2 total
Judicial review dismissed; denying severance benefit to disabled employees terminated for absenteeism was not discriminatory.
The applicant union sought judicial review of a labour arbitrator's decision that denied a collective agreement severance benefit to employees terminated for absenteeism arising from a disability.
The Divisional Court upheld the arbitrator's decision, finding that the severance provision was designed to benefit employees subject to permanent lay-off, not all terminated employees.
The court agreed that comparing disabled persons to other persons terminated for cause did not violate the Human Rights Code.
The application for judicial review was dismissed.
Denial of severance pay to employees whose contracts are frustrated by disability violates Charter s. 15.
The grievor, a nurse, was dismissed for innocent absenteeism after a non-work-related injury frustrated her employment contract.
The employer refused to pay severance pay, relying on s. 58(5)(c) of the Employment Standards Act, which exempts employers from paying severance to employees whose contracts are frustrated due to illness or injury.
The union grieved the denial as a violation of s. 15 of the Charter.
The Court of Appeal upheld the Divisional Court's finding that the provision discriminates against disabled employees by perpetuating the stereotype that they will not return to the workforce, and declared the provision unconstitutional.
