In the recent decision Besner v Deputy Minister of Human Resources and Skills Development the Public Service Staffing Tribunal (the “Tribunal”) held it was discriminatory to lay-off a disabled employee after she was selected by the retention and lay-off process (“SERLO”).

The complainant was an Administrative Co-ordinator with Human Resources and Skills Development Canada suffering from several disabilities, including hearing impairment and anxiety. In 2008 she went on long-term disability leave, returning in June 2010. When she returned her duties had been taken over by another employee and she resumed work as a “floater”. To accommodate her disability the plaintiff was allowed to work from home and provided with the necessary computer equipment. On April 30, 2012 she was informed that a SERLO process involving her and another employee was to be conducted. The complainant was informed that she had been selected for lay-off on July 19, 2012. Her lay-off was a result of references provided by her two most recent supervisors. The references said that her work performance was poor, that she was unreliable, and that her interaction with other employees was inappropriate. A complaint was filed under the Public Service Employment Act, under which the Tribunal is granted authority to apply the Canadian Human Rights Act.

In making their decision, the Tribunal noted that a complainant need only establish that an employer’s practice is prima facie discriminatory, at which point the burden shifts to the employer to provide some sort of acceptable explanation for their practice. The Tribunal also noted that it is sufficient for the practice itself to be discriminatory, even if the discrimination is unintentional. The Tribunal also noted that the discrimination does not need to be the sole reason for the lay-off for a violation to occurr.

The Tribunal concluded that the poor references provided by the complainant’s supervisor did not take into account her disability. Because those references were relied on in making the decision to lay off the complainant, the lay-off was found to be discriminatory.

The Tribunal found that the complainant’s poor work performance was a result of her work as a floater, which required her to frequently learn new tasks. The Tribunal concluded that her frequent calls for assistance were a result of this need to learn new tasks, as well as her recurring problems with the equipment provided to allow her to work from home. Her inappropriate interaction with other employers was found to be a result of her disabilities, which sometimes caused her to raise her voice without realizing it. The employer’s failure to account for these factors in applying the SERLO process was found to have resulted in the complainant’s lay-off.

This case serves as a reminder that an employer’s action, particularly in the area of lay-off and termination, can be found to have a discriminatory effect even when their intention of the employer is not to discriminate. While the employer had set up what was intended to be an objective system for making lay-off determinations, the employer was found to have failed to take proper consideration of the complainant’s disability in the SERLO process and this in itself was found to have a discriminatory effect.

A key learning from this case is that employers should be very careful when making personnel decisions on the basis of performance to consider and take account of an employee’s disability. Failure to do so could result in the employer’s decision being impugned, with a risk of re-instatement or a damages award.