Canada: A Decision Not To Rehire Is Not Necessarily Discriminatory

The Quebec Court of Appeal recently confirmed that an employer's decision not to consider the application of a former employee who had been dismissed following excessive absenteeism due to alcoholism was not discriminatory, even if the former employee had been sober since his dismissal.

In Commission des droits de la personne et des droits de la jeunesse c Centre hospitalier universitaire de Sherbrooke, 2012 QCCA 306, the Quebec Court of Appeal was asked to review on appeal a Quebec Human Rights Tribunal (Tribunal) decision that dismissed a candidate's complaint alleging a breach of his right to equal treatment, without any distinction based on a handicap, as guaranteed by sections 10 and 16 of the Quebec Charter of Human Rights and Freedoms (Charter), when his application to a former employer was rejected without so much as an interview.

Facts

The appellant worked for the former employer from 1985 until his dismissal in 2001 for chronic absenteeism due to alcoholism, following the employer's numerous warnings and the appellant's failure to address his alcoholism. An arbitrator denied the grievance contesting the dismissal in 2002.

In 2005, the appellant applied for a position with the same employer after having successfully completed a professional studies diploma and having been sober since 2001 following rehabilitation. Shortly after submitting his application and without being granted an interview, the former employer informed the appellant that his application had been rejected due to his previous dismissal.

Tribunal's decision

The Tribunal found a prima facie case of discrimination based on handicap. However, the refusal to consider the application of an individual dismissed for chronic absenteeism constituted a justified professional qualification pursuant to section 20 of the Charter. The Tribunal was of the opinion that reasonable accommodation did not require the former employer to disregard or ignore the appellant's prior file, which demonstrated he had been unable to accomplish his work due to chronic absenteeism.

Moreover, the Tribunal found that if the former employer were required to accommodate the appellant, it would suffer undue hardship, as its past efforts to accommodate the appellant had been unsuccessful. The Tribunal noted the irreparable breach of the relationship of trust between the former employer and the appellant following the latter's past behaviour; re-establishing an employment relationship had become impossible. In any case, the dismissal having been judged reasonable and non-discriminatory by a grievance arbitrator, it was not discriminatory to refuse to consider the appellant's application for the same reasons that had motivated the dismissal.

Court of Appeal decision

Before the Quebec Court of Appeal, neither party contested that the appellant's application was rejected due to his prior dismissal for chronic absenteeism related to his alcoholism. Justice Nicole Duval Hesler found that diligent attendance at work constitutes a good-faith professional qualification. She conceded that it could be discriminatory to presume that a person who once suffered from a handicap still did. However, she determined that this was not the question before the court; rather, the court was to consider whether an individualized evaluation of an application had been refused in an unreasonable manner.

The file revealed that the former employer had studied the appellant's case on many occasions before his dismissal; the decision to dismiss the appellant had been considered reasonable by a grievance arbitrator. Justice Duval Hesler concluded that an employer having dismissed an employee for a reasonable and non-discriminatory motive – the same motive that was invoked to refuse his application – cannot be said to have unjustly refused an individualized evaluation of an application.

Moreover, the Tribunal was correct in concluding it lacked the jurisdiction to review the arbitrator's decision. While a preclusion argument was not raised, the recent Supreme Court of Canada decision in British Columbia (Workers' Compensation Board) v Figliola, 2011 SCC 52, highlighted the importance of the definitive character of litigations already decided between the same parties. For these reasons, Justice Duval Hesler dismissed the appeal.

Justice Jacques Dufresne found that given the disciplinary nature of the dismissal, the employer's confidence in the appellant had been strongly shaken. He concluded that regardless of whether or not the former employer was wrong in not considering the appellant's application, the refusal to do so was not discriminatory pursuant to sections 10 and 20 of the Charter. The employer was under no obligation to grant an interview to the appellant following an evaluation of his application.

Justice Jean Bouchard, dissenting, distinguished the appellant's personal situation at the time of his application with the one existing at the time of the grievance arbitrator's decision. While the employer could look at the appellant's past file, it nevertheless had to also take into consideration the rehabilitation and successful completion of his studies to determine whether the appellant had the necessary skills for the position. The right to an individual evaluation of the appellant's application was unjustly and illegally denied. Justice Bouchard did not go so far as to claim the employee should have obtained the position, but rather that the former employer should have given him the chance to demonstrate, by virtue of an individualized evaluation, that he was able to satisfy the obligations of an employee.

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