When Does the Duty to Accommodate Survive Dismissal

In his decision in Khaper v. Air Canada, 2015 FCA 99, Justice Webb states the principle that the duty to accommodate does not survive the termination of employment if the employer legitimately had no knowledge of the employee’s disability at the time of termination.

Davinder Khaper filed a complaint under the Canadian Human Rights Act alleging that his former employer, Air Canada, had discriminated against him based on his mental disability, race and national or ethnic origin in terminating his employment. The Canadian Human Rights Commission (CHRC) dismissed Mr. Khaper’s complaint in a decision rendered on February 6, 2013. Mr. Khaper’s application for judicial review of the decision of the CHRC was dismissed by Justice Kane (reported at 2014 FC 138).

Mr. Khaper commenced work with Air Canada on November 24, 1997. During the time that he was employed, Mr. Khaper received a number of letters of expectation and letters of discipline in relation to his conduct at work. The letters related to either his stealing time from his employer or insubordination. On February 22, 2008 he was issued a disciplinary letter which informed him that if he stole time again, his employment would be terminated. At the grievance hearing related to the disciplinary letter the arbitrator warned Mr. Khaper not to steal time again or else he would be fired.

Almost one year later on January 22, 2009, Mr. Khaper punched in for work at 1:28 PM and, without notifying his supervisor, left work to attend court without punching out. He returned to work around 3:40 PM. Following that incident, Air Canada terminated his employment, effective January 22, 2009.

Mr. Khaper filed a grievance in relation to the termination of his employment. The grievance arbitration hearing was held in March 2009 and the labour arbitrator upheld Mr. Khaper’s termination of employment. Mr. Khaper did not allege discrimination at the grievance arbitration hearing.

Following the dismissal of his grievance, Mr. Khaper retained legal counsel in April 2009. Approximately four months after he retained counsel, Mr. Khaper obtained a psychiatric report which, for the first time, indicated that Mr. Khaper had bipolar affective disorder. There was no indication that either Mr. Khaper or Air Canada was aware that he had this disorder prior to the diagnosis thereof in August 2009.

On November 12, 2009, Mr. Khaper’s union wrote to Air Canada to request that his employment be reinstated in light of this psychiatric report. This request was denied by letter dated November 23, 2009.

The CHRC notified Mr. Khaper that his complaint was dismissed because there did not appear to be any link between the alleged discriminatory acts and any prohibited ground of discrimination.

Justice Webb found that Mr. Khaper’s argument on appeal was based on the premise that Air Canada had a duty to accommodate him that survived the termination of his employment and that Air Canada breached this duty when it failed to reinstate him in November 2009.

Justice Webb held that when the disability underlying inadequate job performance is unknown until after the termination and such lack of knowledge is not due to such things as willful blindness or neglect on the part of the employer, the dismissal is not at all based upon a discriminatory ground and no prima facie case exists.

Justice Webb’s decision provides businesses with clarity as to the extent of their duty to accommodate employees’ disabilities being limited to employees’ disabilities during the period of employment of which they have knowledge of. That said, it is important to note that an employer’s willful blindness to or neglect of an employee’s disability will not relieve the employer of its duty to accommodate.

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