Woke employers will fall particularly far if their policies are viewed as a mirage by a judge or tribunal
Codes of ethics, corporate governance policy statements, business conduct standards that all employees are required to sign and virtue-signalling policies declaring to employees and the world the righteousness of an employer, have become de rigueur in this era of ESG.
They have become even more fashionable following #Metoo, Black Lives Matter and corporate Canada’s increasing focus on trans and Black, Indigenous and people of colour (BIPOC) rights.
As I have previously advised, such policies create contracts with their employees (and potentially other stakeholders) and employers should be careful what they commit to writing. Most pious protestations and virtual signalling have no real-life consequence. But these do. Some employers take their policies unrevised from the internet, without considering their potential consequences and, for that matter, whether they intend to live up to them and risk being sued later for their non-fulfilment.
It is for that reason that I advise my clients to review all of their policies regularly to ensure both that they are being complied with and that they intend to comply with them going forward (and that their employees are doing so). Because if an employer is not reviewing and comparing their written policies to their actual practices, a future former employee’s lawyer may well be.
It is particularly embarrassing, or should be, if a company’s conduct finds its way into court and its “woke,” do-good pronouncements are found by a judge to be inconsistent with their conduct.
Bell Let’s Talk is purported to be the single largest corporate commitment to mental health in Canada. It hits all the right notes.
It also promotes “Bell for Better,” emphasizing its good corporate citizenship and support for diversity equity and inclusion. It claims to have been named the No. 1 telecom provider on a list of the best 50 corporate citizens.
But that do-gooder spirit seemed to evade it, escaping the probe of the Canadian Human Rights Tribunal (CHRT) in its dissection of Bell’s conduct toward Glenn Luckman, who it found was fired, at least in part, because he had cancer and it was believed he would become less effective.
Luckman was employed for less than two years during which he ran through a string of desultory personal fortune.
He was his father’s caregiver for his first 11 months of employment until his father’s death in April 2017. In that same month, Luckman was diagnosed with cancer and forced to take a medical leave to surgically remove eight lymph nodes. He returned six months later only to be fired the very next month.
The issue for the CHRT adjudicator, Alex Pannu, was whether Luckman was fired in violation of the Human Rights Act because of his cancer.
Despite his major surgery, Bell made minimal efforts to reintegrate him into his job when he returned. Bell claimed that he was fired in a restructuring but, as the adjudicator noted, he was the only terminated employee on his team.
Bell made the mistake of initially arguing that he was fired because his performance did not meet expectations, claiming that he was “likeable but underperformed.” Various emails and other documents were used to show this poor performance. But the adjudicator noted that there were no emails produced regarding any of his peers, concluding, “In my view, this evidence was cherry-picked by Bell to reflect negatively on Mr. Luckman” noting that the key performance indicators for the new business he brought in showed him among the top performers. The adjudicator went on to say: “I found a pattern of selective evidence and omissions submitted by Bell to try to explain Mr. Luckman’s above-average sales ranking and purported substandard performance.” The adjudicator went further and criticized Bell for holding back other information which it should have produced, wrongly claiming client-solicitor privilege.
By the end of the case, Bell had ceased relying on poor performance and shifted its defence. It relied on the evidence of a Ms. D’Ambrosio, who the adjudicator found was very focused on results. In the adjudicator’s view, D’Ambrosio believed that Luckman would be unable to perform to her standards because of his medical condition which might, in her mind, result in him taking future leaves or having reduced energy.
He noted that D’Ambrosio did not return Luckman’s accounts to him upon his return to work, supporting his view that D’Ambrosio believed she could avoid potential future disruptions in her operations by terminating him. Also, D’Ambrosio’s explanations were supported by no other witness nor the documents. The adjudicator concluded that the medical condition was a consideration for her when she selected Luckman for termination.
As the Tribunal concluded, “(Bell’s) explanation seems contrived after not being able to support their original rationale of poor performance by Mr. Luckman as the reason for termination.”
Despite his very short service, Luckman was held entitled to full pay until he found a new job, close to a year later, or $91,952.
In awarding an additional $15,000 for pain and suffering out of a possible maximum of $20,000, the adjudicator concluded: “In my view, Bell’s conduct was a serious transgression of the Act. 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 forced to find a new job on top of all of his problems.”
More significantly though, Pannu also awarded another $15,000, out of a maximum potential of $20,000, for reckless conduct. These are punitive damages intended to provide deterrence and require acts which disregard or show indifference to the consequences such that the conduct is done wantonly or needlessly.
Going back to my original point in this column, the adjudicator said, “Despite Bell’s sophisticated human resources processes and policies, it does not appear to me that anyone considered whether firing an employee recovering from cancer surgery might be discriminatory. “
Although this is not a case involving mental health and therefore not directly related to Bell Let’s Talk, to what extent was the mental health of Luckman considered?
The adjudicator noted Bell’s “sophisticated human resources processes and policies” in coming up with his award. It is important that employers walk the talk and live up to their policies. Otherwise, courts and human rights tribunal decisions can be particularly embarrassing, harm employers with their employees and damage the very brand that the policies were incorporated to uphold and build.
Woke employers will fall particularly far if their policies are viewed as a mirage by a judge or tribunal, especially human rights ones.