Bell Canada has policies to prevent discrimination but chose to ignore them: lawyer
A Canadian Human Rights Tribunal ruling criticized Bell Canada and demanded the company pay over $120,000 to a former employee who was fired because of unproven performance issues while recovering from cancer.
In the dispute between Glenn Luckman and Bell Canada, the commission ruled that “the respondent discriminated against the complainant contrary to section 7 of the Canadian Human Rights Act and is entitled to compensation of $91,052.40 for lost wages. The complainant is also entitled to $15,000 in damages for pain and suffering and damages of $15,000 for the respondent’s wilful and reckless conduct.”
In May 2016, Glenn Luckman started a new job as business development manager for Bell Canada in Toronto. “During his time at Bell, he cared for his ailing father until his passing in April 2017. Also in April 2017, Mr. Luckman was diagnosed with cancer. He started a medical leave in May 2017 and ultimately returned to work in November 2017. He was terminated less than a month later on December 6, 2017,” the ruling by tribunal member Alex G. Pannu states.
Pannu concluded that Luckman’s cancer was a factor in Bell’s decision to terminate him.
Luckman’s lawyer Craig Colraine says the decision shows that an applicant can be successful against a sophisticated employer that supposedly has policies to prevent discrimination from happening in the first place but chooses to ignore them.
“The law is clear that an employer can’t discriminate against an employee, which means they can’t take an adverse step in terms of their employment like discipline or termination if the employee has a condition protected by the charter.”
Colraine says Lachman should be given credit for going through the lengthy tribunal process given his condition.
“It’s a very long process to get these court cases to an actual hearing because, unlike the Ontario human rights system, the Canadian tribunal first investigates, mediates, furthers investigation, and makes written submissions to see whether it should proceed to a hearing.”
The tribunal limits general damages for pain and suffering and the wilful misconduct of an employer to $20,000 each, and Colraine says Lachman got $15,000, which is at the higher end of the range. However, he says Lachman probably would have more under the provincial system because there are no formal statutory limits, and the awards are higher in amounts.
Luckman first suspected something was wrong with his health in late 2016 when he found a lump in his groin. A few months later, he was diagnosed with cancer recurrence and the symptoms including “low energy, irritability, stomach pains and stress” affected his work.
Luckman first went on medical leave in early May 2017 to have eight lymph nodes removed and briefly returned to work on a “gradual” schedule five months later.
But despite the return-to-work plan set up by doctors and his insurance provider, Luckman said he was quickly “bombarded” with calls from clients about the accounts he managed and was soon “overwhelmed” to the point of going back on sick leave.
One of his supervisors told the tribunal that he was “unaware” that Luckman’s clients were calling him, and he had suggested Luckman return on sick leave after he raised concerns about his work volume. Luckman went back on sick leave in October.
Luckman attempted a second return to work in November and said he instantly felt “the same stresses as before” and that two of his managers were “cold to him.” He also argued that Bell did not offer to accommodate him during his return by offering him “a flexible schedule, remote work or additional resources,” reads the ruling.
Less than one month later, Bell fired him “as a result of changes in the organization,” arguing that the company was going through a restructuring.
“Mr. Luckman was the only employee from his team that was terminated,” Pannu wrote.
Luckman filed a human rights complaint, claiming he was a victim of discrimination by Bell because he was fired due to his illness and with no significant attempt by the employer to accommodate him.
Initially, his bosses at Bell claimed that Luckman was fired because he had negative performance reviews, despite key performance indicator reports listing him among the company’s top performers.
But Pannu wrote that Bell changed its tune during hearings, suddenly stating in closing arguments that “Mr. Luckman’s performance was not a factor at all in his termination.” Instead, Bell claimed they fired Luckman because he was “predestined” to be terminated during a restructuring regardless of performance.
“His performance was not substandard,” Pannu wrote.
Pannu also accused Bell of “cherry-picking” the evidence presented during hearings to make Luckman look bad.
Ultimately the tribunal concluded that the way Bell treated Luckman was a “serious transgression” of the Canadian Human Rights Act and amounted to discrimination against someone with a medical disability.
Pannu ruled that Bell should pay Luckman lost wages up until the point he found a new job one year after his dismissal.
He also ordered Bell to compensate Luckman for his pain and suffering throughout his last months at the company.
“They terminated an employee who was still recovering from cancer surgery. They made no inquiries as to whether his disability continued to affect his ability to work. In addition to the physical suffering and stress from his cancer recovery, Mr. Luckman was forced to endure the humiliation of being fired and being forced to find a new job on top of all his problems,” Pannu wrote.