'It wouldn't be enough time to make a decision because accommodation processes take time'
“When you have an employee with a disability who has put the employer on notice of that disability, the employer has to be very careful about terminating too quickly, particularly if they've not dotted their I’s and crossed their T's.”
So says employment lawyer Paulette Haynes of Haynes Law Firm in Toronto, after the Canadian Human Rights Tribunal ruled that a federal public service employer discriminated against a worker on the basis of disability by failing to consider additional accommodation methods after an initial accommodation strategy wasn’t working.
The worker began her casual employment for the Correctional Service of Canada (CSC) in March 2017, filling a temporary leave position at the Edmonton Institution for Women as an information clerk. When she was hired, she disclosed to her manager that she had a disability requiring accommodation - she was unable to work full-time and required a flexible schedule. CSC accommodated her by reducing her work hours to 22 per week and providing flexibility in her start times.
CSC also reduced her duties to only information sharing – the process of disclosing information about an offender to help with decisions about the offender. Such disclosure was a legal obligation for CSC and delays could lead to postponements or adjournments of parole hearings.
However, the employee whose position she was meant to fill stayed in her role for longer than expected, so the worker didn’t assume the full duties of the information clerk position initially. In the meantime, the worker’s predecessor trained her and the worker completed other tasks.
Modified duties
The worker eventually took over the information clerk position on May 31. However, shortly after stepping into the role, she expressed concerns to management that the workload exceeded her capacity within her reduced hours. She sent several emails to her manager suggesting modifications to her tasks to improve efficiency and help her accomplish more during her time working. She also sought clarification on whether some tasks could be redistributed to other employees.
The manager discussed with another manager his concern that the worker had underestimated the job she and that she might not be a good fit for the position. He also felt that the worker was having trouble with information sharing and was worried that it could result in the delay of an inmate’s release, as he had heard from parole officers that they had corrected deficiencies and errors in the worker’s work – although he wasn’t aware of any actual delays.
Other than his concern that the worker wasn’t a good fit, the manager didn’t mention any issues with her work performance to the other manager. He said that he felt they would “suffer” under the worker’s suggestions and the other manager said she didn’t like the “tone and language” of the worker’s emails.
After only six days in the information clerk role, on June 16, CSC terminated the worker’s employment. Her manager told her that CSC needed to find someone who could work full-time hours and, according to the worker, he didn’t mention any performance issues.
The worker filed a human rights application alleging that CSC discriminated against her with respect to employment on the basis of disability by failing in its duty to accommodate and dismissing her because of her inability to complete a full-time workload - which was related to her disability.
Disability or poor performance?
The tribunal referred to the test for prima facie discrimination under the Canadian Human Rights Act (CHRA), which prohibits adverse employment action based on a protected characteristic such as disability, noting that the protected characteristic only had to be a factor and not the only factor. CSC conceded that the worker had a disability and her termination constituted an adverse impact, but it argued that her dismissal was based on performance concerns – her deficiencies in information sharing - rather than disability.
The tribunal found insufficient evidence to support CSC’s claim that performance deficiencies were the primary reason for her termination. The manager acknowledged that errors in her work had not caused delays in parole hearings, and no supporting evidence was provided to substantiate concerns about information-sharing deficiencies. Instead, the emails between managers referred to her as the “wrong fit” for the job, with no mention of specific performance issues.
The tribunal also noted that the worker was told at her termination meeting that CSC needed someone who could work full-time hours, not that she was being dismissed for poor performance. In addition, the worker said that no errors in her work had been raised with her before her termination and CSC had no evidence to show otherwise.
The tribunal found that the perceived performance issues were linked to the worker’s inability to work full-time hours - a limitation directly related to her disability. As a result, the worker’s disability was at least a factor in the decision to terminate her employment, the tribunal said.
Under the CHRA, an employer can justify a discriminatory standard if it is based on a bona fide occupational requirement and accommodation is impossible without undue hardship. The tribunal found that while the high standard of competency in information sharing was rationally connected to the job that CSC had adopted in good faith, CSC had not sufficiently engaged in the accommodation process enough to establish that the legitimate work-related purpose couldn’t be achieved if further accommodation was made.
Accommodation a collaborative process
The evidence showed that the worker had repeatedly requested workload adjustments to align with her reduced hours, but CSC managers didn’t engage in a dialogue about accommodation. Instead, they viewed her concerns as unwarranted challenges to workplace processes, said the tribunal in finding that CSC had placed the onus entirely on the worker to determine which tasks she could complete, without providing clear guidance or support.
“It's legally the responsibility of the employer to engage in collaborative communication with the employee to work out an accommodation piece, but she didn’t get any responses back to talk about alternatives to help her do the essential duties of her job,” says Haynes. “That’s the key thing, and maybe a reminder for employers, that once the duty of accommodation is triggered, it’s an ongoing duty.”
“It was interesting that the worker’s emails weren’t well received - they were taken to be trying to dictate how the job should be done rather than receiving it as her way of attempting to engage the employer to participate in a collaborative conversation around how to meet her ongoing accommodation needs,” she adds. “It's not the employee’s duty to lead in that discussion, and even if the employee leads, that approach overlooks a clear power imbalance between the employer and employee.”
The tribunal noted that, while employers are not obligated to adopt an employee’s preferred accommodation method, they must make reasonable efforts to find accommodation. Although CSC accommodated the worker initially, it hadn’t demonstrated that further accommodation would have caused undue hardship, the tribunal said.
CSC was ordered to pay the worker $5,000 for pain and suffering under the CHRA, recognizing the emotional impact of the discrimination, and $2,000 for CSC’s reckless actions in terminating her employment without properly considering her accommodation requests. The worker found another position with CSC shortly after her termination, so no compensation for lost wages was necessary, said the tribunal.
“Even if CSC had engaged in meaningful collaborative conversations with the employee, [six workdays] wouldn’t be enough time to make a decision because accommodation processes take time – they change, they’re tweaked,” says Haynes. “The tribunal acknowledged the initial efforts to accommodate, but that wasn’t the end of the duty - as soon as the worker said, ‘Even with these accommodations, it's still overwhelming for me,’ that was the clarion call that should have engaged CSC to respond in a meaningful way to work out further accommodation.”
See Bayrock v. Correctional Service Canada, 2025 CHRT 9.
