In West Fraser Mills Ltd. (2012), 219 L.A.C. (4th) 129 (BCCA), the employer had argued that at the time the grievors were terminated, “it had made no decision to close the plant. It argued that the union had not established prima facie discrimination because there was no evidentiary link between the grievor’s disability and the ‘adverse treatment’ of being deprived of severance pay.”
The majority of the Court of Appeal stated that the parties agreed that a finding of discrimination based on disability requires the application of a three-part test:
The majority accepted that the first part of the test had been met for all seven grievors, so that the question before the court was “whether that arbitrator’s finding of adverse treatment, and its connection to the grievor’s’ disability, was reasonable.”
The grievor’s were found to have suffered adverse treatment, so that the question became whether there was evidence “from which it could be reasonably inferred that the grievor’s’ disabilities were a factor in the adverse treatment.” In the majority’s view, central to this issue was “whether excessive absenteeism was the real cause of the terminations, or whether there was another, unstated, reason.” The majority found that “it was not unreasonable for the arbitrator to conclude that the employer’s motive for the termination was the desire to avoid paying severance to disabled employees who were receiving long-term disability benefits.”
In a concurring judgment, Groberman J.A. expressed the view that the arbitrator’s analysis, although correct in the outcome, tended to obscure the underlying human rights principles and had given limited consideration to the issue of bona fide occupational requirement.