The Alberta Court of Appeal affirmed an arbitral award upholding the termination of a probationary employee with Asperger’s syndrome in Telecommunications Workers Union v Telus Communications Inc., 2014 ABCA 154. The arbitrator had acknowledged that the grievor’s disability was a contributing factor to his failure to meet the performance standards required of him and to his resulting termination. She went on to conclude that the employer had no duty to accommodate the grievor where accommodation had not been sought and the employer was unaware of the nature of the disability or that accommodation was required.
Finally, she accepted, as did the union, that no accommodation of the grievor’s condition would have been possible.
The Court held that two different standards – correctness and reasonableness – applied in reviewing the decision. The former applied to the assessment of the stated test for prima facie discrimination and the latter applied to the application of that test to the facts.
In relation to the content of the test, the arbitrator and the lower court had incorrectly added a requirement for employer knowledge of the grievor’s disability to the test for prima facie discrimination. Only 3 elements need be established for proof of a prima facie case of disability discrimination: (1) a protected characteristic (Asperger’s); (2) an adverse impact (termination); and (3) proof that the protected characteristic was a factor in the adverse impact (Asperger’s contributed to the performance difficulties that resulted in the termination).
Although a prima facie case of adverse effect discrimination had been established on the facts, that case was met by the finding that no possible accommodation could have been made unless the employer had a duty to consider transferring the grievor to a different, more suitable position within its organization. The arbitrator had found that no such duty existed in the case of a probationary employee. The Court found no need to address the reasonableness of that finding, given that no suitable positions had been identified. The employer did not have an independent procedural obligation to embark upon a search for a suitable position where substantive accommodation was impossible.