'You're not allowed to just basically ignore it and move forward with your plans to terminate'
A British Columbia employer discriminated against a worker when it terminated him for absenteeism after it should have known that a mental disability was in play, the B.C. Human Rights Tribunal has ruled.
And it’s a reminder that employers should be alert to their duty to accommodate even if an employee is reluctant to reveal such a disability, says Nicole Toye, a partner with Harris and Company in Vancouver who practises employment law.
“Once an employee starts behaving in a way that gives you any reason to believe that there might be something going on with them that might require an accommodation, the employer has a duty to make those inquiries,” says Toye. “So when [the employee] starts not attending at work or making vague statements about having personal issues, the employer then has an obligation to explore whether there's something to be accommodated here.
“You're not allowed to just basically ignore it and move forward with your plans to terminate.”
Axton is a heavy industrial manufacturing company based in Delta, B.C., that makes steel products such as pressure vessels, machine parts, ladders, and platforms. In January 2019, Axton hired the 34-year-old worker to be a fabrication shop helper.
The worker was diagnosed with generalized anxiety disorder and major depressive disorder in early 2018, but a year later he felt his mental health was improving and he joined Axton.
Axton had an attendance policy requiring employees to notify their supervising foreman if they were going to be absent.
The worker started on Feb. 5, 2019. On his fourth day, he left work early because he was having stomach issues related to stress and anxiety. The following week, he left work early again, but only said that he had an emergency.
The worker was absent three times due to mental health issues over the next eight days and he didn’t notify anyone before the first two. After the third time, he emailed management saying he had two flat tires and the first two absences were because of stomach or personal issues.
A couple of weeks later, the worker was absent again and didn’t report it. He was absent the next day as well, but he emailed his supervisor to say he had food poisoning.
By the third day, the worker’s food poisoning exacerbated his mental health issues and he missed work again. In an email, he offered to provide a doctor’s note and to discuss things further. The worker was referring to his mental health issues, but the supervisor thought he meant that the food poisoning was still a problem.
The worker was absent for a fourth consecutive day after having a breakdown but didn’t contact Axton. When he returned on March 18, he ended up leaving early due to his depression and anxiety, although he only mentioned stomach issues.
A B.C. employer’s handling of a stressed worker’s disability leaves was well-executed and not discriminatory, the B.C. Human Rights Tribunal found.
By the beginning of April, Axton management determined that the worker’s frequent absences without notice were impacting projects that the company was working on. They determined that it wasn’t working out and, since the worker was still on probation, they should terminate his employment.
Since the worker was still absent, the operations manager emailed him on April 3 to ask how he was doing. The worker contacted the HR department and the operations manager to say that he was dealing with mental health issues and he needed some time to sort things out.
While Axton may not have realized that mental health was a concern for the worker due to his earlier explanations, once the worker specifically mentioned those issues it should have prompted action, says Toye.
“Certainly, once the employee came forward and said that he was having some sort of mental issue, that absolutely is the point where some further questions need to be asked as to the reasons why this person was absent from work,” she says. “Where it just broke down, they didn't really ask those questions, but also didn't seem to consider whether the termination for absenteeism was in any way connected to his mental health.”
Axton didn’t seem to understand that the worker meant that his absences were connected to mental health issues and it believed that he was making an excuse. It terminated his employment effective April 18. The worker then filed a human rights complaint alleging discrimination based on disability.
The tribunal noted that the worker’s diagnosis and history indicated that he had a disability that impacted his life and ability to work. In addition, his termination was an adverse impact. These met the first two elements of the discrimination test, said the tribunal.
The third test was whether the worker’s disability was a factor in his termination. The tribunal found that the worker didn’t meet the standards for Axton’s probationary employees regarding absences with notification and this affected the company’s operations on the shop floor. These were non-discriminatory reasons, the tribunal said.
However, the tribunal found that the absences were caused largely by the worker’s mental disability, which meant there was a discriminatory factor in the termination. The tribunal agreed that Axton’s expectations regarding absences and notifications were rationally connected to the job and were adopted in good faith, but Axton also had a duty to accommodate.
“The employer’s intentions don't really matter if the termination is occurring,” says Toye. “It's about the discriminatory impact on the employee.”
The tribunal also found that the worker was reluctant to reveal his mental health issues and usually gave other reasons for his absences, but shortly before he was terminated he explained his condition and offered to provide medical information. However, Axton continued with its plan to terminate the worker, said the tribunal.
Read more: A B.C. worker’s mental disability did not play a role in the decision to terminate him for threatening behaviour towards co-workers, the province’s human rights tribunal ruled.
The tribunal determined that Axton failed to accommodate the worker’s mental disability to the point of undue hardship. Axton was ordered to pay the worker $20,000 in damages for injury to his dignity, feelings, and self-respect from the discrimination along with nearly $3,000 in compensation for lost wages. The company also was required to implement a written accommodation policy.
The case emphasizes that the timidity some have in approaching mental health issues can make it tricky to know when accommodation may be needed, says Toye.
“Sometimes, mental health issues aren't as obvious to some employers – in this case, it was absenteeism or lateness or having to leave early – I don't think it ‘pinged’ for the employer,” says Toye. “And then once it did, they unfortunately just continued on with their plans, without engaging their obligations under the code.
“It’s a challenging thing to identify an accommodation issue when it's unclear if it's just somebody who's a little bit unreliable. it's sometimes hard to know and that's why it's important to ask the question.”
See Cyncora v. Axton Inc., 2022 BCHRT 36.
