Khatami v Legislative Assembly Office, 2023 AHRC 22 (Badejo) is a new Alberta Human Rights decision where a complainant argued discrimination on the basis of perceived physical and mental disability. The complaint was unsuccessful, but the case is instructive on the circumstances where that argument could be successful.
This case would be considered a win for employers. The case is also a bit unusual, but it should be interesting for all the law nerds and practitioners out there!
Facts
The following are the pertinent facts summarized by the Alberta Human Rights Commission:
- The complainant employee Ramin Khatami had been employed by the Government of Alberta (“GOA”) for a short time. There had been some performance issues, and the complainant was on medical leave for a short time near the end of his employment there
- The complainant then interviewed for a position with the Legislative Assembly Office (“LAO”), the relevant employer in this case
- In the interview with the LAO, the complainant had not disclosed that there had been performance issues raised by his last employer. The complainant had been asked to provide references from current
- The complainant was hired with the LAO in the position of Supervisor, Accounting Services
- Shortly after starting with the LAO, the complainant was called into an investigation meeting and his employment was terminated shortly thereafter
- The complainant sued for discrimination. He argued that the LAO had terminated his employment based on perceived disability, because the LAO had discovered his prior medical leave and he had not disclosed it. The LAO argued that it had terminated his employment because they perceived that the complainant had misled them in the interview about one of his references, his experience working at the GOA, and his claim that he had no health benefits in place when hired, and not for any reason related to disability
- The complainant had suffered from a disability during part of his time at the GOA, but was not suffering from a disability when he worked for LOA or at the time of his termination of employment
Analysis / Conclusion
Commission Member Sandra Badejo first made clear that the complainant did not have a disability at the relevant time with the Legislative Assembly Office (“LAO”). The question was whether the LAO terminated his employment on the basis that it perceived he was disabled.
The AHRC noted that the complainant’s supervisors at the LAO initially decided to have an investigation meeting with the complainant, in part, because it seemed the complainant was still enrolled in the GOA (prior employer) health benefits program and he had an outstanding long term disability claim there. This suggested to the LAO that the complainant was trying to get double benefits.
The complainant’s evidence on the “double enrollment” was that he was in the process of terminating his prior benefits. The AHRC found that the confusion on the part of the LAO on this point did not change that it was a genuine concern by the LAO, and it did not lead to the conclusion – without more – that the LAO perceived the complainant to have a disability.
The AHRC ultimately determined that the complainant had not established that the LAO perceived him to have a disability or that perceived disability was as factor in the termination of employment. The reasoning was as follows:
[75] Here, I accept Scarlett and Tischer’s accounts of what transpired at the May 4, 2018 meeting as being more credible and reliable. I find that while the complainant’s prior medical leave and the word “double enrolment” may have been mentioned at the meeting, they were mentioned in the context of confirming whether the complainant was still enrolled in the GOA’s benefits program. The fact that these issues were brought up at the May 4, 2018 meeting, does not mean that the respondent perceived the complainant as having a disability.
[76] On the evidence, there is no reasonable basis to conclude that the respondent’s reaction at the May 4, 2018 meeting was a negative reaction to learning of the complainant’s medical leave. The respondent was able to provide a reasonable explanation for its reaction at the May 4, 2018 meeting. It is clear from the evidence that the respondent was unhappy about the complainant’s misrepresentations and felt that it had been misled by the complainant. The respondent was concerned about the complainant’s credibility, given his series of misrepresentations, and whether it could trust the complainant to carry out his duties. [underline added]
[77] While I find that the complainant had a disability during his employment with GOA, which required him to go on a medical leave during the last three months of his employment contract with the GOA, I am unable to find that the respondent perceived the complainant to have a disability because of its knowledge of this medical leave or the complainant’s non-disclosure of this medical leave. This is more so as the complainant had resumed work with the respondent and there was no evidence that the respondent had any concerns about his ability to perform the work he was employed to carry out. I am also unable to find that the respondent perceived the complainant to have a disability because it sought clarification from the complainant about his duplicate enrolment in the GOA and the respondent’s benefits plans. [underline added]
Ultimately, the discrimination complaint was dismissed.
My Take
This case is interesting. The employer called the investigation meeting in part based on concerns that were related to health benefits and double dipping. The employer seems to have been confused about the facts on that point, but it was considered to be a genuine concern about financial double-dipping that was one of the reasons for calling the meeting.
The employer also became aware of the prior disability leave just before terminating employment. That is a risky situation for any employer, because even where the employer’s subjective reason for termination is not connected to a disability, the inference could be drawn that the timing suggests otherwise.
Here, the employer had valid concerns about misrepresentations the employee had made, AND the complainant had not been having difficulty doing his job at LAO and had not requested accommodations.
It would be interesting to see the results in this case if the complainant had in fact had a disability at the time of termination of employment.
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