Williams HR Law LLP

CANADIAN HUMAN RIGHTS TRIBUNAL HELD AN EMPLOYEE’S DISMISSAL DURING A LEGITIMATE CORPORATE RESTUCTURING WAS STILL DISCRIMINATORY

August 25, 2022

In Luckman v Bell Canada [Luckman], the Canadian Human Rights Tribunal of Canada (“CHRT”) found an employee was discriminatorily dismissed despite the dismissal of 125 other employees during the employer’s corporate restructuring. Although the employer initially claimed the employee’s dismissal was due to performance issues, no evidence existed to support same. Instead, the employee’s manager had assumed the employee’s medical condition would negatively impact his ability to meet her high standards. The employer was ordered to pay more than $120,000 for its discrimination.

As we are seeing with the recent dismissal of Lisa LaFlamme from CTV News—where the timing of her dismissal coincided with her decision to “go grey”—even where employers may have non-discriminatory reasons for dismissing an employee, employers may still open themselves up to human rights liability where it appears that discrimination is even one potential factor in the dismissal.

Background

The employee, Glenn Luckman, began working for the employer, Bell Canada, as a Business Development Manager. About half a year after he was hired, he moved to a new team due to a change in the employer’s business development structure. Soon after the employee was transferred, his father passed away and the employee himself was diagnosed with cancer. The employer was made aware of both these events and accommodated the employee, who ended up taking a bereavement and medical leave.

After the employee’s treatment from cancer, he returned to work on a gradual basis, but was overwhelmed with his workload, as his return to work was not properly monitored by the employee’s superiors. He went on short term disability (“STD”) leave soon after.

During the employee’s second return to work, he was similarly overwhelmed and was not offered any accommodation. Less than one month later, he was dismissed as part of a larger corporate restructuring. The employee was the only one on his team who was dismissed, and no evidence was provided as to the criteria used for choosing him.

The employee consequently filed a human rights complaint, alleging discrimination on the basis of disability and family status.

Decision

The CHRT did not find there was discrimination on the basis of family status, as there was only a short period between the employee disclosing his father’s condition and his father’s ultimate passing, and there was no connection between his family status and dismissal eight months after he lost his father. However, the CHRT did find the employee was discriminated on the basis of his disability, particularly as the employer failed to provide evidence as to its decision-making process.

Initially, the employer stated in its Statement of Particulars that the employee’s dismissal was due to his substandard performance. However, there was no evidence to support this and in fact, the employee was shown to be one of the company’s top performers.

The employer then changed its position in its closing argument by stating the employee’s performance was not a factor in his dismissal, and instead, he was only dismissed due to restructuring.

The employer also claimed the employee was preselected for dismissal as the weakest member of a strong team, and as someone who was not directly hired by the team’s managers. However, the CHRT noted the director of the team expressed the employee’s medical condition would render him unable to meet her high standards, and she was likely concerned his medical condition would require him to take additional leaves and that he would lack energy at work.

Given that the employee’s medical condition was likely a factor in his dismissal, the CHRT found the dismissal discriminatory, and awarded the employee $15,000 in damages for his pain and suffering, $15,000 in special damages for the employer’s reckless conduct, and $91,052.40 for lost wages.

Discrimination as a Potential Factor in Lisa LaFlamme’s Dismissal  

The recent abrupt dismissal of Lisa LaFlamme, a prominent news anchor on CTV News, now raises many of the same concerns regarding the appearance of discrimination during the dismissal process as in Luckman.

After Ms. LaFlamme decided to “go grey” during the height of the pandemic, Bell Media decided to pre-emptively end her contract after her 35-year career with the network, citing changing viewer habits as the reason for her dismissal. While Bell Media may have had non-discriminatory reasons for the dismissal, the public has noted the timing of the dismissal has given rise to the appearance of discrimination on the basis of age and sex. As with Luckman, documentation of the decision to dismiss Ms. LaFlamme will be paramount to assess whether discrimination was a factor in her abrupt dismissal.

The national backlash from Ms. Laflamme’s high-profile dismissal has prompted Bell Media to commence an organizational review of the CTV newsroom.

Takeaways for Employers

Employers should ensure that a proper, well-documented process is followed when dismissing employees, so that they are prepared to “show their work” and outline exactly what went into their decision-making. Employers should also consider the circumstances surrounding an employee’s dismissal, and what might appear to be discriminatory on its face. If there are elements that might appear to be discriminatory, employers should be ready with evidence to show why an employee’s disability, family status, age, sex, or other human rights protected ground was not a factor in their decision to dismiss the employee.

An employer’s ability to demonstrate its decision-making is key. Otherwise, as was the case in Luckman, its reasons for its decision might change. This affects an employer’s credibility not only in a legal proceeding, but also in the court of public opinion. Even where employers have non-discriminatory reasons for dismissing an employee, they are not excused from liability or public criticism if discrimination is still a factor in their decision-making.

A well-run organizational review process can prove beneficial in revealing managerial and administrative deficiencies within an organization. By providing a neutral perspective into an organization’s culture and structure, actionable recommendations can be followed to properly prevent and address workplace issues.

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