Is an employer legally obligated to consider the job application of a person that it previously fired? What if such former employee claims that his dismissal was a result of his handicap?

The Tribunal des droits de la personne (the Tribunal) recently heard a rather uncommon case1 initiated by the Commission des droits de la personne (the Commission) on behalf of a former employee of the Centre hospitalier universitaire de Sherbrooke (the Employer). A few years after his dismissal, this former employee submitted a new job application which was rejected by the Centre hospitalier prior to the interview stage. The Commission alleged that the Employer infringed the complainant’s rights to equal treatment by refusing to consider his application to work as an orderly due to his alcoholism. At the hearing before the Tribunal, the former employee stated that, since his dismissal, he had been in therapy to help him deal with his alcohol dependency, that he was regularly participating in follow-up meetings on an ongoing basis and that he had been sober since his dismissal. The Commission applied to the Tribunal for an order directing the Employer to reconsider the complainant’s application. The Employer raised an argument to the effect that the complainant had been dismissed as a result of a definitive and irremediable breach of the bond of trust between an employer and its employee.  

ALCOHOLISM IS A HANDICAP

Having reiterated that alcohol dependency represents a handicap within the meaning of Section 10 of the Charter of Human Rights and Freedoms,2 the Tribunal observed that this handicap, in conjunction with chronic absenteeism, affected the employee’s capacity to perform his work to the Employer’s satisfaction, which resulted in his dismissal in 2001, a sanction upheld in an arbitration award handed down the following year. For the Tribunal, however, the fact that the Employer had taken into account the former employee’s chronic absenteeism as one of the grounds for refusing to grant him an interview represented prima facie evidence of the existence of discrimination based on handicap. Consequently, the Employer had the burden of demonstrating that discarding the former employee’s application was reasonable and justified. A decision based on the skills or qualifications required for a position is deemed to be non-discriminatory.  

Basing itself on the reasons for judgment of the arbitration award, the Tribunal emphasized that the many acknowledged failings of the employee (unannounced and unjustified absences, breach of undertakings towards the Employer following the adoption of measures of accommodation, etc.) had persuaded the arbitrator that the dismissal was justified. It added that, when a breach of the duty to Act in good faith results in a definite severance of the employment relationship, a further employment relationship is not possible. The Tribunal considered the facts that gave rise to the application of the principle to the effect that “the prior existence of attitudes and conduct whereby an employee may have jeopardized the bond of trust established with his or her employer is relevant in the assessment of the reasonableness and proportionality of the discriminatory action taken by the employer against him or her.” Being satisfied that the Employer’s decision was based on a requirement for the position, namely regular attendance, which the job applicant was unable to meet, the Tribunal held that “where an employer has reasonable grounds for termination of employment and these same grounds also underlie the refusal to hire, which non-discriminatory grounds are based on breaches of a disciplinary nature, the sole presence of a handicap does not give rise to new rights in favour of the employee or to new duties and obligations for the former employer.”  

REASONABLE ACCOMMODATION IN THE CONTEXT OF REHIRING

In labour law, the rule against discrimination based on a ground prohibited by the Charter and the duty to accommodate apply equally at the hiring stage, during the employment period and upon dismissal.  

The Tribunal expressed its astonishment that the Commission had agreed to represent the complainant against the Centre hospitalier even though it had not done so in connection with other applications for employment made by the complainant. In the Tribunal’s opinion, these complaints were indistinguishable: as a former employer, the Centre hospitalier was not held to any more extensive a duty to accommodate the complainant than any other employer. Furthermore, the Employer, which had already taken steps to accommodate the complainant which proved unsuccessful, was in a good position to determine that he did not meet the requirements for the position. The Tribunal considered that it was not sufficient for the complainant to rely on the existence of a handicap to wipe out his previous bad record, or to suspend or neutralize the arbitration award handed down in his case and which put a definite end to the contract of employment: “The duty to accommodate is not, however, intended to distort the very essence of a contract of employment, namely the employee’s duty to perform work for compensation.” Hence, the Tribunal considered the Employer’s decision in this case, to not reopen the complainant’s file and to not pursue the rehiring process any further, to be reasonable and justified. It therefore held that the Employer had not breached the fundamental rights of the complainant as guaranteed by the Charter.

Finally, the Tribunal addressed the Employer’s duty to accommodate. It stressed that regular attendance and reliability in the workplace are requirements for the position of orderly and that there exists a rational nexus between these requirements and the duties of an orderly.

The Tribunal held that, for the foregoing reasons, the dismissal was a bar to any duty of accommodation. The Commission has appealed this decision to the Court of Appeal of Québec and we will keep you abreast of any developments.