Moulton v. Leisureworld Caregiving Centre, 2009 HRTO 1575

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Constance Moulton

Applicant

-and-

Leisureworld Caregiving Centre/2063414 Investment LP, David Cutler and Elsa Rodriguez

Respondents

decision

Adjudicator: Brian Cook

Date: September 29, 2009

Citation: 2009 HRTO 1575

Indexed as: Moulton v. Leisureworld Caregiving Centre

APPEARANCES:

Constance Moulton, Applicant ) On Her Own Behalf

Leisureworld Caregiving Centre )

Elsa Rodriguez and David Cutter, ) Karen Sargeant, Counsel

Respondents )

)

SEIU, Local 1 Canada ) Karen Walsh

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The Application was filed on February 2, 2009. The applicant alleges discrimination in employment on the basis of disability.

2The Application was heard on September 9, 2009. The applicant appeared without representation. The personal respondent, David Cutler, did not appear. Karen Walsh, a union representative from SEIU Local 1 Canada, was also present. The union had not filed a Request to Intervene but the parties did not object to Ms. Walsh’s appearance or her participation in the hearing. I heard evidence from the applicant, Sherri Manduca, Director of Care and the personal respondent, Elsa Rodriguez, Nurse Manager.

3On September 8, 2009, the day before the scheduled hearing, the applicant filed a Request for Order During Proceedings asking for a “bench warrant” for a witness that she wanted to call but who had evaded service of a subpoena and had been abusive towards her when she attempted to serve the subpoena.

4At the hearing, the applicant advised that she had served two other witnesses with a subpoena. One of the witnesses was a relative of a resident at the home. The applicant explained that although this proposed witness was not involved in the circumstances leading to the Application, he was aware of what goes on in the home generally. The second proposed witness is a co-worker who had apparently filed a complaint against Ms. Rodriguez in the past about “harassment” and who was the person who had replaced her on December 30. The applicant agreed that this person was not directly involved in the circumstances giving rise to the Application. The witness whom she had not been able to serve is another co-worker who, according to the applicant, was falsely accused by Ms. Rodriguez of assaulting a patient. The applicant advised that this potential witness knows nothing about the circumstances giving rise to the Application.

5I determined that none of these witnesses would be of assistance in reaching a decision in regard to the Application because they knew nothing about the circumstances giving rise to the Application. Pursuant to the Tribunal’s Rule 1.7, I determined that I would not hear the two proposed witnesses who were present and would not take any action with respect to the third potential witness.

Decision

6For the reasons set out in this Decision, the Application is dismissed. I conclude that the applicant’s rights under the Code were not infringed.

Background

7The corporate respondent operates a nursing home. The applicant is a Registered Practical Nurse (RPN) and is employed by the corporate respondent as a part-time worker. She is regularly scheduled for four shifts in a two week period.

8The applicant is registered with two nursing agencies that provide temporary nursing staff to institutions. Her shifts with the corporate respondent are scheduled two weeks in advance. She informs the agencies of her availability based on her schedule with the corporate respondent.

9The corporate respondent does not use an agency to help cover temporary nursing shortages, relating for example to illness or vacations. Instead it goes through the roster of its own part-time nursing staff to find coverage. The calls to the part-time staff are made on the basis of seniority. A part-time nursing staff member is not required to work when asked to provide coverage.

10The applicant started her employment with the corporate respondent in 2006. She left in 2007. She testified that she left due to “harassment”. She returned to work in October or November 2008. Her regular shift was from 3 in the afternoon to 11 at night.

11On December 14, 2008, the applicant was working at a different facility through one of the temporary agencies that she is registered with. She was feeling unwell and had to go home. She stayed at home the next day.

12The applicant testified that she has asthma. It appeared that her asthma symptoms had flared and she had a cough that was so severe that she was experiencing vomiting and nausea.

13She had a regularly scheduled shift on December 16, 2008. She advised the respondent that she would not be able to work because she was ill.

14When employees call in to report they are sick, the call is first taken by the receptionist. The receptionist will either record the information on an Employee Call In Absent/Sick Call Sheet or pass the caller on to someone else to deal with the call. The form includes some information about symptoms. The employee is asked if she is experiencing a variety of symptoms for purposes of infection control within the facility to limit the risk of infection in the resident population. Ms. Manduca testified that the policy is that employees with symptoms of nausea/vomiting or diarrhea are supposed to stay off work for 24 hours after the symptoms resolve. The applicant testified that she was not aware of this policy.

15When the applicant called on December 16, 2008, the receptionist filled in the form and recorded that the applicant reported symptoms of fever/chills and that she expected to return to work on December 20, 2008, which was her next regularly scheduled shift.

16The applicant testified that she stayed home sick. On December 19, 2008 the day before her scheduled shift, she was called by a nursing supervisor. The supervisor told her that another employee had called in to say that she would be unable to work on December 20, 2008 because she was sick. The supervisor asked the applicant if she might be able to cover that shift as well as her own shift, which would have meant a double shift. The applicant replied that she was still sick and would not be able to cover the other shift and might not be able to work her own shift.

17There were a number of conversations on December 20, 2008. At 7 in the morning, the night supervisor called the applicant. She was calling to ask if the applicant could cover the shift of the other employee who was sick, apparently unaware that the applicant had the day before indicated that she could not. The applicant told the night supervisor that she could not cover the other shift and that she “probably” would not be able to cover her own shift. In testimony, she clarified that at 7 in the morning on December 20, 2008 she was feeling somewhat better was not sure if she would be able to report for work at 3 for the start of her shift.

18At 8:30 she determined that she would not be well enough to work and phoned in to report that she was sick. The call was taken by the receptionist. The applicant testified that the receptionist told her “we are not accepting sick calls” and put her through to Ms. Rodriguez. The applicant told the receptionist that it was illegal to not allow people to phone in sick. She spoke to Ms. Rodriguez and advised that she would not be available for her shift because she was sick. Ms. Rodriguez stated “I knew you were going to do this!” Ms. Rodriguez testified that she did make this statement and that what she meant was that she knew that the applicant was calling in sick because the receptionist had passed this information along. The applicant testified that after this exchange, she put the phone down while Ms. Rodriguez continued to talk. After about 30 seconds she picked up the phone and heard Ms. Rodriguez tell her that they had no one to replace her. The applicant indicated that this was not her problem. Ms. Rodriguez then told her that she would have to replace her for the whole weekend if she could not work on December 20, 2008. The applicant had been scheduled to work on Sunday December 21, 2008. The applicant took this as a reprisal for having called in sick.

19Ms. Rodriguez and Ms. Manduca testified that the reason for replacing the applicant for the weekend was that she had told the receptionist that her symptoms included vomiting. They therefore assumed that she had a gastrointestinal problem and were concerned about infection control.

20At the time of this conversation, Ms. Rodriguez was performing nursing duties, covering for the other employee who had already called in sick. The applicant surmised that Ms. Rodriguez was feeling harassed as a result of this.

21At about 1:00 on December 20, 2008 the receptionist called the applicant to tell her that she had been replaced. The applicant testified that she said “Congratulations!” and slammed the phone down. About half an hour later, she was called by Ms. Rodriguez who told her that she was required to bring a doctors note to confirm that she was medically unable to work. As well, she was to talk to Ms. Manduca “about the events of the day”. The applicant decided not to take this call so Ms. Rodriguez left a message on her answering machine.

22The applicant testified that Ms. Rodriguez phoned again about ten minutes later to say that failure to bring the note could lead to termination. She let this call go to her voice mail as well.

23Ms. Manduca testified that she had instructed Ms. Rodriguez to ask the applicant for a doctor’s note. She testified that she needed to ensure that staff members were not inappropriately taking sick time as it was around the holiday vacation time when it is especially difficult to get coverage. Ms. Walsh explained that under the collective agreement, the employer is entitled to request a sick note if the employee is off sick for two or more consecutive days.

24At about 4 in the afternoon of December 20, 2008 the applicant was called by another person from the home to ask if she should be marked off sick for December 21, 2008. This was at least in part due to concern about a snow storm that had been forecast.

25On Monday December 22, 2008 the applicant called Ms. Manduca and reported that she was still sick. Ms. Manduca reiterated that a doctor’s note was necessary. The applicant was scheduled to work on December 25 and 26 and called in sick on both days.

26On December 30, 2008 the applicant reported to work. She brought a note from Dr. Price, a doctor at a walk-in clinic, which indicated that she had been sick but could return to work that day. When she reported for work, she was called into a meeting. There was some discussion about the events of December 20, 2008. There was concern that she seemed to have a cough and it was suggested that she wear a mask. She tried to wear a mask but could not and was sent home at about 4:30.

27The applicant testified that her asthma symptoms increased during the meeting on December 30, 2009. She attributed this to stress that was brought on by the meeting. She testified that she was quite sick during the meeting with severe coughing. She felt that those present did not express proper concern or offer her assistance. She could not wear the mask because it further restricted her breathing.

28The applicant remained off work. She testified that initially she was called on a regular basis to find out if she would be reporting for her scheduled shifts. Eventually she was told to report when she was able to return to work.

29She reported for work on approximately January 20, 2009. She continues to work on a part-time basis for the respondent.

30The applicant confirmed that she is a member of the union. She has never filed a grievance with the union because she does not trust the union and because “I don’t believe in unions”. The respondent confirmed that the applicant was not disciplined with regard to any of the events described above.

Clarification of the Allegations

31In her Application, the applicant alleged that she experienced discrimination on the grounds of disability.

32In their Response the respondents asked the Tribunal to dismiss the Application on the grounds that the applicant had not disclosed a “valid ground of disability” and that as a result the Tribunal lacked jurisdiction to deal with the Application. The applicant was asked to clarify her allegations.

33The applicant self-identified as a person with asthma. She testified that this condition generally does not present any impediment with respect to work. She testified that she believed that the respondents were aware that she has asthma although she was not certain as to the basis for this belief. She confirmed that she did not tell the respondents that she was suffering from asthma-related symptoms in the period after December 16, 2008. This was partly because she believed that they should have known and partly because she felt she was not required to disclose the reasons for her illness. Ms. Rodriguez and Ms. Manduca testified that they were not aware that the applicant’s illness in December 2008 was related to asthma

34The applicant said that she feels that she was denied her right to sick time. It was noted that she had not had been denied sick time. She clarified that she was harassed when she called in sick. She alleges that the stress associated with all of the calls on December 20, 2008 and the subsequent events aggravated her asthma symptoms, which made her unable to work for longer than would otherwise have been the case. No medical evidence was provided to support this allegation.

35At the hearing, the applicant attempted to raise a claim based on colour based on a suspicion that the co-worker who also called in sick on December 20 was not harassed in the same way she was. The applicant, who is white, identified the co-worker as a black person. The applicant conceded that she had no evidence to support this allegation. I determined that I would not deal with the allegation. Among other things, it had not been previously identified as an issue and it would not be fair to allow the applicant to raise an entirely new ground so late in the proceeding.

Analysis and Decision

36Disability is defined in section 10 of the Code:

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997;

37While asthma could certainly be a “disability” as defined by the Code, a temporary ailment such as a cold or upper respiratory infection generally does not fall within the definition of disability: Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), 2000 SCC 27, [2000] 1 S.C.R. 665.

38Assuming that the applicant’s health problems in the period in question were related to asthma, she agrees that she did not tell the respondents that this was the problem and did not ask for any accommodation based on her asthma. Ms. Rodriguez and Ms. Manduca testified that they were not aware that the applicant had asthma. Since the applicant agrees that she did not tell them that she had asthma, I accept their evidence.

39The applicant suggested that the respondents should have known that she had asthma but the basis for this assertion was not clear. Ms. Rodriguez and Ms. Manduca testified that they understood that the applicant had some sort of gastrointestinal problem and/or an upper respiratory infection because she related that her symptoms included vomiting and a severe cough. While these symptoms may have in fact been related to asthma, the applicant did not explain this and, in the absence of that information, it seems to me that Ms. Rodriguez and Ms. Manduca reasonably concluded that the applicant had a gastrointestinal problem and/or upper respiratory infection and could not reasonably have realized that the symptoms were in fact due to asthma. An employee has an obligation to bring a disability to the attention of her employer if she requires accommodation (Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425, 1992 CanLII 81 (S.C.C.).

40Even if the respondents had appreciated that the applicant was suffering from asthma-related symptoms, the applicant does not claim that she was denied appropriate accommodation in relation to asthma. Rather, she alleges that she was harassed for calling in sick. In the circumstances of this case, it does not appear that any harassment that the applicant may have experienced when she called in sick was harassment under the Code. The respondents were not aware that the applicant had asthma or a disability within the meaning of the Code. In her testimony, the applicant conceded that the problems really arose because of a personality clash, particularly with respect to Ms. Rodriguez. I agree that this appears to be the case and can find no evidence to suggest that this was influenced in any way by discrimination or harassment on the grounds of disability under the Code. On this basis, the Application is dismissed.