Smorhay v Goodfellow, 2021 AHRC 170 (Marsden, Chair) is a new Alberta Human Rights Tribunal decision where the employer terminated an employee for excessive absenteeism. Some of the absenteeism was related to illnesses that were not disabilities, but much of the absenteeism was related to childcare responsibilities, and some of it was related to physical disability.
The tribunal Chair found that the termination of employment was discrimination on the basis of family status and physical disability, awarding lost wages and damages for pain and suffering.
Facts
The key facts in this case are as follows:
- The complainant was a legal assistant who worked for the employer for a short period of about 3.5 months
- The complainant had to miss work several times where she notified the employer in the morning that she or her child were sick and that she had to stay home. The complainant’s illnesses in these cases were minor
- The complainant had never been asked to make up the time or been asked to work from home
- The employer had not been happy overall with the work performance of the complainant during her short time there
- Four days before termination of employment, the complainant texted the employer to advise that she had been taken to the hospital due to a cyst, but that she was not sure if she would be getting surgery and did not know when she would be out of the hospital
- The complainant left the hospital the next day and was on painkillers. She told the employer this
- Three days after that, and while the complainant was off work recovering, she received a termination letter by email. The termination letter noted that the complainant had taken 13 days off since starting, but the firm needed a “full-time employee with more reliable time commitment”.
Analysis / Conclusion
Marsden (Chair) noted that the minor illnesses the complainant had taken time off for during her employment were not disabilities within the meaning of the Alberta Human Rights Act (“AHRA”)., but the cyst did qualify as a disability. He also found that the complainant’s childcare responsibilities fit within the protected ground of “family status” under the AHRA. He ultimately found discrimination on the basis of physical disability and family status, reasoning as follows:
[135] The final question under Moore is whether the complainant’s physical disability or her family status were factors in or were linked to the adverse impact. With respect to this question, I find that the respondent terminated the complainant’s employment for two reasons, one of which was not linked to a protected ground, and one of which was linked to both protected grounds. Specifically:
a. I find that the respondent terminated the complainant’s employment in part for reasons relating to her poor performance. […]
b. However, I find that the primary reason for termination was the complainant’s excessive absenteeism, and I find that both protected grounds (physical disability and family status) were factors in this aspect of the decision to terminate.
[136] I also note that the protected ground only has to be a factor in the decision to terminate, and not even the primary factor. In this case, however, I find that her absenteeism was the primary factor in the decision to terminate her employment and that some of those absences related to protected grounds.
[…]
[142] I find that the respondent failed to justify its conduct. The respondent’s case revolved around a lack of prima facie discrimination on the basis that the complainant’s employment was not terminated due to her hospitalization and there was no nexus between the decision to terminate and her family status. Having found that her employment was terminated in part due to her hospitalization and that there was a nexus between the decision to terminate and her family status, the respondent did not put forward any basis to justify its actions.
[…]
[144] The respondent also argued that the complainant was able to self-accommodate her daycare pickup issues and that, as a result, the respondent was not required to accommodate her. I do not consider the complainant’s daycare pickup issues to be relevant to the matters at issue. The complainant’s employment was not terminated for reasons relating to her daughter’s daycare pickup time. Rather, her employment was terminated, in part, as a result of absences relating to her daughter, none of which related to daycare pickup times. Again, there was no evidence that the complainant was ever asked to work late or that she failed to do so. [underline added]
In the result, the Chair ordered that the complainant be compensated for her lost wages between the time of the discriminatory termination of employment and when she secured a new job, some months later. He also awarded damages for pain and suffering in the amount of $15,000.
My Take
It is very common for employer counsel in cases like this to characterize discipline or termination of employment as being related to something other than a protected ground. Employers will cite performance concerns like poor workmanship or absenteeism, for example, rather than protected grounds such as disability, race, gender, family status, religion, etc. In many cases, the employers do have legitimate performance concerns, and as long as a protected ground was not a factor in the termination, the employer is free to terminate employment (and pay severance).
Absenteeism is a very common ground for discipline and/or termination of employment asserted by employers. This case just affirms that absenteeism – or any other performance concern – that is or could be caused by or related to a protected human rights ground, must be handled very carefully.
In this case, I think if the employer would have waited until the employee returned to work and terminated her employment a few weeks thereafter without citing absenteeism, the outcome would have been much more difficult to predict.
A link to a published copy of Smorhay v Goodfellow can be found here: https://www.canlii.org/en/ab/abhrc/doc/2021/2021ahrc170/2021ahrc170.html?searchUrlHash=AAAAAQANMjAyMSBBSFJDIDE3MAAAAAAB&resultIndex=3
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