Cancer Diagnosis Costs Employee Her Job

| Saturday, September 11th, 2010 | No Comments »

The Ontario Human Rights Commission (OHRC) has awarded leasing agent Elsa Torrejon $20,000 in a case that has a lot of people questioning, “Why not more?”

When Torrejon was diagnosed with breast cancer, she expected the same anyone else would from her employer, some understanding and accommodation.  She was surprised to find herself jobless after telling her employer, Weston Property Management that she needed time off for treatment.  Conflicting evidence from two different managers did little to convince the judge that Torrejon offered to resign.    The tribunal found that Weston failed to accommodate Torrejon’s disability, and wrongfully assumed that they could terminate an employee for requiring a leave of absence.

This case highlights the often controversial issue of the extent to which an employer has a duty to accommodate.  According to the both the Ontario Human Rights Code and the Canadian Human Rights Act, an employer is legally bound to accommodate to the point of “undue hardship”; however, these accommodations only apply to changes in workplace policy, practices, and behavior.

In a case as personal as a cancer diagnosis, people can be quick to confuse legal obligation with moral obligation.  Legally, in the absence of long-term disability coverage, the employer is not obligated to pay for a leave of absence.  Morally, employers should be open to the option of hiring temporary workers, and holding an employee’s position for as long as possible.  This can be cumbersome for smaller businesses, but the immediate reaction of dismissal can be very costly, and damaging to a company’s reputation.

Both employers and employees should consider the following advice:

–          The duty to accommodate has been described as a “two way street”.  This means that the employee should specify what accommodation is needed and cooperate in the process of acquiring the information necessary to formulate an accommodation plan.

–          Here, Weston Property Management pleaded that they were ignorant to their obligations under human rights legislation.  The Human Rights Tribunal quickly dismissed this argument.  As ignorance is never an excuse, seek specialized counsel and do so before terminating an employee’s job.

Read more about this story on the CBC website.

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