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Employer Justified in Firing Disabled Employee over Poor Performance

Whitten and Lublin | Sep 09, 2013

Firing Disabled Employee After a Car Accident

The Alberta Human Rights Commission recently upheld an employer’s decision to terminate a disabled employee due to poor job performance.

Mr. Sharookh Balsara was in a one-year manager training position with Zellers, and had worked there for one month before he was injured in a car accident. He returned to work a few days later, and reported that he was generally fine to work, with the exception of being unable to carry heavy objects. However, pain from the accident worsened a few months later, which he reported to his supervisors. He remained unable to carry heavy objects, which he was seldom asked to do.

Not long after, Mr. Balsara had a series of meetings with his supervisors, district manager, and the human resources department. These meetings each indicated problems with his job performance. A few weeks later, he again met with these managers, who terminated him for poor job performance.

Discrimination for Failing to Accommodate His Injury

Mr. Balsara complained to the Commission that his employer had discriminated against him by failing to accommodate his injury, and that his subsequent termination was a result of his disability. Zellers countered that Mr. Balsara had not informed them that his pain had worsened, and stated that they could not be expected to accommodate a disability they were not made aware of. While the Commission agreed with the employee that his termination appeared on its face to be a case of discrimination, the employer was able to prove that Mr. Balsara was actually terminated for unrelated reasons relating to poor job performance.

Despite having an imperfect record of these meetings, the employer had adequate evidence of ongoing poor performance that made no mention of the disability; the employer had a plausible explanation for Mr. Balsara’s termination that was corroborated by the managers involved. The reasons for his termination were found to be genuinely unrelated to his disability. Zellers thus did not fail to accommodate his disability nor did they discriminate against him by terminating him.

Discrimination Was Not the Reason for Termination

In order for an employee to raise a successful claim that their termination was due to a disability, he or she needs to be able to prove that allegation on a balance of probabilities. It is not enough to merely allege that discrimination was the reason for the termination. Employees must also be sure to inform their employer of any disabilities requiring accommodation, as human rights tribunal will not expect the employer to have accommodated an employee if they didn’t know that the employee was disabled.

Employers have a responsibility to make reasonable accommodations for disabled employees; however, if they have done so (or if they haven’t been informed of any disabilities), the employer has the right to go about firing a disabled employee for poor job performance. Employees who think they might have a discrimination claim against their employer are strongly advised to consul an employment lawyer about their options and prospects. Employers who need to terminate any employee for poor job performance would be well served to carefully and regularly document the employee’s performance, counseling sessions, remedial training, and the reasons for termination.

By Nathan Rayan, guest author