In Karim v. Workplace Safety and Insurance Board, 2024 HRTO 1231, the Human Rights Tribunal of Ontario (HRTO) dismissed a probationary employee’s claim that they were discriminated against with respect to employment because of disability contrary to the Human Rights Code when they were fired during their probationary period. The HRTO found that, although there was evidence the employee had a disability, they failed to prove on a balance of probabilities that it affected their job performance. The HRTO also emphasized that an employer’s duty to investigate is triggered when an employee seeks accommodation.

Background

The employee began working for the employer as a Senior Associate in Corporate Compliance. Their employment contract contained a six-month probationary period. Three months after the employee was hired, the employer met with the employee to discuss their poor attendance record and performance issues. The employee claimed they suffered from physical and mental health conditions, had frequent medical appointments, and needed paid time off and the ability to work from home when required. The employee filed a request for accommodation but did not indicate how often accommodation would be necessary or what its duration would be when required.

The employee met with the employer’s Healthy Workplace Centre (HWC) and then with a Disability Management Consultant (DMC) from the HWC, with whom they did not co-operate or collaborate. After an independent Medical Consultant Review (MCR) was conducted, the employee received an email from the DMC stating the independent medical consultant (IMC) determined they did not need to work from home, the job was suitable, their previous absences could not be medically substantiated, and there was no need for frequent ongoing medical absences. The employee was then terminated without cause subject to their vacation period to the end of their probationary period. They were advised their probation period was unsuccessful because their performance did not meet the role’s expectations.

Decision

Discrimination

The HRTO confirmed it saw evidence the employee had a disability; however, it found it was not a disability that would be impacted by the employee’s job duties. Although the termination of the employee’s employment may have caused them to suffer a disadvantage or adverse impact, their disability was not a factor.

The HRTO noted the evidence of disability indicated the employee was restricted only with respect to walking, standing, and lifting. There were no restrictions on sitting and driving, or issues with cognitive abilities, and the employee’s position was a sedentary desk job. Moreover, the IMC found no support for a need to work from home, that the job was suitable, and the employee’s absences were not medically substantiated. Furthermore, the HRTO stressed it heard no evidence that would indicate on a balance of probabilities that disability was a factor in the employee’s termination. Instead, it heard reliable and credible evidence about the employee’s performance issues and absenteeism, and their lack of co-operation or collaboration in their meetings with the DMC and when their manager inquired about their needs.

The employee claimed the timing of his dismissal, which occurred three days after the date of the email from the DMC, suggested their accommodation request was the reason for their dismissal. The HRTO rejected this claim based on the following evidence, which it found persuasive: the decision to terminate would have been made more than three days prior to the termination; at the time of termination of the employee’s employment, they were about to go on a six-week vacation during which the probation would have expired; the employee never said their performance issues were related to their disability; and in weekly “health check” meetings, they always stated they were fine.

Accommodation

The HRTO found that because the employee failed to establish a prima facie case of discrimination, the issue of accommodation did not arise, and the burden did not shift to the employer “to raise a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment.” Despite this, the HRTO took the opportunity to mention that an employee’s request for accommodation “triggers the employer’s duty to investigate and as part of the investigation, the employer may seek medical information about what accommodation would be appropriate.” The HRTO found the employer discharged this duty because a proposed accommodation plan was discussed and it engaged in a thorough investigation (i.e., the DMC and an IMC were engaged, and the employer attempted to get information from the employee’s doctor).

Bottom Line for Employers

This decision confirms an employer is entitled to terminate an employee’s employment while they are on probation if, during that period, the employer discovers the employee’s performance does not meet the expectations of their role. To ensure they will be able to prove this is the reason for the employee’s dismissal, employers are encouraged to engage in and keep comprehensive records of a performance management process that includes setting clear goals; continuous communication between manager and employee; addressing challenges; providing timely constructive feedback; and conducting reviews. A prohibited ground of discrimination should not be a factor in an employer’s decision to dismiss an employee during their probationary period or thereafter.

The decision also reinforces that when an employee requests accommodation, their employer has a duty to investigate, including by seeking medical information about what accommodation would be appropriate in the circumstances.

Employers are encouraged to review their performance management and accommodation policies and procedures to confirm they provide appropriate support to their employees during their probationary periods, if any, and throughout their employment.