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Discriminatory to dismiss for non-culpable absenteeism months before severance obligations triggered

The decision by the BC Human Rights Tribunal ("Tribunal") in USWA v. Weyerhaeuser, 2009 BCHRT 328 is important and worth reviewing for two key reasons:

  1. It re-affirms that employers can terminate the employment relationship for innocent or non-culpable absenteeism and provides some guidance on how this can be done through a formal "termination program"; and
  2. It is a reminder to employers that they can be found to have contravened human rights legislation if they treat employees on disability leave different than active employees when addressing severance entitlements at the time of a permanent closure.


The United Steel-Workers Association, Local 1-423 (the "Union") filed a representative complaint with the Tribunal alleging that four of its members (the "Employees") were discriminated against with respect to their employment, on the basis of physical and mental disability, contrary to section 13 of the BC Human Rights Code (the "Code").

The Employees had been employed by Weyerhaeuser at its mill in Okanagan Falls (the "Mill"). Each of the Employees was in receipt of long-term disability ("LTD") benefits.

In June 2007, the Employees' were terminated for non-culpable absenteeism. It was Weyerhaeuser's position that the decision to terminate the Employees had been made pursuant to a formal termination program that it had developed to assess and then terminate employees for non-culpable absenteeism (the "Termination Program").

At the same time, Weyerhaeuser terminated five employees on LTD at the Princeton mill.

Some three months after the Employees were terminated, Weyerhaeuser announced that it was permanently closing the Mill effective December 2007. The closure triggered severance obligations under the collective agreement that saw employees still with the company receive 10 days pay for each year of service.

The Employees did not receive a severance payment. The Union had not filed a grievance at the time the Employees were terminated. Following the closure, however, the Union filed the representative complaint with the Tribunal.

The Employees

The individual circumstances of the Employees were as follows:

  • Peter Wakeling had been an employee for 33 years. In March 2006, he had been diagnosed with a progressively debilitating disease and ultimately a terminal illness. He started to receive LTD benefits in December 2006, just four months before receiving his termination letter. At the time of the hearing, he was 59 years old, confined to a wheelchair and had difficulty enunciating his words.
  • Ingrid Schellenberg started as new hire in 1992. She was actively employed for only nine months before going on disability leave. She had been diagnosed with Bell's palsy, as well as other conditions. Over the years, she had attempted a number of "return-to-work" ("RTW") scenarios but none had been successful. At the time she received her termination letter she had been off work due to disability for little less than 15 years.
  • Ed Iceton had been an active Weyerhaeuser employee for 28 years. He was 60 years old at the time of the hearing. He was diagnosed with chronic pulmonary disease in 2004 and had gone on LTD the year after. His disability benefits ended in November 2008 when he turned 60 and he started to receive Canada Pension Plan ("CPP") benefits.  
  • David Cardoso was an active Weyerhaeuser employee for 16 years. He became ill with a mental disability in or about 1995. He had unsuccessfully attempted one six month RTW.

Weyerhaeuser's Witnesses

Weyerhaeuser's evidence at the hearing was presented by two company representatives:

  • Mr. Rushby, who had been the VP of HR for Canada prior to retiring in March 2007, prior to the terminations of the Employees; and
  • Mr. Roos, who had been the HR manager for the Mill as well as the mill in Princeton, BC.

The Termination Program

The evidence revealed that:

  • The Termination Program was aimed at employees who had been away from the workplace for at least two years and had exhausted the "own occupation" category under the LTD plan and who were deemed disabled from performing any occupation.
  • Weyerhaeuser's Canadian Human Resources department had first initiated the Termination Program in 2004 but had become pre-occupied with other matters and did not re-visit it again until mid-2006.
  • Prior to 2004, Weyerhaeuser did not have a policy or program to terminate employees for non-culpable absenteeism.
  • Prior to the terminations of the Employees, Weyerhaeuser had never terminated on the basis of non-culpable absenteeism and no employee on LTD had ever been terminated at the Mill.
  • Although it was Weyerhaeuser stated that it was a national program, there was no evidence that any other employee of Weyerhaeuser had been terminated under the program other than at the Mill and the Princeton mill.

Weyerhaeuser provided the following four reasons for implementing the Termination Program:      

  1. Company overhead was assigned and allocated based on the number of employees. Because the total number of employees included both the disabled and the able bodied a significant expense was being incurred by the corporate group on the part of disabled employees.
  2. Weyerhaeuser had moved from individualized budgeting systems to one budgeting system, companywide.  There was inconsistency between the employee numbers provided by local managers and the budgeting system.  The budgeting system included disabled employees in its calculation of employees, whereas the field numbers may or may not. This led to issues of "credibility" as the difference in employee numbers resulted in a difference in mill efficiency calculations. 
  3. A prospective purchaser of the Mill did not want in the normal course LTD employees unless there was reasonable likelihood they would return to work. Weyerhaeuser did not want to retain the disabled employees if it was going to sell.
  4. Every five years, Weyerhaeuser gave service awards.  Having disabled employees continuing to be recorded with employee status therefore required a manual intervention in order to not mistakenly make an award.  The same type of problem arose respecting automatic salary adjustments.

It was Weyerhaeuser's evidence that although each one of these reasons when considered alone may seem small, together they "were a big deal" for Weyerhaeuser because it was a multi-national company with tens of thousands of employees (para. 106).

The Termination Program Package

Weyerhaeuser developed a package to implement and apply its Termination Program that consisted of the following: 1) a Long Terms Disabled Employment Status Review Form; 2) a Process Check List; and 3) a template Termination Letter.

It was Weyerhaeuser's evidence that it expected Termination Program to be implemented consistent with the process set out in the Package but with some flexibility and that it was be responsive to the individual employee (para. 99).

The Review Form

The Review Form contained the following 14 questions:

  1. Is disabled employee considered to be totally disabled from any occupation?
  2. Is disabled employee expected to be incapable of performing work on a consistent and regular basis in the future?
  3. Has the employee been consistently and regularly absent from work due to disability from commencement of disability?
  4. Has the employee been involved in any rehabilitation or other return to work initiatives?
  5. Is disabled employee receiving WCB benefits?
  6. Is disabled employee receiving a permanent function impairment benefit?
  7. Has the employee been disabled for equivalent period of time to WI [weekly indemnity] plus own occupation period of LTD
  8. Receiving CPP disability pension?
  9. Advised to apply for CPP disability pension?
  10. Has any accommodation been considered? Examples: mechanical or work aids; re-bundling of job duties; shorter shift or days worked; other positions; additional training; longer period of medical leave; any other ways in which the employment of the employee can be preserved?
  11. Have any potential solutions been rejected because of matters of cost, safety or interference with the rights of other employees? What are those? What is the basis for rejecting it and can it be defended?
  12. Any other issues to consider in review of employee (e.g. terminal illness)?
  13. Any limitation on terminating this employee under the collective agreement?
  14. Would termination interfere with any of the insured benefits that are specifically related to the disability of the employee?

The Process Checklist

The Process Checklist set out a comprehensive set of tasks starting with the completion of the review and the signatures required on the Review Form. It also set out the steps respecting the notification of the employee and Union, the provision of an opportunity for a RTW if the employee advised that he or she so requested, an assessment by the insurer respecting the viability of a RTW, the provision of extensions of time, and the final decision to terminate

 The Termination Letter

The template termination letter was as follows:

If an employee is absent from work for an extended period of time and there is no reasonable likelihood of a return to work on a regular basis in the foreseeable
future, the law recognizes the right of an employer to terminate the employee's employment on the basis that the employer is no longer receiving a benefit from maintaining the employment relationship.  We have concluded that the length of time that you have been absent from work meets these criteria. Based upon the information in your file, we have no reason to believe that you will be returning to work in the foreseeable future.  As a result, we intend to terminate your status as an employee effective June 15, 2007.  The termination of your employment status will not affect your ongoing entitlement to continue to receive LTD benefits.  Your entitlement to those benefits was triggered while you were an employee of this Company and will not be affected by the termination of your employment.

Your benefit coverage is provided through the IWA-Forest Industry Health & Welfare Trust and LTD and Pension Plan.  These benefits will also continue provided you continue to demonstrate that you meet the requirements of those plans.  You should contact the  IWA-Forest Industry LTD Plan at ***** if you have any questions regarding your extended health, dental, life insurance, long-term disability or pension benefits.

If you have any information regarding your medical condition, medical prognosis or capabilities that demonstrates that you soon will return to work on a regular basis in a productive capacity please advise us in writing within two weeks from the date of this letter.  Upon receipt of such information, we will advise the IWA-Forest Industry LTD Plan, and will defer the termination of your employment for a period of two months from the date of this letter while awaiting confirmation of your ability to return to work on a regular basis.

The Application of the Termination Program to the Employees

The termination of LTD employees at the mills in Interior BC was discussed by Weyerhaeuser in a conference call in July 2006.  At this time, three of the Employees were on the list. Mr. Wakeling was added later with a notation that there was no likelihood that he would return to work. The HR manager became pre-occupied and did not re-visit the issue again until December 2006.

The HR manager did not actually complete the Termination Program Review Form, with the 14 questions, for any of the Employees and he also did not obtain the signatures required by the Review Form. Although his evidence was that he mentally considered and answered each of the questions for each Employee, the Tribunal rejected this evidence (para. 143).

Weyerhaeuser sent the Employees letters on April 7, 2007 advising them their employment was terminated effective June 17, 2007. Weyerhaeuser did not contact the Employees in person or by phone prior to sending them the letter. 

At the same time that it terminated the Employees, Weyerhaeuser also terminated five employees at the Princeton mill pursuant to the Termination Program.

The Timing of Weyerhaeuser's Decision to Permanently Close the Facility

The HR Manager's evidence was that he was not informed of head office's decision to close the Mill until August 2007. Based on the documentary evidence, however, the Tribunal concluded that the decision to close the Mill was made in January 2007 (para. 72) and that the HR manager was first made aware during a teleconference in March 2007 that the closure was imminent and could be announced at any time (para. 276).

The Law on Disability/Discrimination

The Tribunal rejected Weyerhaeuser's argument that the Supreme Court of Canada and the BC Court of Appeal had, in a series of recent case, refined what constitutes a prima facie case of discrimination and significantly increased the burden on complainants in this regard.

Rather, the Tribunal stated that the test for proving a prima facie case of discrimination under section 13 of the Code remains that set out by the BC Court of Appeal in Health Employers Assn. of B. C. (Kootenay Boundary Regional Hospital) v. B.C. Nurses' Union, 2006 BCCA 57. Specifically, the Union must establish that:

  1. the Employees have a disability or were perceived to have a disability;
  2. they were treated in an adverse way; and
  3. it is reasonable to infer from the evidence that their disability was a factor in that adverse treatment.

The Tribunal further stated that:

...The test is to be applied in a purposive manner, having regard to the purposes of the Code set out in s. 3. In particular, the discrimination analysis recognizes that the goal of human rights legislation is substantive rather than formal equality:
differences in treatment do not necessarily result in inequality, just as identical treatment may result in inequality (para. 244).

Application of the Prima Facie Test

Pointing to a previous Tribunal decision - MacRae v. International Forest Products Ltd., 2005 Tribunal 462, in which the doctrine respecting discharge for non-culpable absenteeism was explained - the Tribunal stated that generally and subject to the facts of each case:

...if an employer has in place, and regularly follows, a bona fide termination program for non-culpable absenteeism, then the application of that program to an individual employee, even if it results in the loss of entitlement to severance pay, is not discrimination (para. 251).

Accordingly, the Tribunal stated that the question it must answer is whether the terminations resulted solely from the bona fide application of its Termination Program in the normal course of business, or they resulted at least in part due to the impending closure of the Mill, which would trigger the payment of severance under the collective agreement.

The Tribunal further stated that, because of the way the Union framed its case, it chose to analyze this question in the context of a prima facie case but that it may be appropriate in other cases to begin with the presumption that the terminations were discriminatory (par. 254).

Specific Findings

The Tribunal concluded that on a balance of probabilities that it was more likely than not, that Weyerhaeuser's termination of the Employees was prima facie discriminatory (para. 255).

Specifically, the Tribunal found that although Weyerhaeuser had a bona fide Termination Program, the termination of the Employees' employment did not result from its application in the normal course of business. Rather, in the face of the impending closure of the Mill, Weyerhaeuser rushed to ensure that the Employees employment was terminated before the Mill closed or the closure was announced.

In reaching this conclusion, the Tribunal made the following key findings:

  • The Termination Program itself was bona fide (para. 259).
  • There was no reliable evidence that anyone other than the Employees and the five employees at Princeton had been terminated on the basis of non-culpable absenteeism (para. 260),
  • The decision to close the Mill was made on or about January 22, 2007, and the closure was foreseeable from that time forth (para. 264),
  • The HR manager was aware as of March 26, 2007 that the plan was to close the Mill and that the closure was imminent (paras. 273-5)
  • The preponderance of the evidence supported an inference that the motivating factor in terminating the Employees at that time was the plan to close the Mill, and that although the HR Manager purported to rely on the Termination Program, the terminations did not result from the
    application of the Termination Program in the normal course of business (para. 278).
  • The HR Manager only made a cursory review of the employees' disabled status (para. 282).
  • The termination process implemented by the HR Manager was not the one prescribed by the Termination Program (para. 284).
  • The inclusion of Mr. Wakeling - who had been absent from the workplace for just over a year and in receipt of LTD benefits for only four months - further indicated the terminations were not carried out in the normal course of business (para. 289 -292).

In conclusion on the prima facie test, the Tribunal stated:

I have concluded that the Members' [employees'] disabilities were a factor in the decision to terminate them and, specifically, the adverse consequence that they were not entitled to severance.  The facts that I have found most compelling are that Mr. Roos [the HR manager] terminated the Members, purportedly on the basis of non-culpable absenteeism due to frustration of contract in circumstances, where:

-At the time the Members were terminated, and on the evidence before me, Weyerhaeuser had not as yet established a regular practice or pattern of terminating employees for non-culpable absenteeism, and had not given the Union notice of its intention to implement the program in B.C.;

-Mr. Roos did not employ the practice established in Weyerhaeuser's bona fide Termination Program;

-Mr. Roos knew the permanent closure of OK Falls was imminent and he rushed in order to ensure that the Members were terminated prior to the closure if not the announcement of the closure of the mill; and

-Mr. Roos included Mr. Wakeling, a Member who had not met the minimum requirement for absence from the workplace established by Weyerhaeuser's evidence, leading to an inference that his motivation was to save Weyerhaeuser the payment of severance (para. 298).

Bona Fide Occupational Requirement

Weyerhaeuser did not advance a bona fide occupational requirement ("BFOR") argument at the hearing but the Tribunal nonetheless briefly undertook this analysis.

Specifically, the Tribunal noted that the three stage analysis for determining if a standard is BFOR was set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"). Pursuant to the Meiorin analysis, an employer may justify the impugned standard by establishing on a balance of probabilities that:

  1. it adopted the standard for a purpose or goal that is rationally connected to the performance of the job;
  2. it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
  3.  the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose to show that the standard is reasonably necessary it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Applying the same reasoning applied in MacRae, the Tribunal concluded that the termination of a disabled employee for the purpose of saving severance does not, under the second step, meet the requirement of the implementation of a standard in good faith and in order to fulfill a legitimate work-related purpose (paras. 303-304)


Among other remedies, the Tribunal ordered that the Employees receive the severance payment they would have received under the collective agreement had they continued to be employed by Weyerhaeuser up until the time of closure.

In ordering this remedy, the Tribunal acknowledged that under a bona fide application of the Termination Program, Weyerhaeuser could have terminated the employment of three of the Employees in 2006. However, the Tribunal concluded that it the circumstances of the case it would not appropriate to deprive the three Employees of severance because of what Weyerhaeuser hypothetically could have done but did not do (para. 314).

The Union had also requested that each of the employees receive $25,000 for injury to their dignity, feelings and self respect pursuant to section 37(2)(d)(ii) of the Code.

The Tribunal rejected this request and instead awarded each employee an individualized amount based on their attachment to the workplace and the impact of the termination on them. Accordingly, it made the following awards: Mr. Wakeling - $20,000; Mr. Iceton - $16,000; Mr. Cardoso  - $14,000; and Ms. Schellenberg  - $5,000.