CMHA ordered to pay lost wages, damages to former employee

The Westman branch of the Canadian Mental Health Association discriminated against an employee when it fired the woman over a “perceived addiction” to alcohol, an adjudicator has ruled.

The association has been ordered to pay lost wages and damages to the Brandon woman.

Isha Khan, counsel for the Manitoba Human Rights Commission, said this marks the first time in Manitoba that an adjudicator has ruled on a human rights case based on “perceived disability.”

“I think it sends a message to some employers that they should be cautious not to be acting on the basis of stereotypes or prejudice in some way, because that type of behaviour is equally as discriminatory,” Khan said during an interview on Friday, shortly after the decision was released.

The former employee at the centre of the case — identified only as C.R. in adjudicator M. Lynne Harrison’s decision — said she’s satisfied.

Not only will CMHA Westman Region Inc. have to pay her lost wages and damages, the Manitoba Human Rights Commission will monitor its employment practices for the next two years.

“It was never about the money ... What makes me happiest is that Human Rights is going to monitor the organization,” said the woman, who was only identified by her initials due to the personal details contained in the ruling.

She said there’s no oversight when it comes to the hiring and firing of staff at CMHA Westman.

CMHA Westman Region Inc. regional manager Glen Kruck wasn’t available for comment on Friday and the association’s president couldn’t be reached.

The woman began to work part-time at CMHA Westman as community educator/fundraising co-ordinator on Oct. 27, 2005.

She gradually also took on the roles of community support/housing co-ordinator, and caretaker at the CMHA building in Brandon where she lived before she was fired in September 2008.

Her complaint was lodged on Jan. 26, 2009, and the case went to a hearing before Harrison in Brandon in May 2011.

Harrison heard from 13 witnesses at the two-day hearing and she outlined the case in her written decision.

The complainant acknowledged that she’d been a binge drinker for all her adult life, and Kruck and other CMHA Westman employees testified that they believed the woman was addicted to alcohol.

Despite that, Harrison said the evidence is clear that the woman was a capable and valued employee.

At the hearing, the former employee and the commission argued that CMHA Westman violated the Human Rights Code by discriminating against C.R. due to her disabilities — alcoholism and binge drinking. Specifically, the commission argued that CMHA Westman discriminated against the woman during events leading up to an August 2008 conference in Halifax, an event which the employee was supposed to attend.

According to testimony at the hearing, Kruck had suspected the employee of binge drinking when she called in sick the day before she was to fly to the conference.

Other witnesses, however, said the woman was dealing with pain from dental surgery and struggling with the recent deaths of two of her daughters, work-related stress and her belief that she might have a relapse of cancer.

Kruck wouldn’t let the woman go to the conference without a doctor’s note first. That led to a delay and the employee ultimately told Kruck that she was too ill to go.

The commission also argued that CMHA Westman failed to take reasonable steps to accommodate the woman’s special needs based on her alcoholism and discriminated against her on Sept. 16, 2008, when Kruck ultimately fired her.

CMHA Westman argued that it “bent over backwards” to accommodate the woman’s needs and she was only ultimately dismissed for misappropriation of funds.

But in her decision, Harrison said she wasn’t convinced that there was a misappropriation of funds and described it as an “excuse” to fire the employee.

She concluded that the woman’s addiction to alcohol was behind the treatment she received at the time of the conference and her dismissal.

Harrison stated that it’s well-established that addiction to alcohol falls within the meaning of “disability” in the Human Rights Code.

There was insufficient evidence to prove the woman suffered from an alcohol addiction that amounted to a disability, but Harrison ruled that doesn’t matter under the code.

Kruck and other staff believed that the complainant had an alcohol addiction and Harrison ruled that discrimination based on a “perceived disability” still violates the Code.

Harrison also found that CMHA Westman failed to prove that it did what it could to accommodate the woman’s perceived addiction.

She ordered CMHA Westman to pay a total of about $6,000 — $1,894 in lost wages, and $4,000 for injury to dignity, feelings and self-respect.

However, Khan has asked for a slight increase to the lost wages amount due to a miscalculation by CMHA Westman.

As for C.R., she says she has since found other employment.

The full decision will be posted at the commission’s website at manitobahumanrights.ca.

CMHA Westman has 30 days to apply for a review (effectively an appeal) of the decision by Court of Queen’s Bench.

» ihitchen@brandonsun.com

Republished from the Brandon Sun print edition January 12, 2013