An employer decides to dismiss an argumentative, insubordinate employee. Afterwards, the employee files a human rights complaint claiming she suffers from a mental disability that influenced her performance and therefore her dismissal amounted to discrimination based on that disability. The employer says, “Wait a minute, she never told us she was disabled, and she never asked for any form of accommodation”. She can’t raise all that after the fact, can she?
This is the basic scenario raised in a recent decision of the B..C. Human Rights Tribunal in a case called Mackenzie v. Jace Holdings.
Facts: The employer spoke to the employee multiple times about ‘insubordination’, and in particular the employee’s argumentative nature and moodiness in her dealings with supervisors. The employee went on ‘stress leave’ in the summer of 2009, and had advised a manager prior to this, that she suffered from depression. When she returned to work after 2 months’ leave, she again was argumentative, and the employer decided to dismiss her. At no time did the employee request accommodation or inform the employer that she believed her behaviour was related to a disability. She filed a human rights complaint alleging she was dismissed for reasons related to her mental or physical disability.
The B.C. Human Rights Code prohibits discrimination in employment on the basis of physical and mental disability. A doctor testified that the employee suffered from depression and an adjustment disorder, and that depression my cause a lose of insight regarding symptoms like irritability. However, this report was not provided to the employer prior to the dismissal, and the employer had no direct medical evidence explaining that the employee was disabled. As noted, the employee did not request accommodation.
The Tribunal began by noting that it is usually the responsibility of an employee to bring to the attention of the employer the need for accommodation of a disability. However, where the employer has “reason to suspect that a medical condition may be impacting the employee’s ability to work“, its failure to make inquiries regarding the employee’s health may constitute discrimination. That was the situation here:
It is evident that Ms. Mackenzie did not expressly seek any particular accommodation for her depression or other mental health issues. It is also clear that Thrifty’s, although it knew generally that Ms. Mackenzie was off on “stress leave” did not review her behaviour and seek to determine whether there was any component of her behaviour that could be explained by her mental health. Thrifty’s did not investigate whether Ms. Mackenzie had amental disability that impacted her behaviour…
At least three people at Thrifty’s (Lisa Trotter, Marlena and Kathy Mikkelsen) were aware that Ms. Mackenzie had mental health issues. Ms. Trotter was the person who made the decision to terminate Ms. Mackenzie’s employment. No effort appears to have been made by Thrifty’s to determine how Ms. Mackenzie’s disability affected her work performance or whether any accommodation may be required.
The employer argued that taking orders from management is a bona fide occupational requirement of the job, but that argument failed because the employer led no evidence that it explored the possibility of accommodating the employee’s disability, which it should have suspected given the employee’s recent stress leave, and her admission to management that she suffered from depression.
Conclusion: The employer discriminated against the employee on the basis of disability by dismissing her without first making inquiries into whether accommodation was needed, and considering possible accommodation. The employer was ordered to pay lost wages from the date of dismissal to the date (about 6 months later) when the employee returned to school, as well as $5000 for injury to dignity.
Questions for Discussion
Do you think that it is fair to require the employer to ask employees if they require accommodation when the employee has not suggested that accommodation is necessary or that poor job performance is due to a disability?
Does the decision make clear to you when the duty of an employer to make inquiries about possible disabilities and accommodation kicks in?
Do you think that it is easy or difficult for an employer to recognize when the duty applies?