudiation of the Employment Contract thereby Disentitling it from Relying on the Without Cause Termination Provision
In a recent decision of the Ontario Superior Court of Justice (May 2021), Humphrey v. Mene,…
In a very recent decision of the Human Rights Tribunal of Ontario, the employee’s version was believed over the employer’s version such that the Tribunal found that the employee had been terminated by the Company due to his disability and perceived disability. The Tribunal rejected the Company’s version which was that the employee had told the Company the job was too stressful and that he needed to resign and asked the Company to terminate his employment so that he could collect employment insurance benefits.
Mr. Emra had been employed by the Company for over 2 years when his employment was terminated following a short period of absenteeism. Mr. Emra had been diagnosed with Generalized Anxiety Disorder and Panic Disorder three years prior to him commencing employment with the Company.
While Mr. Emra was late for work on occasion and his absenteeism did increase in the months leading up to his termination, there were no issues with his performance and he never received any verbal or written discipline from the Company. Mr. Emra’s supervisor was aware that he occasionally experienced anxiety and in fact just two weeks prior to his termination, Mr. Emra informed her in writing that his absences had been attributable to his anxiety, a condition which he was taking medication for and seeing a doctor regularly to manage.
The Company’s response was to emphasize concerns about Mr. Emra’s absences and insist that his attendance improve in the workplace which suggested a complete lack of understanding that Mr. Emra’s absenteeism was connected to his disability. After a few days off work due to anxiety, Mr. Emra was paged by his supervisor who had just returned to the office after being away. She asked Mr. Emra how he was doing and the applicant explained his disabilities. His supervisor accused him of having Attention Deficit Disorder because at times she saw him staring out the window and unfocused, which is further indication of the Company’s lack of understanding of Mr. Emra’s disability. The Company had no understanding of its obligations as an Employer under the Human Rights Code and failed to make any further inquiries about Mr. Emra’s disability or take any action to accommodate him. The Company terminated Mr. Emra’s employment.
Following his termination, Mr. Emra filed an Application with the Human Rights Tribunal of Ontario and for all the reasons set out above, the Tribunal found that the Company did terminate Mr. Emra’s employment and discriminated against him based on his disability and perceived disability in contravention of the Ontario Human Rights Code.
The Tribunal ordered the Company to pay the following amounts to Mr. Emra:
In addition the Company was ordered to retain a human rights expert of its choosing to develop new human rights policies, distribute to its employees and train its employees with respect to the policy, the Code and its duty to accommodate.