While many people might consider employment relationships to be largely the business of the employer and the employee, there are a number of important pieces of legislation that govern a workplace’s rights and obligations for employers and employees. The Alberta Human Rights Act (the AHRA) is one of these, with the Employment Standards Code being the other major piece. Today’s blog focuses on a decision issued by the Human Rights Tribunal of Alberta (“the Tribunal”), which hears matters related to the AHRA. Under the AHRA, employers cannot harass or discriminate against employees on several grounds, including: 

• Race, colour, ancestry or place of origin;
• Religion or perceived religious beliefs;
• Gender or sexual orientation;
• Mental or physical disability or illness;
• Marital or family status; or
• Age.

In the decision being discussed in today’s blog, an employee alleged her employer’s actions were discriminatory on the basis of mental disability. 

Employee returns to work after leave

The employee worked for the employer as an administrative staff supervisor. It was only a short time into her time working there that a family tragedy led to the development of a mental disability. This caused the employee to take close to two years off work, something the employer accommodated. It was only after the employee returned to work in early 2016 that things took a turn. 

The employee’s first few attempts to return to work included reduced hours and duties. But on just the first day back, problems began to arise. Before her return, the employee emailed her managers a list including a number of concerns she had about the workplace. When she returned to work, one of her managers brought it up and a disagreement led to the employee having a panic attack. She pursued a grievance and respectful workplace complaint afterwards but was not successful in either. 

Not long afterward the employee mentioned to another manager that her colleague was responsible for supporting an easier section of the workplace than she was. Her manager interpreted this as a request for a transfer and assigned her to it. Unfortunately, the employee was overwhelmed with the change and said that wasn’t what she wanted. 

Several other incidents occurred, including instances of the employee feeling she was unfairly criticized, and another where her request for demotion was denied. Finally, she was put on a learning plan which led to a disagreement resulting in the employee’s resignation. 

The employee’s complaint was that the employer had discriminated against her on the basis of mental disability.

How to determine if a person’s human rights have been violated

In 2012 the Supreme Court of Canada established the elements a complainant must establish on a balance of probabilities in order for there to be a finding of discrimination. They are:

1. she had a protected ground;
2. she suffered an adverse impact, and
3. the protected ground was a factor in the adverse impact.

The tribunal applied the test to the case before it. It concludes she had met the first requirement but fell short of meeting the other two. 

In turning to adverse impact, the employee stated that because she experienced distress upon her return to work, an adverse impact was present. The tribunal agreed that she was distressed, but did not agree with her that her distress left her with no choice but to resign from her job. In explaining its finding, the tribunal stated that an adverse impact is a negative consequence with an objective element, such as requiring an employee to meet a physical fitness standard that they cannot meet because of a disability, or a mandatory attendance policy which results in termination of not met. Other examples included sexual harassment by a supervisor and serious discipline leading up to termination. 

The experiences of the employee were described more as miscommunications by the tribunal, including the meeting with her manager on her first day as well as her moving into a new role because the manager thought it was what she wanted. None of this amounted to bullying or harassment, however. In turning to her resignation, the tribunal found that the employer accepted the medical notes it had been provided with, took a non-disciplinary approach to performance improvement, and encouraged her to get advice and take some time before resigning. Ultimately, the tribunal did not find the employer’s actions had any adverse impact. 

The tribunal then considered whether mental disability was a factor in the adverse impact. Since the tribunal had already determined there was no adverse impact, it wasn’t necessary to consider this final step of the test. Nevertheless, the tribunal provided an analysis. 

The tribunal reviewed the medical notes that were provided to the employer, stating it had accepted them. In looking at how the employer treated the employee’s return to work, the tribunal found the employer had been compliant with the medical direction it was provided, even encouraging the employee to work less at one point when she wanted to work more. 

In asking whether the employer had a duty to inquire about the employee’s mental health, the tribunal found that the employee had provided the employer with regular, updated medical information and that the employer followed the direction it was given. The medical information the employer was provided suggested the employee’s mental disability was not a factor in her performance at work. 

For these reasons, the tribunal dismissed the employee’s complaint 

Contact Calgary Employment Lawyers for experienced legal advice on workplace discrimination

The employment law team at HMC Lawyers often advises both employees and employers about their rights and responsibilities under the Human Rights Act as well as other pieces of employment legislation. We have worked on files including human rights complaints, wrongful termination, and additional issues in employment law. Our experience on both sides of employment law matters allows us to provide our clients with valuable and comprehensive insight and advice. Please call us at 1-800-480-3534 or reach out to us online in order to find out how we can help you today.