Case Summaries: Employment
Common Issue: My employer refused to accommodate my disability needs and fired me from the job based on my seizures. What are my rights?
Wrongful Dismissal, Discrimination & Refusal to Accommodate
Ms. H was approved to take a course to learn to be a casino dealer offered by Human Resources Development Canada, but shortly afterwards she was told by her employer that she could not take the course due to her epilepsy since she could not work in a casino with the flashing lights. He also asked for a letter from her neurologist although documentation from her general practitioner was already on file.
Ms. J was exposed to neuro-toxins while teaching children in portable classrooms for about 12 years, and she experienced tonic-clonic seizures as well as absence seizures. She was fired from her teaching job with severance pay but with no pension for teaching for over 20 years.
Mr. B worked in general insurance sales and as an insurance claims adjuster for many years. He has a history of epilepsy which goes back to age 19. He had surgery to help control the seizure activity in his late 30's but it reverted back to the original state. His employer claimed that it was interfering with his work and was considering letting him go. Mr. B was in and out of work and finally his neurologist felt that it was okay for him to return to work. Mr. B is now on a long-term disability plan and his employer has become more empathetic.
Mr. S has epilepsy which results in infrequent minor seizures that last for a minute or two. He worked as a cook at a hotel for 10 years and his epilepsy caused no problem on the job during his first 9 and a half years. Six months before he was fired, a new supervisor was hired and Mr. S had a seizure while on the job. The new supervisor demanded a written guarantee that he would never have a seizure again while at work. When the union pointed out that such a demand was illegal, it was withdrawn. Shortly afterwards, the supervisor started regularly finding fault with how he worked and he was eventually dismissed without a warning on account of his disability.
Employment Equity
The 1995 federal Employment Equity Act requires special measures and the accommodation of differences by the employer. The Act protects people with different ability from discrimination with respect to hiring, training, retention, and promotion.
Section 5(1) of the 1990 Ontario Human Rights Code also provides that every person has a right to equal treatment with respect to employment without discrimination because of disability.
Employment harassment, by an employer or co-worker due to an employee's disability, is prohibited. Employment decisions, including recruitment, hiring, training and promotion, are to be based on merit and not on criteria that are unrelated to job performance. No questions regarding physical health should be asked on an employment application form.
If Employment Discrimination Occurs
If a person believes that he or she has been discriminated against or harassed, he or she may complain to the Ontario Human Rights Commission or the Canadian Human Rights Commission. A complaint may be filed by contacting the nearest office of the Human Rights Commission. A Commission staff person is available to discuss the problem. It is important to note that the Commission has the discretion to refuse to deal with a complaint if the facts upon which the complaint is based occurred more than 6 months before the complaint was filed.
An investigation by the Commission follows, sometimes resulting in an early settlement to which both parties agree. However, if the complaint cannot be settled, a report is prepared for Commission review. The Commission may resolve the complaint, appoint a conciliator, or send the complaint to the Human Rights Tribunal. If a conciliator tries to settle the complaint and is unsuccessful, the case may either be dismissed or sent to the Human Rights Tribunal. The Tribunal reviews the complaint, makes a decision and orders a settlement. That decision may be accepted by both parties or appealed.
Ontario Human Rights Commission
180 Dundas Street West, 8th Floor
Toronto, Ontario
Canada M7A 2R9
Toll Free: 1 800 387-9080
Telephone: 416 326-9511
Fax: 416 326-9510
E-mail: info@ohrc.on.ca
Ontario Regional Office of the Canadian Human Rights Commission
Suite 1200, South Tower
175 Bloor Street East
Toronto, Ontario
Canada M4W 3R8
Toll Free: 1 800 999-6899
Telephone: 416 973-5527
Fax: 416 973-6184
E-mail: info.com@chrc-ccdp.ca
Appeal of the Decision
If a person believes that the decision of the Commission was wrong or unfair, he or she may appeal to either the Divisional Court or the Federal Court of Canada. If the decision of the Court is not accepted by both parties, then the Supreme Court of Canada makes the final decision. The person may also contact Ombudsman Ontario, which helps people resolve complaints they have with provincial government organizations.
Ombudsman Ontario
125 Queen's Park
Toronto, ON M5S 2C7
Toll-Free: 1-800-263-1830
Telephone: 416-586-3300
Fax: 1-866-411-4211
E-mail: info@ombudsman.on.ca
