City of Ottawa loses human rights case over how it fired OC Transpo driver

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The City of Ottawa lost a human rights case over how it fired an OC Transpo driver who missed 1,241 days of work.

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In a recent decision, the Federal Court upheld a Canadian Human Rights Tribunal (CHRT) ruling that the city discriminated against Jamison Todd by failing to distinguish his disability-related absences from his various absences in his dismissal letter.

Those absences should have been “disaggregated,” the court said, and the city should have considered other ways to accommodate her disability.

By law, companies must accommodate employees with disabilities to the point of “undue hardship.”

Todd suffered from irritable bowel syndrome and musculoskeletal pain during his troubled career with OC Transpo, which began in 2001 and ended with his firing in March 2014.

During the 10-year period leading up to his firing, Todd missed 1,241 days of work. Nearly 30% of those absences were unrelated to his medical issues, the court heard.

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Todd’s manager at OC Transpo ultimately decided to fire him because he repeatedly failed to let him know when he would miss a shift.

Such notice was required under the continuing employment contract — the plans are sometimes called last-ditch agreements — that Todd signed with the city in 2012.

In court, city attorneys argued that Todd’s regular absenteeism, combined with his inability to achieve a reasonable level of attendance due to his health issues, meant he was unable to fulfill his contractual obligation. to “provide work”. They said it was an undue hardship on the employer, OC Transpo.

The city asked the Federal Court to reverse the court’s finding that he discriminated against Todd and to dismiss the case.

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But in her recent ruling, Federal Court Judge Susan Elliott agreed with the CHRT’s reasoning, which said the city had failed to present evidence to show it had reached the point of undue hardship to accommodate Todd.

Additionally, Elliott said, the city incorrectly lumped together all of Todd’s absences in his termination letter.

“As the CHRT found,” the judge said, “it is the reason given at the time of the decision to terminate employment that matters, and the CHRT reasonably concluded that by identifying the absenteeism general of Mr. Todd as one of the reasons for his termination, OC Transpo engaged the protections of the Canadian Human Rights Act against actions motivated in whole or in part by discrimination.

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The Human Rights Tribunal has yet to decide how it will remedy the discrimination suffered.

Todd’s attorney declined a request for comment while Ottawa City Attorney David White said he was “not ready to comment” on an ongoing legal matter.

The CHRT hearing took place over 19 days in 2017 and 2018.

In her subsequent ruling, tribunal member Kirsten Mercer found that the city did not discriminate against Todd during his employment and did not discriminate against him by instituting a continuous employment contract to manage his absenteeism.

It was not discriminatory for the city to fire Todd for violating that agreement, Mercer said, but it was discriminatory to cite his disability-related absenteeism in his termination letter.

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“If Mr. Todd’s violations of the continuing employment contract were the only reason given for his termination,” Mercer noted, “then I don’t think firing him would have been discriminatory.”

The court heard Todd was diagnosed with irritable bowel syndrome in 2004. A chronic condition, it affects the large intestine and can cause abdominal pain, cramping, bloating, gas, diarrhea or constipation .

Medical restrictions put in place by Todd’s doctors prevented him from driving a bus, the court was told, and OC Transpo agreed he could call in sick when his disability made his job too difficult.

In 2012, Todd was absent without medical justification for several months, the court heard, after which his supervisor placed him on a continuing employment contract. It stipulated that Todd should notify his superior when he missed a shift so that he could be offered other duties.

Todd was fired for failing to contact his supervisor after missing a shift due to the flu in January 2014. The dismissal followed verbal and written warnings about notifying his supervisor in advance. an absence.

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