In Rojas v MMCC Solutions Canada aka Teleperformance Canada [Rojas], the Human Rights Tribunal of Ontario (“HRTO”) ordered the employer to pay $40,576 in damages for discriminating against an employee who was diagnosed with autism spectrum disorder. The HRTO held the employer’s for-cause dismissal was discriminatory because the employer failed to consider the implications of the employee’s disability on his conduct both during and after a faulty investigation.

Background

The employer launched a workplace investigation in response to allegations that an employee hugged and touched his coworkers. The Director of Human Resources (“HR Director”) met with the employee and informed him of the investigation and the allegations generally, without going into specifics about the allegations. When the employee attempted to discuss his disability and its impact on the investigation, the HR Director responded, “having autism is no excuse for committing harassment”.

Two weeks later and following the conclusion of the investigation, the employer found that the employee violated its harassment policy and made colleagues and customers uncomfortable at work. Accordingly, the employer dismissed the employee for cause.

The employee filed an HRTO application, alleging the employer discriminated against him on the basis of his disability.

The HRTO Decision

Discrimination and the Duty to Accommodate

The HRTO found that the employee’s autism spectrum disorder was a factor that led to his dismissal. Although the employer found the employee engaged in harassment, the employer did not consider the employee’s disability in its assessment.

In particular, the HRTO noted medical evidence of the employee’s disability, including social isolation and the significant anxiety he experienced during social situations. The employee also provided evidence that his disability was such that he would not have known whether his conduct was inappropriate or that it would make others feel uncomfortable. Accordingly, the dismissal was discriminatory because the employer justified it through investigation findings that failed to consider the employee’s disability.

As a result of the employer’s Code violation, the HRTO ordered the employer to pay the employee over $40,000 in damages, which included $10,000 in general damages for injury to the employee’s dignity, feelings, and self-respect. The HRTO also ordered the employer to complete human rights training on disability-based discrimination and the duty to accommodate employees with disabilities.

Procedural Investigation Issues

While the HRTO did not address the procedural issues of the investigation in isolation, several deficiencies were noted. Regardless of the employer’s duty to accommodate, the HRTO stated the employer’s investigation strayed from a “more reasonable approach”, as it ought to have provided the respondent employee with specific allegations. The HRTO identified that the investigation was also flawed because the employer never gave the employee a “fair and reasonable opportunity to address the complaints against him.”

With respect to the relationship between the employee’s disability and the investigation, the employer failed to assess appropriate accommodations for the employee throughout the investigation. The HRTO noted that the employer should have “inquire[d] into options for accommodation of his disability if the disability was determined to be a factor in the issue.” Further, the employer’s findings and chosen method of corrective action did not account for the employee’s disability.

Employer Takeaways

For employers faced with allegations of workplace harassment, Rojas serves as a cautionary tale of pitfalls to avoid. In particular, employers should consider the following best practices:

• Balance Interests: Workplaces often require employers to balance competing interests. While employers must fulfil their Occupational Health & Safety Act obligations by ensuring appropriate investigations are conducted for harassment complaints, they must also engage in the accommodation process once triggered and must ensure fairness to all parties throughout the investigation process.
• Corrective Action: After completing an investigation, employers should implement corrective action, if applicable, that is appropriate in the circumstances. Before taking a for-cause position, employers should engage in a contextual analysis and assess all the relevant factors. While allegations may be substantiated, employers should not assume the employment relationship has been irreparably broken. Employers should also consider whether less severe disciplinary actions, which may include coaching or training, are sufficient.
• Accommodate: The duty to accommodate extends throughout the employment relationship, including during an investigation and the implementation of corrective action. For example, where an employee’s disability is connected to their conduct, the employer should consider what accommodations might be necessary at each stage.
• Get Support: For complex investigations, consider engaging external investigators or seeking support while investigating internally. In Rojas, the employer was ordered to pay over $40,000 due to avoidable errors throughout the investigation. For more information on the cost of conducting a faulty investigation, see our blog on the McGraw v Southgate (Township)

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

This information is not intended as legal advice.