A B.C. Supreme Court judge sent a former Vancouver city sanitation worker’s discrimination case back to the B.C. Human Rights Tribunal, after the ex-worker proved that city hall knew he had suffered mental illness before he was fired.
Joe Francescutti was fired April 30, 2013 over theft of a jacket that was waiting to be awarded to him for his perfect 2012 attendance record. “His evidence is that he has never taken anything or lied to his employer in his previous 15 years of employment,” wrote Justice Paul Walker in a June 29 verdict.
The court heard that Francescutti suffered severe stress from ongoing harassment by sanitation manager Mike Zupan and because his daughter was dating a Fraser Valley gang member. Francescutti took medication but continued to suffer from depression, anxiety, memory loss, insomnia and erratic behaviour. He even considered suicide.
His doctor advised him to work less.
After he was fired, Francescutti complained to the Human Rights Tribunal on Oct. 2, 2013 that the city discriminated against him based on his mental disability. But, on Oct. 28, 2014, the tribunal dismissed Francescutti’s complaint because it felt the case had no reasonable prospect of success.
“The tribunal made findings of fact adverse to Mr. Francescutti because it preferred the evidence presented in the respondents’ case over the evidence tendered in Mr. Francescutti’s case, including conflicting evidence surrounding key factual areas where credibility was in issue,” Walker wrote. “In the circumstances, the tribunal’s decision was patently unreasonable.”
Walker heard the judicial review over three days in December and June. Francescutti claimed the city was aware of his disability and chose to fire him “without meeting its duty to enquire about the connection between his mental illness and certain conduct that formed the basis of the city’s decision,” Walker wrote.
Zupan claimed that neither he nor city hall knew Francescutti was suffering depression and mental illness before he was fired and denied many aspects of Francescutti’s account, the verdict said. But Zupan’s affidavit was later shown to be incorrect, because Francescutti obtained documents under the Freedom of Information law that showed the city knew in 2012 that he had been seeking help via the employee assistance program.
“Knowledge of Mr. Francescutti’s mental illness was well known throughout senior levels of the city’s sanitation and human resources departments,” Walker wrote. “Those documents also revealed that certain key employees working for the city had extensive knowledge of the significant extent of Mr. Francescutti’s ongoing mental illness. The respondents deny any intentional wrongdoing and contend that the problem was caused by the innocent and inadvertent mistaken recollection of events on the part of Mr. Zupan.”
Walker agreed that it was “only through [Francescutti’s] due diligence” that the city’s knowledge of his mental illness was disclosed to the tribunal.
“But it is not necessary for this application, nor is it appropriate, however, for me to determine whether the respondents have acted [in bad faith] and been untruthful as Mr. Francescutti contends,” Walker wrote. “What I can remark upon is that he has proven that the city failed to turn its mind, either properly or at all, to his mental illness before terminating his employment.”
At the time of Francescutti’s firing, Vancouver’s city manager was Penny Ballem, who is also a licensed medical doctor. She described Francescutti’s 1999 to 2011 work record as “undistinguished” in a February 2013 internal letter.
Francescutti said he is pleased with the decision and ultimately wants city hall to be held accountable.
“I’m looking forward to getting back on track with the HRT and seeing what they come up with,” he told the Courier.
City manager Sadhu Johnston did respond for comment, but the city hall communications office issued a prepared statement that said city hall "will be examining the decision and evaluating options after that."
