HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Una Clennon
Applicant
- and-
Toronto East General Hospital
Respondent
CASE RESOLUTION CONFERENCE decision
Adjudicator: Mark Hart
Indexed as: Clennon v. Toronto East General Hospital
APPEARANCES BY
Una Clennon, applicant ) Ernest Guiste, Counsel
Toronto East General Hospital, respondent ) Jennifer Fantini and
) Lisa Cabel, Counsel
1This is an Application dated October 15, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment on the basis of age. The underlying complaint was filed with the Commission in 2005 and was abandoned upon the transfer of this matter to the Tribunal.
2In summary, the applicant alleges that the termination of her employment by the respondent Hospital in July 2005 constitutes discrimination because of her age. The applicant was 59 years old at the time of termination. In response, the Hospital states while the applicant’s termination was without cause as that term is known in the employment law area, the applicant’s poor work performance nonetheless was the reason for the termination. The Hospital denies that the applicant’s age was a factor in its decision.
Hearing Process
3The Case Resolution Conference (hearing) commenced on April 3, 2009 and continued on April 24 and June 12, 2009. The hearing was conducted in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53(3) applications proceed in a highly expeditious manner. In accordance with this expectation, I heard evidence from the following witnesses: the applicant; the Director, Maternal, Newborn and Child Health Services at the respondent Hospital, who was the applicant’s direct supervisor (the “Director”); and one of the Hospital’s Vice-Presidents with responsibility for the Maternal, Newborn and Child Health Services area (the “Vice-President”). I conducted the initial questioning of the applicant and the Director, while the evidence of the Vice-President was received through affidavit in accordance with my Case Assessment Direction dated May 30, 2009. Counsel were afforded the opportunity to cross-examine these witnesses. On consent of the parties, final submissions were received in writing.
4At the outset of the hearing, I described for the parties the process that I intended to use for the conduct of the hearing and invited submissions from the parties in accordance with the Tribunal’s normal practice. While counsel for the respondent consented to this process, counsel for the applicant objected on the basis that it circumscribed the ability of counsel to present his client’s case and put the adjudicator in the role of prosecutor by taking the lead in asking questions of the witnesses. After considering the applicant’s objections, I issued the following oral ruling:
The applicant objects to the proposed method of proceeding on basis that the Vice-chair asking questions of witnesses and requiring at least initially that clarifying questions be directed through the Vice-chair circumscribes counsel’s ability to present their case and creates a conflict of roles for the Vice-chair who becomes both prosecutor and adjudicator.
The new adjudicative process under the Human Rights Code expressly authorizes the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures, that in the Tribunal’s opinion offer the best opportunity for a fair, just and expeditious resolution of the merits of an application: Code, s. 40.
The Tribunal’s Rules are also to be liberally construed to permit the Tribunal to adopt non-traditional practices: Code, s. 41.
In particular, in s. 53(3) applications, there is an express provision authorizing the Tribunal to make Rules to ensure that these applications in particular are dealt with in an expeditious manner.
The Tribunal’s Rules for Transitional Applications expressly authorize the Tribunal to question a witness in chief or in cross-examination: see Rule 4.3(j).
While this is not the manner of proceeding in a traditional adversarial process, such as a court proceeding, it is the express intention of the Code and the Rules that the Tribunal not be bound by such traditional processes.
I am satisfied that the process that I have proposed is fair and just, and that it also will ensure the most expeditious resolution of this matter.
While I will be questioning the witnesses initially, this does not take me out of an adjudicative role, as I have no particular position as between the parties to this proceeding and am merely gathering evidence required in order for me to exercise my adjudicative function. So I see no conflict in my role that is engendered by my questioning the witnesses, as expressly permitted and contemplated by the Rules.
While the parties initially will be required to ask clarifying questions through me as the adjudicator, the parties will be given the right to directly ask any further questions of their own witnesses and to cross-examine opposing witnesses before this proceeding is concluded. So, in my view, the proposed process does not circumscribe counsel’s right to question their own witnesses or to conduct cross-examination.
Accordingly, I will proceed with this hearing in the manner proposed.
The applicant also has requested that this proceeding be adjourned in order to permit him to retain the services of a court reporter to attend and make a transcript of this proceeding. This request is denied. The Tribunal does not make a transcript of its proceedings, in the same manner that many administrative tribunals do not make transcripts of their proceedings. There is no reason to require this matter, which has been scheduled for some period of time and relates to events dating back some four years, to be adjourned to permit the attendance of a reporter. If the applicant wishes to bring a court reporter to the next hearing day, if there is one, she is free to do so, provided that the applicant bears the full cost of the reporter and also provides copies of the transcript of evidence to the Tribunal and the respondent.
Background
5The applicant commenced employment at the respondent Hospital as a nurse in January 1981. By all accounts, the applicant was an exceptional and highly regarded nurse with considerable experience and expertise in the obstetrics area.
6In January 2002, the Hospital had recently opened a new Maternal, Newborn and Child Health Unit, which included a Family Birthing Centre that combined both labour and delivery and post-partum care. The Hospital advertised for a Manager for the Family Birthing Centre, for which the applicant was encouraged to apply by her then Director. The applicant was successfully placed in the Manager position in May 2002.
7While the applicant had considerable experience and expertise in this area from her lengthy service as an obstetrics nurse and had some administrative experience from her later position as Patient Care Coordinator, the applicant candidly acknowledged in her evidence at the hearing that she did not have prior experience in many of the areas of responsibility involved in the Manager position. The applicant acknowledged that she had no prior management experience, that the areas of human resources, recruitment and training were new to her, that she had no prior experience in relation to budget forecasting and monitoring, and that she was facing a significant learning curve in her new position. The applicant states, and I find, that her lack of prior experience was well known to Hospital management when she assumed the position and that she was told that she would be coached and assisted in learning these new responsibilities by her superiors.
8The Director who hired the applicant into the Manager position left the Hospital shortly after the applicant commenced her new role, and during the next several months the applicant reported directly to the Vice-President. A new Director was hired in January 2003, and from this point until the termination of the applicant’s employment in July 2005, the applicant reported to the new Director.
The May 31, 2004 360-degree Manager Assessment
9While there were some concerns and issues relating to the applicant’s performance in the Manager position that pre-dated the 360-degree assessment dated May 31, 2004, I find that this assessment first clearly identified the applicant’s performance deficiencies such that it is convenient to address the performance issues prior to and leading up to the May 31, 2004 assessment in the context of this document. This was the only formal assessment conducted regarding the applicant’s performance as Manager.
10The 360-degree performance assessment process utilized by the Hospital for its managers involved an assessment of the manager’s performance in accordance with five “Success Factors”, which were linked to the skills required to perform effectively in the position, and five “Value-Based Behaviours”.
11The five “Success Factors” were: (1) providing patient-focused quality care and service, which included supporting staff in providing patient-focused care and service, using evidence-based care and service, and supporting staff in overcoming barriers to quality care, practice and service; (2) bringing out the best in people, which included supporting staff in ongoing learning opportunities, teaching, coaching, mentoring and developing staff, and recognizing and rewarding excellent service; (3) managing resources effectively, which included contributing to budget development within the program and creating an opportunity for staff to participate in the management of resources; (4) building meaningful partnerships, which included supporting relationships with partners in the community, collaborating with peers, and supporting staff and partnering with colleagues to ensure a collaborative work setting; and (5) inspiring innovation, which included initiating innovative projects and processes and making innovation happen.
12The five “Value-Based Behaviours” were: (1) respect, which included treating others with respect and dignity; (2) teamwork, which included encouraging and supporting others and their ideas and acknowledging others for a job well done; (3) professionalism, which included demonstrating personal accountability in the workplace; (4) care and compassion, which included demonstrating kindness and consideration for others and fostering a caring and compassionate atmosphere for patients, their families and the community; and (5) communication, which included taking the time to listen and clarify what others are saying and being open to giving and receiving constructive feedback.
13The process for completing the 360-degree assessment involved the manager completing her own self-evaluation in these 10 areas and an evaluation being done by the reporting manager. In addition, the manager submitted the names of a number of staff from the unit and the reporting manager selected from these names and identified others, including physicians who worked with the manager, to evaluate the manager in these areas. All of the evaluations were submitted confidentially to Human Resources, who compiled the assessment.
14In each area, the manager was rated on a scale from 1 to 7, with a rating of 1 to 2 being minimally effective, 3 to 5 being moderately effective, and 6 to 7 being very effective. The assessors also were invited to provide comments in each of the areas, and general comments at the end of the evaluation. The expectation was that managers should be in the 5 to 7 range in executing the Success Factors and demonstrating the Value-Based Behaviours.
15While the applicant’s self-evaluation put her squarely in the 5 to 7 range, there was a marked discrepancy with the Director’s evaluation and an even more marked discrepancy with the evaluation of the other assessors. While the Director’s evaluation put the applicant in the 5 to 7 range for the Value-Based Behaviours, her rating of the applicant on the Success Factors or more skills-based components of the evaluation were in the 3 to 5 range. The other assessors consistently rated the applicant at a level of 4 across all 10 areas.
16The assessment also included a comparison of the applicant to the average rating for all managers across the Hospital (the “grand average”). The overall average rating was calculated by combining the ratings from the self-evaluation, the reporting manager’s evaluation and the evaluation of the other assessors. The applicant’s overall average in the Success Factors was at the 4 level, a full rating point below the grand average. While the applicant’s overall average in the Value-Based Behaviours was slightly higher, in the 4 to 4.5 range, she was still a full rating point below the grand average in these areas as well.
17Of even greater concern were the comments by the other assessors that emerged from the assessment. While there clearly are some very positive comments throughout the evaluation, the Director noted several themes from the comments that were troubling, including a lack of support for staff (sample comments include “staff is not supported nor do they feel supported”, “limited communication with staff”, “does not give staff the feeling of openness or receptiveness”, “staff feel she is unaccessable”, “staff do not feel they are treated with respect”), a lack of role modeling (“feedback is taken defensively”, “manager is not available for role modeling”, “displays a commanding manner – intimidating”, “relationships are not built due to mistrust and dishonesty”, “does not work with the team but directs us”, “defensive and heavy-handed around feedback”), a lack of visibility in the unit (“staff feel very isolated on the unit”, “we feel isolated with no acknowledgement for our successes”), and a lack of enthusiasm (“not enthusiastic”, “have not seen any new innovative utilization methods to date”, “support and encouragement is not obvious on a regular basis”).
18The Director’s notes of her review of the 360-degree assessment express concern about the discrepancy between the applicant’s self-evaluation versus the Director’s own evaluation and the evaluation of the other assessors, and about the applicant’s overall average being consistently lower than the grand average. The Director’s notes further indicate that the areas for improvement by the applicant have remained consistent over time despite coaching and offering extra help. These areas include: dealing with difficult staff members; budget development and variance analysis, where the Director felt that the applicant continued to struggle probably due to her discomfort with computer systems and programs and where time with Hospital staff and computer courses had not seemed to move the applicant forward in this area; innovation, where the Director felt that the applicant struggled to get the ball rolling on projects and often allowed others to do the work and where the Director indicates that she has tried to help the applicant but is unable to ascertain whether it is lack of knowledge or will that prevents the applicant from moving forward with projects; and communication, where the Director felt that at times the applicant shared information too early or in an improper format.
19The Director met with the applicant to review the 360-degree assessment. The Director’s evidence is that she reviewed her concerns with the applicant, including the identification of areas where improvement was required. The Director’s evidence, as supported by her notes, is that she also discussed some strategies for addressing the applicant’s performance issues, including: providing tools for the applicant to become more comfortable and familiar with the budget program; ongoing mentoring and coaching related to how to communicate with and support staff; and providing tools and methods for program planning.
20The applicant’s evidence is that she was shocked and devastated by the assessment, which is consistent with the discrepancy between her self-evaluation and the evaluations of the Director and the other assessors. The applicant’s evidence is that she was told by the Director not to worry about the assessment, and that the evaluation provided by the other assessors was simply their perception. The Director confirms that the applicant was very upset when she received the assessment, and acknowledges that she tried to comfort the applicant.
21Nonetheless, it is clear that the applicant understood that this was a negative performance evaluation and that there were significant performance issues that she needed to address. This is evident from the assessment itself. I also find that the Director did review the assessment with the applicant as recorded in the Director’s notes, and that she did raise with the applicant the areas for improvement in her performance and the troubling themes arising from the comments by the other assessors, and discussed strategies for the applicant to improve her work performance.
22The applicant’s awareness of the significance of the 360-degree assessment is further supported by a comment she made shortly after the assessment was reviewed with the Director. At this time, the applicant was about to commence a vacation and was asked by the Director if she would be reachable. The applicant responded, “Why? Are you getting married or am I going to be fired?” While in cross-examination the applicant attempted to portray this as a joke and as unconnected with the negative evaluation she had just received, this evidence is inconsistent with the evidence she gave in response to my initial questioning, where she expressly acknowledged that arising out of this assessment she was very concerned that she might be fired.
23There also was a smattering of some documented incidents prior to the 360-degree assessment that lend a measure of support to some of the critiques of the applicant’s performance. In late December 2002, four nurses wrote to the Vice-President to express concern about staff shortages in the Family Birthing Centre, which includes statements that the applicant was not supportive of staff when informed of a specific staff shortage on December 21, 2002 and that the applicant, despite being the manager on-call, failed to respond to three pages. The applicant’s evidence is that her hands were tied due to the direction from the Hospital not to use agency nurses to cover for staff shortages, and she states that she did come in that night to assist.
24In May 2003, an issue arose in relation to one of the nurses in the unit who wanted to use vacation time to cover her inability to work due to illness, as this nurse was concerned about her increased sick time. The amount of sick time being taken by this particular nurse apparently was an ongoing issue and the applicant denied the request. A meeting was held involving this nurse, the applicant and the Director, at which this nurse was very upset and threatened to quit. The Director points to this as an example of a situation where she was drawn into an issue that should have been resolved by the applicant as Manager. The applicant’s evidence is that she requested that the Director be involved in the meeting as the Director had just recently started and the applicant wanted to develop a strategy so that this nurse would feel more committed to her job. The applicant states that this meeting was never raised with her in a negative way.
25In April 2004, an issue arose regarding staffing shortages on the Easter weekend. One of the Patient Care Coordinators, who reported to the applicant, wrote to the Director to raise this issue and attributed the problem to the fact that vacation time had been granted to four full-time staff when the protocol was to have only two full-time staff on vacation at one time. The applicant states that scheduling is the responsibility of the Patient Care Coordinators and that it was their responsibility to ensure that staffing was appropriate and to raise any issues with her as Manager. The Director’s view is that it was the applicant’s ultimate responsibility as Manager to ensure proper staffing of the unit, and cites this as another example of her being drawn into a situation that was the applicant’s responsibility.
26In late April 2004, a group of 10 nurses wrote a letter to the Director complaining about inconsistencies in granting schedule changes that was stated to have become a source of “concern and discontent amongst many staff members”. The letter alleged “favouritism” given to certain staff members in granting schedule changes and expressed that many staff felt that “there is an attitude of a derogatory nature amongst some staff members especially ones in a supervisory position” that “has created an unwelcome atmosphere and adds to the unhappiness to this unit”. The applicant attributes this letter to her efforts to control a practice of some staff simply switching shifts on the schedule, which may affect the level of care available on the unit. The applicant states that the Patient Care Coordinators had the primary responsibility to approve requests for schedule changes if there was no concern about patient care being compromised, and that any concerns were to be raised with her for a final decision. The Director once again pointed to this as another issue of scheduling that was the applicant’s responsibility to address, and expressed concern in relation to staff statements about the atmosphere on the unit, which was the subject of considerable comment on the 360-degree assessment.
The Decision to Terminate the Applicant’s Employment
27What is significantly less clear in the evidence is how matters proceeded from the 360-degree assessment in late May 2004 to the termination of the applicant’s employment in July 2005.
28The Director’s notes indicate that she followed up with the Vice-President regarding her ongoing concerns with the applicant’s performance at her monthly meetings with him in May, June and July 2004. Her notes record that she continued to receive the Vice-President’s support and that she was to continue to give the applicant time to improve.
29The evidence also indicates that concerns about the applicant’s performance continued to be raised at meetings between the Director and Vice-President in August, October, November and December 2004. The evidence of the Director and the Vice-President is that the prospect of terminating the applicant’s employment was first broached in early 2005, and the Director’s notes record that her first meeting with the Vice-President in 2005 occurred on February 3, 2005. I find that it was at this meeting on February 3, 2005 that the prospect of terminating the applicant’s employment was first discussed. The delay in acting to terminate the applicant’s employment apparently is attributable to the need for support from Human Resources and due to a vacancy in the position of Director of Human Resources that was not filled until May 2005. The Director’s notes record that she first met with the new Director of Human Resources on June 20, 2005 to discuss a strategy for terminating the applicant’s employment and that the termination letter and strategy were finalized at a meeting on June 28, 2005. The applicant was terminated without cause on July 5, 2005.
30There are no notes relating to any of the meetings between the Director and the Vice-President. The Director’s evidence is that she did not take notes of these meetings. The Vice-President, who is now retired, states that he would have made notes of these meetings, but that all of his personal notes were destroyed when he retired in April 2006. At that time, the Vice-President states that he was aware that the applicant was raising a claim of wrongful dismissal against the Hospital, but he was not aware of any allegation of age discrimination. While it is certainly unfortunate that these notes are no longer available, I do not find that there was an improper motive behind their destruction and I am not prepared to make any adverse inference as a result.
31The respondent submitted into evidence notes made by the Director in June 2005 that record her reasons for making the decision to terminate the applicant’s employment. These include: ongoing concerns with regard to lack of support given to staff without improvement; inability to provide evidence for ongoing negative budget variances; regular communication of unit staff directly to her as Director bypassing the applicant as Manager, due to staff’s experience that the applicant does not support them or get back to them in a timely manner, with the result that the Director felt she was constantly being drawn into front-line issues; concern about the applicant’s lack of computer skills and over-reliance on her administrative assistant; and the over-involvement of the applicant’s administrative assistant in human resources matters that were the applicant’s responsibility as Manager.
32Once again, there is a smattering of specific incidents arising after the 360-degree performance assessment that lend some measure of support to the Director’s concerns. There was an incident during the Thanksgiving weekend in 2004 where one of the unit clerks wanted to work on the statutory holiday and was told to page the applicant to raise this issue. Because this person was already finishing her shift, she asked another staff member to page the applicant. When the applicant phoned back, the staff member asked the question and the applicant is reported to have gotten upset and hung up on the staff member. The unit clerk raised the concern that this was not appropriate behaviour and stated that occurrences like this greatly affect employee morale. The applicant denies doing this and states that this was never raised with her as a performance issue.
33In November 2004, the Director wrote to the applicant to request an explanation as to why the drug costs for the Family Birthing Centre were $9,000 over budget. The Director’s e-mail records that she received no response to this request. The Director’s evidence is that this was just one example of the applicant not providing her with budget variance analysis. The applicant’s evidence is that she did bring budget variances to the Director’s attention and discussed them with her.
34Also in November 2004, the Director received a request from a person responsible for workload measurement to meet with her alone. The Director sent an e-mail to the applicant stating that she had booked the meeting so that the applicant and the Patient Care Coordinators could also attend, and expressed that she felt as if she kept getting drawn into an issue that needed to be resolved at the front line. The applicant states that she interpreted this as a criticism that the person doing workload measurement had jumped over her as Manager and had gone to the Director, and not as a criticism of the applicant herself.
35In late December 2004, a letter was sent by four nurses who were proposing the implementation of a specific schedule. This letter was addressed to the applicant and is dated December 22, 2004 and states that since a meeting with the applicant in October 2004, they had not had any further contact from the applicant concerning the issue which remained unresolved. This letter was copied to the Director, who was concerned that there had not been a timely response from the applicant to this issue. The applicant’s evidence on this point initially was uncertain as to whether she had met with these nurses about the schedule issue during the period from October to December 22, 2004, and then the applicant insisted that she did specifically recall meeting with these nurses about the issue during this specific time period. I do not find this evidence to be credible.
36In late January 2005, the Director received a handwritten note from the “post-partum nurses” raising a concern about the post-partum nurses being overworked while the labour and delivery nurses were over-staffed and three had “quite a relaxing” shift. The note states that this was an ongoing issue that had been brought to the attention of the applicant and the Patient Care Coordinators, but “still nothing changes”. The Director’s evidence is that this note is another example of staff not feeling supported by the applicant as Manager. The applicant’s evidence is that this was an ongoing issue caused by the combination of post-partum and labour and delivery into one unit. The applicant states that she was trying to address this issue by encouraging staff to work as one unit and help each other out and to get nurses cross-trained in both areas.
37On the evening of February 3, 2005, the applicant was paged by the nurse in charge and informed that one of the nurses had fallen ill and was being sent home. The Director’s notes indicate that the applicant said to the nurse in charge, “What do you want me to do about it?” This came to the attention of a doctor who was working on the unit, who spoke to the Director about the issue. The Director spoke with the nurse in charge who said that she did not feel supported by the applicant and felt as if her concerns had been dismissed. The applicant’s evidence is that she said, “what would you like me to do?”, meaning did the nurse in charge want the applicant to come in to assist. The applicant states that they then had a discussion about the workload on the unit, and the nurse in charge said it was okay for now because the unit was fairly quiet. A meeting was arranged involving the Director, the applicant and the doctor, the outcome of which was that the doctor would raise any issues or concerns about the applicant directly with her rather than discussing them with nursing staff.
38The Director also raised an issue where certain employee files had been requested from the applicant on December 23, 2004 because the employees were being transferred out of her area. This request was followed up with the applicant on Monday, February 7, 2005. Late in the afternoon on Thursday, February 10, 2005, the person requesting the files asked that the issue be raised with the Director as he had no response from the applicant. The matter came to the Director’s attention the following morning. This incident is cited to demonstrate the applicant’s failure to respond to issues in a timely manner. The applicant’s evidence is that she instructed her administrative assistant to send these files by internal mail and that she understood that this had been done.
39Finally, the Director raised an issue from March 2005 where one of the unit clerks working the day shift had complained about being assigned certain filing duties in relation to NST strips, where she felt she was being required to do work that should have been performed by other staff. The unit clerk states that she had raised the issue previously with the applicant, but did not feel that the applicant was seeing the issue from her perspective. The Director cites this as an example of a staff member not feeling supported by the applicant and of the Director being drawn into a front line issue. The applicant states that she doesn’t know why this issue was raised with the Director, and says that she worked with the unit clerk to resolve the issue and ensure that all the NST strips were properly filed.
40In response to my questions as to how she moved from continuing to give the applicant time to improve as discussed with the Vice-President in the months following the 360-degree assessment to deciding to terminate the applicant’s employment, the Director’s evidence was that there was nothing specific that caused her to decide to terminate and there wasn’t any “pivotal” issue, but it was just that over time there was no improvement in the applicant’s performance and the issues continued.
Lack of Documentation re Performance Issues
41A persistent theme in the applicant’s presentation of her case was the lack of documentation relating to the alleged performance issues, not only in relation to the underlying incidents but also in relation to bringing home to the applicant that the incidents relied upon gave rise to performance issues that she needed to address or there would be consequences for her continued employment at the Hospital.
42I too am troubled not only by the lack of documentation of the applicant’s performance issues, but further by the lack of any clear evidence, apart from the meeting relating to the 360-degree assessment that occurred over a year prior to her termination, that the applicant’s performance deficiencies were discussed with her in a way that clearly identified the specific nature of the deficiency, that made it clear that the applicant needed to improve in this specific area or face consequences for her continued employment, and that offered the applicant assistance or support in rectifying the specific deficiency under discussion.
43Apart from the meeting relating to the 360-degree assessment, I have no documentary evidence before me of any occasion where the Director identified specific performance deficiencies and set out a plan to support and assist the applicant in addressing them. While I have been provided with a smattering of documents over the course of two and a half years that describe certain incidents that touch upon some of the performance issues identified by the Director, I have no specific evidence that any of these incidents were raised with the applicant specifically as a performance issue that she needed to address.
44The applicant in her evidence certainly expressed surprise that these various incidents were being raised as performance issues, as she states that they never had been discussed with her in that context. The Director’s evidence repeatedly was that she had no specific recollection of discussing any of these incidents with the applicant as performance issues, but that it was her practice to do so. In the absence of any specific recollection of such a discussion or any documentary record of such a discussion, I find that apart from the issues raised at the meeting to discuss the 360-degree performance assessment, the Director did not raise any of these incidents with the applicant as performance issues.
45The Director’s evidence is that following the 360-degree assessment, she continued her regular practice of meeting with the applicant on a monthly basis. The Director states that she would review the applicant’s performance at these meetings, but she has no notes of these meetings and no specific recollection as to what was discussed at any particular meeting. The Director acknowledged that she never raised with the applicant that termination of her employment was a potential outcome of her failure to address her performance deficiencies. When asked by me why not, the Director stated that she was not sure and did not provide any real response, other than to say that she was discussing this issue with the Vice-President and the Director of Human Resources.
46In this regard, I find the evidence of the Vice-President to be instructive and telling. In cross-examination, the Vice-President discussed the process of performance management that comes into play when an employee falls below certain standards. The Vice-President testified that performance management is a process of working with the employee to set performance objectives and to provide counselling and supports, and then monitoring and reviewing the employee’s progress with the employee. The Vice-President stated that Hospital policy for dealing with employees who are not performing to the desired level includes communicating to the employee that there is a deficiency and developing a plan to address that deficiency. When asked whether it would be important to have documentation if the Hospital was contemplating terminating the employee down the road, the Vice-President replied that he doesn’t start with the idea that the employee is going to fail but provides support and a program to improve the employee’s performance.
47This evidence is consistent with the approach advocated by the Vice-President in the months following the applicant’s 360-degree assessment, which was to continue to give the applicant time to improve. This evidence also is consistent with the Vice-President’s affidavit, in which he states that when the possibility of terminating the applicant’s employment was first raised with him by the Director, they discussed whether all steps had been taken to support the applicant in her role and whether any further coaching would benefit her. In addition, in his affidavit, the Vice-President states that he supported the Director’s decision to terminate the applicant’s employment on the basis that all coaching efforts to assist her to reach a level of competence required of her in the Manager role had been exhausted.
48In fact, I find that virtually none of this had been done. Following the 360-degree assessment, I find that no steps were taken by the Director to bring home to the applicant that there continued to be performance deficiencies that she needed to address. While I find that there was some discussion of a development plan at the meeting to discuss the 360-degree assessment, I find that very few steps were taken in furtherance of that plan. The first part of the plan was the provision of tools for the applicant to become more comfortable with the budget program. The Director’s evidence was that this referred to herself and the same staff member who already had provided assistance to the applicant, and that it was the applicant’s responsibility to request this help. The second part of the plan was to provide ongoing coaching and mentoring related to how to communicate with and support staff. The Director’s evidence is that no regular meetings were set up with the applicant to support her on this, but rather the Director would model and coach on an ad hoc basis as situations arose. The third point was to provide tools and a method for program planning. The Director couldn’t provide specific examples of what was done on this point, except to say that it was up to the applicant to take the initiative.
49While the Director’s notes indicate that there would be follow-up with the applicant on the strategies for improvement discussed at the 360-degree assessment meeting, there is no specific evidence that this was done. There is no specific evidence that the applicant’s progress in acting on these strategies to improve her performance was monitored and reviewed with the applicant or that any other or further supports or assistance were discussed or considered.
50I have found that none of the specific incidents relied upon to support the applicant’s termination were specifically raised with her as performance issues. The Director admittedly never brought home to the applicant that her failure to address performance deficiencies could jeopardize her continued employment at the Hospital.
51The question that I need to address in this decision is, why not?
Allegations re Age-Related Comments
52The applicant raises three occasions when it is alleged that age was expressly raised. The first occasion relates to a meeting that was held in 2004 involving the respondent’s Human Resources department, where it alleged that the applicant and other managers were told to speak to staff who were near retirement and encourage them to retire. This allegation was made for the first time at the case resolution conference.
53In response, the respondent was able to locate notes of a meeting held on March 2, 2004 involving Human Resources, in which the issue of those staff nearing retirement eligibility was discussed. These notes clearly identify those staff members who were over 55 years old and eligible to retire the following year. However, as the notes of this meeting and the Director’s evidence make clear, this exercise was conducted in the context of a discussion of the respondent Hospital’s aging workforce and the need to recruit staff. Out of this meeting, the Director was tasked with developing a pool of qualified staff who would be available to meet the respondent’s staffing needs in the future. I do not find that there was any discussion of encouraging older staff to retire at this meeting, as this would be completely inconsistent with the purpose of the meeting, which was to address pending staff shortages due to the respondent’s aging workforce.
54The applicant states that the meeting she is referring to is a different meeting than the meeting identified by the respondent. I do not accept this evidence. Both parties agree that at the meeting in question, a sheet was distributed that had the birth dates of all staff indicated, including the birth date of the applicant and the other manager in the area. There is no dispute that the disclosure of this information caused the Director to ask the applicant whether this made her uncomfortable, and to then pursue the issue with Human Resources. From the notes of the March 2, 2004 meeting, it is clear that there was information available at that meeting which enabled the participants to identify which staff members were over 55 and capable of retiring in the following year. Specific numbers of full-time, part-time and casual staff in each department are identified, which I find is likely to have been derived from the kind of sheet showing the birth dates of staff members that both parties agree was distributed at the meeting.
55Accordingly, I find that the meeting being referred to by the applicant was the March 2, 2004 meeting and that there was no discussion of encouraging older staff to retire at this meeting.
56The second occasion raised by the applicant is an allegation that sometime in 2003 or 2004, when she and the Director were having coffee together one morning in the staff cafeteria, the Director asked her, “Why don’t you retire?”. The applicant states that this question was asked simply as part of a conversation they were having. In her evidence, the Director vehemently denied having asked this question. When it was suggested to the Director that this was a rather innocuous comment, particularly in the context in which it is alleged to have been raised, the Director’s response was that she did not regard this comment as innocuous. She said that she knows the Code and that as a manager, there were certain issues, such as age, race and disability, that she simply wouldn’t raise.
57I do not accept the Director’s evidence on this point. In my view, this is a rather innocuous comment of the kind that could very well be raised as part of a friendly conversation over coffee. Even if asked in a more formal setting, there is nothing inappropriate per se in a manager asking a staff member who reports to her and who is eligible to retire about her plans for retirement. I accept the applicant’s evidence that this comment was made as alleged.
58The third occasion raised by the applicant relates to a discussion she had with the Director in May 2005 regarding her pending leave from work for surgery. On this occasion, the applicant states that she went to the Director’s office to advise her that she required time off work for surgery. The applicant’s evidence is that the Director said, “Why don’t you consider retiring? Your husband is retired and it would be good to be retired with him”. The applicant states that she told the Director that she didn’t have enough money to be retired because she was putting her son through university. The applicant’s evidence is that on this occasion, the Director also shared that she had been fired from the previous Hospital at which she had worked and that this would be the Director’s last position before she retired.
59The Director denies that she had any such discussion with the applicant. The Director acknowledges that the applicant did come to her office to advise her of the pending surgery, but that it was a very brief conversation and no other matters were discussed. The Director denies that she was even aware that the applicant’s husband was retired, so she would not have made the comment alleged. The Director also was clearly taken aback that the applicant was aware that the Director had been fired from her last position, as this was information that the Director states that she had not shared with anyone at the respondent Hospital, even up until the time of the hearing in this matter.
60In assessing the respective evidence of the two individuals involved in this discussion, in my view it is important to bear in mind the context in which this exchange occurred. By this time, in May 2005, the evidence is clear that a decision already had been made to terminate the applicant’s employment and the Director was simply awaiting the involvement of the new Director of Human Resources to carry it through. There can be no doubt that terminating the employment of anyone, and particularly a long-standing employee of the Hospital who was highly regarded as a nurse, is an unpleasant task. If the applicant planned to retire, this unpleasant task potentially could be avoided. In this context, I find it more likely than not that the Director did inquire about the applicant’s retirement plans. I do not attach any particular significance to whether the Director knew that the applicant’s husband was retired and raised this with the applicant, or whether the applicant volunteered this fact as part of her explanation as to why she felt she couldn’t retire due to the financial obligations entailed in putting her son through university. In either event, I find that the Director did inquire about the applicant’s retirement plans on this occasion.
61In making this finding, I find it particularly telling that the applicant was aware that the Director had been fired from her last position. If the Director had not shared this information, as she alleges, it begs the question as to how the applicant would know about it. In my view, again in the context of the Director knowing that she would soon be terminating the applicant’s employment, I find that it is more likely than not that the Director shared this information with the applicant, perhaps for the purpose of softening the blow of the applicant’s pending termination by sharing that she too had been terminated on a prior occasion.
62Accordingly, I find that on two occasions, once in 2003 or 2004 and again in May 2005, the Director inquired about the applicant’s plans for retirement.
The Applicant’s Motion to adduce further evidence
63Before concluding my review of the evidence in this matter, I need to address the applicant’s request for me to re-open the hearing and receive further evidence. Following the conclusion of the hearing, applicant’s counsel wrote to the Tribunal to indicate that he had neglected to question the applicant about a phone message that she had received following her termination from one of the Patient Care Coordinators who worked under the applicant. The Tribunal was provided with a tape of this message. The respondent objects to the re-opening of the hearing to receive this evidence, and further takes the position that the evidence is irrelevant.
64I am not prepared to re-open the hearing to receive this evidence. First, a transcript of this telephone message already forms part of the record of this proceeding as part of the applicant’s documents brief which was marked as Exhibit 4. At the commencement of the hearing, I indicated that I could have regard to any of the material submitted by the parties to the Tribunal whether or not it was formally identified by a witness. So there is no necessity in my view to re-open the hearing to receive this evidence.
65In addition, however, I agree with the respondent’s position that this evidence is irrelevant. The phone message at issue is a message of encouragement for the applicant to hold “her head up high” in the face of her termination. Passing comment is made to this individual having learned “so much” from the applicant and regarding her as a mentor. The applicant attaches significance to this message because this individual ultimately was chosen to replace her in the Manager position and asserts that this message is inconsistent with the performance issues alleged by the respondent. I fail to see how the kind words that this individual had for the applicant can in any way be advanced as a refutation of the considerable evidence of performance issues that I have received and that were documented by the respondent.
66For these reasons, I decline to re-open the hearing as requested by the applicant and also decline to receive the tape of the message into evidence.
DISCUSSION AND ANALYSIS
The Test for Circumstantial Evidence
67While I have found that there is evidence that on two occasions the Director made inquiries about the applicant’s retirement plans, it is not alleged by the applicant that these inquiries in and of themselves constitute a violation of the Code. Rather, these inquires are relied upon as evidence to support the allegation that age was a factor in the decision to terminate the applicant’s employment.
68There is no direct evidence that age was relied upon by the respondent as one of the reasons for terminating the applicant’s employment, which is not at all uncommon in discrimination cases. As a result, as in so many of these cases, the determination as to whether age was a factor in the termination decision falls to be decided on the basis of circumstantial evidence.
69The three part test for circumstantial evidence cases is well-established in the Tribunal’s jurisprudence and recently has been stated in Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at paras. 51-52. The application of this test involves the following three steps:
the initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was discriminated against with respect to her employment on the basis of the prohibited ground of age;
upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration;
if the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.
70As observed in Wedley, the ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent, see Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).
71I will proceed to apply this three step test to the evidence in this case.
Has the Applicant established a prima facie case of age discrimination?
72The respondent encourages me to find that the applicant has not made out a prima facie case of discrimination on the basis that, even if her allegations were believed, they do not lead to the conclusion that age was a factor in her dismissal. While it is true that the applicant ultimately was replaced in the Manager position by a younger employee (who was 43 years old at the time of hire as compared to the applicant’s age of 59 years at the time of dismissal), the respondent states that the applicant’s replacement was hired only after an external job search was conducted and the individual was identified as the best candidate. The respondent notes that the applicant did not demonstrate that the Hospital was motivated by a desire to cut costs, nor did she demonstrate or even allege that there was a pattern of discrimination against older workers.
73In my view, it is important to bear in mind not only what is required to establish a prima facie case as the initial step in the three-part circumstantial evidence test, but also what and whose evidence should be relied upon in making this determination.
74The Supreme Court of Canada has stated that a prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”, see Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.) at para. 28.
75The classic statement of what is required to establish a prima facie case of discrimination in a circumstantial evidence case pertaining to hiring or promotion was articulated by this Tribunal in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 at para 8919. Essentially, in these kinds of cases, a prima facie case is established by proving the following:
a) that the applicant was qualified for the particular employment;
b) that the applicant was not hired; and
c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
76In Almeida v. Chubb Fire Security Div. (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 (Ont. Bd.Inq.) at para. 17845, this Tribunal observed that while this classic statement of the test for a prima facie case of discrimination may function well with “lower level” positions where there may be an expectation that a qualified person would be hired or promoted, the test does not function as well for higher level jobs, where there might be several qualified candidates, such that the failure to hire or promote a particular qualified candidate may not arouse suspicion. Nonetheless, this Tribunal found that the test should apply equally to higher level positions due to the vagueness and subjectivity of the criteria used to determine whether a particular candidate is better “qualified” and, more significantly, because the explanation for the decision lies within the respondent’s knowledge.
77This latter observation is significant, because the sole purpose of the initial stage of the circumstantial evidence test is merely to shift an evidentiary burden to the respondent to come forward with evidence explaining the decision at issue. If a prima facie case of discrimination is not made out at this initial stage, then the respondent need not come forward with any evidence to explain its actions. As a result, it has been observed that the initial burden to establish a prima facie case at this initial stage is not an onerous one: Almeida v. Chubb Fire Security Div., supra at para. 17845.
78In my view, adapting the classic test for establishing prima facie discrimination to the case at hand which deals with a termination of employment as opposed to a hiring or promotion decision, it is sufficient for the applicant to establish:
a) that she was qualified for the Manager position;
b) that she was terminated; and
c) that a considerably younger employee who was no better qualified subsequently obtained the position.
79Clearly, the first two criteria are met in this case. With regard to the third criterion, it is clear that there is a significant difference in age between the applicant and her replacement, being a span of some 16 years. In addition, the individual who ultimately replaced the applicant in the Manager position had competed in the first competition for this position in 2002, and the applicant had been selected over her at that time. On this basis, I find that the applicant has established a prima facie case of discrimination.
80In reaching this conclusion, I have not considered the respondent’s evidence regarding the applicant’s performance issues or the process used to select the applicant’s replacement, nor would it be appropriate for me to do so at this initial stage. I say this for two reasons. First, the purpose of the initial step of making out a prima facie case of discrimination is merely to shift the evidentiary burden to the respondent to bring forward this kind of evidence in response. Accordingly, this kind of response evidence is more appropriately considered at the second step of the analysis, rather than the first. Second, the Supreme Court of Canada in O’Malley expressly refers to the assessment of whether an applicant has made out a prima facie case of discrimination “in the absence of an answer from the respondent-employer”.
81In addition, in my view, it is not necessary at this initial stage for the applicant to establish some kind of rationale for the alleged age discrimination, such as cost-cutting, or to establish supporting evidence of, for example, a pattern of discrimination against older workers. Such considerations are more appropriately applied at the third stage of the analysis, which is whether the allegation of age discrimination is more likely than the explanation proffered by the respondent. In this regard, I observe that in many cases, this kind of pattern or rationale evidence would only be available to an applicant if she had established a prima facie case of discrimination and the respondent was put to the burden of coming forward with evidence explaining its actions.
The Respondent’s Explanation
Performance Issues
82On the basis of my review of the evidence as set out above, I find that the respondent has provided credible evidence to support that there were significant issues with the applicant’s work performance as Manager.
83While there undoubtedly are many positive and sympathetic comments in the May 31, 2004 360-degree performance assessment, I find that overall this was a negative assessment of the applicant’s performance as Manager. The applicant’s average ratings in each of the skill and value areas were below the 5 to 7 range targeted by the Hospital for its managers, and significantly below the grand average for managers at the Hospital.
84The Director’s own assessments of the applicant’s work performance in the skills areas also put the applicant below the targeted range in four of the five areas assessed. The Director’s comments in these areas identified the applicant’s difficulty in dealing with challenging staff members and the need to improve in this area so that staff came to her directly with issues of concern, the need for the applicant to take a more active role in budget development and variance analysis and for her to become more confident and familiar with computer software programs as an integral part of the Manager position, and the need for the applicant to take on more of a leadership role when implementing new projects.
85Further, as noted above, several troubling themes emerged from the comments made by the other assessors chosen to participate in the 360-degree review, including a lack of support for staff, a lack of role modeling, a lack of visibility in the unit, and a lack of enthusiasm.
86Again as noted above, the Director’s concerns with the applicant’s work performance and the themes emerging from the 360-degree performance assessment also are supported by evidence relating to specific incidents and issues that arose both before and after the assessment.
The Respondent’s failure to take steps to address the performance issues
87On the other hand, I find that I do not have credible evidence to explain the respondent’s failure to take steps to address the applicant’s performance issues with her.
88As discussed above, while I have found that there was some discussion of a development plan at the meeting to discuss the 360-degree assessment, very few steps were taken in furtherance of that plan. I have further found that there is no specific evidence that any steps were taken by the Director following the 360-degree assessment to bring home to the applicant that there continued to be performance deficiencies that she needed to address.
89I have found that there is no specific evidence that the Director followed up with the applicant on the strategies for improvement discussed at the 360-degree assessment meeting, nor was there any specific evidence that the applicant’s progress in acting on these strategies to improve her performance was monitored and reviewed with the applicant or that any other or further supports or assistance were discussed or considered.
90I have found that none of the specific incidents relied upon to support the applicant’s termination were specifically raised with her as performance issues. As noted above, the Director admittedly never brought home to the applicant that her failure to address performance deficiencies could jeopardize her continued employment at the Hospital.
Is age discrimination more likely than the explanations offered by the respondent?
Performance Issues
91On the basis of my review and consideration of the evidence as a whole, I do not find that the applicant’s age was a factor in the identification of issues and concerns relating to her work performance. I accept the respondent’s evidence that there were legitimate documented concerns with the applicant’s work performance as Manager, and that these concerns were not a pretext for discrimination.
92In making this determination, I am of course aware that discrimination need not be intentional and that stereotypes about the abilities and deficiencies of older workers can influence an employer’s perception of an older employee’s work performance unintentionally and even unconsciously. In particular in the context of this case, in considering and assessing the evidence, I am alive to stereotypes about older workers that point to lack of facility with computer software programs, lack of innovation or embracing new ideas, and lack of energy or enthusiasm. I make reference to these specific stereotypes not for the purpose of creating an exhaustive list, but because these were specific issues raised about the applicant’s work performance that gave me pause to consider whether such stereotypes had entered into the assessment of her performance, whether consciously or unconsciously.
93In the end, my assessment of the evidence is that these particular aspects of the assessment of the applicant’s work performance were not tainted by ageist stereotypes. The ability to use computer software programs, particularly for budgeting and variance analysis, was identified from the outset as a key component of the Manager position and the applicant’s lack of experience in this area was not only noted but acknowledged by the applicant herself. Budget and resource management was a significant aspect of the Manager position and the need for facility with computer programs particularly in this area is legitimate.
94With regard to concerns about the applicant’s lack of innovation and enthusiasm, these were supported by specific examples detailing the respondent’s concerns, and not just by the kind of impressionistic evidence that is a hallmark of stereotyping.
95For all of these reasons, I do not find that the identification and assessment of the applicant’s work performance issues were tainted by age discrimination, either consciously or unconsciously.
96In her final submissions, the applicant raised an issue regarding the use of 360-degree assessments as a performance evaluation tool and how, if not properly administered and implemented, this kind of assessment can be inaccurate and at times damaging. This is more in the nature of evidence as opposed to submissions, but in any event, the use of an imperfect evaluation tool by an employer does not support a finding of a violation of the Code unless some link can be established between the use of the evaluation tool and the ground of discrimination alleged. No such link has been established in this case.
The Respondent’s failure to take steps to address the performance issues
97On the other hand, with regard to the respondent’s failure to take steps to address the applicant’s performance issues, I am confronted by a lack of a credible explanation for the Director’s failure to take concrete steps to implement the strategies for improvement discussed at the meeting to review the 360-degree performance assessment, the failure to follow up with the applicant on her performance deficiencies following the 360-degree assessment, the failure to bring home to the applicant that the performance issues continued or to discuss further strategies for improvement or further assistance or resources that could be provided, and the failure to raise with the applicant that a continued failure to improve in these areas would result in the termination of her employment.
98As alluded to above, the question for me to determine in the context of this third step of the circumstantial evidence analysis is why these things weren’t done and whether the evidence supports an inference that the applicant’s age was a factor in the respondent’s failure to do them. I find that it was.
99It is clear from the Vice-President’s evidence that his expectation and his understanding of Hospital policy was that steps would be taken to identify performance issues with an employee, to develop a plan to address them, to follow up on and monitor this plan, and to provide assistance and resources to the employee to improve performance. This approach is consistent with the Director’s own notes that in her early meetings with the Vice-President following the 360-degree assessment, the Vice-President said that the applicant was to be given time to improve. Further, while there are no notes of the meetings between the Director and the Vice-President at which the applicant’s work performance was discussed, the Vice-President’s evidence was that he had discussions with the Director about her having raised with the applicant what her expectations were, that the Director would have set performance objectives, that the Director would have provided counselling, advice and ongoing assistance, and that there would have been ongoing monitoring. In fact, I have found that virtually none of this occurred.
100In the absence of a credible explanation for why these steps weren’t taken, I find that the evidence supports an inference that the applicant’s age was a factor in making a determination that this kind of active performance management would not have utility or would not achieve results. In drawing this inference, I am not suggesting that the simple absence of a performance management plan will in all cases result in a finding of discrimination. Rather, my finding is that in the context of this specific case and this specific employer, where there was an expectation that these steps would be taken and this expectation was discussed with the Director by the Vice-President and where nonetheless the evidence does not support that these steps were taken, an inference of age discrimination is warranted.
101This inference is further supported by the Director’s inquiries about whether the applicant planned to retire, which evince a conscious awareness of the applicant’s age and a question in the Director’s mind as to how much longer the applicant intended to remain in the workplace. In these circumstances, I find that the evidence supports an inference that it is more likely than not that the applicant’s age was a factor in the Director’s failure to take specific steps to address the applicant’s performance issues, on the basis that her energies in developing an effective Manager for the Family Birthing Centre would be better expended on a new and younger employee.
102Before concluding on this point, I wish to address the submission of the respondent that in order for a finding of discrimination to be made on the basis of circumstantial evidence, such conduct “must be consistent with the allegation of discrimination and inconsistent with any other rational explanation”. This submission is based upon the decision of this Tribunal in Kennedy v Mohawk College (unreported, 1973, Ont. Bd. Inq.) which has fallen into disrepute, and was discussed and rejected in this Tribunal’s subsequent decision in Challenger v. G.M.C. Truck Centre (1988), 1988 CanLII 8924 (ON HRT), 11 C.H.R.R. D/141 (Ont. Bd. Inq.) at 152 on the basis that it evinces a standard of proof much closer to the criminal standard of proof beyond a reasonable doubt rather than the civil standard of proof on a balance of probabilities that applies in a human rights proceeding.
103The correct formulation of the test is as stated in Lannin, supra, which is a finding of discrimination on the basis of circumstantial evidence will be made where the inference of discrimination is more probable from the evidence than the actual explanation offered by the respondent, rather than “any other rational explanation”. If a prima facie case of discrimination has been established, a respondent has the opportunity to present evidence of an explanation for its actions. If that explanation is not found to be credible or as probable as an inference of discrimination, then it is not the Tribunal’s proper role to cast about for “any other rational explanation” for the respondent’s actions, given that a respondent already has been afforded full opportunity to present its actual explanation.
Finding of age discrimination in relation to termination
104In the end, I have found that age was not a factor in the underlying issues identified in relation to the applicant’s work performance, but that age was a factor in the respondent’s failure to take steps to address these performance issues with the applicant. I next need to consider how this impacts upon the termination of the applicant’s employment.
105While there is no doubt that the respondent relied upon the applicant’s performance issues to support the termination of her employment, it is equally clear from the Vice-President’s evidence that he supported the termination of the applicant’s employment on the basis that sufficient steps had been taken to address these performance issues and allow her an opportunity to improve with appropriate support. As a result, the issue of whether steps had been taken to address the performance issues was a factor in the termination decision. Accordingly, as I have found that the failure to take such steps was tainted by age discrimination, I find that this in turn tainted the respondent’s decision to terminate the applicant’s employment.
106As a result, I find that age was a factor in the respondent’s decision to terminate the applicant’s employment.
NEXT STEPS
107At the commencement of the hearing, this matter was bifurcated to deal first with the issue of liability and then to address remedy if a violation of the Code were found. As I have found a violation of the Code, I now need to afford the parties with an opportunity to address the issue of remedy.
108In addressing this issue, it is important for all parties to bear in mind the limited nature of the Code violation that I have found. I have found that there were significant issues with the applicant’s work performance as Manager that were untainted by age discrimination. At the same time, I have found that the respondent failed to take steps to address these performance issues with the applicant and have drawn the inference that age was a factor in this failure. As a result, any evidence and submissions that I receive in relation to remedy will need to be focused on the specific nature of the violation that I have found.
109In accordance with the guiding principle that a remedy for discrimination serves to put the applicant in the position she would have been in had the discrimination not occurred, the assessment of remedy that I will make will be on the basis that the applicant was experiencing significant performance issues as Manager and I will consider what more likely than not would have occurred had the Hospital taken appropriate steps to address these performance issues in the manner outlined by the Vice-President in his evidence and as discussed in this decision.
110Accordingly, I am requiring the parties to file material regarding remedy with the Tribunal in accordance with the following schedule:
(a)By no later than September 10, 2009 , the applicant shall serve on the respondent and file with the Tribunal a statement of what specific remedies are sought arising out of the finding I have made and all evidence in support of these remedies, including any medical and/or psychological reports relevant to the specific findings of Code violations;
(b)By no later than September 10, 2009 , the respondent shall serve on the applicant and file with the Tribunal its response to the applicant’s material on remedy, including whether it requests an oral hearing to address any medical and/or psychological evidence or other evidence being proffered by the applicant; and
(c) By no later than Ovtober 5, 2009 , the applicant shall file any materials in reply.
111On the basis of my review of the material filed, I will determine whether an oral hearing is required. If so, the parties will be contacted regarding a hearing date.
Dated at Toronto, this 11th day of August, 2009.
“Signed By”
Mark Hart
Vice-chair