You Can’t Be Fired For Occasional Impairment

[ ED NOTE: this article can also be read at Scary Fundamentalist’s blog, here. ]

Another Monday, another Human Rights decision to dissect. This one is out of the BC Human Rights Tribunal, of Mark Steyn/MacLean’s fame. The complainant, Kimberly Bertrand, claims she was fired because she suffered from depression, i.e. discrimination based on a disability. Ms. Bertrand won $30,000 from her former employer, Golder Associates, and so we’re not talking about chump change.

First off, let’s get one things straight: if one subscribes to an ideal of social equality, then the only factor in evaluating one’s fitness to work is by job performance. No discrimination, right? Well, not quite. We see here how the Human Rights Industry’s notion of equality is anything but equal – one must be given preferential treatment if they are a member of a “special” or “vulnerable” class of people. That is discrimination by any other name. I wish they would drop the “equality” term as it is so obviously irrelevant.

With that out of the way, let’s look at some of the specifics of the decision. First off, the inquisitor (I think the official title is adjudicator) Enid Marion, immediately prejudges the witnesses:

At the outset, I note that where there is a difference in the evidence between Ms. Bertrand and Ms. Kwok, I prefer Ms. Bertrand’s evidence.

Ms. Kwok, of course, is a witness testifying on behalf of Golder Associates. Marion’s reasons? Any errors or hesitations in Bertrand’s testimony were obviously caused by her disabilities, while Kwok’s testimony must be unreliable because she seemed defensive. Defensive? If someone is lying about what you said during pseudo-legal proceedings, wouldn’t you get defensive? What chance does any defendant ever have, if the accuser’s testimony automatically overrides anyone else because of a disability? Equality at work, HRT style. Bertrand also described herself as a “professional complainer” in her resume, highlighting it as some sort of character quality. This would be a stark red flag to any judge in a civil case to the character of the complainant.

Upon employment at Golder, Bertrand filled out a questionnaire in which she stated that she did not have a disability that might interfere with her work, though she testified at the tribunal that she had been suffering from the condition prior to employment. She promptly missed several days of work while hospitalized for the depression. Marion decides, though, that “occasional impairment” at one’s job is not considered to interfere with one’s work, and should be accommodated. It gives me lots comfort while riding a bus, knowing that the driver may be “occasionally impaired” but is entitled to keep his job.

Bertrand was also “hurt” while eavesdropping on a private phone conversation. It’s incredible that one can get hurt by only half a conversation, and even more incredible that someone can be held liable for a private conversation.

Marion believes that every employee is entitled to “trust and good relationships” in the workplace, regardless of an employee’s conduct. Bertrand complains in e-mails to co-workers of having her “emotional vulnerabilities exploited,” lied to her boss, didn’t show up to meetings, and tried to negotiate a contract by slagging the manager who offered it. It doesn’t sound like Bertrand is building “trust and good relationships,” so why should she be entitled to them in return?

What precedent does this case set? In short, the BC Human Rights Tribunal wants every employer to assume that any misconduct by an employee is as a result of a mental disability, regardless of diagnosis.

Using that same logic, can we conclude that this misconduct by the BCHRT is as a result of mental disability?

h/t Always Right

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One Response to You Can’t Be Fired For Occasional Impairment

  1. […] Read it here. Scary Fundamentalist also wrote about this here. […]

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