**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.
The Complainant was employed by the Government of Yukon (“the Respondent”). Several years into her employment, she was diagnosed with depression resulting in long term disability. As a result, the Complainant request and was granted a two-year extended leave under the Yukon Government’s Prolonged Illness Policy (“the Policy”). Subsequently, the Respondent attempted unsuccessfully to communicate to the Complainant that she was going be fired in accordance with the Policy. Subsequently, the Complainant sent a letter to the Respondent expressing her intention to return to work. A letter was also sent from her psychologist, who recommended that it would be in the best interest of the Complainant if she was placed in a different department. The Respondent did not fulfill this request and said that there said that there were no other positions available. As a result, the Complainant filed a complaint with the Yukon Human Rights Commission (“the Commission”).
In order to prove her claim, the Complainant needed to prove that there was prima facie discrimination. In other words, if the Complainant’s allegations were to be believed, does there appear to be discrimination at the first blush? To prove this, the Complainant needed to establish that:
- She was treated unfavourably on the basis of a physical or mental disability (in contravention of section 6(h) of the Yukon Human Rights Act (“the Act”));
- She was discriminated in connection with her employment (in contravention of section 8(b) of the Act), and;
- She made an effort to notify the Respondent of her disability.
First, the Yukon Human Rights Board of Adjudication (“the Board”) found that there was discrimination on the basis of disability. In this situation, though the Complainant was not fully recovered, she was still fit to reenter the workforce with accommodation. Though her psychologist recommended that she take a new position, the Board found that she was still fit to return to work and perform the duties of her former position. In the Board’s opinion, the Respondent did not have the discretion to terminate the Complainant’s employment until they fully considered accommodation possibilities.
Second, the Board found that the alleged discrimination was in connection with an aspect of employment.
Third, the Board found that the Complainant did give sufficient notice to the Respondent. She had provided a letter to the Respondent explaining her condition, supported by a letter from her psychologist. She also gave the Respondent notice of her requirement for accommodation.
Then, the Board considered whether the Respondent satisfied its duty to accommodate. As outlined in section 7(1) of the Act, the employer has a duty to make reasonable accommodations for the special needs of employees, up to the point of undue hardship. The Board found that the Respondent did not reasonably attempt to provide accommodations for the Complainant. By failing to consider options other than the Complainant returning to her former position, the Respondent did not fairly and accurately assess the Complainant’s accommodation requests.
Therefore, the Board found that there was prima facie discrimination in this case. As a result of the discrimination, the Complainant was fired from her employment. But for the discrimination, the Complainant may have enjoyed six years of employment. As a result, the Board ordered the following damages:
- The Complainant was entitled to an award equal to the amount she would have earned as an employee for two full years;
- The award would deduct any income earned by the Complainant during the first two years after the discrimination
- The Complainant was entitled to $1,500 in damages for injury to dignity, feelings and self-respects;
- Simple interest would be calculated and added to the award for financial loss;
- The Respondent was ordered to pay the Complainant’s legal costs.
The Board also ordered the Respondent to re-hire the Complainant in another department. If the Complainant accepts the offer, the Respondent was ordered to apply its Reintegration of Disabled Employee’s policy to assist the Complainant’s reintegration back into the workforce.