In a recent application to the Human Rights Tribunal of Ontario, the Tribunal found that an employer facing an economic downturn including mass lay-offs had met the test of undue hardship and did not have to accommodate an employee returning to work from disability leave.
The applicant was laid off on the eve of his return to work following a lengthy medical leave. At the time of the layoff, the company was experiencing a company-wide downsizing due to major financial trouble. The employer reduced its staff from 31 to 17 during this period. The length of service of the other terminated employees was comparable to the applicant.
The employer decided the applicant was the best candidate for lay-off from his sales team as the team serviced a particular client on a contract that was not being renewed and the other team members had established relationships with the client.
The Tribunal found that the employer was facing a genuine economic downturn in its business which justified its decision to lay off some of its employees. Although the Tribunal acknowledged that a re-orientation period is an ordinary part of a return to work in many circumstances, it was not a reasonable accommodation in this case considering that the company was in the process of downsizing and the work to which the applicant was returning was coming to an end. The Tribunal found that in these circumstances continuity was a bona fide occupational requirement. It was not reasonable to bring the applicant back as an additional person on the payroll to re-orient him and delay the lay-off decision.
This case provides insight into what economic circumstances the Tribunal will deem to be serious enough to pass the undue hardship test. This case suggests that the employer does not need to be on the brink of insolvency but must be facing serious economic downsizing.
