'The decision to launch the investigation wasn't based on any discriminatory elements,' says lawyer looking at case
An employer discriminated against a worker in an investigation into time theft by not considering her disability as a possible cause of some of her absences – although the amount of alleged time theft not related to her disability likely wouldn’t have changed the decision to fire the worker, the Ontario Human Rights Tribunal has ruled.
The worker was hired in 2005 by St. Joseph’s Healthcare Hamilton, an acute care hospital in Hamilton, Ont. In 2014, she became a secretary in the consultation liaison program within the hospital’s psychiatry department.
The worker’s duties included providing administrative services to physicians in the department and she reported to management. She had a significant amount of autonomy and her manager didn’t supervise her closely.
The worker had several disability-related absences, and eventually a psychiatrist in the department expressed concerns to the worker’s manager about the worker’s attendance in October 2017, as there were times when she didn’t know where the worker was. The psychiatrist didn’t suggest that the worker was absent without authorization, she was just concerned that there was appropriate coverage.
The manager met with the worker on Oct. 16. The worker told the manager that she had some injuries for which she was receiving treatment and she had an upcoming surgery that would require extended time off work. She also said that she was experiencing some mental health issues related to the pain.
Informal accommodation
The worker also said her previous manager had accommodated her medical appointments, although her need for accommodation hadn’t been officially provided to human resources or the health management department. The manager assured the worker that she would help ensure appropriate coverage when necessary and, according to the worker, she didn’t raise any concerns about absenteeism or tardiness. The manager later didn’t specifically recall the meeting, but she agreed that she would have been supportive.
Around the same time, the manager of employee and labour relations launched an investigation into the worker’s absences, based on the concerns raised by the psychiatrist. The worker’s manager participated, although she didn’t pass along that she had learned that the worker had a disability.
The investigation generated a report on the times the worker entered and left the parking facility from Oct. 3, 2016, to Sept. 29, 2017, along with the worker’s pay history. There were discrepancies between the reports that amounted to 164 hours for which the worker was paid but was absent from work. Some were for full-day absences, some were from days she was late, and others she left early.
They met with the worker on Oct. 25 without providing the worker with any advance notice. They questioned her about nine full days for which she was paid but she didn’t attend work and the worker wasn’t able to provide an explanation, only suggesting that she could have been sick or the dates weren’t properly coded.
Termination for time theft
Immediately following the interview, the two managers decided to terminate the worker’s employment since she had been unable to provide a satisfactory explanation for the discrepancies. The termination letter stated that she had been overpaid for approximately 164 hours and her actions “demonstrated willful misconduct and a deliberate neglect of duties.”
The worker made a human rights application alleging discrimination with respect to employment because of disability. She presented her own spreadsheet of her hours and her medical appointments that showed different time records during the period in question.
The worker also showed that on eight of the nine full days absent, she had notified her manager or the department of her absence. The ninth day was a Saturday, which wasn’t a workday for the worker and had been incorrectly coded. On two of the days, the worker’s absence was disability-related.
Out of eight other days when the worker left work early and didn’t return, the worker indicated that she notified her manager for three of them but they were incorrectly coded.
St. Joseph’s attributed the termination solely to time theft and the discrepancies between the payroll and parking records. However, the worker alleged that her dismissal was motivated by her disability, specifically time off required for treatments related to her disability, which she disclosed to her supervisor just days before the investigation began.
Flawed investigation
The tribunal found the employer’s investigation into alleged time theft flawed, with inaccuracies in both the payroll and attendance records from incorrect coding that it said likely impacted the findings. The tribunal also found that “the investigation was conducted without adequate notice to the [worker] and without opportunities for her to corroborate absences attributed to her disability,” such as the worker’s evidence that her absences had been reported on at least eight of the nine full days.
It was a key issue with the investigation that management didn’t give the worker any advance notice of the investigation meeting, particularly since they reviewed her attendance going back one year, says Faraz Kourangi, a lawyer and workplace investigator at William HR Law in the Toronto area.
“They gave her about five minutes’ notice before the meeting where they would discuss the concerns related to her absenteeism and tardiness and then they dismissed her right after the meeting, so they didn't really give her an opportunity to check her own records,” he says. “And had they given her that opportunity, she would have been able to demonstrate that some of the absences were related to her disability and she had communicated that she would be absent on some of those days - it boils down to the investigation not being procedurally fair.”
In addition, there was no doubt that the managers were aware of the worker’s disability after the Oct. 16 and Oct. 25 meetings and that at least some of the absences could be disability-related. However, this didn’t factor into the investigation, the tribunal said.
The tribunal determined that, based on the worker’s evidence, that 18 hours - or 11 per cent - of the cited time-theft instances related to disability-related absences, resulting in the worker “being wrongly found to have committed time theft for disability-related absences that she had reported” and those absences were a factor in the termination decision.
Better notice, documentation
There were several things that St. Joseph’s could have done to reduce the discriminatory element in the investigation and the termination decision, according to Kourangi.
“They could have given the worker greater notice of the investigation, they could have presented her with some of the documentation that it was relying on to terminate her employment, and they could have spoken with her former manager and colleagues who would have relevant information,” he says. “And they shouldn’t have taken for granted that the timesheets which the worker wasn’t responsible for preparing were accurate - better recordkeeping would have allowed them to know that the worker had disclosed her disability and that some of her absences were related to that disability.”
“They should have maintained better records and they should have reviewed those records and had more internal conversations to ensure they were clear on all the relevant facts,” he adds.
Despite this, the tribunal didn’t find evidence that St. Joseph’s intentionally used disability as a primary reason for the investigation and there was still a sufficient number of hours that showed time theft.
The tribunal acknowledged that the worker would likely have still been terminated for non-disability-related attendance issues, but it found that the misattributed time-theft instances warranted damages. St. Joseph’s was ordered to pay the worker $15,000 due to the worker’s long tenure and her mental and emotional distress from the investigation’s findings.
Reason for investigation not discriminatory
“The decision to launch the investigation wasn’t based on any discriminatory elements, as it was based on the conversation that the managers had with [the psychiatrist] who had concerns relating to the worker’s attendance and didn't mention anything about her disability,” says Kourangi. “I think the tribunal accepted that there wasn't any discriminatory pretext in launching the investigation – the main concern was just with how the investigation was conducted.”
Many organizations don't take recordkeeping seriously and that can make or break their defense in litigation such as this, especially when a significant amount of time has passed since the incidents forming the claim, according to Kourangi.
“As a best practice, organizations should create a timeline of key events related to an employee's accommodation needs and the conduct that's being scrutinized,” he says. “Proper recordkeeping is particularly useful when there has been a change in HR or management, as was the case here, as it ensures that any individuals who are stepping into the accommodation process or a workplace investigation are fully informed of the relevant facts.”
“Also, organizations shouldn't ambush their employees in a meeting to review alleged misconduct and then terminate their employment right after,” he adds. “Employers should give proper notice of the allegations and evidence against the employee and give them a reasonable opportunity to respond.”
