Employee Gets 18 Months’ Payment In Lieu Of Notice From Human Rights Tribunal feature image

Employee Gets 18 Months’ Payment In Lieu Of Notice From Human Rights Tribunal

If an employee feels they’ve been treated unfairly by their employer either during the course of employment or as a result of termination, they may seek damages through civil court. However, a recent decision from the Human Rights Tribunal of Alberta shows that employees may want to consider a human rights approach to these types of issues.

The employment relationship

The employee began working for the employer, a university, just after she graduated. She was a mother with three small children and began working as a casual employee in December 2011. She soon successfully applied for a permanent position as a library assistant, and began that position on March 1, 2012.

Problems began when the employee’s brother died by suicide on March 24, 2012. She was tasked with handling his estate. On May 22, 2012, her supervisor brought up her concerns with the employee’s performance. The employee said she was having a hard time with “everything going on in her life” and could not perform some tasks, particularly those involving concentration. She advised the supervisor she was seeking counseling, but nevertheless she was terminated on July 5, 2012.

Allegations of discrimination

The employee alleged she was discriminated against on the ground of mental disability, contrary to section 7(1) of the Alberta Human Rights Act. The employer denied it did so and stated the employee was terminated for poor performance while she was on probation. In hearing the case, the Tribunal had to ask whether the employee established a prima facie case of discrimination on the grounds of mental disability. If so, the employee would have to justify its refusal to accommodate her.

The employer argued it was not aware the employee was suffering from a mental disability, and therefore their decision to terminate her employment could not have possibly been a result of discrimination. While the Tribunal agreed that the employer eventually had some legitimate concerns about job performance, the evidence supported the employee’s position that she had requested accommodation, had told her supervisor she was dealing with mental health issues, and was seeking counseling. The Tribunal summarized,

“The complainant was clearly saying that she was having difficulty performing some aspects of her job because her mental capacities were impaired. She told (her supervisor) that she wanted to modify her duties and provided him with concrete examples of what she believed she could do and what she felt she could not do. At this point, I conclude that (the supervisor) had a duty to make further inquiries. Instead, he decided that the complainant simply did not like her job. He was so convinced of this that he recalled thinking at the beginning of the meeting that the complainant was going to quit.”

Damages

The Tribunal awarded the employee 18 months’ worth of wages, totaling $37,795.40. This is more than she would have been entitled to had there not been discrimination. The Tribunal offered its reasoning on the high award, writing

“Lost wages following a termination based on a breach of the Act are not limited to notions of pay-in-lieu of reasonable notice. The concept of reasonable notice has to do with an employer’s right to terminate employment and considerations of how long it might take the employee to find comparable employment. The employer’s right to terminate employment for any reason is limited by a prohibition against discrimination. When the termination is based on discrimination, the complainant is entitled to compensation for the income lost by reason of the discriminatory conduct. In this case, I find that the complainant should be compensated for a period of 18 months from July 1, 2012 to December 31, 2013.”

At HMC Lawyers, we have over 130 years of cumulative litigation experience. We offer insightful legal advice to both employers and employees in all matters relating to employment standards, human rights and requests for accommodation. We also work with employers and employees address challenging workplace disputes with a minimum disruption to relationships wherever possible. We strive to resolve matters through mediation and other formal methods of alternative dispute resolution to minimize costs, but where necessary, are tireless trial advocates on behalf of our clients. 

To make an appointment with one of our Employment Team members, call 1-800-480-3534 or contact us online. We represent employers and employees in Calgary, throughout Alberta, and across Western Canada.

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