Employment law and human rights law have protections for employees who take time off work because of injuries or sickness. Physical or mental disability is also a protected ground and cannot be a reason or a factor in dismissal. An employer that dismisses an employee on these grounds may be found liable for discrimination and wrongful dismissal.

However, an employer may dismiss an employee who is not competent to perform the job duties even though he or she may be affected by a disability or is on medical leave, as long as it can be demonstrated that the disability or leave does not play a role in the dismissal. The British Columbia Human Rights Tribunal’s decision in Whitmore v. Dr. J. T. Kelsall Inc. and another, 2017 BCHRT 114 provides such an example.

Discriminated against or terminated for cause?

About 14 months into her employment, Ms. Whitmore, a medical office assistant, suffered a medical problem that required corrective surgery. She was hospitalized and was absent from work on medical leave. It appears undisputed that at this time Ms. Whitmore’s employer assured her that her employment was secure.

Ms. Whitmore attempted to return to work twice from medical leave but was not well enough to do so. Her employer proceeded to hire a temporary medical office assistant.

Ms. Whitmore and her employer subsequently agreed on a one-day “trial work period” in the office to determine whether Ms. Whitmore was fit to return to work. Three days after the trial, Ms. Whitmore was dismissed from her employment.

Ms. Whitmore filed a complaint for discrimination contrary to section 13 of the British Columbia Human Rights Code. She claimed that her employer discriminated against her on grounds of physical disability by terminating her employment while she was on medical leave due to a disability.

In response, the employer claimed that Ms. Whitmore was accommodated with medical leave and was dismissed solely based on performance.

Timing of termination outweighed by history of poor performance

The evidence suggested that at various times, Ms. Whitmore’s employer raised serious concerns about her performance. These concerns included that Ms. Whitmore could not be trusted to maintain necessary documentation, she had difficulties in scheduling patients, and she would not follow the procedures laid out by her employer.

During Ms. Whitmore’s absence from work, the employer discovered that a number of patients had been incorrectly booked and that Ms. Whitmore had failed to respond to requested consultations from other physicians. Also, the temporary medical office assistant discovered approximately 350 unsent faxes in the office fax machine. The faxes contained consultation reports to other physicians with important information about patient diagnosis and treatments, as well as requests for special medications. The evidence suggested that Ms. Whitmore used erroneous fax numbers and did not check whether the faxes had been sent.

Additional issues relating to billings, bookings and referrals were raised during the one-day assessment, for which Ms. Whitmore refused to take responsibility.

The Tribunal concluded that Ms. Whitmore’s assertion that her disability was a factor in her dismissal did not “rise above the level of speculation or conjecture”. The timing of her dismissal was the only element that seemed to support her claim. However, based on the circumstances and the overwhelming evidence relating to her job performance issues, timing alone was insufficient to prove discrimination. The Tribunal dismissed Ms. Whitmore’s complaint.

Best practice for employers

The Tribunal’s decision reaffirms the importance for employers to track employee performance. Where there are issues of concern, an employer should provide sufficient warnings and give the employee an opportunity to improve. If the employee remains unable to competently perform his or her job duties, then the employer may have just cause for dismissal. Alternatively, if just cause is too difficult to prove, the employer may simply terminate without cause and provide sufficient notice or pay in lieu of notice.