Termination was Discriminatory as “Ultimate Reason” of Employee’s Dismissal

In Ben Saad v 1544982 Ontario Inc., the Human Rights Tribunal of Ontario determined the termination of Ben Saad, the employee, was discriminatory on the basis of his disability.

 

Mr. Saad and three Tunisian friends came to Canada in June of 2014 on a work permit to work as welders for Windsor Management, the employer. On November 4, 2014, Mr. Saad injured himself when a closing rolling steel door struck him in the head. Mr. Saad submitted a medical note on November 10, 2014 stating that he was seen for trauma to the head and a compressed fracture of the lumbar spine and that he would be unfit for work for one week, and then would return to modified duties.  Upon his return to work, he was given light work in the assembly department but his supervisor pressured him to return to normal duties up until the time of his termination. On December 23, 2014, the employee submitted two medical notes; one stated that he was unfit for work for two days and the other stated that he was to continue doing modified duties for two months until cleared by his neurosurgeon.

 

Mr. Saad was terminated on February 6, 2015 because of a reduced cap on the Temporary Foreign Workers Program and because the employee was at the bottom of the seniority list. The employee claimed he was terminated on the basis of disability and ethnic origin.

 

The Tribunal concluded that the employer discriminated against Mr. Saad on the basis of disability when it terminated his employment, but that he had failed to establish that ethnic origin was a factor in his termination. In its reasons, the Tribunal considered:

 

• Notes from a January 26, 2015 human resources meeting which  stated:

 

We now have an access [sic] of welders at WinMan. We can reduce foreign workers by 3. Naim, Dali and Neji [sic] are on the top of the list due to lack of skill, poor attitudes, and very poor attendance.

 

For the Tribunal, this human resources memo made it clear that the employee was dismissed because of his attendance. The internal human resources memo was inconsistent with the employers’ explanation that the employee was terminated solely because he was at the bottom of the seniority list.

 

• The other two employees hired at the same time as the applicant were not terminated, which supported the Tribunal’s finding that the ultimate reason the respondent elected to terminate the applicant was his attendance record, which was as a result of his injury and resultant disability.

 

The Tribunal further noted that, even if there were other reasons for the termination (which it concluded there were not), the fact that there may have been other reasons did not preclude a finding of discrimination.

 

This decision reiterates that termination decisions will be highly scrutinized by courts and tribunals and the fact that there may have been other legitimate reasons to discharge an employee (in conjunction with a prohibited ground) may not preclude a finding of discrimination.