Employment & Labour

Dismissal for violation of attendance policy ruled not discriminatory

By Laura Williams

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 this case, a recent decision from 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 this case, 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 HRTO decision

The facts of the case are as follows. The plaintiff was employed by the company for approximately one month as an apprentice mouldmaker before being dismissed for violating the company’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. The company 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.

The plaintiff was absent from work four times and failed to comply with the policy on each occasion. Three of the plaintiff’s absences were due to him seeking medical treatment for acute symptoms caused by his kidney stones, whereas the other absence was due to the plaintiff driving his brother to the hospital because he was ill. On the first occasion, the plaintiff 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. The plaintiff 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, the plaintiff was warned that further violations of the policy could result in the termination of his employment. Accordingly, the company terminated the plaintiff’s employment after his fourth violation of the policy. The plaintiff’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, the plaintiff filed an application with the HRTO alleging that the company 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. The company, on the other hand, argued that the plaintiff’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 the company and held that the plaintiff had failed to establish a prima facie case of discrimination on the balance of probabilities. Although the plaintiff’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 the company terminating his employment for breaching it.

Implications

The decision 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.

The decision largely affirms the current state of the law in this area. In this case, 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 the case). 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 HRTO decision 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 the HRTO case does 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 the case, the tribunal determined that the plaintiff’s breach of the policy was the ultimate reason for his dismissal, rather than his absences themselves, because the tribunal found that the company genuinely considered the reporting of absences to be important and the company’s warnings to the plaintiff 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 the plaintiff’s dismissal, or that the company 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.

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