A recent case shows the importance of sticking to a plan when going through restructuring, especially when issues of disability and human rights come up.
Ontario man Timothy Pritchard told his employer he would require leave for surgery and recovery related to his arthritis on May 6, 2010, his surgery was booked for June 16. On June 9 Pritchard met with the HR manager and was his employment was terminated.
Commissionaires claimed business had declined in the London area and it needed to restructure. Though it had been aware of Pritchard’s upcoming operation, it claimed that had nothing to do with the termination decision.
“One of the problems with being an employer in a situation like this is that the ultimate question is did the applicant’s disability play any role at all in your decision to terminate their employment?,” Filion Wakely Thorup Angeletti associate Chris Sinal said. “It’s very easy to look at a situation like that and make an inference that obviously the fact that the person is going away on leave plays a role. As the employer there’s not much you can do – you’re in the unenviable position of trying to prove a negative.”
The Human Rights Tribunal found that while the company had been planning a restructuring, terminating Pritchard on June 9 was not part of their plan. They awarded Pritchard $10,000 for injury to his feelings, dignity and self-respect.
“The first rule, and it’s not clear how well the employer followed it, is to have a plan and as much as possible stick to it. As close as possible you need to stick to it and show there are reasons for your actions that pre-date any human rights concerns,” Sinal said. “What seemed to hurt the employer in this particular case was the fact that terminating the employee they did it very quickly. It suggested that this wasn’t a pre-thought-out plan, this wasn’t part of a conscious restructuring.”
If a company were entrenched in planning to restructure there would be documentation, timelines and records of communication to back up their actions, whereas the fast turnaround – and the fact that the CEO was not in town to sign a termination letter – indicated it was a more spontaneous decision taking advantage of the situation.