The Importance of Real Time Discipine
In the real world, employees are never perfectly behaved. There are inevitably issues that arise with performance from time to time, whether because of a conflict with new management, personal stress, mental health issues, or any other cause. Even the best employees can stand to improve at times, and the worst performing ones can be problematic for a business.
So what should you do about an employee who is not performing at a satisfactory level? The answers may be straightforward, but the costs of doing nothing can be significant.
In a recent decision from the Human Rights Tribunal of Ontario, an employer testified that they had had issues with a certain employee’s performance, but never documented those issues or handed down any concurrent discipline. When they eventually did terminate his employment, it was only after he sustained a serious injury, and the Tribunal’s decision shows that the employer’s poor timing was ultimately a costly mistake.
In the case of Zameel v. ABC Group Product Development, 2023 HRTO 533, Mr. Zameel began working for the employer as an IT Operations Manager in April 2017. It was a well-paid position, with a 5% bonus, as well as benefits coverage. His employment was terminated at the end of November of that same year, allegedly due to “unsatisfactory performance.”
In October 2017, several weeks prior to his termination, Mr. Zameer was in a serious motor vehicle accident and was hospitalized. He took one week off as sick leave but then returned to work while still on heavy medication for pain. After a few weeks of attempting to cope, he applied for short-term disability benefits on November 21, 2017.
In the medical documentation he provided in his application, the physician noted that Mr. Zameer had experienced severe pain. It also noted that the “patient is not totally disabled, needs modified work hours,” and he submitted a second note from an additional physician as well that reached the same conclusion. He ultimately applied for part-time short-term disability leave, but only learned of his denial after his termination.
In his testimony, the vice president of IT at the company noted that Mr. Zameer had performance issues dating back to May of that year and that he wanted to give him more opportunities to improve before terminating his employment. He cited several examples of Mr. Zameer failing to complete projects, doing poor work, and being difficult with both colleagues and customers.
However, despite testimony that there had been several verbal conversations with Mr. Zameer about his performance issues, no written warnings or performance improvement plans were ever issued. They had claimed that the decision to terminate was made on November 15. However, given the timing in relation to his injury, Mr. Zameer alleged that his termination was discriminatory on the grounds of disability.
The Tribunal’s decision explains that it is Mr. Zameer’s responsibility as the applicant to establish that there was a ‘prima facie’ case of discrimination – that is to say that he has a characteristic protected under the Human Rights Code (in this case, disability), that he experienced adverse treatment, and that his protected ground was a factor in this treatment. From there, the onus is on his employer to prove, on a balance of probabilities, that this was not the case.
The Tribunal was satisfied that Mr. Zameer had established his prima facie case of discrimination based on disability. He was told that he could apply for STD leave following his accident in October, the decision to terminate his employment was made several weeks later, and he received his termination letter just one week after applying for his disability benefits.
The Tribunal notes that the “threshold for establishing a prima facie case of discrimination is not high” and that “discrimination is often not overt.” In other words, the employer’s actions do not need to be outwardly discriminatory, and the discrimination does not have to be the only reason for the termination, in order for a termination to be discriminatory.
In this instance, the employer was clearly informed of Mr. Zameer’s condition, including in an email to the Company’s human resources manager on November 22 clarifying the nature of his condition and the accommodations he was seeking. The employer further did not make any efforts to accommodate his condition, and instead ended his employment.
As the Tribunal cited from a previous ruling, “the lack of a reasonable explanation for the timing of a termination of employment is a factor to consider when determining whether that termination was influenced by a prohibited ground of discrimination.” Moreover, the Tribunal ruled that there was no contemporaneous documentation about Mr. Zameer’s performance, such as reviews, warnings, or a performance improvement plan. That lack of substantive evidence calls their assertion that he was not a “good fit” into question.
The Tribunal ultimately awarded Mr. Zameer compensation on two grounds – $30,000 for injury to his dignity, feelings, and self respect, and an additional $50,000 for wage loss and the loss of his STD benefits.
The lesson here for employers is crucial. When it comes to human rights issues and allegations of discrimination, the Tribunal naturally favours applicants and has implemented measures to reduce the barriers to making and supporting a claim. So long as the employee fulfills their part, the employer is left on the defensive.
The employer here made some crucial mistakes in their timing. If the employee’s performance was as poor as alleged, notes in his personnel file, warnings, or some sort of discipline history would have substantiated those assertions. While the employer may have acted in good faith by giving the employee time to improve, the lack of documentation was ultimately harmful to their case.
Lastly, the timing of the termination was a critical flaw. If the employer had not known of the employee’s injuries, or the employee had not sought any accommodation, that may have been a very different story. Instead, the termination was issued only days after requesting said accommodation, which clearly left the employer open to a claim of discrimination. Given the timing, the warning signs of inviting such a claim were abundantly clear.
It is crucial that employers take real time notes, both about performance issues and about any needs for accommodation or other potential human rights issues. Decisions about termination must be made in the context of their circumstances, and doing so almost immediately after an employee requests disability accommodation is decidedly poor timing.
We regularly advise employers in these challenging situations about how to proceed with their next move. Even if an employee’s performance is troublesome, any decisions about discipline or termination can become infinitely more complicated in light of a protected human rights ground, especially disability. For more information, contact our office today to set up a consultation.