Bhatnagar v. Radical Design, 2009 HRTO 2140

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Delma Bhatnagar

Applicant

-and-

Radical Design Ltd. and Carmen Escanden (Attard)

Respondents

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: Kaye Joachim

Date: December 9, 2009

Citation: 2009 HRTO 2140

Indexed as: Bhatnagar v. Radical Design

AppearanceS BY

Delma Bhatnagar, Applicant ) John Bartolomeo,

) Counsel

) Cheryl Spinelli and

Radical Design Ltd., Respondent ) Edna Cheng,

) Representatives

Carmen Escanden (Attard), Respondent ) On her own behalf

1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A Case Resolution Conference (“hearing”) in this matter was held on December 4, 2009.

3The applicant asserts that her employment was terminated due to her disability, a sensitivity to chemical solvents used in the corporate respondent’s workplace. She also asserts that the corporate respondent failed to accommodate her disability by permitting her to work in a chemical free work environment.

4The applicant was employed by the corporate respondent as a patternmaker since June 2004. In about July 2006, she was diagnosed with chronic toxic encephalopathy to a chemical solvent, trichloroethylene (“TCE”). The Occupational Health Physician recommended that she withdraw completely from any exposure to the chemical TCE for four weeks.

5When she returned to work, the applicant states that she was assigned to work in the boardroom and provided with personal protective equipment to wear when she was assigned to work in the factory.

6When the corporate respondent moved to a new location, the applicant was assigned to work in the factory and she became ill again. She was moved to a chemical free area until January 2, 2007 when the personal respondent again assigned her to the factory.

7On February 7, 2007, she advised the corporate respondent’s plant manager assistant that she could not work in the factory because of the chemical fumes.

8On February 8, 2007, the applicant received a letter stating that her employment was terminated immediately as a result of company’s manufacturing having been relocated to Bangladesh.

9With respect to allegations the applicant was required to work in the factory, I prefer the evidence of the personal respondent and production plant manager that the applicant was permitted and encouraged to work in the office and not in the factory. The applicant agreed that were six offices available and it would not make sense for the respondents to insist that she work in the factory, when her work could just as easily be done in the office. Also, the applicant agreed that she had been adequately accommodated until January 2007. It makes little sense that the respondents would change their arrangements for no reason.

10I accept the evidence of the personal respondent, which was not challenged, that the corporate respondent initially began subcontracting work in Bangladesh in 2004. In 2006 the owner decided to move the whole operation to Bangladesh. They moved their sewing machines and knitting machines and gradually began letting the workers go.

11The applicant was the only pattern maker and there was very little pattern making work left in the months leading up to February 2007. Several employees were laid off at that time. Essentially, the only workers left after February 2007 were two sewers, three merchandisers, people from accounting and logistics, an artist and the personal respondent. No pattern maker was hired for the company in Bangladesh until 2008. Currently there are only two employees working in Ontario, an accounting person and a logistics person.

12I accept the respondents’ evidence that the sole reason for the timing and fact of termination of the applicant’s employment was the downsizing of the operation and its moving to Bangladesh.

13The Application is dismissed.