Eggs With A Side of Discrimination
Korkomaz v 1771292 Alberta Ltd. o/a Cora Breakfast and Lunch, 2022 AHRC 126 (K Scott) is a new Alberta Human Rights decision where the Tribunal determined that a cook had been discriminated against when his employment was terminated right after providing a medical note for time off.
The complainant employee was awarded $20,000 in damages for pain and suffering and all lost wages for the time he was without work after termination of employment.
The following are the pertinent facts found by the Alberta Human Rights Tribunal:
- The complainant employee worked at Cora Breakfast and Lunch as a cook from November 2017 until March 2019 when his employment was terminated
- The complainant was a temporary foreign worker on a closed work permit with Cora (could not legally work elsewhere)
- The complainant may have had a second job. This was disputed and the tribunal determined it did not need to determine this (see analysis)
- The complainant had been allowed to take 10 days off work due to kidney stones in 2018
- The complainant had an injured leg, which caused him pain and to limp
- The complainant provided a doctor’s note which indicated that he needed to take 1 month off work due to “illness/injury”
- That same day (or the next), the employer terminated the complainant’s employment. The Record of Employment indicated it was “for cause”
- The employer’s evidence was that the complainant was dismissed for working illegally at a second job, and because his work performance had been poor as a result of fatigue from his second job
- After termination of employment, the complainant needed to get a new work permit so he could legally work in Canada again. He was unemployed for about 6 months
- The human rights complaint was termination of employment on the basis of physical disability under Section 7 of the Alberta Human Rights Act
Analysis / Conclusion
The tribunal noted that the complainant had a physical disability, and the termination of his employment obviously caused an adverse impact on him. To establish prima facie discrimination, the tribunal needed to consider if the disability was a factor in the adverse impact. The tribunal noted as follows regarding the test for whether the disability was a factor:
 Whether the complainant’s protected characteristic was a factor in the termination of his employment is a question of fact. I need not be satisfied that the complainant’s disability was the “main” or “sole” reason for the complainant’s dismissal. Rather, the question is whether it was “a factor”. That said, a mere nexus (no matter how remote) is not sufficient.
In considering the facts surrounding whether discrimination was a factor in the termination of employment, the tribunal noted that it did not need to decide whether the complainant was working “illegally” at a second job at the time, because the employer’s own evidence was that it was aware of this second job and tolerated it for months prior to termination of employment. The tribunal concluded that the request for a medical leave was a factor in the termination:
 While the complainant’s work ethic, missed shifts, and “illegal” second job (assuming he had one) may also have been factors in the respondent’s decision to terminate the complainant’s employment, the evidence demonstrates that his request for a month-long medical leave was also a material factor.
In the result, the tribunal concluded that the termination of employment was discriminatory, and awarded the complainant $20,000 in damages for pain and suffering and lost wages for 6 months – the full period he was unemployed due to his need to get a new work permit after losing his job.
The result in this case is not surprising, but it may have been a surprise for this employer. If this employer’s evidence was truthful, it was having difficulty with this employee for some time prior to termination of employment. However, as noted in the decision, the disability only needed to be a factor – not the main factor – in the termination in order for it to be discriminatory.
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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 are Alberta’s Workforce Lawyers.
In Cunningham v Bims Car Wash, 2023 AHRC 25, the Alberta Human Rights Commission said it had no discretion to extend the reconsideration timeline
In Khatami v Legislative Assembly Office, 2023 AHRC 22 is a new Alberta human rights case where there was no perceived disability found