Section 10 sets out who is protected by the HRC. An employee may be deemed to be disabled if they claim and receive workers’ compensation benefits, those who have a mental disorder, impairment, or development disability, and who with any degree of physical disability, malfunction, infirmity, or disfigurement caused by illness, bodily injury, or birth defect.
The HRC does not protect you against being fired under certain conditions.
Here is a look at a few of them.
1. Automatic termination provisions
If you are in a union and your employer and the union has put in place agreements that stipulate maximum absence length in the workplace, or loss of seniority, the Supreme Court of Canada has stated that such CBA agreements area not discriminatory.
2. Perceived risks to other employees
If the employer feels there is perceived risk to other employees due to your mental disability, they may legitimately fire the employee to protect other employees.
3. Bad behaviour
Even when you are on disability leave, you are still an employee and you are expected to abide by the employer’s code of ethics.
4. Failure to undergo regular medical check ups
Your employer has a right to keep track of your progress. You are expected to agree to regular medical examinations by your employer’s doctors and you may lose your disability benefits and even face dismissal if you do not agree to reasonable check-ups.
5. Business shutdown, restructuring, and retrenchment
You may also lose your job if the company is restructuring or retrenching employees for other economic-based reasons. However, you may ask your employer for evidence that your name was not on a retrenchment list because of your disability. It has to be due to such valid reasons as past performance and the scrapping off of your department.
What to do in case of dismissal
The Code states that the employer has to accommodate you “to the point of undue hardship.” Your employer may argue that the dismissal was necessary. An experienced lawyer will review all the evidence and consider whether your employer was able to reasonably ascertain your needs and accommodate you so that you can return to work. If you requested modification of your duties or alternate work assignments as an accommodation, the employer cannot use this excuse to dismiss you.
A lawyer will not only protect you against unscrupulous employers, but also against unscrupulous insurers. It is not uncommon for disability-insurance companies to use highly confusing or technical language in their policies in a bid to pay less than you qualify for or not pay at all.
Note that even if you resign, the employer may still be held liable. A lawyer will help prove that the resignation was as a result of discriminatory practices. This is called constructive dismissal and courts and tribunals usually look into the circumstances to determine if there was such constructive dismissal, warranting damages against the employer.
Long-term disability lawyers in Toronto can also represent you if your employer gives you the opportunity to leave employment at the risk of termination. Even when the employee leaves voluntarily, this would still be discriminatory.
There is a body of law that protects employees from wrongful terminations and dismissals. If you have lost your job, it is imperative that you contact Grillo Barristers P.C. for a free consultation.