Update by Louis Claman, Lawyer
An employer may call it a restructuring, but that does not end the human rights analysis. In Neske v. Sobeys Inc. (No. 2), 2026 BCHRT 37, the BC Human Rights Tribunal examined whether disability played a role in the elimination of an employee’s position. The result was significant: one year of lost wages, $50,000 for the injury to the complainant’s dignity, feelings and self-respect, and a further $15,000 award arising from the employer’s late disclosure of important restructuring documents. The decision offers important lessons about workplace accommodations, the evidence behind restructuring decisions, and the consequences of failing to make timely disclosure.
Background
Ms. Neske worked for Sobeys Inc. in its pharmacy operations. She had a disability that was known to her employer.
Sobeys eliminated Ms. Neske’s position as part of what it described as a restructuring of pharmacy management. Ms. Neske alleged that her disability was a factor in the decision and that Sobeys had discriminated against her in employment.
The case also raised a significant disclosure issue. Documents relating to Sobeys’ internal discussions about restructuring pharmacy management were not disclosed until the weeks leading up to the hearing. Ms. Neske argued that those documents were directly relevant to Sobeys’ explanation for eliminating her position and should have been produced earlier, including during Sobeys’ unsuccessful application to dismiss her complaint.
Decision
Disability Discrimination
The Tribunal found that Ms. Neske had been subjected to disability discrimination.
An employer is generally entitled to reorganize its operations and eliminate positions for legitimate business reasons. However, calling a decision a “restructuring” does not determine whether it complies with the BC Human Rights Code. If an employee’s disability was a factor in the decision, the employer must justify its conduct under the applicable human rights legal framework.
The Tribunal’s decision illustrates that a genuine restructuring and discrimination are not necessarily mutually exclusive. Disability may still play a role in deciding whose position will be eliminated, whether the employee will be considered for another position, or whether continued accommodation is possible.
The award for one year of wage loss is a reminder that compensation under the BC Human Rights Code is not restricted to the notice period available in a wrongful dismissal claim. Human rights compensation aims to place the employee in the position they would likely have occupied if the discrimination had not occurred, subject to issues such as mitigation and post-termination earnings.
The $50,000 injury-to-dignity award also reflects the serious personal consequences that workplace disability discrimination can cause. In assessing this form of compensation, the Tribunal considers the nature of the discrimination, the complainant’s vulnerability and the effect of the discrimination on the complainant.
Late Disclosure and Improper Conduct
The Tribunal separately considered Sobeys’ late disclosure of documents concerning its discussions about restructuring pharmacy management.
Ms. Neske argued that Sobeys had withheld material documents during the earlier application to dismiss her complaint and had only produced them in the weeks leading up to the hearing. She submitted that the complaint could have been dismissed on an incomplete evidentiary record.
Sobeys denied acting improperly. It argued that, after the Tribunal dismissed its application and identified an absence of information concerning the elimination of Ms. Neske’s position, it conducted further searches, located additional documents and disclosed them before the hearing.
The Tribunal found that an award for improper conduct was appropriate and ordered Sobeys to pay Ms. Neske a further $15,000.
Unlike the courts, the Tribunal does not ordinarily require the unsuccessful party to contribute to the successful party’s legal expenses. An award for improper conduct is therefore exceptional. The award highlights the importance of making complete and timely disclosure, particularly where the documents relate directly to the employer’s explanation for the decision being challenged.
Key Take Away for Employees
An employer’s statement that a position was eliminated during a restructuring does not necessarily end the matter. The surrounding circumstances may show that disability, medical restrictions, attendance concerns or accommodation obligations played a role in the decision.
Employees should preserve emails, text messages, performance records and accommodation correspondence. They should also consider whether their duties continued after the supposed elimination of their position, whether another employee assumed those duties, and whether other available positions were considered.
Employees who believe that disability influenced a restructuring or termination should obtain legal advice before signing a release. Internal emails, organizational charts and restructuring documents may reveal whether the employer’s stated explanation is consistent with its actual decision-making process.
Key Take Away for Employers
Employers should clearly document the legitimate business reasons for a restructuring and ensure that the decision is not based on assumptions about an employee’s disability, attendance, medical restrictions or future capabilities.
Where a restructuring affects an employee with a disability, the employer should consider whether the employee can continue in their existing role with accommodation or perform another available position. The employer should also ensure that the explanation provided to the employee is consistent with the underlying documents and discussions.
Finally, employers and their legal counsel must conduct careful and timely searches for relevant records. Producing important documents only after an application to dismiss, or shortly before a hearing, can undermine the employer’s position and result in a substantial award for improper conduct.
