Disclosure of disability post-dismissal

Employer claimed a disability affecting her work after being let go
By Colin Gibson
|Canadian Employment Law Today|Last Updated: 12/11/2013

Question: We dismissed a non-union employee for poor performance and gave her severance pay in lieu of notice. The employee now claims her performance problems were caused by a disability and she has offered to provide a doctor’s note. We didn’t know about any disability when we terminated her. Are we required to do anything?

Answer: The legal obligations of an employer facing a post-termination claim of disability will depend on what the employer knew, or should have known, before the employee was terminated.

Human rights legislation across Canada protects employees against discrimination based on certain protected grounds, which include mental or physical disability. An employee will be able to establish prima facie discrimination where she can demonstrate that she has a disability, that the employer treated her adversely and that the disability was a factor in the treatment.