MacDonald v. Anishnawbe Health Toronto, 2010 HRTO 329

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra MacDonald

Applicant

-and-

Anishnawbe Health Toronto, Jane Harrison and Joseph Hester

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 12, 2010

Citation: 2010 HRTO 329

Indexed as: MacDonald v. Anishnawbe Health Toronto

APPEARANCES BY

Sandra MacDonald, Applicant ) Tony Afecto, ) Counsel

Anishnawbe Health Toronto, Jane Harrison, ) G. James Fyshe, and Joseph Hester, Respondents ) Counsel )

1The Application was filed with the Tribunal on June 1, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant self-identifies as an Aboriginal Catholic. She alleges that the respondents discriminated against her beginning in November 2006 by unfairly criticising her work performance and ultimately terminating her employment because of her religion. She also alleges that they discriminated against her on the basis of disability by failing to accommodate her needs and terminating her employment because she required a disability related leave of absence.

3The respondents deny any knowledge of the applicant’s religion and disability and state that the applicant was disciplined and her employment terminated for performance issues.

4The hearing was held on January 18, 2010. In accordance with the expectation that transitional applications be dealt with in a fair, just and expeditious manner, the witnesses were asked to adopt their will say statements and, after minimal clarifying questions, the parties proceeded to cross examination.

5The applicant was hired in November 2003 as a Children’s Wellness Assistant at Anishnawbe Health Toronto (“Anishnawbe”). Anishnawbe is a health service organization in Toronto which provides health care services primarily to members of the aboriginal community in Toronto. Anishnawbe has approximately 49 staff, 23 of whom are hired through an employee leasing arrangement with a company called Native Leasing Services. Employment with Native Leasing Services offers access to group benefits plans, pension plans, training opportunity, and networking for other job opportunities.

6Being employed by Native Leaving Services also offered status Indians under the Indian Act the opportunity to claim a tax exemption under that Act.

7The applicant testified that she first began experiencing difficulties in November 2006 over an employee she had hired who refused to take direction from her. Jane Harrison, her supervisor, removed some of the applicant’s duties as Fetal Alcohol Spectrum Disorder Coordinator which she perceived as a disciplinary action. The respondents do not consider these events as discipline. Rather their evidence was that due to interpersonal conflict between the applicant and the other employee, the collaborative aspects of their respective duties were discontinued.

8On January 2, 2007, Jane Harrison wrote a formal letter of discipline criticising the applicant’s actions relating to her failure to drive a colleague to conduct work related shopping. The applicant disputed that she had done anything inappropriate and sought to have the letter of discipline rescinded. It was not.

9In April 2007, Ms. Harrison submitted a formal written appraisal of the applicant’s work performance. Ms. Harrison testified that because the applicant’s interpersonal skills had improved, she did not refer to the January 2007 disciplinary letter. Ms. Harrison rated the applicant as fully satisfactory on all measures and recommended her for a merit increase. The performance appraisal was also signed by the applicant and the Executive Director, Joe Hester.

10In June 2007, the applicant took a medical leave of absence due to injuries sustained from a personal matter. Her doctor provided documentation to Native Leasing Services which advised the respondents about the expected return to work date. On August 2, 2007, the applicant returned to work following her doctor’s recommendation that she work “as tolerated.”

11The applicant testified that her pain medication recommended against driving and that she asked Ms. Harrison to relieve her from her driving duties. She testified that this request was refused and that when she tried to meet with the Executive Director he refused to discuss the matter with her. Ms. Harrison denied that the applicant ever raised any request for accommodation or relief from driving and Mr. Hester confirmed he had never been advised of the alleged driving exemption.

12On September 5, 2007, the applicant spoke to a colleague about her concern that a letter about her personal life, which should have remained confidential, had been inappropriately disclosed by either Ms. Harrison or Mr. Hester to other employees. Ms. Harrison testified that she met with the applicant to discuss this incident, but the applicant left the office abruptly, refusing to discuss the situation.

13Ms. Harrison testified that the decision to terminate the applicant’s employment was made on September 7, 2007 and the letter of termination was sent by Native Leasing Services on September 12, 2007.

Analysis

14The applicant submits that the discipline imposed in January and May 2007 and the events giving rise to the September 2007 termination were gross overreactions to the alleged workplace behaviour and this gives rise to an inference that something else was going on. That something else, she asserts, was either or both of her religion and disability.

Religion

15The applicant testified that during a routine work meeting in 2004, a co-worker requested permission to attend mass daily during the lunch hour. Mr. Hester was in attendance at that meeting. The end result was that the worker was advised that her lunch hour of one hour would not be altered and it would be difficult for her to travel to church and return in time. The decision was allegedly made by Mr. Hester. A former manager, Ms. Toulouse confirmed the applicant’s recollection of the meeting although she testified that she did not think it was a “big deal” and that the issue was about lunch schedules rather than religion. The applicant and Ms. Toulouse both testified that the applicant revealed during that meeting that she was a Catholic. However, neither of them could account for why that information would have been revealed as both agreed that the issue was about scheduling of the coworkers lunch break.

16It is unnecessary for me to determine whether the applicant revealed that she was a Catholic at that meeting, as I accept Mr. Hester’s evidence that he had no recollection of any such meeting.

17According to the applicant’s theory of this case, Mr. Hester, having learned in 2004 that the applicant was an Aboriginal Catholic, developed a dislike of her and took steps to ensure that her employment was terminated. Her evidence about Mr. Hester’s dislike of Aboriginal Catholics was vague and was based on her perceptions of his demeanour.

18In support of this theory, the applicant called Vivian MacNeil, a former employee of the respondent organization. Ms. MacNeil and Mr. Hester agreed that they had an intimate relationship for approximately four years, ending around 2004. Ms. MacNeil testified that she understood that Mr. Hester strongly disapproved of aboriginal persons who practised Christianity, or at least those sects of Christianity who were at one time involved in residential schools, such as Catholics and Anglicans. When pressed to explain the basis for her opinion, she could only state that after four years, you get to know a person and their feelings. In contrast, Mr. Hester denied harbouring any feelings about Aboriginal persons who practised Catholicism arising from the residential school history.

19In my view, the evidence falls far short of that required to establish that Mr. Hester had a bias against Aboriginal Catholics. Ms. MacNeil’s inability to point to any conversation or details to support her perception greatly lessens the weight of her opinion.

20Further, the applicant’s theory is severely undermined by Mr. Hester’s approval of a fully satisfactory performance assessment in April 2007 coupled with an approval for a merit based salary increase. The theory that Mr. Hester learned in 2004 of the applicant’s religion and treated her adversely from that point is seriously undermined by the lack of any action by Mr. Hester from 2004 and his approval of positive performance appraisal in April 2007. Also, her theory does not account for the required collaboration by Ms. Harrison. Ms. Harrison is not alleged to hold any bias against Aboriginal Catholics and was the first line of supervision and the person who drafted the disciplinary notices.

21The applicant further relied upon an alleged conversation with Ms. Harrison on September 5, 2007, shortly before her termination. On that day, the Catholic school where the applicant’s son was in attendance telephoned the respondent organization searching for the applicant to advise her that her son had been injured at school. The applicant asserts that she sought permission to leave work to deal with this situation and that Ms. Harrison refused permission and questioned why she would send her son to a Catholic school in light of their involvement with the residential school experience. She also threatened to tell Mr. Hester that the applicant sent her son to a Catholic school.

22Ms. Harrison denied that such a conversation took place and that she was not aware that anyone called from a Catholic school on that day inquiring about the applicant.

23The applicant called the principal of her son’s school. Her counsel indicated that the principal would state that he spoke to Ms. Harrison and was advised that the applicant was no longer employed there. The principal did confirm that he, or his assistant attempted, unsuccessfully to contact the applicant at her place of work, but he denied speaking to Ms. Harrison, or being told that the applicant no longer worked there.

24This indicates a significant inconsistency in the applicant’s pleadings. Further, the alleged conversation was not mentioned in the original complaint filed in September 2007 and first arose a few days prior to the hearing. In her original complaint the applicant gave details of alleged unfair treatment and related them to her religion, but made no reference to any direct comments about religion. It is highly unlikely that the applicant would have failed to detail this conversation which allegedly occurred days before the complaint was filed.

25I find that the alleged conversation did not take place and assertion at the last minute that it did reflects poorly on the applicant’s credibility.

26I conclude that the applicant’s religion did not play any role in the respondents’ treatment of her during her employment or in the decision to terminate her employment.

Failure to Accommodate

27Did the respondents fail to accommodate the applicant’s disability upon her return to work in August 2007 following a health related leave of absence? The applicant testified that she asked to be relieved of her driving responsibilities and that this request was denied. I note that this allegation does not appear in the original complaint filed in September 2007 either, although the applicant gave details about the November 2006 and May 2007 events giving rise to discipline. I find this omission and the fact that the first time the driving duties are mentioned is shortly before the hearing in 2009 detracts from the applicant’s credibility. Further, the applicant could not point to any written email or notes detailing this failure to accommodate. The medical documentation submitted at the time or even at the hearing, makes no mention of an inability to drive.

28The applicant asserts that her disability related leave from June 2007 to August 2007 factored in the sudden decision to terminate her employment. Further, she testified that she submitted a medical note indicating that she was medically unable to work after September 5, 2007 and that also played a role in the decision to terminate her employment.

29I am not satisfied that the applicant established on a balance of probabilities that she advised the respondents that she required a second leave of absence prior to the termination decision. Although the medical note relied upon by the applicant is dated September 5, 2007, I do not accept the applicant’s evidence that she submitted the note that same day.

30There is evidence that the applicant had a 2:00 p.m. medical appointment on September 5, 2007 and the doctor’s clinical notes confirm that she visited that day. At the same time, the evidence indicates that the applicant was called by her son’s school on September 5, 2007 and she left work to attend to him. It seems to me to be highly unlikely that the applicant obtained and delivered a medical note that same day. I am satisfied that the applicant submitted the medical note dated September 5, 2007 some time after the decision was made to terminate her employment.

31That leaves the potential that the applicant’s employment was terminated because she took a health related leave of absence from June to August 2007. In contradiction to that theory, the respondents rely upon the three events in January, May and September 2007 as basis for dismissal.

32The parties agreed that my task is not to determine whether there was just cause for dismissal, and therefore I heard little evidence about the underlying events giving rise to the discipline and relied upon as the basis fro the termination. I note that the April and September 2007 events relied upon were supported by emails from colleagues indicating some misconduct by the applicant.

33The applicant asserts that these events were so trivial as to give rise to an inference that some other factor, i.e. disability, must have influenced the decision to implement discipline and termination. I do not agree. The May 2007 events, as supported by the coworkers’ emails, indicate that the respondents had been advised that the applicant was seriously rude and insubordinate to the acting manager. The September events indicate that the applicant was telling coworkers that Ms. Harrison and Mr. Hester had disclosed personal information about her. While the applicant was legitimately entitled to raise these concerns with Ms. Harrison and Mr. Hester, it is understandably a cause for concern to management that she was raising these assertions behind their backs to other workers.

34I am satisfied that the respondents have demonstrated that they terminated the applicant’s employment because they perceived her to have engaged in misconduct, and not because of any past or anticipated health related leave of absence.

35The Application is dismissed.