East Kootenay Brain Injury Association faces human rights complaint from fired staffer

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In an ironic twist, a B.C.–based nonprofit that supports people with brain injuries is facing a human-rights complaint from a former employee who claims he was fired due to a physical disability.

Thomas McCaughey filed the complaint against the East Kootenay Brain Injury Association in Cranbrook and Lorraine Sweeney, his former supervisor, alleging they terminated him while he was “medically disabled”. For their part, the respondents assert that McCaughey was let go over “performance issues”.

Sweeney and the association submitted an application to the B.C. Human Rights Tribunal to dismiss McCaughey’s complaint. On August 12, tribunal chair Bernd Walter denied the application on the grounds that he was “not persuaded” the complaint has no reasonable prospect of success.

“The question of whether his performance issues were the basis for, or justified by termination requires a hearing, absent supporting documentation and Mr. McCaughey’s denial of serious discussions of his performance,” Walter wrote in his decision on the application. “Moreover, the Respondents have provided little information on the issue of reasonable accommodation.”

In his complaint, McCaughey says his firing on August 27, 2013, took place after he went on a short-term disability leave, was off work for treatment, and worked part-time because of medical issues. He alleges Sweeney told him: “If you can’t work full-time, we can’t use you.” McCaughey claims he informed his employer that he would have been able to return to full-time work by September 15.

In response to the complaint, Sweeney and the association say they brought a number of concerns about McCaughey’s job performance—including his “aggressive behavioural style toward clients”—to his attention. The respondents assert the complainant failed to put in the “hours of work he was capable of performing” without giving notice.

McCaughey alleges a vacationing Sweeney advised him in August not to come to work because he was “unwell and possibly contagious”. Sweeney denies this interaction took place, “raising the issue of credibility”, according to Walter’s decision.

“The Respondents admit that Mr. McCaughey had a disability and that his termination constitutes adverse treatment,” Walter stated. “The Respondents deny that Mr. McCaughey’s disability was a factor in his termination. They say he was terminated because of performance issues which predated, and continued after, the onset of his disability, as well as his refusal to co-operate in reasonable accommodation offered by them.”

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