Gregg v CanWel Building Materials Ltd., 2022 AHRC 28 is a new Alberta Human Rights case where the employer was found to have discriminated against the complainant employee, James Gregg, when it terminated his employment following absences related to alcoholism.
The Alberta Human Rights Commission awarded the complainant $25,000 in general damages for pain and suffering and 4 months’ lost wages.
Facts
Below are the pertinent facts found by the Alberta Human Rights Commission:
- The employee worked under a temp agency contract with the employer for a few months and was then hired on as a full time employee
- He was a full time employee for about 3 months prior to termination of his employment
- During his employment, there were no issues with his work performance, and he was not intoxicated at work at any time
- He was absent numerous times around weekends and paydays
- He was warned about his absences
- The complainant’s evidence was that he disclosed he was an alcoholic around one of the warnings and just prior to termination of employment, disclosed that he was planning to go to AA, and on the termination date he asked if the employer would let him go get help. The employer’s evidence (a supervisor) was that the employee had disclosed he was an alcoholic earlier on, and the supervisor had suspected alcohol was related to the absences, but the employee did not mention alcoholism on the day of termination
- The employee was unemployed for 16 months after termination of employment. For part of this period he was unable to work. There was very little evidence of his job hunt
Analysis / Conclusion
In considering whether the complainant had a “disability” requiring protection under the Alberta Human Rights Act, the employer pointed out that the only evidence was the complainant’s word, and there was no documentary evidence. The AHRC found that documentary evidence was not strictly required, and that it was satisfied on all the evidence that the complainant was an alcoholic (which is a disability):
[31] I am required to assess the whole of the evidence before me in considering whether a disability existed that invokes a human rights protected ground. Documentary evidence is not an absolute requirement.
[…]
[40] […] Although I would have preferred medical or documentary evidence corroborating the complainant’s disability, I am satisfied that the complainant met his burden of proof. This burden of proof is the civil standard, the balance of probabilities. Looking at the whole of the evidence before me, including the detailed evidence from the complainant of his personal experiences, the complainant’s evidence that he attended at AA meetings, and the supervisor’s acknowledgement that the complainant disclosed the disability at the relevant time, I find on a balance of probabilities, that the complainant has established that he had the disability of addiction/alcoholism. […]
The AHRC also considered whether it believed the complainant asked if he could go to treatment on the day of termination, despite the employer’s denial of that request, and decided the complainant had asked for that, reasoning as follows:
[26] […] It would not make sense for the complainant to disclose his disability and talk of treatment when no discipline was imminent, but not speak up when his job was in jeopardy. Given that disclosure of alcoholism and an expressed desire to return to AA had previously been made, I am persuaded that the complainant repeated his request for support for his disability in the form of attending treatment at the termination meeting.
The AHRC went on to find that the complainant’s alcoholism was a factor in the termination of his employment, reasoning as follows:
[52] By all accounts, the respondent was aware of the disability of addiction in advance of terminating the complainant’s employment. The Supervisor’s beliefs and suspicions that the complainant’s conduct was related to his alcoholism are very persuasive. The Manager and human resources of the respondent appear to have ignored the disclosure and proceeded to termination of employment even though they had awareness that the complainant’s conduct may not have been culpable. No plausible explanation was advanced for absences, coded as Sick Unpaid, that were dealt with as culpable conduct. With both reasonable awareness on the part of the respondent, and an impaired ability to comply with the workplace rules as a result of alcoholism established, I find the complainant’s disability was a factor in the respondent’s imposition of termination of employment.
The AHRC went on to consider damages for discriminatory termination of employment.
Regarding pain and suffering, the AHRC found that the complainant experienced feelings of shame and worthlessness for a significant period of time following termination of employment, which was exacerbated by the position of the employer – which they held all the way up to the hearing – that alcoholism had never been disclosed, and that the complainant was just trying to extract money. The complainant employee was awarded $25,000 in general damages for pain and suffering as a result.
Regarding lost wages, the AHRC only awarded 4 months of lost wages, despite the 16 months of unemployment, reasoning as follows:
[64] In all of the circumstances, a considerable discount is warranted. The discount reflects a lack of evidence and inability to truly assess what a make whole position would be when addressing a decades long struggle and relapse with the disability of alcoholism. The discount is not a reflection of the complainant’s credibility. I discount the 16 month period by 75% to reflect the uncertainty regarding mitigation, uncertainty regarding disability benefits income top-up, uncertainty regarding what would make the complainant whole, and uncertainty regarding how long the complainant may have been able to consistently maintain his recovery. In the result, I award lost wages for four months, to be calculated based on the hourly wage and hours of work the complainant earned while in full time attendance at work with the respondent. This amount is awarded to begin at the time the complainant became employable.
My Take
This case is a mixed-bag of successes for the employee and the employer.
The employee was able to establish that his alcohol issues were severe enough to constitute a “disability” under the AHRA without having tendered any medical evidence. This point could easily have gone either way: although alcoholism can qualify as a disability, usually the AHRC wants medical evidence for any disability. The other point won by the employee was the pain and suffering award of $25,000, which is on the high side in Alberta.
The employer was able to have the unpaid wages damages reduced to 4 months, despite unemployment for 16 months. Human rights damages are meant to put someone in the position they would be had the discrimination not occurred, which would presumably have been 16 months in this case. The reduction was partly due to the fact that the employee did not produce much documentation on his post-dismissal job hunt, and partly due to the fact that it was unclear if the employee would be able to maintain recovery. This reasoning is a bit unusual, and was a major point for the employer here. The onus is on the employer to establish a poor job hunt (called “failure to mitigate”) or that damages should be reduced. Poor job hunt records are not generally enough to establish “failure to mitigate”, and there was no evidence that the employee would not have held his recovery together. This award seems to have placed at least some onus on the employee in its reduction of his damages for lost wages.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we serve Alberta. Let us help you.
