HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raffaele Lastella Applicant
-and-
Oakville Hydro Corporation, Daniel Steele and Marcia Best Respondents
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: David Muir Date: August 27, 2010 Citation: 2010 HRTO 1765 Indexed as: Lastella v. Oakville Hydro
WRITTEN SUBMISSIONS BY
Raffaele Lastella, Applicant ) John R. Evans, Counsel Oakville Hydro Corporation, Daniel Steele and Marcia Best, Respondents ) Peter J. Thorup, Counsel
[1] This is an Application filed September 29, 2008 under section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A Case Resolution Conference or hearing was held in respect of this Application on July 22 and October 28, 2009 and January 11 and 12, 2010. I heard from the applicant, the personal respondents and several former and current employees of the corporate respondent. At my suggestion several of the respondents’ witnesses adopted their will-say statements and were cross-examined on them. The parties provided written submissions on an agreed scheduled with final submissions from the applicant received on April 8, 2010.
[2] The parties had previously agreed to bifurcate the hearing of this Application. This Decision deals only with the liability issues.
Background
[3] In his complaint as filed originally with the Ontario Human Rights Commission, the applicant alleged generally that his right to equal treatment in employment without discrimination on the basis of disability was infringed by the respondents and that the respondents failed in their obligation to accommodate his disability contrary to sections 5 and 17(2) of the Code.
[4] The particulars of the complaint are paraphrased below:
a. In May 2001, the applicant commenced employment with the corporate respondent in the position of SCADA Protection and Control.
b. On January 2, 2007, the applicant alleges that he worked his regular day and at the end of the day left work as scheduled. On January 3, the applicant alleges he emailed his superior to advise that he was taking a vacation day. This was common practice in the applicant’s experience. The applicant also indicated to his supervisor that he was not feeling well.
c. On January 3, 2007, the applicant alleges that he attempted to log on to the respondent corporation’s email but was locked out.
d. On January 4, 2007, the applicant alleges that he attended his doctor’s office at 9:00 a.m. but because he had no appointment he was required to wait. At approximately 1:30 p.m. he saw his physician who diagnosed stress and depression. The doctor prescribed Lorazepam and wrote a note for the corporate respondent indicating that the applicant should be off work for four weeks. The applicant alleges that when he got home he immediately emailed the employer and attempted to provide it with the information necessary while he was absent from work.
e. On January 5, 2007, the applicant received an email from the employer indicating that his employment had been terminated and acknowledging receipt of the doctor’s note.
f. The applicant also states that he had attempted to provide the employer with the information it required, in particular the SCADA password, but that the respondents had not provided him with the information he needed in order to comply with their requests.
g. The applicant alleges that prior to the termination of his employment there were no serious performance criticisms and no indication that his job was in jeopardy.
h. The applicant alleges that the termination of his employment was based on the fact that he suffered from a disability that required him to have four consecutive weeks off work. It is further stated that he particularly believed this as, in the past, he had always been required to put his vacation and personal needs on hold in order to be available to the respondents 24/7.
[5] Subsequent to the filing of this Application a dispute arose about a number of new allegations that were raised by both the applicant and the respondents. In two interim Decisions, 2009 HRTO 933 and 2009 HRTO 1722, I confined the scope of the Application to the allegations outlined above with the following clarifications. In 2009 HRTO 1722 at paragraphs 13- 19, I stated:
As indicated at the outset of this decision the essence of the complaint underlying the Application is that the employer terminated the applicant’s employment because he required a four week medical leave. It is also stated, based on the same particulars that the employer failed to accommodate his disability to the point of undue hardship.
In response, the respondents state that they terminated the applicant for cause and further that the decision had been made, in principle at least, in the summer of 2006. The respondents acknowledge receipt of a note from the applicant’s family physician on January 4th, 2007 and acknowledge that they had this note in their possession when they terminated his employment. Implicitly the respondents reject the notion that they had an obligation to accommodate the applicant’s disability.
The applicant states that the employer conducted an inadequate investigation of his illness at the time of his termination and states that if the employer had conducted a proper investigation it would have learned what the medical report reveals – that he suffered from depression with some mild anxiety. The applicant states that the report is arguably relevant because the respondent failed to embark on any kind of investigation of the extent of his disability or when it may have first presented itself. Again had it done so, it would have received a medical report that would have told it that the applicant’s difficulties may have begun as early as the summer of 2006.
I agree with applicant’s statement of the law that subsequent event evidence may be admissible if it casts light on the decision making process leading to the termination of employment , or whether or not appropriate efforts were made to accommodate an employee. The applicant states that there appears to have been little or no investigation of his illness or whether or not he could be accommodated prior to his termination on January 5, 2007. It may be, as the respondents’ implicitly claim, that because a decision was made to terminate his employment months prior to the employer being made aware of his illness and the fact that the events of January 2nd to 5th provided further justification for an immediate summary termination, there was no need to consider his disability or the need to accommodate him. However that is clearly an issue in dispute in this case and is clearly included in the complaint.
As well, although the respondents have agreed that the applicant was disabled on January 5th there may be, within the parameters of the complaint, an issue of when this disability first arose. The applicant appears to have told the employer that he was not feeling well on January 3. He visited the doctor on January 4 and was provided with a doctor’s note which was immediately provided to the employer. I find that the report, to the extent that it may speak to the applicant’s health in the first week of January 2007, is arguably relevant to the question of when the applicant became disabled over the course of events between January 2 and January 5, 2007.
To be clear, it is open to the applicant to explore the extent to which the respondent employer considered the information it received respecting his health over the time period framed by the complaint and whether, given what it was told by the applicant, further investigation would have been appropriate. It is also open to the applicant to explore the implicit position of the respondent employer that it had no obligation to accommodate his disability in the circumstances. The medical report to the extent that it might speak to these issues, is arguably relevant to the bona fides or appropriateness of the decisions made by the employer at the time including the respondents’ decision to terminate the applicant’s employment when it did.
[6] In that decision, however, I rejected the applicant’s attempt to expand the scope of the complaint to include allegations that he was ill and a person with a disability beginning in the summer of 2006 and that his illness had been caused by the conduct of the respondent Steele. At paragraph 22 I found as follows:
For the reasons set out above and in the prior decision, whether or not the applicant’s work performance might have been affected by illness in the summer of 2006 is irrelevant to the issues as framed in the complaint - there is no allegation in the complaint that the applicant was ill prior to the events of January 2007 or that the employer ought to have been aware of any alleged illness prior to that time. I also note that there is no suggestion that the contents of Dr. Hines’ report were unknown to the applicant or his representatives at the time, when the human rights complaint was filed with the Commission.
[7] To be clear the respondents concede that the applicant was a person with a disability on January 5, 2007 a date proximate to the applicant’s termination. The respondents also state that the decision to terminate his employment was made before they had received any formal indication of an illness. For purposes of determining the issues here, the following passage from the IME discussed above describes the medical condition of the applicant as it likely was on January 5, 2007:
Mr. Lastella is a married 39-year old man who has worked at Oakville Hydro for five and one-half years. He was terminated on January 5, 2007 and has not worked since. He feels that he was terminated without just cause and has attempted to address his companies concerns. He reported developing symptoms of depression that began to effect his functioning in the summer of 2006. He began treatment with a minor tranquilizer in January 4, 2007 and this reduced his anxiety, He began taking an anti-depressant eight days ago and already feels some beneficial affects from this. He is continuing to take his medication regularly and feels that he is not emotionally able to function at work. He would like to resolve these issues and return to his old position.
Positions of the Parties
[8] With that background in mind, the positions of the parties can be summarised as follows:
a. The applicant states that he was terminated after six years of employment after he submitted a doctor’s note to the respondent, his employer. The termination occurred within a day of receipt of the note. The applicant states that the respondents have breached the Code in discriminating against him contrary to section 5(1) and failing to accommodate him to the point of undue hardship. On the latter point, the applicant states that no accommodation was even contemplated by the respondents although the respondents knew or ought to have known that the applicant was a person with a disability. The applicant states that the respondents failed in their duty to accommodate, both procedurally and substantively, to the point of undue hardship.
b. The respondents state that a decision to terminate the applicant’s employment had been made in the summer of 2006 based on concerns about the applicant’s willingness to cooperate in integrating his work area more closely with other operations of the employer. Because of the position held by the applicant, the corporate respondent needed to have a replacement available before the termination could be effected. The respondents also state that the applicant’s conduct from January 2 to 5 caused it such concern that a decision was made to terminate the applicant immediately and for cause. The respondents state that the decision to terminate was made on January 3, before there was any indication that the applicant was ill. They also state that they had no duty to revisit that decision when more medical information became available and despite their concession that the applicant was a person with a disability on January 5.
Decision and Analysis
[9] The Application is allowed in part. There is no basis for finding that the respondents’ ultimate decision to terminate the applicant’s employment when they did was informed in whole or in part by the fact that he was a person with a disability or that he had requested a medical leave.
[10] However, I do find that the respondents knew that the applicant was a person with a disability at the time that the applicant’s termination was implemented and that they took no steps to make enquiries of his condition at that time. I also find that while the employer had made a firm decision to terminate the applicant’s employment in July 2006, the implementation of that decision was overtaken by the events of January 2 to 4, 2007.
[11] I find that the respondent employer discriminated against the applicant when, being presented with evidence that the applicant was facing some significant medical issue and requesting a medical leave, it made a decision to terminate his employment for cause. As a consequence the applicant was terminated before he otherwise might have been. The decision of the respondent employer also deprived the applicant of the possibility of showing that his uncharacteristic behaviour in the final days of his employment was related in whole or in part to his medical issues. The failure of the respondents to pause and make further enquiries when presented with evidence of a potential disability amounts to a failure on the part of the respondents to meet both the procedural and substantive aspects of the duty to accommodate. My reasons for these conclusions follow.
The Decisions to Terminate
[12] A key issue for determination is whether or not the respondents had made a decision in the summer of 2006 to terminate the applicant’s employment without cause. Much of the evidence and argument in the case went to that issue. The applicant questioned why, if the employer had made such a decision it was only raised in October 2008, after this Application was launched and when current counsel for the respondents came on board. The respondents’ witnesses did not offer much in the way of explanation for the failure to raise the issue earlier than they did.
[13] However, in considering all of the evidence I have concluded that it is more likely than not that the employer, for reasons unrelated to any Code-prohibited ground, determined that the applicant would be replaced when a number of things happened including finding a suitable replacement. I accept the respondents’ evidence that, while they had decided that the applicant could not remain for reasons discussed below, he was otherwise a good, competent and dedicated employee – he just did not see eye to eye with the CEO on a critical management issue.
[14] The applicant held a key position in the organization. His position was SCADA Protection and Control Supervisor. The SCADA system is comprised of computers, monitors and other related equipment using various operating systems that “reads, accumulates and analyzes information from intelligent electrical devices and sub-stations in the field”. In layperson’s terms the SCADA system allows the operator to control and monitor what is going on over the entire electrical distribution system.
[15] There are a number of passwords that allow access to the various computers making up the SCADA system. The evidence was that there up to 13 passwords some of which were more critical than others in terms of maintaining the system. At the material times the applicant was the only person who knew any of the necessary passwords. In the past the applicant and his then supervisor, Mike Draker, both had the passwords. According to Mike Draker, there had been a binder in which the various passwords were recorded. With Draker’s retirement and replacement by Daniel Steele, Director of Engineering and the applicant’s direct supervisor, this practice fell into dis-use and only the applicant knew what the passwords were. The applicant’s evidence was that he did not write them down and relied on memory to keep track of them as they were changed from time to time. It is common ground that the passwords had to be changed from time to time.
[16] The fact that the passwords were only known to the applicant came to the attention of Alex Byrstin, President and C.E.O of the respondent employer, in July 2006 when there was a failure in the control room where the SCADA system is accessed. The precise nature of the problem is not important but because the applicant was the only person with the passwords allowing access to the inner workings of the SCADA system, he had to come in to work while on vacation to deal with the problem. When apprised of this fact Byrstin was concerned. He felt at the time that the fact that the applicant was the only person in the organization who knew the passwords was a significant management issue. As he put it in his evidence – what if the applicant was hit by a bus? More prosaically, what if the applicant had been travelling out of the country and unreachable in the short term?
[17] Byrstin testified that he met with Bruce Evans, Director of Operations, and Steele to discuss the issue. At their meeting the three agreed on a plan of action which included a decision that more than one person should be trained to deal with SCADA problems and that the control room be moved to a better and more appropriate environment for computer equipment. A key element of the plan was that the corporate respondent’s IT department would become more involved in the operation and maintenance of the SCADA system.
[18] Steele was to communicate this plan to the applicant. From the perspective of Steele the applicant was resistant to the proposed changes. When informed of this by Steele, Byrstin organised a meeting of himself, the applicant and Steele to discuss the issue further. At this meeting Byrstin perceived the applicant to be entirely resistant to the proposed changes. This perception that the applicant was resisting what was considered an obvious management oversight and gap was a matter of considerable concern to him. Byrstin testified that because of these concerns he decided the applicant would have to be replaced once a suitable replacement could be identified.
[19] The applicant attacks the respondents’ position on this point on a number of grounds. I have considered all of those objections. However, in the end, I find that there is not much doubt that the employer had made a decision to terminate the applicant once a permanent replacement could be found. I agree that the delay in implementing the decision and the apparent go slow approach seems odd given what was at stake. However it is also the importance of the underlying concern of the employer that makes the decision of Mr. Byrstin appear so reasonable, indeed almost self-evident. It defies common sense that the SCADA system was inaccessible, as a practical matter, to anyone in the organization except the applicant. I am also satisfied that it is clear that the applicant was entirely resistant to the proposed changes being requested by his superiors. It was apparent at the hearing that almost four years after the fact he still did not think that management’s approach to this issue was appropriate.
[20] There is also ample indication in the material that supports the respondent witnesses’ contention that the decision to terminate the applicant’s employment was being implemented, albeit slowly. Steps were taken to begin the replacement of the applicant almost immediately. Information on the SCADA system was asked of the applicant and some was provided, but not all. Later IT staff were sent to training courses on the system, unbeknownst to the applicant, although there is some indication that he may have become aware of this.
[21] Earlier, in October, Best, Steele and Byrstin met to discuss the timing of the applicant’s replacement and contact was made with a recruiter. Best’s handwritten notes indicate internal discussions through October, November and early December when a decision was made to not “pull the trigger” until after the holiday season was over. Mike Draker, the applicant’s former supervisor, was contacted for potential contacts in the industry who might be able to provide support for the SCADA system in the event that this was required.
[22] The applicant also argued that the termination letter makes no reference to the events of July 2006 and that the employer should be held to the reasons provided in the termination letter. I do not agree in the circumstances. The letter of January 5 relates to what I have characterized as the second decision to terminate, for cause, which was made on or about January 3 or 4. It is written in reference to that decision and not the decision to terminate without cause made many months earlier.
[23] What is also clear is that the July 2006 decision to terminate the applicant’s employment was overtaken by the events of January 2 to 4, 2007. In Steele and Byrstin’s view there was really only one decision to terminate the applicant and the only question was timing. The facts establish something else. Ms. Best put it most accurately when she testified that the decision to terminate without cause was never implemented. In fact the respondents ultimately made a second decision – to terminate the applicant for cause and immediately - as a result of the events of the first week of January.
[24] The best that can be said of the respondents’ evidence about the implementation of the July termination decision is that it was not to have been effected in the first week of January 2007. Mr. Byrstin testified that no definite date had been fixed and that this decision had been left to Steele and Best. Mr. Steele thought “early January” was the target. In Ms. Best’s notes and in her evidence the termination was still linked to the availability of Mike Draker and the ability to get the recruiter up to speed. It is clear from the evidence of these witnesses that no specific date had been set.
[25] I think that Ms. Best’s evidence and her notes best capture the state of affairs and that it could have been some period of time before a replacement could have been recruited. It was also true that in the back of the decision makers’ minds, was a concern that the applicant would find out what was being planned for him.
[26] Mr. Draker testified that he had been approached in the Fall about covering the position in some unspecified way but that he was retained on a more substantial basis in mid-January 2007 after the applicant was terminated. It is not clear when or if the recruiter was actually retained or if the applicant was ever replaced.
The Events of January 2 to 4, 2007
[27] There are two competing narratives for the events of these last days of the applicant’s employment. The respondents state that they believed that the applicant had found out about his impending termination and that this explains, in large part, his conduct over the last few days of his employment. The applicant on the other hand claims that he had no idea that his position was in jeopardy but that he was ill and, as was subsequently confirmed by an IME requested by the employer, likely suffering a moderate depression and anxiety disorder at the time. The applicant states that his behaviour was erratic that week, in whole or in part, because of his medical issues and that his behaviour ought to have raised red flags for the employer. The respondents agree that the applicant’s behaviour raised a red flag but, in their view, it was attributable to knowing that his employment would soon be terminated.
[28] For the reasons that follow, although it is a close call, I prefer the narrative of the applicant. I agree that it is possible that he is overstating the case when he claims to have had no idea that his job was in jeopardy and equally, that at the time, the employer might have reasonably worried he had found out and was therefore acting out in an irrational manner that could cause serious harm to the respondent employer. However, in the end there is only limited circumstantial evidence to support the respondents’ theory and some more substantial evidence on the applicant’s side which is consistent with his narrative and consistent with the preponderance of possibilities. Most compelling in this regard is the contemporaneous medical information confirmed by a subsequent IME conducted at the request of the respondents. It is true that the respondents did not have adequate medical information at the time decisions were made but they chose to make no enquiries at the time.
[29] Tuesday, January 2, 2007 would have been the first day of work after the long holiday weekend. In the normal course the applicant would have met with Steele for their regularly weekly meeting. There was some dispute about whether or not the applicant would have been aware of this meeting. He testified that they normally met on Tuesday but when the Monday was a holiday would often re-schedule to Wednesday. Steele conceded that this sometimes happened but not necessarily all the time and when it was re-scheduled there would be some communication of the fact, by email typically. He testified that this meeting had not been re-scheduled.
[30] I do not think it matters much how this controversy is resolved. I accept the evidence of the respondents’ witnesses that they use the Outlook email system to schedule meetings and that the applicant should have been aware of the meeting if he had checked his email. I also accept that the meeting was not re-scheduled and that the applicant was expected to attend. Again, it does not matter much why he did not attend or whether he had reason to believe that the meeting had been changed. The fact is the applicant did not attend and that began a series of events which culminated in his dismissal.
[31] What followed was a rapidly unfolding series of events as the respondents were unable to reach the applicant. After the applicant failed to attend the meeting the respondents began to try and reach him by email and telephone becoming increasingly concerned that he could not be reached. Best becomes involved almost immediately. Steele for one began to suspect that the applicant had learned that two IT staff had been sent to Houston to be trained on the SCADA system.
[32] The respondents were told by the applicant’s staff that he had been in for part of the day January 2. On January 2 just prior to 5:00 p.m., Steele emailed the applicant asking for an explanation for his non-attendance at the weekly meeting and his non-response to a meeting request by IT. At the same time the respondents retained the services of a security firm in an attempt to locate the applicant.
[33] The next morning at 9:24 a.m. Steele emailed the applicant asking for a response to his email of the previous day. It appears that between 9:30 a.m. and 1:00 p.m. that day, the respondents took steps to shut the applicant out of respondent employer’s internal systems including email.
[34] At 1:09 p.m. on January 3, the applicant communicated with Steele by his home email, advising him that he woke up feeling unwell and while he had hoped to come in he could not and would be taking the day as a vacation day. The respondents were told by the applicant’s staff that the applicant had been in contact with them earlier in the day, that he was feeling unwell and that he would try to make it in later in the day.
[35] The applicant’s email was forwarded to Byrstin and Best. Byrstin immediately directed Steele to contact the applicant and “ask for the password ASAP”. At 1:38 p.m. Steele emailed the applicant at his home email asking for the root password ASAP and all of the user names and passwords. By 4:39 p.m. on January 3 the respondents had been able to obtain one user ID and password and felt that they could operate the SCADA system. However, they were not yet in a position to make any security or configuration changes.
[36] At 4:48 p.m. the same day Steele left a voicemail asking again for the root password and indicating that he would be stopping by the applicant’s home after work to get the information. Steele testified that he did so but no one came to the door. It is not clear on the evidence where the applicant was at that point. The security firm retained to find the applicant reported that no one had been seen coming and going between 5:00 a.m. and 10:30 a.m. that day.
[37] Although it is not entirely clear precisely when the decision was made to terminate the applicant summarily, at some point during the day on January 3 the respondents came to some conclusions about the applicant’s immediate future with the employer. Ms. Best’s notes indicate that Byrstin told Steele that if the applicant did not provide the passwords the applicant should be fired for cause. On the other hand, if he provided them the applicant should be terminated ASAP and as he was close to being fired for cause, pay the minimum required. As of January 3 the decision was made to terminate the applicant the following day if he reported for work.
[38] A demand letter requesting the passwords was delivered to the applicant by email on the morning of January 4, 2007. The applicant did not see the demand letter until later that day because he was not at home – he testified that he began his day by going to see his family doctor. He testified that because he did not have an appointment he was required to wait and did not get to see his physician until 1:00 p.m. He received a note which indicated only that he needed time off work and would be reassessed in four weeks. This note was provided to the respondents on the afternoon of January 4. The applicant conceded that he began to suspect that his job was in jeopardy when he received the demand letter.
[39] As indicated the applicant had earlier been shut out of the respondent employer’s systems and the locks were changed on the applicant’s office door as well as the SCADA control room. By January 5 the respondents’ witnesses concede that their systems were secure and they had complete access to the SCADA system. Any potential for harm by the applicant had been eliminated.
[40] Faced with the various requests and demands for the passwords, the applicant began providing them to the employer late in the day on January 4. He testified that he did not have them written down anywhere and relied on his memory. More surprising was his evidence that he often needed to be at the keyboard for the particular device in order to quickly recall some of the passwords – in effect he relied in part on muscle memory to recall some of them. He also testified that he was hindered in his ability to respond to the respondents’ demands by his state of health at the time – he testified that he was not functioning at this time as a result of what he learned was depression and anxiety. He testified that he was further hampered by his being shut out of the respondents’ email system which made it difficult to be sure what the employer was getting from him. The material makes clear this anxiety as the applicant repeatedly requested that respondent Best verify what she had received from him.
[41] As indicated the applicant provided the doctor’s note to the respondents on the afternoon of January 4. It said simply that the applicant had been seen that day for medical reason and needed time off work. The note offers no prognosis but indicates that the doctor would reassess the applicant in four weeks. Although it was received by the respondents likely after the decision to terminate had been made, it was acknowledged that they had it before the termination letter was drafted and before effecting the termination by delivery of the termination letter to the applicant by email on January 4.
[42] Byrstin testified that he made the decision to terminate the applicant. He also testified that he must have been aware of the doctor’s note when he made the decision because it is referred to in the termination letter. He testified that although it is likely that he discussed the implications of the note with Best, he felt it was not relevant to a decision that had been made, in his view, months earlier.
[43] Best testified that the note had no impact on the decision to terminate for cause, because it arrived after that decision had been made.
[44] Steele, although less certain of the timing gave evidence to the effect that it had no impact because the decision had been made months earlier and the only issue was the timing.
[45] On January 4 the respondents attempted to hand deliver a letter of termination to the applicant at his home but were unable to do so. Instead the letter was initially sent to his home email and he saw it the next morning, January 5.
[46] The respondents admit that they did not make further enquiries about the applicant’s condition or ask him to supply any further medical information. The applicant’s actual state of health was unknown to them at the time of his termination.
[47] The applicant testified that during the week of January 2 to 5 he was unwell. He testified that he woke up the morning of January 3 feeling unwell. He described himself as being in a very emotional state – “my body was running too fast or too slow”. He testified that he felt overwhelmed, was having trouble sleeping and could not function.
[48] As indicated earlier the applicant saw his family physician on January 4. Although he cannot remember what his doctor might have said, he does recall being prescribed Lorazepam. On January 31, 2007 the applicant’s family physician provided a slightly more fulsome note which indicated that the applicant had been seen on January 4, 9, 11, 23 and 25. The note went on to indicate that the applicant had been assessed for reactive depression and prescribed Lorazepam. Further the applicant was said to be unable to work due to cognitive dysfunction. In the IME conducted in March, it is reported that the applicant was prescribed Lorazepam on January 4 for stress and anxiety. Later in February his family physican prescribed Effexor, an antidepressant. The IME notes that the applicant reported that the Effexor had helped him considerably. This course of treatment was endorsed by the IME and the assessor recommends he continue with these medications for a period of six months to ensure a complete recovery.
[49] As indicated earlier there can be little doubt that the respondent employer had made a decision to terminate the applicant without cause in July 2006 and were taking steps to implement that decision. There is also little doubt that the precise timing for implementing that decision was never determined as that decision was overtaken by events and ultimately became a decision to terminate for cause. It is also clear that decision to terminate for cause was made and implemented with the knowledge that the applicant had seen a doctor and would be off work for four weeks. It is conceded that no further enquiries were made. The respondents concede that on January 5 the applicant was a person with a disability.
[50] I find that the respondents have failed in their obligations, both procedural and, consequently, substantive to accommodate the applicant to the point of undue hardship in the manner in which they terminated the applicant for cause on January 4 or 5, 2007. By proceeding with the termination that day despite being made aware of a potential medical problem the applicant was experiencing the respondents failed in their obligation to make reasonable enquiries.
[51] I agree with the applicant’s submission that as of January 4 the applicant was locked out from all of the employer’s systems and physical locations. He posed no threat. Given that, and the knowledge that there was a medical issue, the respondents could have and should have paused to investigate the applicant’s situation. The response of Byrstin and Steele that the decision had already been made, referring to a decision to terminate without cause made in July ignores the reality that a quite different decision with significant consequences for the applicant was made on January 4 or 5.
[52] I also accept the applicant’s submission that the decision to go ahead with a termination for cause in the face of what the respondents knew on January 4 constitutes a failure to accommodate the applicant to the point of undue hardship. It was clear to them that something was wrong, their theory being that the applicant had learned of his pending termination and was acting out in some way. However, by January 4 they were alerted to the possibility that something else might be affecting the applicant’s ability to perform his normal duties. In the circumstances I find that the respondents should have stayed their decision for a period of time while they determined what was going on. The respondents’ case discloses no hardship at all in engaging in that process. Its systems were secure. The applicant was out of the workplace likely for a period of four weeks. There was no need to implement the decision to terminate at the time.
[53] The respondents state that where an employer terminates the employment of a disabled individual, there is no duty on the part of the employer to undertake an investigation of the employee’s disability if the termination is unrelated to the individual’s disability. As a general statement of the law that is probably accurate. However, the respondents’ submissions ignore the fact that the decision in issue is not the decision to terminate without cause made in July but the decision to terminate the applicant summarily for cause made in January.
[54] In the somewhat unusual circumstances of this case it is not clear that what I have called the second decision to terminate was unrelated in some part to the disability. If the applicant’s behaviour from January 2 to 4 is explained in whole or in part by the applicant’s mental health issues at the time, then the decision to summarily terminate for cause is related to his disability and a failure to accommodate him. The respondents chose to go ahead despite being told before the decision was implemented that there may be a medical issue and in the circumstances a reasonable inference for them to draw might have been something other than the flu was the problem given the indefinite leave being requested.
[55] Having failed in their procedural obligation to enquire in the circumstances, the respondents took no steps to accommodate the applicant. Accordingly I also find the respondents have failed in their substantive obligation to the applicant.
[56] At the outset of these proceedings the parties agreed to bifurcate the hearing of this Application. The parties should attempt to resolve the outstanding issues themselves. However, if they are unable to do so a one day hearing will be scheduled to deal with the remedies issues.
[57] I am seized of this Application.
Dated at Toronto, this 27th day of August, 2010.
“Signed by”
David Muir Vice-chair