Williams HR Law LLP

HRTO Rules that Dismissal for Violation of Attendance Policy is Not Discriminatory

August 23, 2018

[vc_row][vc_column width=”1/4″][vc_single_image image=”3633″ img_size=”large”][/vc_column][vc_column width=”3/4″][vc_column_text]As most employers know, the Ontario Human Rights Code (the “Code”) prohibits employers from discriminating against any person with respect to their employment

based on enumerated grounds such as race, religion, sex, sexual orientation and disability. In Rajic v Omega Tool Corp., 2017 HRTO 818 (“Rajic”), a recent decision the Human Rights Tribunal of Ontario (the “HRTO” or the “Tribunal”), the HRTO addressed whether it is discriminatory for an employer to dismiss an employee for failing to comply with reporting obligations under the employer’s attendance policy where the employee’s absences were caused by a disability. While this decision largely affirms the existing state of the law, it also demonstrates the value of maintaining prudent policies and clarifies the circumstance in which employers can rely on the breach of such policies to dismiss employees without it being discriminatory.

The Law

In Stewart v Elk Valley Coal Corp. (“Stewart”), the Supreme Court of Canada (the “SCC”) summarized the basic test for determining whether there is a prima facie case of discrimination. The complainant must establish on the balance of probabilities that:

  • they possess a characteristic that is a protected ground under the Code;
  • they suffered a harm or disadvantage; and
  • the protected ground was “a factor” leading to the harm or disadvantage.

Notably, to be “a factor” in the harm suffered by a complaint for the purposes of this test the protected ground need not be the “cause” of the harm, nor is a “close relationship” between the two required. It is also worth noting that discrimination can be “direct” or “indirect”. An example of “direct discrimination” would be dismissing an employee for their religious beliefs, whereas “indirect discrimination” (also known as “adverse effects discrimination”) occurs where a seemingly neutral policy adversely affects members of a certain group due to a Code-protected ground. For example, a policy requiring all employees to work on Saturdays may adversely affect Jewish employees who observe the Sabbath on Saturdays, and could therefore constitute “indirect discrimination”.

The Decision in Rajic

The facts of Rajic are as follows. The Plaintiff, Mr. Rajic, was employed by the Omega Tool Corp. (“Omega” or the “Company”) for approximately one month as an apprentice mouldmaker before being dismissed for violating Omega’s attendance policy (the “Policy”). The Policy required all employees that were going to be absent or late for any reason to inform their manager before the start of their shift. Omega considered the Policy to be important because work assignments were determined each morning and the failure of any employee to report that they would be absent before their shift required tasks to be reassigned at the last minute, thereby delaying the start of the shift.

Mr. Rajic was absent from work four times and failed to comply with the Policy on each occasion. Three of Mr. Rajic’s absences were due to him seeking medical treatment for acute symptoms caused by his kidney stones, whereas the other absence was due to Mr. Rajic driving his brother to the hospital because he was ill. On the first occasion, Mr. Rajic left a message on the voicemail with the Company’s receptionist about an hour after his shift started, rather than informing his manager directly before the shift; consequently, he received a warning for violating the Policy. Mr. Rajic subsequently failed to call in for his second absence and called in after the start of his shift for his third and fourth absences. After his third violation of the policy Mr. Rajic was warned that further violations of the Policy could result in the termination of his employment. Accordingly, Omega terminated Mr. Rajic’s employment after his fourth violation of the Policy. Mr. Rajic’s explanations for his failures to comply with the policy included: that he did not think that he would be able to reach anyone at the Company before his shift; that he did not have a cell phone signal while waiting in the hospital; and that he did not want to use the phone while driving.

After his dismissal Mr. Rajic filed an application with the HRTO alleging that Omega had discriminated against him in respect of his employment on the basis of disability, namely, his kidney stones. He contended that the Company had terminated his employment because it considered the potential of future absences due to his medical condition to be a liability. Omega, on the other hand, argued that Mr. Rajic’s termination was not related to his disability, rather he was terminated due to his failure to comply with the Policy after receiving multiple warnings.

The Tribunal ruled in favour of Omega and held that Mr. Rajic had failed to establish a prima facie case of discrimination on the balance of probabilities. Although Mr. Rajic’s absences may have been due to a disability, the HRTO noted that there was no reason to believe that his disability prevented him from complying with the policy by calling in before the start of his shifts. As such, his disability was not “a factor” in his failure to comply with the Policy and therefore could not be considered a factor in Omega terminating his employment for breaching it.

Implications

Rajic illustrates that employers can terminate an employee for violating an attendance policy, even where the employee’s absences were related to a disability, so long as the disability was not “a factor” that led to the employee’s failure to comply with the policy. This will generally be the case where there is no disability-related reason that the employee cannot comply with the policy.

Rajic largely affirms the current state of the law in this area. In Stewart, the SCC held that it was not discriminatory for an employer to terminate an employee with a drug addiction, which constitutes a disability, for violating a policy requiring all employees to report drug use prior to a workplace accident so that they could receive treatment. The SCC reasoned that the employee was not terminated because of his addiction, but rather for breaching the policy, and that his addiction did not preclude him from reporting his drug use to his employer (for further information, see our blog article on Stewart). Based on the foregoing, employers would be well-advised to maintain clear policies relating to all matters which are important to the operation of their business. As the decision in Rajic indicates, a clearly established policy that is honoured by the employer and is related to a legitimate business purpose is a powerful defence to claims of discrimination.

It is important to note that the holding in Rajic not mean that employers can dismiss employees for discriminatory reasons under the pretense that the dismissal was merely for the breach of a policy. The Court or Tribunal will place employer policies under close scrutiny and determine whether the policy was the true reason for the employee’s termination, and whether the policy is truly related to a legitimate business purpose. For example, in Rajic the Tribunal determined that Mr. Rajic’s breach of the Policy was the ultimate reason for his dismissal, rather than his absences themselves, because the Tribunal found that Omega genuinely considered the reporting of absences to be important and Omega’s warnings to Mr. Rajic were solely about his failure to comply with the reporting obligations under the Policy. If there had been evidence that the absences themselves were a reason for Mr. Rajic’s dismissal, or that Omega wanted to dismiss him because it considered his disability to be a liability, it is likely that the Tribunal would have found the dismissal to be discriminatory.

Furthermore, every case must be judged on its own facts. In a case involving different facts, a protected ground such as disability could interfere with an employee’s ability to comply with a facially-neutral policy, in which case dismissing that employee for breaching the policy would constitute adverse-effect discrimination. Accordingly, employers should be cautious in relying on the breach of a policy to justify the dismissal of an employee where the breach may relate to disability or another protected ground under the Code and should never dismiss an employee for a discriminatory reason under the guise of a policy breach.

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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