May v. Madawaska Doors, 2009 HRTO 720

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sonny May

Applicant

-and-

Madawaska Doors Inc.

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: May 29, 2009

Citation: 2009 HRTO 720

Indexed as: May v. Madawaska Doors

APPEARANCES

Sonny May, Applicant ) On His Own Behalf

Madawaska Doors Inc. )

Respondent ) Jeremy Hann, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges that he was discriminated against on the basis of disability when the respondent terminated his employment, knowing that he was injured and unable to work.

2The applicant also complains that the respondent provided information to the Workers Safety and Insurance Board (“WSIB”) that was based on rumours and was designed to prejudice his WSIB claim.

3The respondent states that the applicant’s employment was terminated for economic reasons; it no longer had sufficient work available for someone with the applicant’s skill set and experience. The respondent denies that the applicant’s alleged disability was a factor in its decision making or that it acted improperly regarding the applicant’s WSIB claim.

4The hearing took place on May 21 and 22, 2009. I heard evidence from the applicant. The respondent’s witnesses were Michael Snider, CEO of Madawaska Doors Inc., and Linda Snider, the company’s administrative coordinator. The parties agreed that, following their examination in chief, I would take the lead in questioning the respondent’s witnesses.

BACKGROUND

5The applicant was first employed by the respondent on August 8, 2006. He was hired into the shipping department for a fixed term and on an as needed basis.

6On October 13, 2006, approximately two months after he began working for the respondent, the applicant resigned from this position because he did not receive his pay cheque at the end of the work day. While the respondent’s other employees are paid through a direct deposit system, the applicant had not provided the respondent with a void cheque in order to be set up for direct deposits. On October 13, the applicant was advised that Mike Snider would return to the office by approximately 6 pm (two hours after the applicant’s shift ended) and that the pay cheque would be available at that time. The applicant was frustrated and, rather than wait for his pay cheque, he resigned.

7The applicant was rehired by the respondent on April 30, 2007 and worked there until August 30, 2007, when he was laid off. He was not recalled to work and his employment with the respondent was ultimately terminated.

8There is no written employment agreement regarding the April 30, 2007 rehire and the parties dispute its terms and conditions. The applicant testified that on August 8, 2006, he was specifically hired to work in the respondent’s vibrating department, where he would inspect doors and make minor repairs.

9Mr. Snider gave evidence that the applicant was hired as a general labourer and was initially and very briefly employed as a forklift operator. When he proved unable to do that job, he worked temporarily as a plane helper and was eventually placed in the vibrating department. The applicant testified that because of interpersonal difficulties with the supervisor of the plane department, he offered to resign. According to the applicant, rather than accepting his resignation, the respondent agreed to transfer him to the vibrating department. In any event, the parties agree that by the time he was injured in the workplace on July 30 2006, the applicant was working in the vibrating department.

INJURY

10The applicant stated that he was injured while lifting a door at work on July 30, 2007. He said that the symptoms of the injury only manifested themselves on July 31 and that he received medical attention on that date.

11The chronology of events surrounding the applicant’s injury is as follows:

a. on July 30, 2007, the applicant states he injured his back in the workplace;

b. on July 31, 2007, the applicant is seen by a physician, who completes a functional abilities form and recommends light duties, with no heavy lifting, for seven days (until August 7, 2007.)

c. on August 2, 2007, the applicant attends work and is assigned light duties.

d. on August 7, 2007, the applicant obtains a medical note indicating he is to be off work for one week. The respondent asks the applicant to obtain a completed functional abilities form in order that it may evaluate whether the applicant can perform light duties.

e. on August 10, 2007, the applicant obtains a functional abilities form which indicates that he may return to work without restrictions. He is returned to his position in the vibrating department.

f. on August 29, 2007, the applicant seeks further medical attention for his injury. Mike Snider attends at the hospital and delivers a blank functional abilities form to the applicant.

12On August 30, the applicant is laid off and a lay off notice is mailed to him. He receives the notice sometime after August 30, 2007.

13The applicant states that on August 30, 2007, before he received the lay off notice, he went to his worksite and provided the respondent with a copy of a functional abilities form completed by a physician indicating that he is unable to return to work for upwards of 14 days. The respondent acknowledges that it did eventually receive this form, although it denies receiving it on August 30,2007.

WSIB CLAIM

14The applicant filed a WSIB claim in regard to the back injury he sustained on July 30, 2007. His claim was rejected. He appealed this decision and the WSIB proceedings are ongoing.

15It is apparent from the respondent’s witnesses that it questioned the legitimacy of the applicant’s WSIB claim. Some unidentified employees had approached Linda Snider with information that the applicant was malingering and that his WSIB claim was improper. Further, the respondent’s witnesses both testified that the applicant failed to submit documentation (sent to him by WSIB) in a timely manner. The applicant disputed this and stated that it was the employer who failed to provide him with the necessary forms.

16Linda Snider wrote to WSIB and reported the information she had received from other employees as well as her concerns that the applicant was not cooperating with the WSIB process. She and Mr. Snider testified that this was done in response to a request from WSIB.

17At the hearing, the applicant expressed concerns about the information the respondent reported to WSIB. He believes the respondent violated his privacy rights and may have unfairly and adversely affected his WSIB claim.

LAYOFF

18The applicant was laid off on August 30, 2007. Michael Snider testified that the layoff was necessary given the company’s declining sales. He explained that Madawaska Doors manufactures high end wooden doors, many of which are custom designed. He stated that this product is very sensitive to downturns in the economy.

19Since 2007, Madawaska Doors has experienced three waves of layoffs. In August 2007, it employed approximately 40 persons in its Barry’s Bay plant; it now employs only 9.

20The applicant was part of the first wave of layoffs. He and the only other employee in the vibration department were laid off on August 30, 2007. The vibration department was eliminated and the vibration work was performed on an as needed basis by skilled workers in an adjacent department. The respondent states that, to this day, there is not sufficient work to justify the existence of a vibrating department or an employee assigned exclusively to that task.

21Mr. Snider testified that in order to keep the applicant and his coworker employed as long as possible and in the hopes that sales would increase, the respondent assigned these employees to specific projects. By August 30, 2007, however, these projects were complete and there was no longer enough work to justify their continued employment.

22In making his decision to lay off the applicant, Mr. Snider testified that he considered the applicant’s skill set and his relative seniority. The applicant readily acknowledged that he did not have experience working with wood, however he argued that he had more seniority than at least one coworker. Although this coworker had worked at Madawaska Doors for several years, he had left his job and had been rehired sometime between August 7 and August 14th, 2007. The applicant argued that this individual should have been laid off instead of him.

23Mr. Snider stated that this other coworker was highly skilled and had over ten years experience with Madawaska Doors. He stated that the coworker was not selected for layoff because his break in service had been very short and because he was more skilled than the applicant.

24Mr. Snider denied that the applicant’s disability or his WSIB claim were a factor in his decision to lay off the applicant. This decision had been made seven to ten days before August 30, at a time when the applicant was working without restrictions. Mr. Snider was aware that the applicant was seeking medical treatment on August 29, the day before he was advised of the lay off. Although he chose not to delay announcing the layoff or wait for medical information from the applicant, he said he did take steps to determine that the layoff would not affect the applicant’s WSIB claim.

25Mr. Snider testified that, even if he had received the functional abilities form on August 30, it would not have influenced his decision. Given that the basis of the layoff was purely economic, he felt that the applicant’s ability or inability to work at the time of the layoff was not relevant to his decision.

26Mr. Snider stated that the respondent’s general practice is to meet face to face with employees who are being laid off. He said that while he met with the other employee laid off on August 30, he was unable to meet with the applicant. The applicant received a lay off notice in the mail.

27The parties agree that the applicant did not work on August 30. There is, however, a dispute as to whether the applicant attended at the workplace to drop off the functional abilities form.

28Mr. Snider denies receiving the functional abilities form and states that, in any event, he had no knowledge of the applicant attending the worksite on that date. If he did attend, he didn’t make Mr. Snider aware of it. While Mr. Snider’s recollection on this point is limited, he believes that he attempted to reach the applicant by phone at his home number on August 30th. When he was unable to reach the applicant, he arranged for a written lay off to be sent to him.

DECISION

The [Human Rights Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)

29Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

30According to section 9 of the Code, “no person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.”

DID THE APPLICANT HAVE A DISABILITY?

31The respondent seemed to question whether the applicant suffers from a disability and suggested that the applicant may have been malingering or seeking to obtain WSIB benefits in advance of an anticipated layoff. The respondent did not, however, challenge the medical documents submitted by the applicant nor did it address this issue in cross-examination. Therefore, for the purposes of these proceedings, I accept that the applicant was injured on July 30 and, for the purposes of the Code, had a disability. In this regard, I also accept the findings of the medical caregivers regarding the applicant’s limitations and ability or inability to work.

32While there is a dispute about whether the August 29 functional abilities form was delivered to the employer in advance of the layoff, it is clear that the respondent knew the applicant was having ongoing issues with his back.

WAS THE APPLICANT’S DISABILITY A FACTOR IN THE DECISION TO LAY HIM OFF?

33The applicant argued that he was laid off because of the injury he sustained and because the respondent did not want to deal with ongoing WSIB claims or requests for accommodation. He suggested the written warning he was given regarding his absence from work on August 17, 2007 is evidence that the employer was looking for a reason to dismiss him.

34Counsel for the respondent stated that it was not relying on the written warning or asserting just cause for the termination. Rather, the lay off was purely for economic reasons.

35I accept the respondent’s evidence that a downturn in sales led it to close the vibrating department. I also accept that it selected the applicant for layoff because his seniority, relevant experience and skills were limited in comparison to other employees. There was no evidence to suggest that the respondent failed to accommodate the applicant’s disability while he was employed there. Rather, the evidence shows that the respondents provided modified duties in accordance with the medical recommendations. While the respondent had expressed frustration with the applicant’s absenteeism on August 17 and his failure to complete WSIB forms, I find that neither these frustrations nor his disability factored into the decision to lay him off. In my view, the respondent has rebutted the prima facie inference and I find that disability was not a factor in the decision to layoff the applicant.

36It is unfortunate that Mr. Snider was not able to meet with the applicant on August 30 to advise him of the lay off. Had he been able to do so, he may have reduced the applicant’s level of frustration concerning the termination of his employment. However, this inability to meet with the applicant was not evidence of discrimination.

37Finally, it is apparent that the respondent’s communications with WSIB are of great concern to the applicant. While I am empathetic to his concerns, there was no suggestion that these communications were in breach the Code.

38For all these reasons, the Application is dismissed.