By Robert Smithson 

 When Richard Flores began a two week medical leave from his job as a pasta maker, he had no reason to think his employment would be in jeopardy.  Soon after his return to work from a bout of acute gout arthritis in his foot, however, Flores found himself out of a job.

Flores was a 59 year old immigrant from the Philippines who had found employment in 2002 with Duso Enterprises Ltd. in Port Coquitlam.  Flores’ occupation as a pasta maker required him to heft 20kg bags of flour into a pasta mixer and to carry the resulting rolls of pasta.  It is a continuous process which requires a certain level of physical ability. 

Soon after starting work in 2002, Flores had an attack of gout.  He claimed Duso warned him, then, that if he could not do the job they would find someone else who could.

In 2007, Flores’ medical situation compelled him to take a medical leave which ended up being 2 weeks in length.  Upon his return, his doctor indicated he had recovered though there was some indication of ongoing medical treatment.

During Flores’ absence a much younger, physically stronger employee was added to Duso’s pasta production department.

Less than three weeks later, Flores morning drive to work was interrupted by a traffic jam resulting from an accident.  He returned home and spoke to his employer by telephone.  He claimed that Duso told him not to return to work.

Duso claimed that Flores was fired because he refused to come in to work unless he was paid for the time he had missed that morning.

Contradicting that story, Duso provided Flores with a Record of Employment indicating his employment was terminated due to a shortage of work.

Flores filed a complaint of discrimination, on the basis of age and physical disability, with the B.C. Human Rights Tribunal.   

The Tribunal applied the test of whether Flores had established a prima facie case of discrimination.  To establish that, in this case, Flores had to show that:

1. he was disabled and/or an older employee;
2. he suffered adverse treatment in his employment; and
3. it was reasonable to infer that his age or disability was a factor in the adverse treatment.

The Tribunal accepted that Flores was, or was perceived by Duso to be, disabled and that (at age 59) he was the oldest employee in Duso’s pasta production department.  It determined that the termination of his employment constituted adverse treatment. 

On the third element of the test, the Tribunal stated, “The timing of the termination, coming on the heels of Mr. Flores’ medical leave … and after the hiring of a younger, strong replacement, leads to a reasonable inference that Mr. Flores’ age and disability were at least factors in his termination”.  Duso was unable to convince the Tribunal that the termination was due to any non-discriminatory reasons and that neither age nor disability was a factor.

The Tribunal awarded Flores over $8,000 in lost wages, $7,500 for injury to his dignity, feelings, and self-respect, plus interest.

Flores’ story is quite a common one.  Employers frequently decide that the person hired to fill in during a medical or other absence is preferable (for a variety of reasons).  As a result, the absent employee’s job is terminated either during the absence or soon thereafter.

The very high risk for the employer is that the timing of the termination, alone, will be sufficient evidence for a Tribunal to find that it was discriminatory.  In Flores’ case, there was scant evidence of any discriminatory attitude on the employer’s part and, without a doubt, the outcome turned heavily on the timing of the termination.

The employer’s challenge, once a prima facie case has been established by the complainant, is to demonstrate to the Tribunal that the alleged discriminatory grounds did not play any part whatsoever in the termination. 

Duso should, of course, have allowed Flores a reasonable period of time to demonstrate his abilities upon return from his medical leave.  If his medical situation was continuing to affect his productivity, Duso should have examined whether he could be accommodated.  If Duso had reasonably concluded that Flores could not be accommodated without Duso suffering undue hardship, there would have been a lawful basis for bringing the employment relationship to an end.

Employers who act without knowledge of the nuances of human rights practices are prone to running afoul of the law.  In this case, Duso’s clumsy handling of the termination of its pasta maker proved to be a recipe for disaster. 

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log onto www.pushormitchell.com. If you have a labour or employment question for him to answer in a future “Legal Ease”, email him at smithson@pushormitchell.com. This subject matter is provided for general informational purposes only and is not intended to be relied upon as legal advice.