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 Law P.C. for a free consultation.
Can you be fired while on disability in Ontario?
Canadian law protects disabled people against discrimination on the basis of that disability. The law does not, however, protect you from unrelated dismissals. An employer who fires a disabled employee for reasons related to their disability will have breached the Ontario Human Rights Law.
The law does not prevent an employer from dismissing an employee. Your employer may dismiss you for misconduct and they may dismiss you if they close shop. They may not, however, dismiss you for absence related to the disability as this would make the disability a factor in the dismissal.
According to a 2017 Canadian Survey on Disability, 6.2 million, or one in five Canadians over the age 15 have a disability. Long term disability may result either from physical, psychological or intellectual incapacities.
The unemployment rate amongst disabled people is much higher than for the general population. The percentage of those disabled increases with age with 47% disabled at 75. 28% of severely disabled people live below the poverty line. But there are options for those who find themselves unable to work due to a disability. These include;
- Disability insurance schemes to which private individuals or employers often subscribe
- Disability benefits paid by the Canadian Pension Plan paid to people with long-term disabilities who are under 65 and who have contributed to the CPP
- The Ontario Disability Support program pays benefits to disabled people who are in financial dire straits.
- The Workman’s Compensation pays benefits to people who have been disabled at work.
The Ontario Human Rights Code: Disabilities and Employment
The Ontario Human Rights Code protects the rights of employees with disabilities, prohibiting discrimination of such employees. Under the code, employees include volunteers and independent contractors.
The prohibition against discrimination extends to all aspects of employment. These include recruitment, training, promotions, transfers, lay-offs and dismissal.
The Human Rights Code also imposes on employers the duty to accommodate employees with disabilities “to the point of undue hardship”. Employers must ensure that disabled employees have equal opportunities, benefits and access.
The basis of the duty to accommodate is respect for human dignity. Employers must consider the disabled person as a whole person and not just in relation to the disability. They must, within reason, make changes in the organization to accommodate disabled employees. In doing this, employers must consider the individual needs of the employee. Two people with the same disability may have different needs.
The accommodation must promote full participation in the workplace. Employers can do this by identifying and removing barriers to full integration and access. Where an employee is no longer able to carry out their job functions, the employer must consider other job options that may accommodate the limitations.
Employers must ensure that the workplace is free of discrimination and harassment. They should enforce fairness through policies and procedures.
The Human Rights Code defines disabilities in section 10. These include
- Mental or developmental impairment
- Learning disabilities that may include written or verbal impairment
- Physical disability or malformation
- Mental disorders
The HRC and Disability
The Human Rights Code or HRC looks after the rights of employees with disabilities. It prohibits discrimination of employees on the basis of their disability. In addition, it provides that employers must accommodate the needs of disabled employees “to the point of undue hardship”.
To accommodate the disabled employee, the employer must investigate his or her individual needs. Then, make changes to the workplace to ensure equal opportunities, access and benefits for all.
If an employer fires an employee and any factor in the dismissal was related, in any way, to the disability, the employer has contravened the code. The disability does not have to be the main factor in the dismissal, it may be a minor factor. The intentions of the employer in dismissing the employee are also not relevant. It is not up to the employee to understand the intent and purpose of the employer in this regard.
If, for example, an employer was to fire an employee for absence related to the employee’s disability, the disability is a factor in the dismissal. The employer has thus violated the prohibition. The employer has an obligation rather to accommodate the employee to make it possible for him or her to return to work.
Having said that, the HRC does not prohibit employers from dismissing disabled workers for failure to perform their duties or misbehaviour of any kind. Their only concern is a dismissal that includes factors related to the disability. So, the HRC does not render a disabled employee exempt from dismissal for misbehaviour.