The above review looks to the concept of a notional termination and the inability of the employee to recover severance, statutory or otherwise, in this context.
There can be situations, however, where the denial of such sums is recoverable where the employer conduct directly causes the loss of such a benefit due to adverse treatment.
The usual context is one in which the employee is on disability at the time the employer has decided to close the business or the relevant department of it.
In one instance, 1 the employer had closed its mill operation in Squamish with no likely possibility of re-opening it.
The applicant had been terminated for non-culpable absenteeism due to a serious medical issue eleven days before an agreement was reached with the union that allowed employees on lay-off an entitlement to a substantial severance payment.
It was determined, by the tribunal, however, that where a plant shutdown was in the offing, that the ability to perform work was not a BFOR and that the complainant’s employment was terminated to prevent him from receiving severance pay and was hence a violation of the Code. It did deal parenthetically with the fact that the complainant was unable then to work but it does not consider the substance of this proposition that reinstatement to inactive employment may be a proper remedy.
The Tribunal concluded that such a decision to terminate had the direct impact of causing the loss of such a right of severance pay and hence was a basis to show an “extraneous motive” which thus established a prohibited adverse discriminatory intent.
Where such a decision was motivated by an intent to deprive disabled persons a severance payment that was available to all other employees, this would and did lead to a finding of discrimination. The fact that the employee was not in active employment was not found to be telling of the outcome.
The decision of the British Columbia Court of Appeal followed. 2 It is significant in that the concurring reasons of Groberman, J.A. specifically stated that this decision was not be read as endorsing MacRae on the issue that active employment was not required for liability to be seen.
In this case, the employees in question were all on long term disability. They had been terminated for non-culpable absenteeism from employment. The arbitrator had determined that the reason for such termination was the employer's intent to avoid payment of the anticipated severance sum due to the expected closing of the work facility.
The arbitrator thus found that the applicants had made a case of prima facie adverse treatment due to their disability.
The Court of Appeal, in the reasons of Finch, J.A, concurred in by Low, J.A. without further reasons, found that the arbitrator's decision was reasonable and upheld the decision.
However, in the concurring reasons of Mr. Justice Groberman specifically stated that he was not endorsing the decision in MacRae. The reasons of the Chief Justice did not speak to this issue.
Groberman J.A. did agree that it was arguable in this situation of a shutdown, that the employee need not have the capacity to work. This issue remained moot, was the stated view.
This decision noted that MacRae had concluded that while the ability to work was normally a bona fide occupational requirement of the human rights code, in the situation where the employer was aware of the need to close the plant, the employer was precluded from mandating active employment as a BFOR.
The reasons continued to cite the abritrator's decision on this point:
In the present complaint, neither side was fulfilling its part of the employment bargain. The mill was shut-down, with no foreseeable prospect of its re-opening. Interfor was not providing employment or compensation, including health and welfare benefits, to any of the Squamish mill crew, anymore than any of the Squamish crew was providing work. In this respect, Mr. MacRae was no different than any of his colleagues. Further, Mr. MacRae's “absenteeism” was not causing Interfor any of the problems typically relied upon by employers in seeking to justify the termination of employees for excessive absenteeism. Interfor was not, for example, having to replace Mr. MacRae on either a temporary or permanent basis and it was not costing Interfor anything to keep him on its seniority list. In the circumstances, it cannot be said that Interfor terminated Mr. MacRae's employment because he was no longer capable of fulfilling his end of the employment bargain; it terminated him solely in order to prevent him from receiving severance pay.
These reasons continued to express the view that this issue, that is, the need for active employment, may well be a BFOR and that this decision should not be interpreted otherwise:
It may well be that a more detailed analysis of the collective agreement than was performed in MacRae would conclude that, notwithstanding a contemplated shutdown, the ability to return to work should be considered to be a bona fide occupational requirement of continued employment.
[82] This Court has not, to date, considered the questions addressed in MacRae and the arbitral decisions that follow it. The arbitrator in this case did not analyze those questions in any detail, nor have they been argued on this appeal. As the issues are complex and the answers are far from clear, I would not want our dismissal of this appeal to be seen as an endorsement of the MacRae analysis adopted by the arbitrator in this case.