Employers will pay for ignoring disabilities: Alberta Human Rights Commission

Gregg v. CanWel Building Materials Ltd.

An individual’s battle with alcoholism featured in the recent Alberta Human Rights Commission (AHRC) decision Gregg v CanWel Building Materials Ltd. In this case, an employee was fired over his workplace absences related to alcoholism.

The AHRC awarded the plaintiff $25,000 for his pain and suffering, as well as 4 months’ lost wages.

Facts

• Mr. Gregg worked as a forklift operator and warehouse person for CanWel Building Materials. He held a contract position through a temporary employment agency.
• Gregg became a full-time employee in the same role at the company on February 1, 2016. This happened months into his temp role.
• After he became a full-time employee, Gregg had numerous absences. These often occurred on weekends and close to payday.
• Prior to his absences related to alcoholism, Gregg did not have work performance issues, and wasn’t under the influence of alcohol in the workplace.
• The company’s policy requires workers to notify the employer at least one hour before their shift if they are unable to work. Gregg’s supervisor claimed that the plaintiff failed to provide proper advance notice for some of his absences, though no records of these violations were kept.
• The company verbally warned Gregg about his absences prior to termination. The AHRC did not dwell on Gregg’s failure to call in prior to his absences per company policy; CanWel didn’t include this in their response to Gregg’s human rights complaint.
• CanWel fired Gregg in a meeting on May 6, 2016. He had been a full-time employee for three months. A termination letter was provided, but did not contain the reason for his termination.
• Gregg remained unemployed for 16 months after his termination. The AHRC noted negligible proof of job search efforts.

Commission’s Decision

Based on the testimony from Gregg and representatives of CanWel, the AHRC found that Gregg was an alcoholic, which is a disability under the Alberta Human Rights Act. There was a lack of evidence in this case overall, but it was not absolutely required for the decision.

The commission considered Gregg’s argument that he told CanWel about his addiction before his termination, and intended to attend Alcoholics Anonymous (AA). On the date of his termination, the plaintiff said he expressed his desire to CanWel to seek help for his addiction. Gregg’s supervisor insisted that the plaintiff mentioned his alcoholism about six weeks prior to his termination, which was reported to a higher manager. Though his supervisor suspected his addiction was causing his absences, he maintained Gregg did not note his alcoholism on the day of his termination.

The AHRC found that it was improbable that Gregg would have disclosed his alcoholism when there was no immediate disciplinary action, but would have failed to do so on the day of termination, particularly given his desire to return to AA. The commission concluded that Gregg did request support for his disability on the termination date.

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Consequently, the AHRC saw Gregg’s alcoholism as a factor in his termination. CanWel was aware of Gregg’s addiction but failed to inquire about any possible accommodations, choosing instead to fire him. This amounted to discrimination based on a disability.

The AHRC awarded Gregg $25,000 for the shame and worthlessness he suffered over his 16 months of unemployment. This situation was made worse by CanWel’s insistence to the point of the AHRC hearing that Gregg did not disclose his alcoholism and was simply seeking compensation he did not deserve.

The AHRC also awarded 4 months of lost wages, even though Gregg was unemployed for 16 months. The commission said there was a considerable lack of evidence of his job search efforts. They were also unsure if Gregg would have been able to maintain his addiction recovery over the entire 16 months.

Lessons for Employees

• Addictions are a disability: Employees in Alberta receive protections through the Alberta Human Rights Act to ensure they are accommodated to the greatest extent possible. If your employer has discriminated against you because of your addiction, contact an employment lawyer at Samfiru Tumarkin LLP for help.
• You have a duty to find a new job: Despite his addiction and its impact on his ability to search for new employment, Gregg received only 4 months in lost wages. This demonstrates the importance for employees to maintain records of their job search efforts. An employer must establish a poor job search (otherwise known as a failure to mitigate); this decision places some of the onus on employees.

Lessons for Employers

• Disabilities must be accommodated: Gregg was able to establish his alcoholism without any documented evidence – medical or otherwise. This is a lesson for employers to treat disclosure of addiction, or any other protected ground, seriously. Companies must look into potential workplace accommodation and consider the implications if they do not. Damages of $25,000 are quite high based on Alberta measures; this decisions shows that the AHRC responds accordingly when employers don’t adequately address disabilities.
• Keep records of employee absences: Employers should establish detailed records of their employee’s work habits. This includes cases where the employee is late or unexpectedly absent from work. These records lend support to a company’s decision to fire an employee.