IV. Human rights issues at all stages in employment

There are many instances when it will be appropriate and non-discriminatory for an employment relationship to end, whether through termination, layoffs, surplus decisions, early retirement or an employee’s resignation. In all of these, a key consideration is to make sure that the end of the employment relationship is not linked to, based on or tainted by discrimination. This consideration applies even if employees are dismissed during a probationary period or are not retained at the end of a probationary period.

Example: An employee asks for time off as an accommodation of her family status and disability-related needs during her three-month probation period. It would not be acceptable for the employer to take this into account and decide not to keep her on staff when her probation ends.

A best practice is for employers to use anonymous exit surveys or exit interviews to get feedback from employees who leave, resign, are laid off or whose employment is terminated. They can help employers determine whether discrimination, harassment or a failure to accommodate were factors in an employee leaving.

a) Resignation and constructive dismissal

The fact that an employee has resigned does not shield an employer from liability for any discrimination that person may have experienced in the workplace. If a person resigns because of discriminatory practices, the employer needs to take steps to address and prevent such practices. A court or tribunal may find that employees who quit because they refuse to endure a poisoned work environment have been constructively dismissed.

The Commission has heard of cases where employees are given the opportunity to avoid termination by choosing to voluntarily leave employment. If there are any Code-related reasons for the suggestion that the employee should leave, this would be discriminatory even though it might be argued that the employee left voluntarily.

Where an employee resigns suddenly in circumstances that indicate the employee’s decision may be affected by a mental illness or other disability, the employer should take steps to determine whether any accommodation is needed before accepting such a resignation. Even if no accommodation is sought, the employer should make sure that the employee understands the implications of the decision, has time to reflect, and is able to rescind the resignation within a reasonable period of time.

Example: An intern at an investment company announces her intention to drop out of the program mid-year and to forgo a lucrative opportunity to join the company on a permanent basis the following year. The HR manager suspects that the intern may be depressed or experiencing some sort of mental illness, because of recent performance problems and illogical statements about preferring a job picking up litter on the street. Despite this, the company acts to quickly finalize the paperwork and confirm the employee’s resignation before she changes her mind. When the intern realizes she has acted rashly, she asks to rescind the resignation and is told it is too late. The company would be vulnerable if the employee filed a human rights claim.

In some cases, an employee’s resignation or an employer’s actions may be viewed as amounting to “constructive dismissal.” If a tribunal or court makes this finding, an employee would be entitled to all the remedies available if they had actually been terminated from employment.

Example: An employee returning to work after a disability-related absence is told that his position of VP Finance has been given to another employee. He is told that if he wants to return, he must accept a junior management position, with less pay and responsibility. The employee resigns and files a human rights claim. The employer may be viewed as having failed in its duty to accommodate and the employee would be entitled to both damages for the loss of dignity (general damages) and the loss of employment (specific damages).

Example: A female employee is the victim of a sexual assault in the workplace by a male customer. Her employment is suspended pending the outcome of the investigation and criminal proceedings. This process takes over two years. This would be considered a discriminatory termination of employment.

Example: When leaving for maternity leave, a female employee is asked to pay for her medical insurance. When she returns, she is given a position at a lower pay rate and classification and so she resigns. Male employees who have been off for medical leaves of similar length were not treated the same. The employee would likely be seen to have been constructively dismissed and would be entitled to compensation under the Code on that basis.

b) Terminations

Discriminatory termination from employment is alleged by a large percentage of people who have filed employment-related human rights claims based on employment. Some employees may assert their rights while employed. More often, employees cope with workplace discrimination and harassment until the employment relationship ends, and then file a claim seeking compensation for a range of discriminatory situations that occurred during the course of employment. In other cases, employees may feel that they have been treated fairly in employment until the actual event of their termination from employment or the later steps of re-filling the position are complete. For some, the way the termination is done is viewed as discriminatory.

Where an employee, identified by Code grounds, is let go and that position is filled by another employee who is not similarly identified by Code grounds, an inference of discrimination is raised. This inference may be stronger if the employer provides a neutral excuse for termination such as a branch-wide reorganization, but the evidence shows that no such reorganization has taken place.

Example: A 69-year-old salesperson with excellent performance is terminated from employment. Although he is told that his position is being made redundant, he finds out through the “grapevine” that he has been replaced by a younger single man who is viewed as having greater career potential.

Example: A woman asks for and receives accommodation of her family status in the form of flexible work hours to provide care for her mother and her son, both of whom have severe medical needs. After several months of this arrangement, the employee is fired because her productivity is lower than the other staff and she is told that this is part of a larger staff re-organization. No other staff are let go, and a man, who is known in the office as a workaholic, is appointed to fill the same position.

As was noted earlier in relation to discipline, many human rights claims arise from situations where disciplinary measures, including termination, are applied unevenly or disproportionately to persons identified by the Code.

Example: Two daycare employees are responsible for looking after 10 preschoolers. An accident takes place and neither of the staff fills in the required incident reports. The racialized employee is fired while her White co-worker, who has the same spotless disciplinary record and level of responsibility, receives a written warning.

The actual termination of employment must be done in a way that is consistent with the Code and that respects the employee’s dignity. Acts such as refusing to complete termination documents or withholding an employee’s access to statutory entitlements, such as severance pay or termination pay because of Code grounds, constitute breaches of the Code. See also Section IV-13b(viii) – “Manner of termination.”

i) Firing a probationary employee:

Many employers wrongly believe that they are allowed to let an employee go for any reason, including those relating to Code grounds, during a probationary period. Similarly, they expect that any compensation owing to such an employee under human rights legislation would be minimal. This is not the case.

It is not a defence to a claim of discrimination that an employee is on probation. A person who is let go or terminated from employment either during or at the end of a probationary period, as a result of discrimination or the consideration of discriminatory factors, is entitled to file a human rights claim and seek remedies, including damages.

A recent decision of the Human Rights Tribunal of Ontario shows the significant consequences that could result from the discriminatory treatment and termination of a newly hired probationary employee. In Lane v. ADGA Group Consultants Inc.,^[89] a probationary employee was fired after only eight days of work for reasons linked to his mental disability. The order required the respondent to:

• pay the employee $35,000 for infringement of his rights under the Code (general damages), damages for mental anguish (amounting to $10,000), and almost $35,000 in special damages for the loss of salary that resulted from the violation of his rights
• pay pre-judgment interest on these amounts from the date Mr. Lane filed his human rights complaint, and post-judgment interest on the entire award from 30 days after the date of the award;
• retain a qualified consultant at its own cost to train employees, supervisors and managers on the Code and mental health accommodation;
• establish a comprehensive written anti-discrimination policy within three months, post it in plain and obvious locations where it does business, and include it in employee orientation materials. The respondent is also required to provide copies of the policy with any request for proposal response that it submits.

ii) Behaviour and links to Code grounds:

Where a poisoned environment exists, and a person’s employment is terminated, that termination will be considered in the context of the poisoned environment.^[90] Before terminating employment for behaviour including insubordination or outbursts in a workplace, an employer should exercise due diligence in determining whether a poisoned environment or unresolved discrimination may have contributed to the situation. A tribunal will take into account the existence of a poisoned environment when assessing whether the termination was discriminatory or not.

Example: An employee is fired because of a disciplinary record of conflict with other employees, despite evidence to suggest that such behaviour was a response to discriminatory treatment by other employees. A dismissal in these circumstances has been found to be discriminatory.

Employees with mental disabilities are particularly vulnerable to termination. In many cases, an undiagnosed mental disability may affect a person’s work performance. An employer is entitled to expect that work performance standards will be maintained and that a safe work environment exists for all employees. However, accommodation must be provided before an employee can be assessed as being able or unable to meet such standards. The employee’s performance expectations should be addressed as part of the accommodation dialogue.

iii) Mental disability and perceived risks to other employees:

In some cases, an employer may feel that there are risks to other employees relating to an employee’s mental disability that are so severe that termination is warranted. The employer may, in some cases, legitimately take action to protect employees, but any actions must take into account the duties and obligations to the employee with the mental disability.

Example: An employee has made bizarre statements to a number of female staff and leaves letters expressing love for them outside their lockers. These women have complained to management. The employer asks the employee to attend a medical exam with its doctor because they fear that a mental disability may be causing the recent behaviour. Medical documents show that the employee has a serious mental disability that is made worse by stress, and that he has obsessive compulsive thoughts about the female staff. The employer warns all female staff about the employee and terminates his employment one week later to prevent the risk of escalating sexual harassment. This employer may be seen to have contravened the Code (poisoned environment and termination without having accommodated).

Example: Another employer dealing with the same situation notes that the employee has recently been performing extra tasks, and wonders whether this may be adding to the employee’s stress. This employer quickly gets consent and speaks with the employee’s doctor, to get a realistic assessment of the risks to the female employees and to work out appropriate accommodation. In consultation with the doctor and the employee, the employer arranges for the man to have paid time off to rest and receive treatment. On his return, accommodations are put in place to enable him to successfully manage his workload and his disability. The rights of all staff are respected.

If the employer has followed the advice of the employee’s doctor and expert opinions (where necessary) and provided the recommended accommodations and yet, objectively, significant risks to other employees remain, it will likely not be discriminatory for the employer to act to lower those risks. However, the employer would still be expected to accommodate and the least discriminatory alternative should be used. For example, the employee may be put on short-term or long-term disability leave with regular assessments of his ability to safely return to the workplace.

If the employee’s prognosis does not change and it appears, based on medical evidence, that he will be unable to return to his job even after a long absence, the point of undue hardship may be met. However, an employer should be patient and prudent when letting go an employee with a mental disability who is on an extended leave. Many employers move to terminate far sooner than they should, and well in advance of reaching the point at which a human rights tribunal would find undue hardship. See sectionvi) ”Automatic termination provisions” and section vii) “Termination during or after a Code-related leave” below.

iv) Absenteeism:

It is contrary to the Code for an employer to fire an employee because of accumulated absences unless the duty to accommodate has been met. When deciding to terminate an individual’s employment, it is discriminatory to take into account Code-related absences unless the employer can show that accommodating the employee by allowing for additional absences would amount to undue hardship. See also Section IV-11d(i) – “Accommodate before disciplining for absenteeism,” Section IV-13b(vi) – “Automatic termination provisions” and Section IV-13b(vii) – “Termination during or after a Code-related leave.”

v) Poor performance that may be linked to Code grounds:

Employers should not terminate employment for poor performance that may be linked to a Code ground, unless they have provided Code-related accommodation to the point of undue hardship (see Section IV-8 – “Meeting the accommodation needs of employees on the job”), and have provided a non-discriminatory work environment.

Example: After six years of stellar performance, a female employee from Portugal starts making numerous mistakes causing major production delays. It is common knowledge in the workplace that the new manager hired three months ago has a bad temper and that he “takes it out on” female employees who speak English as a second language. The employee is told that her employment will be terminated and in response she raises the discriminatory work environment as the reason for the decline in her performance. The employer would be expected to take steps to investigate, address the discrimination and prevent further discrimination instead of proceeding with the termination.

Employees with mental disabilities are particularly vulnerable to termination. In many cases, an undiagnosed mental disability may affect a person’s work performance. An employer is entitled to expect that work performance standards will be maintained and that a safe work environment exists for all employees. However, accommodation must be provided before an employee can be assessed as being able or unable to meet such standards. The employee’s performance expectations should be addressed as part of the accommodation dialogue.

vi) Automatic termination provisions:

Some employers and unions may put in place agreements that provide that after a specified length of absence from the workplace, an employee will lose his or her seniority and/or employment. The Supreme Court of Canada has said that having such a provision in a collective agreement or other agreement is not discriminatory, and that such a provision applies only if it meets the duty to accommodate in the particular circumstances.^[91] In that case, a 15-year employee had been off work for three years and there was no indication that she could return to work in the foreseeable future.

In each case, whether or not there is an automatic termination provision in place, the employer and the union will be expected to assess each employee individually and to evaluate the circumstances against the standard of undue hardship.

Example: A workplace agreement provides that an employee who is absent from work for three years may be terminated from employment. Bob has been off work due to surgeries and treatments for two years and 11 months. He has just been given full clearance to return to his regular position, shortly after the three-year anniversary of the start of his leave. The duty to accommodate Bob will likely require that the employer not apply the three-year cut-off, subject to evidence of undue hardship.

Example: Bob’s co-worker Ellen went off on a disability leave around the same time as Bob. Her specialist’s opinion is that she will be unable to return to any position at the company at any point in the future, even with accommodation. The provision in the collective agreement is applied and Ellen’s employment ends at the three-year mark. This would likely be viewed as non-discriminatory.

An employer is not expected to retain an employee in the workforce for an indefinite period, if there is no expectation that the employee will be able to return to work in the future. On the other hand, even if an employee has been absent for a long time, if the costs associated with that absence are not unreasonable, the employer will not be able to show undue hardship.

Example: A long-term employee is absent from work for two years due to kidney failure. There is an estimated one-to five-year wait for a kidney transplant but the potential for complete recovery following the transplant. The employer sought to end the employment relationship alleging undue hardship based on a provision in the collective agreement allowing for termination after two years. A labour arbitrator found that the requested accommodation did not amount to undue hardship, as the cost to the employer was only that of maintaining the employee’s health benefits, a sum of approximately $300 per month.^[92]

See also Section IV-13b(iv) – “Absenteeism,” Section IV-11d(i) – “Accommodate before disciplining for absenteeism” and Section IV-11d) – “Attendance management programs and policies.”

vii) Termination during or after a Code-related leave:

An employer should be cautious about terminating the employment of a person who is on a Code-related leave. While there may be legitimate reasons for making such a decision, the onus will be on the employer to prove that discrimination was not a factor if a human rights claim is filed.

Example: An employee suddenly begins a disability leave after a work-related car accident. Four days later, he receives a letter of termination. The employer states that the decision was made based on poor performance before the employee’s injury and that he decided to go ahead with it despite the turn of events. This scenario raises an inference of discrimination that the employer will need to overcome.

Even if there are legitimate reasons for a termination, a finding of discrimination may be made if the fact that the person was on leave was taken into account in any way. For example, a department re-organizes and positions are assigned to people who show the most enthusiasm and interest. Even if consulted over the phone or in writing, employees who are on leave will be disadvantaged in this process. These kinds of concerns are discussed further in relation to restructuring and downsizing in Section IV-13c) – “Restructuring, downsizing and layoffs.”

An employee cannot be terminated, demoted or laid off because she was pregnant or has taken a maternity leave. As well, an employee, male or female, who has taken parental leave or disability leave has the right to return to his or her job, receive benefits and not be passed over for opportunities such as training and assignment projects. The fact that the position had to be refilled during the employee’s absence is not a full defence to a claim of discrimination, and this kind of scenario rarely amounts to undue hardship. An employer is expected to back-fill the position on a temporary basis.

Example: An employee is off work for 14 months due to a combination of disability leave and pregnancy leave. The employer posts and fills this vacancy as an internal position of a year with possible month-by-month extensions. The successful candidate is told that the position “belongs” to another employee and that this is only a short-term contract. When the first employee gives notice that she is returning to work, the employer tells the employee the date on which the short-term secondment will end. The employer has fulfilled its obligations under the Code and its legitimate workplace needs.

Employees returning from leave related to Code grounds such as family status, marital status, disability and sex (including pregnancy and gender identity) are often vulnerable to discriminatory actions. Employers should be careful when considering terminating the employment of employees returning from leave, as there are many cases where such terminations have been successfully challenged as discriminatory.

Example: An employee advised her employer that she was taking time off work to undergo sex-reassignment surgery. The employer granted the employee the time off but when the employee returned to work after the surgery, she was fired. A link was found between the firing and the employee’s transition, which was protected under the Code ground of sex.

viii) Manner of termination:

Human rights complaints may also arise from the manner of termination. It is wise for an employer to make sure that an employee is treated with dignity, respect and access to necessary supports when ending the employment relationship.^[93]

Example: An employee requested modified duties or an alternate work assignment as an accommodation of her disability-related needs. The employer did not consider accommodation. In response to her request for an appointment to discuss modified duties, a meeting is set up and her employment is terminated by a person that she barely knew, had never worked with, and who did not investigate any job opportunities that might have been available. A tribunal orders $25,000 for the loss of dignity arising from this termination.

Where the employer suspects that an employee may be displaying symptoms of mental illness, it is particularly important that appropriate supports be put in place before firing the employee (if the employer has accommodated the employee and there are legitimate non-discriminatory reasons for the termination). This is in the interests of both the employee and the employer. On the other hand, if the reasons for termination are discriminatory, the employer may be ordered to compensate the employee for the losses that resulted from the manner of termination, along with any other discrimination that may have been found.^[94]

Example: An employee with a mental illness is fired. Even though the employer is aware that he is having difficulties linked to his disability, the employer does not notify the employee’s doctor or wife that he is being fired. The employee experiences significant distress and ends up being hospitalized. Ultimately, he is unable to work for many months. In awarding remedies, the impact on the employee is taken into account and the employer is required to pay a substantial amount in damages to the employee, including damages for mental anguish.

c) Restructuring, downsizing and layoffs

While organizations may have a legitimate need to reorganize, restructure or downsize their operations, they need to ensure compliance with the Code when moving ahead with such business plans. Persons identified by Code grounds should not be singled out for layoffs or otherwise treated differently when deciding which employees should be retained and which should be laid off.

Example: In a reorganization, a company dismissed a number of women who had recently returned from maternity leave. This decision was driven by a desire to create a core workforce for the future and based on a perception that women with young children were more likely to leave. This was found to be a genuine case of discrimination.

Example: Due to an economic downturn, a company was forced to lay off staff. Two foremen, one 56 and the other 57 with over 32 years service were selected for termination. Both were offered a generous retirement package. The two foremen who remained were younger than the two released. The vice-president had prepared a note indicating that the two older workers who were terminated were told of the need to reduce people and that they “hoped to keep people with career potential.” This was age discrimination because of the good employment record of the complainant, the ages of the people selected for layoff compared to the persons retained, and the employer’s statement, which was found to refer indirectly to age.

Example: As a cost-cutting measure, a company’s restructuring plan provides for all employees on any kind of medical leave to be terminated from employment while other employees are retained. This would contravene the Code, even if this is done in accordance with other legislative requirements (such as under the Employment Standards Act or the Companies Creditors Arrangement Act ).

Subjective and informal systems for ranking employees for layoffs may disadvantage persons identified by the Code and result in discrimination claims. A better approach is to clearly set out a process and criteria for making layoff decisions, and to apply this consistently. Criteria should be objective and not based on subjective impressions about the particular worker’s enthusiasm, flexibility, willingness to adapt or career potential. They should be related to the goals of the reorganization or the needs that have been identified by the company. Ideally, positions, rather than people, should be chosen for elimination and those positions should not later be refilled.

Example: A company decides that due to decreased profits and the need to be more competitive in the marketplace, it will introduce a new, more automated production system. It identifies the number of positions that will need to be staffed and what the duties of each will be. It also identifies the current positions that will no longer be needed and why. It advises each person whose position has been declared redundant of this fact and how this decision was reached. It then invites all of these persons to compete for the new positions. It runs the competition using objective, neutral criteria unrelated to Code grounds, and uses a scoring system that measures each candidate against the same stated criteria. Accommodation is provided when necessary. Past performance reviews are taken into account. The candidates with the best scores are selected and sent for training.

If qualifications are taken into account in making decisions about layoffs, they should be objectively evaluated. Concern about lay-off decisions may arise when an objective evaluation shows that employees identified by Code grounds are laid off while others with fewer qualifications are retained. This may be linked to a tendency to undervalue the strengths and contributions of racialized employees^[95] or people identified by other Code grounds.

Example: A Chinese Canadian teacher is placed on a surplus list because the school principal takes a narrow view of what types of activities qualify as “extra-curricular.” Activities that Chinese immigrants would be unlikely to do are included, while other activities that they would be more likely to do are not. This is found to amount to discrimination.

Where employees are recalled to work following layoffs, work should be offered to all qualified employees without regard to whether they are temporarily unavailable due to a Code-related leave.

Example: An employer does not recall an employee for work because she is on maternity leave. The employer takes the position that all employees on leave were not recalled and therefore there is no discrimination. This rule has an adverse impact on women who are unavailable due to pregnancy, and on employees who are on leave for other Code-related reasons such as disability. It is not found to be a bona fide occupational requirement.

When an organization is planning for restructuring, possible human rights implications may be identified by considering the following questions:

• What is the purpose of the restructuring and how can this be achieved without having a discriminatory impact on staff?
  • What criteria will be used to identify which staff will be laid off?
  • How will the restructuring affect staff?
  • How can the principles of inclusion and accommodation be built into the process?
  • Will there be any negative impact on staff who may be protected by a ground under the Code?
  • What measures can be put in place to address this?
• Are any employees away from work because of pregnancy, disability or other Code grounds?
  • Has the impact of restructuring on them been considered?
  • Will these employees have the same opportunity as other employees to be retained on staff?
  • What measures can be put in place to make sure that employees on leave are not disadvantaged in the process?
• Is the workplace unionized?
  • What is the union’s role?
  • Are there any human rights protections in the collective agreement that should be taken into account?

Exploring the answers to these questions may reduce the likelihood of an unintended discriminatory outcome and related human rights claims. See also Section IV-2a(ii) – “Taking a proactive approach to bona fide requirements.”

d) Retirement

i) Early retirement incentives and packages:

Organizations will often offer employees "early retirement" packages in the course of restructuring and/or downsizing, as an incentive to promote voluntary exits from the workforce. This can have many benefits to all workers: older workers may be offered a lucrative incentive that will allow them to pursue other interests or ambitions while at the same time making sure that fewer workers will involuntarily lose their jobs.

When designed properly, early retirement schemes are appropriate and will not raise human rights concerns. However, as early retirement schemes by definition target older workers, great care must be taken in using them to meet downsizing objectives.

The fact that a generous retirement package is offered will not defeat a claim of age discrimination if the early retirement option was not truly voluntary (in other words, if there is direct or implicit pressure being applied to accept retirement).

Example: A company decides that it needs to reduce its workforce by 10%. Human Resources reviews all employee files and identifies all workers over the age of 60. Each of them is called in for a meeting with management and told that they are nearing retirement age, and should accept an early retirement package so that younger persons won’t lose their jobs. They are warned that if they do not do so, their position may be selected for elimination, in which case they will simply receive severance and lose the opportunity to receive the early retirement package. Under these circumstances, some older workers feel compelled to accept the offer, even though they were planning to work longer. This may result in a human rights complaint.

Employers can take steps to make sure that an offer of early retirement is not coercive:

• Define the eligibility criteria for the voluntary retirement program and share them with all staff, no matter what their age, through a neutral medium such as a written document. A response deadline and a contact who can provide information should be provided so that people who qualify and are interested can decide if they wish to follow up on the offer, without any pressure from management. Some employers even choose to offer similar voluntary exit incentive packages to persons who are not near retirement age.
• Do not make any link between accepting the package and job loss. If the workforce is being downsized, indicate what the criteria will be for selecting the jobs that will be eliminated. Employees can even be assured that eligibility for the voluntary exit program will not influence decisions about job loss.

On the other hand, an employee cannot claim age discrimination if the employer does not offer him or her access to the voluntary exit program because the employer still requires his or her services.

ii) Mandatory retirement:

Before December 12, 2006, the Code did not prohibit age discrimination in employment against persons aged 65 or older. As a result, policies requiring mandatory retirement at age 65 could not be challenged under the Code. This is now no longer the case. Persons aged 65 and older who believe that they have been discriminated against on the basis of age, including through mandatory retirement policies, can file a complaint of discrimination on the basis of age.

This does not mean that employers cannot have retirement programs based on a certain age. Instead, it means that such programs cannot be mandatory, except for judges, masters and justices of the peace under the Courts of Justice Act. These jobs have a specific exemption under the Code.

In some occupations, employers may wish to impose mandatory retirement on workers who reach a certain age. For this not to contravene the Code, the employer must be able to prove that being less than that age is a bona fide or genuine requirement. For example, mandatory retirement policies relating to age have been found to be bona fide requirements in the following
circumstances:

• age 60 for police officers, fire fighters and a Chief Fire Prevention officer
• age 65 for a school bus driver, where expert medical evidence indicated that, as a group, people over 65 are more likely to have accidents, and that it is impossible to test individually to determine who is likely to have health problems or create risks for others.

In light of the Supreme Court of Canada’s three-step test, discussed in detail in Section IV-2a(i) – “Test for bona fide requirement,” it is not acceptable to rely on presumed group characteristics associated with aging. An employer seeking to justify mandatory retirement at a certain age must show that individual assessment, as a form of accommodation, is not possible. The evidence must show that there is no method to do so, or that individual assessment represents an undue hardship. The employer bears the onus of establishing that its policy is justifiable in the circumstances of its workplace.

Except in circumstances where mandatory retirement can be shown to be a bona fide requirement, collective agreements containing mandatory retirement provisions can no longer be enforced.

iii) Equal treatment for persons on leaves:

When making offers of early retirement, buy-out packages or making changes to employment related benefits, such as retirement health care benefits and pension benefits, employers must make sure that employees are not denied equal treatment because of Code grounds, and that all employees are fully advised of their rights and entitlements. This obligation applies even to employees who are off on leaves due to Code grounds such as sex (pregnancy), family status or disability (including sick leave, WSIB, long-term insurance plan benefits and /or any other disability related paid or unpaid leave).^[96]

Example: Before a plant closure, an employer and a union reached an agreement setting out a scheme for claiming and receiving pension benefits for three classes of employees: (1) people who had more than 30 years of service, regardless of age; (2) were between 60 and 64 and had 10 years or more of service, and (3) were either permanently or totally disabled and had 10 years or more of service. Specific provisions were negotiated for each of these classes. Most of the workers with disabilities were off work on extended disability benefits and/or workplace safety and insurance benefits. They were not aware they needed to apply for early retirement before the plant closed. As a result, they applied after the plant closed and no extension was granted, even though extensions had been granted for some of the employees in Class 2. This scenario gave rise to claims of discrimination that were settled during litigation at a human rights tribunal.

When offering buy-out packages or incentives to employees to reduce labour costs, take care to make sure that employees with disabilities, including persons on leave, are not excluded from eligibility and that the duty to accommodate such employees has been met. Policies that decide eligibility for a buy-out package based on hours worked in the past year have been found to be discriminatory.^[97]

Example: An employer offers a buy-out package of a lump-sum payment and an option to terminate employment or continue employment as a newly hired employee with a lower salary. This package is only available to employees who had worked a set number of hours in the past 52 weeks. A number of employees on long-term disability are ineligible because they have not worked the needed number of hours. The union and employer have not met their duty to accommodate, because extending the plan to include employees with disabilities would not have amounted to undue hardship.

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