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,…
Hebert was hired by the Company to provide janitorial services at the Ontario Provincial Police (OPP) detachment in Embrun. During the course of his 7 years of total service as an independent contractor and then as an employee, Hebert had never received any complaints regarding his work. Hebert’s work performance was never in question nor was he provided with a reasonable explanation as to why he was terminated.
In 2010 Hebert suffered stress-related heart palpitations as a result of family pressures including marital difficulties and caring for his aging mother. His family doctor directed him to take a 90-day stress leave.
In the year leading up to his termination, he had missed 6 weeks of work. No disciplinary action was taken for these absences.
The Company proceeded to hire Mr. Lemieux as a full-time employee to replace Hebert and in December, 2010, during Hebert’s medical leave, Hebert’s employment was abruptly terminated. He was informed by the Company that they had to make some changes.
Hebert filed a complaint with the Human Rights Tribunal of Ontario for discrimination on the basis of a disability. He argued that his employer had used his illness and absence from work as an opportunity to terminate his employment.
The Company knew that Hebert had a disability, was off on a 90-day stress leave and had every intention of returning to his job. The Employer had a duty to facilitate Hebert’s return to work at the end of his leave. The Employer failed in its duty to accommodate up to the point of undue hardship, contrary to the Ontario Human Rights Code.
While the Company argued that training a temporary employee constituted undue hardship, the Tribunal found that such training given the circumstances and nature of employment, would at best have amounted to an inconvenience.
Hebert’s absence from work for medical reasons provided the Company with what it thought was justification for permanently replacing him. That decision was found to be discriminatory.
Hebert was awarded $12,000K for injury to his dignity, feelings and self-respect. Hebert was not awarded monetary compensation for lost income since he secured alternate employment as soon as his medical leave ended. While his earnings were significantly less, he admitted that he did not look for full-time work or attempt to find higher paying part-time work.