- Constructive Dismissal
- Discrimination / Human Rights
- Employee Sued by Employer
- Employment Contracts: Drafting / Review / Negotiation
- Employment Policy Drafting / Review
- Fiduciary Obligations
- Harassment / Bullying
- Independent Contractors
- Just Cause For Termination
- Non-Competition / Non-Solicitation
- Professional Regulation
- Severance Review / Negotiation
- Union / Labour Law
- Workplace Investigations
- Wrongful Dismissal / Unjust Dismissal
- Our Team
- Call Now: 587-391-7601
- Contact Us
Dismissal Due to Budget Cuts Can Still Be Discrimination
Hugie v T-Lane Transportation and Logistics, 2021 CHRT 27 (Aug 19, 2021) is a brand-new Canadian Human Rights Tribunal decision where the CHRT found that an employee with a physical disability had been dismissed at least in part due to that disability.
The CHRT accepted the employer’s explanation that it was going through financial difficulty and wanted an employee with a lower salary for her position, but found that at least part of the motivation for dismissal was the employee’s physical disability.
The employee was awarded part of her period of unemployment post-termination (reduced for “failure to mitigate” because of lackluster job search effort), $12,000 in damages for pain and suffering, and $12,000 due to the employer’s “wilful or reckless” discriminatory termination of her employment.
Most of the relevant facts are as follows:
- The complainant employee had strong job performance
- The complainant had started in a managerial position
- The complainant had over time taken on somewhat of a hybrid role, whereby she was doing managerial work and lower “dispatcher” work. A dispatcher would usually get paid less than the complainant, but the complainant’s original salary was maintained
- The complainant had several acute angina attacks, which resulted in her having to take a few brief periods off work. In addition, she had to take short times off periodically for medical tests
- The CHRT found that the complainant had some resulting physical limitations, and was disabled
- The complainant did not request work adjustments as accommodation for her disability, but had discussed the disability and limitations with her employer
- The complainant ultimately had to go for surgery, and was to take 15 weeks off
- Just prior to taking time off, the employer hired an additional dispatcher (there were several)
- On the complainant’s first day back from medical leave, her employment was terminated
- The complainant was told it was because the employer was going through financial difficulty and the newest dispatcher had a much lower salary
- The CHRT found as a fact that the employer had considered terminating the complainant’s employment prior to her going on leave
- The CHRT found as a fact that the employer was having financial difficulty and that this was one of the reasons for the termination of employment
Analysis / Conclusion
The Canadian Human Rights Tribunal found that at least part of the motivation for the complainant’s dismissal was her disability. The reasoning was as follows:
 The Tribunal recalls that discrimination is often subtle and is not generally committed overtly. There are several elements that allow the Tribunal to conclude that there was a subtle scent of discrimination in T-Lane’s termination of Ms. Hugie (Basi, above). The Tribunal will deal specifically with those elements which, taken together, permit the inference and conclusion, on a balance of probabilities, that Ms. Hugie’s disability was a factor in her termination by T-Lane (Bombardier, at paragraph 88).
 First, the Tribunal considers that Ms. Gourlie’s arrival on February 20, 2017, a few days before Ms. Hugie’s departure on sick leave, was not as random as the Respondent attempted to show. The timing of her hiring is significant.
 Although the Respondent gave evidence that it is always looking for dispatchers in the dispatch department and that if a person submits their CV and their profile is interesting it will seize the opportunity, the Tribunal is not persuaded that Ms. Gourlie’s hiring was purely coincidental.
 The evidence supports the view that Ms. Hugie’s departure was anticipated, and that T-Lane did in fact hire Ms. Gourlie to fill in during her absence. It is in this context that the hiring must be understood.
 Another factor supporting the Tribunal’s finding of discrimination is the day the Respondent chose to terminate the Complainant, June 12, 2017, the day on which the Complainant came back from sick leave.
 The Tribunal is well aware that, taken in isolation, the timing of the termination is not necessarily a factor that invariably leads to a finding of discrimination. However, depending on the circumstances and other evidence, the Tribunal may draw certain inferences from the timing of a complainant’s termination which, on a balance of probabilities, might weigh in favour of finding a discriminatory practice.
The CHRT awarded the complainant part of her lost wages between the time of termination and when she found a new job. The basis for not awarding the whole period was that the complainant was obligated to make reasonable attempts to find re-employment, but she had long periods where she had not made any effort.
The CHRT also awarded the complainant $12,000 for pain and suffering “general” damages, due to the mental suffering she experienced as a result of her discriminatory termination of employment.
Finally, the CHRT went on to award a further $12,000 due to the “willful or reckless” nature of her termination of employment. This is a special remedy under the Canadian Human Rights Act. The reasoning for awarding it was essentially as follows:
 First, it is clear from the evidence that Ms. Hugie’s termination was premeditated. Mr. Fehr essentially confirmed that Mr. Germain had confided that Ms. Hugie would very likely be terminated when she returned from her sick leave.
 Moreover, no other steps were taken by T-Lane that would show it was interested in Ms. Hugie’s medical situation and her needs. This is the context in which the termination must be assessed: a vulnerable employee, facing major health issues, who had to take leave to have surgery and who, ultimately, was terminated by her employer as soon as she returned to work.
All too often we see employers terminating employees right after a medical leave or maternity leave and then claiming it is solely due to budget cuts or restructure and not because of the potential inconveniences associated with employing a disabled employee. The result in this case is not surprising to me, but hopefully it will serve as a warning to employers.
Bow River Law’s lawyers are knowledgeable, skilled and experienced in employment law, human rights, and labour law in Alberta.
A published copy of Hugie v T-Lane Transportation, 2021 CHRT 27 is available at the following link: https://www.canlii.org/en/ca/chrt/doc/2021/2021chrt27/2021chrt27.html?autocompleteStr=2021%20CHRT%2027&autocompletePos=1