A recent decision by the Alberta Human Rights Tribunal (the “Tribunal”) found that an employer, while seeking to reduce its workforce, dismissed an employee on the grounds of family status and physical disability, rather than job performance. In Smylie v Sani-Tech Mechanical Ltd., 2018 AHRC 6 (CanLII), the Tribunal awarded the employee damages for lost wages, in addition to $20,000 for injury to the employee’s dignity and self-respect. This decision highlights the need for employers to carefully evaluate employee dismissal when looking to reduce their workforce.

Case background

Sani-Tech, an Alberta based mechanical contractor, was facing the end of a project and, having determined that it was experiencing a shortage of work, chose to terminate the employment of Mr. Smylie.  Mr. Smylie worked for Sani-Tech as a Second Year Apprentice Plumber from November 2011 to May 2012.

One month before his employment was terminated, Mr. Smylie experienced a workplace injury to his ankle. On the day prior to the termination of his employment, he received additional medical treatment due to a flare-up to his ankle injury. Mr. Smylie eventually had surgery on his ankle and participated in a lengthy rehabilitation program. Mr. Smylie was discharged from his treatment program in May 2013.

Sani-Tech alleged that determining factors in Mr. Smylie’s dismissal, other than a shortage of work, were his job performance and the fact that he was single, and not providing for a family. However, Sani-Tech was unable to provide compelling evidence outlining specific performance concerns. Sani-Tech also asserted that Mr. Smylie’s injury had no impact on the decision to terminate his employment and that it had no knowledge of the ankle injury at the time the decision was made. In fact, the Tribunal found that Mr. Smylie had a history of ankle issues while working for Sani-Tech and determined that Sani-Tech was aware of this when it chose to terminate Mr. Smylie’s employment.

In its decision, the Tribunal determined that physical disability and family status, both protected ground under the Alberta Human Rights Act, were factors in Sani-Tech’s decision to terminate Mr. Smylie’s employment.

Employers should carefully consider the reasons for termination when reducing their workforce

While Sani-Tech may have had good intentions in considering family status when choosing who to dismiss when faced with a shortage of work, doing so was a contravention of the Alberta Human Rights Act. The absence of compelling evidence of performance issues ultimately failed to provide corroboration for Sani-Tech’s reasons for dismissal, and resulted in the Tribunal finding against Sani-Tech.

The outcome of this case is a cautionary tale to employers when considering a reduction of their workforce. When evaluating employees for dismissal, an employer should be careful not to base its decision upon protected ground under Human Rights legislation. Further, where poor performance is being relied upon as grounds for a dismissal, employers should ensure that any performance concerns are valid and well documented in order to demonstrate grounds for a dismissal in the event justification is required.