Assessing Employee Performance under the Human Rights Code: What Employers Need to Know

When we think of workplace investigations, we typically think of investigations into alleged workplace misconduct. However, the employer’s duty to investigate under the Ontario Human Rights Code (“the Ontario Code”) can also be triggered by allegations of poor job performance (or the perception of poor performance by the employer, as the case may be).

For example, even in a “clear” case of poor performance, where any reasonable observer would conclude that the employee in question is not meeting expectations, the employer must still be alive to the possibility that the employee’s performance issues are the result of—or otherwise related to—disability. Importantly, the employer must investigate this possibility even if the employee has not expressly sought accommodation. If the performance issues are disability-related, the employer will likely not be able to impose discipline. Instead, the employer will be required to offer accommodations appropriate to the employee’s circumstances, which may include modified or lowered performance expectations.

The British Columbia Human Rights Tribunal (“the BC Tribunal”) held in Martin v Carter Chevrolet Oldsmobile, 2001 BCHRT 37 (“Martin”), that “where an employer is aware, or reasonably ought to be aware, that there may be a relationship between [disability and poor performance], the employer has a duty to inquire into that possible relationship before making an adverse decision based on performance.” The BC Tribunal’s reasons in Martin have been adopted by the Human Rights Tribunal of Ontario (“the Ontario Tribunal”).

However, it is important to note the “ought to be aware” component of the Martin test relates to the employer’s awareness of a possible relationship between performance and disability. It does not relate to the employer’s awareness of the underlying disability. If the employee has not disclosed his or her disability to the employer, the employer will not be faulted for lack of awareness (although the employee may disclose his or her disability and seek accommodation at any point, even in the face of discipline for poor performance).

In Cvetkovska v University of British Columbia, 2020 BCHRT 185, the respondent employer investigated the possibility that the applicant employee’s inappropriate workplace behaviour was the result of disability. The employer retained an independent investigator, who found that the employee had vandalized employer property, sexually harassed a student, and breached employer policy in a number of other respects. However, before acting on the investigator’s report, the employer enquired into whether the employee’s mental health issues (of which the employer was aware) might be relevant.

In the end, the employer accepted the report and dismissed the employee for cause. The BC Tribunal found no breach of the British Columbia Human Rights Code (“the BC Code”), but—crucially—noted that “had [the employer] not made enquiries about whether [the employee’s] mental health was affecting her conduct before it meted out adverse consequences in respect of her employment, it likely would have run afoul of its obligations under the [BC Code].” In other words, the employer in Cvetkovska got it right.

In summary, assessing an employee’s performance can be tricky, even if it is clear that the employee is not meeting expectations. We know from Martin—and from similar decisions of the Ontario Tribunal, such as Hitchcock v Lafarge Canada Inc, 2015 HRTO 1296—that a Code-compliant performance assessment will account for any disability-related limitations on performance, even if the employee has not brought the relevant limitations to the employer’s attention.

An employer may also need to consider whether an allegation of poor performance has been tainted by discrimination. For example, in McLarry v Universal Supply Group, 2011 HRTO 893, the respondent employer dismissed the applicant employee on the basis of a customer complaint, despite the fact that the employee had previously been the target of racist verbal abuse by the customer in question. The Ontario Tribunal found that the employer ought to have approached the customer’s complaint with some caution. In failing to conduct a proper investigation before acting on the complaint, the employer breached the Code.

The takeaway for employers is that “pure” performance issues are rare. An employer must always consider the possibility that what looks like a clear case of poor performance may, in fact, trigger the duty to investigate under the Code.