Calgary construction law firm owes legal assistant $25,000 following discriminatory termination
Absences related to Corrine Smorhay’s physical disability and family status were factors in Goodfellow Law’s decision to terminate, human rights tribunal finds
A Calgary law firm must pay a fired legal assistant $25,000 after Alberta’s found her termination violated the province’s Human Rights Act.
In a recent ruling, the Human Rights Tribunal of Alberta Chair Duncan Marsden ordered Goodfellow Law to pay Corrine Smorhay $15,000 for injury to feelings, plus a further $10,000 in lost wages after concluding that absences caused by her childcare obligations and hospitalization for a ruptured ovarian cyst played a role in the decision to terminate her after just three months of employment.
Marsden accepted that Smorhay’s poor performance during her short time in the role played a part in the decision to fire her.
“However, I find that the primary reason for termination was the complainant’s excessive absenteeism, and I find that both protected grounds (physical disability and family status) were factors in this aspect of the decision to terminate,” he added.
According to the ruling, Smorhay – a single mother with sole custody of her daughter – was hired via a recruitment agency in the summer of 2017 after one of the legal assistants in firm principal Donald Goodfellow, Q.C.’s busy construction law practice left the firm.
Smorhay had six years experience as a legal assistant, but none in construction law. Still, the decision says the law firm hired her on a probationary basis as the only viable option out of four candidates put forward by the recruiter – two did not show for interview and a third demanded paid parking as a condition of employment.
Smorhay’s more senior colleagues told the tribunal they were not impressed by the quality of her work, although none had provided her with any warning about their concerns before she was terminated.
During her three-month tenure at the law firm, Smorhay missed work on at least 13 days for a variety of reasons, including several absences that related to her young daughter. Things came to a head after she missed the entire work week from Sept. 11 and Sept. 15, 2017 as a result of an ovarian cyst that burst the previous weekend.
According to the ruling, Smorhay was taken to hospital by ambulance on Saturday Sept. 9 in excruciating pain, and remained there until Tuesday Sept. 12, while medics diagnosed and treated her previously unknown ovarian cyst.
Smorhay told the tribunal that she did not return to the office for the rest of the week as she was suffered a reaction to her medication, and sent her boyfriend to pick up her pay cheque on Friday Sept. 15. He retuned with her money and a termination letter, explaining that Smorhay had been let go, effective immediately.
“Our record shows that you have requested 13 days off since your employment started on June 5, 2017, and you did not provide the date when you will be able to return to work. We understood your situation. However, our firm needs a full-time employee with more reliable time commitment. We wish you the best in your future career adventures,” read the letter, which was drafted and signed by the office manager.
Goodfellow insisted in his evidence before the tribunal that he had made the decision to terminate Smorhay for poor performance and excessive absence on Sept. 7, shortly before her hospitalization. His office manager added that she would have fired Smorhay the next day on Sept. 8 if she had shown up for work, but did not want to do it over the phone after Smorhay called in to say she was staying home to treat her daughter’s head lice.
The lawyer also testified that he had no involvement in drafting or proofreading the termination letter, while his office manager explained that the reason she had mentioned Smorhay’s absences and uncertainty about her return was because it was better than referencing her poor performance.
Addressing Somrhay’s absences in turn, the law firm argued that only one that occurred before its decision to terminate related to childcare for her daughter. In any case, they argued, Smorhay could have self-accommodated by asking friends or family to help, while the reason for that absence played no role in the termination decision, severing the connection to family status.
The firm argued that it had no knowledge that a further absence concerned a medical appointment for her daughter, while another to accompany her daughter on her first day of school was a preference rather than a childcare obligation.
However, Marsden was not convinced:
“While I agree that attending her daughter’s first day of school was a preference and not an obligation, I do still think that in the circumstances the decision to terminate the complainant’s employment in part due to this absence, is unlawfully discriminatory,” he wrote in the ruling. “I find that it was wholly disingenuous of the respondent to allow the complainant to come to work late so that she could be at her daughter’s first day of school, but then factor that as an absence when deciding to terminate her employment due to excessive absenteeism. I find that this is indicative of the respondent’s response to the complainant’s absences – they showed a disregard for the reasons for the absences and considered them in the whole, despite the fact that some of them related to reasons protected by the Act.”
When it came to Smorhay’s ovarian cyst, the chair accepted that none of the absences before Sept. 9 related to her disability.
“However, I find that the decision to terminate the complainant’s employment was ultimately taken on September 15, and that the absences caused by her hospitalization were taken into account when coming to the decision to dismiss. The absence due to her hospitalization was clearly referenced in the termination letter – they were 5 of the “13 days” of absences referenced in the termination letter,” Marsden wrote.
After finding that Smorhay had established discrimination, Marsden’s decision explained that the burden shifted to the law firm to justify its conduct.
“I find that the respondent failed to justify its conduct,” he concluded.
“In terms of the duty to accommodate, while it was not argued that it would have been undue hardship for the respondent to accommodate the complainant’s absences, the respondent did argue that whether the complainant had access to backup childcare or not did not matter, insofar as the respondent was informed that she did. The respondent argued that, as a result, it was not required to accommodate because it had not been informed of the need to accommodate (i.e. the respondent would only have to accommodate if it were then advised that the backup childcare was no longer available),” Marsden added. “I do not agree that the respondent can bury its head in the sand in this manner. The respondent knew that the complainant had childcare obligations. If the complainant’s absences were a problem, then the respondent could have said so, which would have allowed the complainant to make alternative arrangements, or if necessary notify the employer she needed an accommodation.”
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