Ignoring the Elephant in the Room: The Cost of Not Asking an Employee with a Disability if She Needs Accommodation

Oct 28, 2014

The Question

One of the questions employers ask me is, “If I think someone has a disability, do I have to ask whether the person needs accommodation?”

When the Question Can Arise

This question can arise when an employer believes an employee has an alcohol or substance abuse addiction.

It can also arise when an employer believes an employee has a mental illness.

The Law

Under the Ontario Human Rights Code an employer is required to accommodate a disabled employee unless his or her needs cannot be accommodated without undue hardship on the employer considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

However, the Code does not explicitly require an employer to ask a disabled employee whether he or she requires accommodation.

The Ontario Human Rights Commission “Policy on preventing discrimination based on mental health disabilities and addictions.”

On the flip side, Section 13.6.1 of the Policy called “Duty to inquire about accommodation needs” states in part: “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a mental health disability or addiction by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation.”

Cases decided under the Ontario Human Rights Code

A number of adjudicators appointed under the Ontario Human Rights Code have also concluded that in certain circumstances an employer does have a common law duty to ask the employee whether he or she needs accommodation.  For example, in a case decided earlier this year, an adjudicator wrote:

I conclude that the (employer) initially failed in its procedural duty to accommodate in that, despite knowledge of the nature of the applicant’s disabilities, …, the applicant’s supervisors did not initiate any inquiry as to whether the applicant needed accommodation.” Sears v. Honda of Canada Mfg., 2014 HRTO 45 (CanLII),  In this case, the adjudicator issued a number of orders against the employer including an order to pay a former employee $35,000 in general damages to compensate for injury to his dignity, feelings and self-respect.

Lessons to Be Learned:

An employer cannot turn a blind eye to an employee who shows objective signs of being disabled. This might be an employee who is suffering from panic attacks at work.

What constitutes knowledge of a disability will be decided on a case by case basis.

Supervisors should take on an active role here. They need to know that the employer is obliged to ask a disabled employee whether any accommodation is needed and accordingly should receive training on this issue. Training should include examples of what to look for in terms of identifying a disability. Supervisors should also be instructed to notify the person who is responsible for accommodating disabled employees at the workplace when an employee shows objective signs of being disabled.

For those interested in finding out more information about managing disabled employees, I am co-chairing a program on Managing Disabled Employees on November 3, 2014. To register for this seminar click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions concerning your obligations towards disabled employees or employer obligations in general, you can contact him at 416 317-9894 or at [email protected]

There are many ways to attack the termination clause in an employment contract. 

I am now surprised if employee counsel does not claim that their client’s  termination clause is not legally enforceable - usually because the termination clause does not allegedly comply with the Employment Standards Act.

This blog considers a case, McKercher v Stantec Architecture Ltd., 2019 SKQB 100, where an employee successfully attacked the termination clause in his contract because he did not explicitly agree to it after being promoted. 

The Facts

In 2006, Mr. McKercher commenced employment as a staff architect. The termination clause in his employment contract stated: 

Termination other than for cause will be with notice or pay in lieu of notice, based on your length of service. If the Employer terminates your employment for other than just cause you will receive the greater of:

  1. a)   Two weeks notice or pay in lieu of notice during the first two years of employment increasing by one week for each additional completed year of employment to a maximum of three months notice or pay in lieu of notice.

      or

  1. b)   The minimum notice of termination (or pay in lieu of notice) required by applicable statutes.

Eleven years later, when Mr. McKercher was employed as a Business Centre Sector Leader, his employment was terminated. The employer paid him the three months termination pay he was owed under his employment contract.

 

Another way to attack a termination clause: What is the changed substratum doctrine?

An Ontario judge in a 2012 case, MacGregor v National Home Services, 2012 ONSC 2042 (CanLII), described this legal doctrine as follows: "The changed substratum doctrine … provides that if an employee enters into an employment contract that specifies the notice period for a dismissal, the contractual notice period is not enforceable if over the course of employment, the important terms of the agreement concerning the employee’s responsibilities and status has significantly changed."

 

The rationale for this doctrine has been described by one judge, Schmidt v AMEC Earth & Environmental Ltd., 2004 BSCS 2012 (CanLII), as follows: "In my view, it was incumbent on the defendants to advise Mr. Schmidt that they intended to continue to rely upon the termination provision set out in the Agreement when substantial changes in his employment occurred. This would have allowed him to consider the matter and to negotiate for other terms. If the defendants wished to continue to rely on the termination provisions there ought to have been a ratification of the provisions as the nature of Mr. Schmidt’s employment changed."

 

Decision

The judge hearing this case relied on the following factors when deciding not to enforce the termination clause in the employment contract: ”...there is no evidence that (the employer) made it clear to the (employee) that the notice of termination provisions were intended to apply to the positions to which he was promoted. The employment agreement contains no express wording to this effect, nor does it contain any wording to support the inference of such an intent. Further, and in keeping with the analysis in Schmidt, the Court received no evidence that, as it promoted the plaintiff, SAL reasserted its understanding and expectation that the notice of termination limit would remain in effect.”

 

Lesson to be learned:

An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted. This expression of this intent should be in writing and should be clear and unambiguous. I recommend that an organization’s employment be reviewed by an employment lawyer every year or two. If your employment contract does not address this issue then think about doing so the next time it is reviewed.

 

For 30 years, Doug MacLeod of   the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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