Tribunal sides with brokerage in work-from-home accommodation case

Ontario’s Human Rights Tribunal has dismissed a discrimination claim against a P&C brokerage, finding the brokerage justifiably terminated an employee for a shortage of business during the pandemic, and not because the broker requested medical accommodation to work from home.

“The [broker] requested the accommodation of being permitted to work from home due to a protected characteristic (disability) in an email dated June 26, 2020,” the tribunal wrote in its decision, released in August. “The [broker’s] letter of termination is dated July 28, 2020, only a month later.

“While a termination occurring so closely on the heels of an accommodation request may at times raise a ‘red flag’ in terms of the reasons for the termination, each case turns on its own specific facts and evidence. In this case, the context of the COVID-19 pandemic must be taken into consideration.”

Aspassia Bastas was an insurance broker at North City Insurance Brokers, a division of RDA Insurance, where she was a business development manager [BDM]. She was at the brokerage from Oct. 15, 2019, until her termination on July 28, 2020.

In March 2020, North City implemented a work-from-home strategy in response to the COVID-19 pandemic. At the time, Bastas began working remotely.

Later in the spring of 2020, as COVID-19 infections eased, the brokerage prepared an office policy to comply with health and safety requirements and circulated a return-to-work survey, asking staff about their interest and ability to come back to the office.

Bastas completed the survey, indicating she was unable to volunteer to return to the office due to medical issues. She provided a doctor’s note on June 26, 2020, requesting accommodation allowing her to continue to work from home.

North City granted her accommodation. Two days later, in an email dated July 28, 2020, the brokerage terminated Bastas’ employment.

In Bastas v. North City Insurance Brokers Division of RDA Insurance, the brokerage told the tribunal it had legitimate business reasons for letting Bastas go. None of them were related to her request for medical accommodation to work from home, which it had granted, the brokerage said.

First and foremost, business dried up during COVID. The brokerage had two business development managers at that point, but the workload justified having only one person in that role, the brokerage told the tribunal.

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Second, Bastas’ role involved attending in-person events, which were cancelled during the pandemic.

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“It is the evidence of the [brokerage’s general manager] that [Bastas’] role as a BDM was a client-relationship role, tasked with developing sales leads for the in-house brokers. The BDM’s target sales group is primarily Ontario paramedics and firefighters,” Human Rights Tribunal of Ontario adjudicator Lavinia Inbar wrote in the decision.

Due to the pandemic, many of Bastas’ sales opportunities, which largely required in-person attendance, were cancelled or indefinitely postponed, the brokerage told the tribunal. “Specifically, of the 25 events that [Bastas] was scheduled to attend in 2020, 15 were either cancelled or indefinitely postponed,” the tribunal noted.

The brokerage says it approached Bastas with an opportunity to manage existing accounts rather than focus on new business. “It is the uncontradicted evidence of the [brokerage] that in light of this loss of business, it offered [Bastas] a modified role, which she declined,” the tribunal found.

“The only other BDM in the company was open to accepting this role. I note at this point that the duty to accommodate is a co-operative and collaborative process.”

The brokerage changed its business strategy during the pandemic, deciding to re-allocate resources from in-person events to digital marketing, such as email blasts and social media posts. This approach resulted in new business for the brokerage’s in-house sales team without the need for BDMs to attend in-person events.

Consequently, the brokerage made the decision to eliminate one of its two BDM roles.

The person holding the other BDM role had 38 years of experience at the time, whereas Bastas had just one year of experience. The other BDM also was willing to take on the modified role of managing existing accounts. For these reasons, the brokerage kept her in the one remaining BDM role.

“I find it credible that the [brokerage] chose to retain the other BDM rather than [Bastas] because of the other BDM having a significant amount of seniority, an impeccable performance record, and, unlike [Bastas], being willing to be flexible in that time of change and assume more account management activities.”

Ultimately, the tribunal found Bastas’ termination was not based on her request for accommodation.

“I find it reasonable that, as the effects of pandemic restrictions were felt by the [brokerage’s] business, a shortage of work due to COVID-19 led to the decision to terminate [Bastas’] employment,” Inbar wrote.

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.