Termination due to Disability

Have you been fired because of your mental or physical disability? You have rights. Don’t Settle for Less.

By Matt Lalande, Esq

If you have been terminated due to a serious mental or physical disability, Lalande Personal Injury Lawyers can help. All too often, employees in Ontario are terminated from their places of employment because they cannot keep up with the demands of their job due to disability issues.  Fortunately, the law in Ontario is intended to safeguard employees with disabilities from employment termination and discrimination.  Employers in Ontario are prohibited from discriminating on the basis of disability and must be committed to taking all other necessary actions to ensure equal employment opportunities for persons with disabilities in accordance with the Human Rights Code and other applicable provincial and federal laws.

In short, employees with disabilities are entitled to the exact same opportunities and benefits as everyone else. If your employer knows that you suffer from a mental or physical disability, they must accommodate that you to the point of undue hardship.  If they do not, then you may have a claim for wrongful dismissal and violation of your rights at law.

What type of disabilities are protected under the Human Rights Code?

Section 10 of the Human Rights code tells us that protected disabilities include, but are certainly not limited to:

– a physical disability, infirmity, malformation or disfigurement that is caused by bodily injury
– a physical disability, infirmity, malformation or disfigurement that is caused by birth defect
– any type of physical disability caused by illness
– diabetes mellitus
– epilepsy
– brain injury
– paralysis
– amputation
– lack of physical co-ordination
– blindness or visual impediment
– deafness or hearing impediment
– muteness or speech impediment
– physical reliance on a guide dog or other animal
-the use of a wheelchair or other remedial appliance or device
– mental impairment
– development disability
– a learning disability
– a mental disorder
– an injury that caused a WSIB Claim

What exactly does discrimination due to a disability mean in the workplace?

Discrimination can happen in many ways – but overall, the core issues is when employers specifically exclude (directly or indirectly) employees with disabilities from employment and work opportunities.  This can take place in the form of subtle or indirect discrimination, harassment (meaning a pattern of attacking a disability), creating a poisoned work environment, unreasonable reprisals, unwelcomed comments, name calling, intrusive questioning, disclosing someone’s disability to people or sharing offensive material about people with disabilities by email or text.

Do employers need to accommodate my disability?

They sure do. Employers are obliged to accommodate an employee’s disability to allow the that employee to continue working unless providing that accommodation would result in undue hardship for the employer. How is this decided?  Under the Code, the first question is whether or not the employee is capable of performing the essential duties of the pre-disability job.  If not, the second question is whether the employee can perform the essential duties of his or her pre-disability job with accommodation.

An employee that cannot perform the essential duties of his or her pre-disability job even with accommodation is generally entitled under the Code to access other work that may be available, together with consideration of whether the employee could perform the essential duties associated with that other work with accommodation.  This might involve consideration of specific jobs that are available, but may also involve creative accommodation solutions, including new job descriptions that allow the worker to continue working.

Compensation for Wrongful Dismissal and Human Rights Discrimination

If you suffer a serious disability and you have been terminated you may (depending on your disability, your term of service as well as other factors) be entitled to file a claim against your employer for payment of damages based on numerous heads of damages.

Damages with regards to your termination:

Damages for Wrongful Dismissal
You may be entitled to damages for wrongful dismissal if you have been paid insufficient payment in lieu of notice at termination.  Wrongful dismissal, or payment in lieu of notice, is a Court awarded assessment of damages in excess of minimum termination pay mandated by the Employment Standards Act. The state of the law at present is that the appropriate range for reasonable notice has no limit or “cap”. Damages can be awarded in excess of 24 months.

Aggravated Damages
Aggravated damages are not punitive damage. Aggravated damages are considered “an award that aims at compensation but takes full account of the intangible injuries such as distress and humiliation that may have been caused by the defendant’s insulting behavior. Aggravated damages augment damages assessed under the general rules relating to the assessment of damages.  These damages are not awarded in addition to general damages, but are rather part of the assessment of general damages taking into account any aggravating features of the case and in that regard increase the general damages awarded.

Typically, aggravated damages are described as compensatory damages which are part of breach of contract damages.  They are to address the additional harm suffered because of the way your employment contract was breached.

Punitive Damages
Punitive damages are meant to act as a deterrent and to punish to any other like minded employers. For example in the 2011 Hamilton case of  K.T. v. Vranic, a Judge Whitten ordered an employer, a bar owner, to pay $25,000.00 in punitive damages as a deterrent to any other like minded employers. The bar owner assaulted a young employee. Justice Whitten noted that the employer’s behavior was indeed high handed, taking advantage of a young employee that was simply trying to work part time to make money to pay for school.  It was reported that the employer’s actions were methodical and without a hint of any consideration of the employee in her own right.  In particular, Justice Whitten noted that the employee was “was literally reduced to an object under his control, a throwback to a time when the employer dominated his slaves.”

Special Damages for Loss of Past Income
Special Damages are designed to return the plaintiff to the same financial position that he or she was in prior to the alleged injury.  Under all human rights statutes, victims of discrimination may receive compensation for special damages such as lost income and expenses incurred as a result of the discrimination.  For example in the case of Whitehead v. Servodyne Canada Ltd. (1986), 15 C.C.E.L. 5 (Ont. Bd. Inq.), a complainant who was discriminated against on the basis of sex was awarded lost salary from the date of termination to the date the company closed its operations. Another famous case,  Lippe v. Quebec Public Security Department, 1998 CanLII 30 (QC TDP),  is a Quebec’s Human Rights case where a Tribunal awarded the complainant six years of lost salary, representing the period from the date of termination to the end of the Tribunal hearing.
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Damages with regards to the conduct of the Employer:

General Damages – Human Rights Damages
General Damages in the context of employment law are intended to compensate for pain and suffering, including damages for injury to dignity, feelings and self-respect. If you were fired while suffering a disability, you may also seek damages for injury to your dignity, feelings and self-respect.  The Ontario Human Rights Code (the “Code”) was changed several years ago to allow our Courts the power and authority under s. 46.1 (1) of the Code to award damages for the infringement of Code rights.  Discrimination claims must be “piggy-packed” to wrongful dismissal lawsuits.

Loss of Earning Capacity
If there is a real and substantial possibility that your earning capacity will be impaired because of your disability after being fired, you may have a claim for loss of earning capacity, particularly if you are undergoing treatment that may be ongoing or extensive as a result of the discrimination you experienced.

For example, in the case of Silvera v Olympia Jewellery Corporation the employee was subjected to a series of sexual assaults and battery, sexual harassment, and racial harassment by the employer was awarded $33,924.75. The Judge found that there was a real and substantial possibility that the terminated employee’s earning capacity would be impaired because she was not comfortable working with older men in a supervisory role or in close proximity after what she went through. The claim was limited to three years.

It is important to remember that there is really no precise mechanism to measure an employee’s future economic loss – and often it comes down to a reasonable approach to the situation.

Cost of Future Care and Future Therapy
Often times employees that are subjected to long-standing discrimination and humiliation may be need to undergo extensive therapy to help rehabilitate them back into a working environment. In the Silvera case noted above, the employee was awarded $42,750.00 in future therapy costs after an expert psychologist testified an offered his opinion on the plaintiff’s psychological fragility and the necessity of ongoing treatment.

Call our Wrongful Dismissal & Disability Lawyers in Hamilton – Serving Province-Wide

If you have been terminated because you are disabled, or you suffer a disability you will no doubt face an uphill battle.  In employment, people with disabilities are fully entitled to the same opportunities and benefits as everyone else. If you have been discriminated against during the context of your employment during or prior to a termination, please call us speak to a lawyer about your discrimination. We understand that you have been hurt and that you may have trouble finding alternate employment because of your disability. If you have been fired, you are fully entitled at law to claim damages for Code infringements in a civil case for wrongful dismissal. Call us at 905-333-8888 or fill in a contact form and we would be happy to get back to you as soon as possible.