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“One of these days, someone is going to knock that attitude out of you!”

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The Human Rights Tribunal of Ontario, in a decision dated September 5, 2012, found that Paul Lombardi had suffered harassment in the workplace and that his dismissal from employment due to fighting was discriminatory.

The Ontario Divisional court in Walton v. Lombardi, 2013 ONSC 4218 set aside that decision. The Court ruled that there was a lack of evidence connecting the fight to the employee’s disability. In the Court’s view, the Tribunal’s reasons were unreasonable, as they failed to properly assess whether the dismissal was discriminatory in light of the evidence and applicable legal principles.

The Facts:

Paul Lombardi (Lombardi) began working at a Midas auto services store in April 2008. He had been diagnosed with hypothyroidism and depression when he was in his twenties. In early June 2008, Lombardi advised his employer that he had discontinued his thyroid medication, becoming irritable and depressed, and experiencing suicidal thoughts. He provided a doctor’s note in this regard. However, he later advised that he had started taking his medication again and needed three weeks to recover. Lombardi provided this information to his supervisor and Jack Walton.

Lombardi was granted a medical leave of absence in early June 2008. When he returned to work in early July 2008, he was transferred to the Newmarket store as a service advisor. The staff was not informed of his medical issues for privacy reasons. He did not request any accommodations. After a few months, Lombardi alleged that he began to suffer verbal abuse from the assistant store manager, who sent him text messages containing homophobic slurs. Lombardi advised Walton and the store manager of the abuse.

On October 29, 2009, Lombardi asked a technician to do some immediate work. The technician refused, and raised his middle finger to Lombardi, who responded, “one of these days someone is going to knock that attitude out of you.” A fist fight broke out between the two men. The technician suffered a black eye, while Lombardi was not injured. There was no evidence that the technician had been harassing Lombardi around the time of the fight.

Walton dismissed Lombardi on October 31, 2009 for initiating the fight. Prior to his dismissal, Lombardi did not indicate that his actions were caused by his depression, or that they were caused by past harassment. In a letter to the employer in December 2009, he explained that the fight was caused by the technician, and he had fought back to stand up for himself.

After he was dismissed, Lombardi filed an application with the Ontario Human Rights Tribunal, alleging discrimination based on disability and sexual orientation in violation of section 5(1) of the Human Rights Code, as well as harassment in the workplace in violation of s.5 (2) of the Code.

The Tribunal found that Lombardi had been harassed during his employment on the grounds of disability. Finding that Walton knew that Lombardi had a disability, and knew about his complaints of harassment, the Tribunal ruled that Walton had a duty to inquire into the possibility that there was a causal link between the depression, the harassment, and the fight prior to dismissing Lombardi. It held that its failure to do so made the corporation responsible for the discriminatory dismissal. The Tribunal ordered compensation of $20,000 for injury to dignity and self-respect caused by the harassment and dismissal, and compensation for lost income from October 31, 2009 to August 31, 2010.

The Decision

In an application for judicial review of the above, Justice Swinton granted the application and reviewed the Tribunal’s reasons with respect to the dismissal using the reasonableness standard of review. In her opinion, the adjudicator:

  1. “failed to conduct the necessary analysis of the legal principles and the evidence,” and
  2. her reasons did not make it clear whether she “found a prima facie case of discrimination and did not accept the employer’s explanation for the dismissal, or whether she found a causal link between the harassment, [Lombardi’s] mental state and the fight.”

Swinton found it significant that Lombardi did not, either after the fight or in the letter of December 2009, indicate that his mental state had led him to lose control and engage in the fight. Swinton criticized the adjudicator and stated:

Given the evidence as to [Lombardi’s] responsibility for starting the fight, the lack of any explanation to the employer about the impact of the harassment, the lack of any medical evidence relating to mental distress and given the seriousness of the misconduct, the conclusion that the dismissal was discriminatory was unreasonable, as the adjudicator failed to show why she reached that conclusion.

Justice Katherine Swinton granted the application. She referred the matter back to the Tribunal for a new hearing on the issue of the dismissal and the appropriate remedy.

RT Takeaway

Unless employees provide medical documentation to link their misbehaviour (in this case a fist fight) to a medical issue, they can be disciplined for their misbehaviour and the employer will not have violated the Ontario Human Rights Code in so doing.

Patrizia Piccolo