The Complainant was hired by Yukon College (“the College”) as a full-time computer support technician in May 2001. He completed his six-month probationary period in May 2002. During this time, he developed an ulcer and required a blood transfusion. Shortly after the completion of his probation period, the Complainant’s health issues escalated. He suffered severe gastro-intestinal bleeding and diagnose with end-stage liver failure from Hepatitis C. Afterwards, the Complainants circumstances became grave. He would not be able to live without a liver transplant. Therefore, he informed the College of his circumstances and was approved for medical leave and long-term disability.
The Complainant was finally able to receive a donor liver in May 2004 but due to circumstance at the hospital, the transplant was delayed until August 2004. His recovery was delayed by complications. The College sent a letter to the Complainant in October 2004, indicating that his employment with the College was terminated “due to operational requirements”.
The Complainant filed a complaint with the Yukon Human Rights Commission arguing that in firing the Complainant, the College had discriminated against him due to his physical disability. As such, the Complainant alleged that the College was in contravention of the following sections of the Yukon Human Rights Act (“the Act”):
- Section 7(h), which prohibits discrimination on the basis of physical disability, and;
- Section 8(1), which requires employers to make reasonable accommodations for employees with special needs.
In making its analysis, the Yukon Human Rights Board of Adjudication considered the following issues:
- Did the College discriminate against the Complainant on the basis of physical disability?
- Did the College meet its duty to reasonably accommodate for the Complainant?
- Is this a situation of systemic discrimination?
- If the Complainant was discriminated against on the basis of his physical disability, or was a victim of systemic discrimination, what remedy is appropriate?
The Board found that the Complainant almost certainly faced discrimination because of his disability, particularly in light of the Respondent’s failure to make adequate inquiries about the likelihood of the Complainant’s return to work. They found that the Respondent chose to terminate his employment because he was unable to work and because it faced the prospect of losing its temporary replacement worker that had been filling in for the Complainant.
The Board found that the Respondent made the decision to terminate the Complainant shortly after his liver transplant and prior to any stabilization that might provide better information regarding the prospects of the Complainant returning to work. They found almost no efforts were made by the Respondent to confirm that the Complainant would be unable to return to work following the transplant. Specifically, no contact was made with the insurer or the Complainant’s physician. In the absence of any significant evidence regarding investigation into possible alternatives to terminating the Complainant’s employment, the Board did not understand what hardship the Respondent would have suffered if it had not terminated the Complainant’s employment.
The Board found that the Respondent’s arbitrary application of a two-year review period, as adopted from its disability insurer, and reliance on the collective agreement’s two-year ‘temporary position’ limitation, offended the systemic discrimination section of the Human Rights Act.
The Board ordered the Respondent to: reinstate the Complainant to permanent full-time employment status at full salary, develop an effective return-to-work accommodation plan within 30 days, pay costs to the Complainant and the Commission, and institute a policy that addresses the systemic risk related to employee termination and disability to be reviewed and approved by the Commission. The Board did not make any order with respect to the payment of lost wages.