Mirashrafi v. Circuit Centre, 2010 HRTO 512

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marzieh Mirashrafi

Applicant

-and-

Ontario Human Rights Commission

Commission

-and-

Circuit Centre Inc., Atousa Aminian and Sherry Shahabi

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: March 9, 2010

Citation: 2010 HRTO 512

Indexed as: Mirashrafi v. Circuit Centre

APPEARANCES:

Marzieh Mirashrafi, Applicant ) On Her Own Behalf

) and Ali Noujoumi, Representative

Ontario Human Rights Commission ) Jean Iu, Counsel

Circuit Centre Inc., Atousa Aminian and )

Sherry Shahabi, Respondents ) Elliot Berlin, Counsel

INTRODUCTION

1The complainant, Marzieh Mirashrafi, was employed by the respondent company, Circuit Centre Inc. (CCI), initially as a machine operator and subsequently as a Quality Control Inspector. She filed a complaint with the Ontario Human Rights Commission (the “Commission”), dated October 23, 2006, alleging that she was subjected to discrimination in employment on the basis of disability, contrary to sections 5(1), 9, 10 and 17 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by the corporate respondent and two personal respondents. The Commission referred the complaint to the Tribunal by letter dated October 15, 2007.

2In her complaint, the complainant alleges that she was involved in a slip and fall accident on June 13, 2006, and was unable to work for approximately six weeks as a result of the injuries she sustained. She provided the respondent company with several pieces of medical documentation indicating she was temporarily unable to work during that time.

3She alleges that during the six week period she was asked to sign a release in order to obtain her Record of Employment (ROE). She says that she returned to work before she felt she should because of pressure to do so from the company. She also alleges that she was issued a warning letter regarding her job performance because Human Resources and Development Canada (HRSDC) contacted her employer about their failure to issue an ROE with respect to her six week recovery period.

4Finally, she alleges that her employer and the personal respondents attempted to make her sign a document in which they purported to hire her as a new employee effective on the date she returned to work following her six week medical absence. She alleges that her refusal to sign resulted in her being laid off by the employer. Although the complaint did not plead reprisal as a ground in the complaint, in its closing submissions, the Commission has included an argument that the complainant suffered reprisal because she requested an ROE during her sick leave and was away from work due to disability.

5In response, the respondents allege that following her accident, the complainant was subjected to a reasonable request to update her employer with medical information supporting her request for leave and her ability to return to work in order that they could manage their operations. The respondents deny sending the complainant a release or requiring her to sign it in order to get the ROE or pressuring her to return to work. They say instead that their practice required that employees sign a request form for an ROE and that is what the complainant was told to sign and submit. They deny issuing a warning letter to the complainant as a result of receiving an inquiry from HRSDC concerning the ROE that should have been issued during the complainant’s sick leave.

6The respondents further contend that they did not intend to ask the complainant to sign a new employment contract because she had been off on sick leave. They allege that the wrong document was presented to the complainant and they wanted her to sign a “resumption of employment” document. Finally, the respondents take the position that the complainant was laid off two days after her refusal to sign the offer of employment because of shortage of work and that the majority of her job functions were no longer a necessary part of the respondent company’s business and not for reasons relating to her disability.

7The Commission called evidence from the complainant, her son Ali Noujoumi and one of her physicians, Dr. Azadian. The complainant relied on the evidence called by the Commission and did not call any additional witnesses. I heard from the president of Curcuit Centre Inc. (“CCI”), Reza Javdan, the two personal respondents, Atousa Aminian and Sherry Shahabi, and Nader Babei, Davinder Toor and Christina Tamburro, present and former employees of CCI on behalf of the respondents.

FACTS

8The corporate respondent, which began with 5 employees in 1995, employed approximately 120 employees at its peak in 2002. Reza Javdan, the president of CCI, gave evidence that in 2006 the workforce was reduced by 30 employees, of which the complainant was one. He testified that the company currently employs 40 people, having significantly contracted in size between 2006 and the present. CCI is in the business of manufacturing electronic equipment, specifically building circuit boards based on customer designs.

9The parties agree that the complainant began working for CCI as a machine operator on an assembly line in 2000. Some time in 2004, she requested a change in her work environment because of problems with her throat and losing her voice. She was moved to the Quality Control (QC) department of the company which was located in the office area and began working as a QC Inspector as a form of accommodation. She remained in this position until her lay off in 2006.

10The company did not offer short term or long term disability leave benefits as part of its compensation scheme. The complainant requested and received a short term unpaid leave of five weeks in March 2006 to attend her father’s funeral in Iran. She testified that she did not have any problems with the corporate or personal respondents prior to June 2006.

11On June 13, 2006, the complainant fell outside a friend’s home and injured herself. She broke her nose and suffered injuries to her head, arms and knees. She sent one of her sons, Ali Noujoumi, to the factory with the key she held because she was concerned about the factory being opened on time. There is disagreement as to whether her son also delivered a note from the hospital to a supervisor, Nader Babei. The complainant and her son gave evidence that the note was provided and the respondents deny having received the note. In particular, Mr. Babei said that he was not given a note by Mr. Noujoumi, although he acknowledges receiving the key and being told of the complainant’s accident.

12The complainant testified that she spoke to her co-workers and others from the company on several occasions while she was recovering from her injuries and the subsequent medical treatments over the next six weeks. She says she obtained and had her son deliver several medical notes to her employer, something her son confirmed.

13As she had no employment or short term disability income during her recovery period, she asked the company to provide her with an ROE so she could apply for EI sick benefits. Instead, she says she was sent a document containing a one paragraph Release. She felt that she should not have to sign a Release in order to get an ROE and so she applied for EI sick benefits without an ROE.

14She also gave evidence that she felt that if she did not return to work she would lose her job and, for that reason, went back to work before she felt ready to do so. In support of her position, she testified that she received numerous phone calls telling her that the respondent company was extremely busy and her absence was causing problems.

15The respondents’ witnesses, particularly Christina Tamburro, a former employee, and Davinder Toor, the complainant’s supervisor, denied calling or pressuring the complainant to return to work. The personal respondent, Shahabi, says she was on vacation during most of the early part of the sick leave and she only asked for an additional medical note on the 17^th of July because the notes she had seen appeared to suggest the complainant was medically fit to return to work after that date. The respondents point to a provision in the Employment Standards Act, 2000, S.O. 2000, c.41, in support of their position that they were entitled to seek medical updates from the complainant.

16Upon her return to the workplace, the complainant says that she had some trouble using the inspection equipment because the injuries to her nose had not yet healed sufficiently. She says that she occasionally asked for help from her supervisor, Davinder Toor, and that she received it.

17The complainant’s supervisor, Davinder Toor, gave evidence that differed slightly from the complainant’s testimony. After the complainant returned to full time work, Ms. Toor indicated that she did not receive any direct requests from the complainant for modifications to her work environment or hours, nor was she aware that any requests had been made to any one else in the company. She does not recall being asked for help by the complainant during the weeks following her return to work.

18The complainant says that she was called in to speak with Sherry Shahabi and Atousa Aminian in late August or early September 2006. She says that she was mistreated by them and that they were upset with her because HRSDC had followed up with the company regarding her application for EI sickness benefits and questioned why the company had not issued an ROE when requested. She says she was issued a warning letter concerning performance issues that she refused to sign. She was unable to provide a copy of that document.

19The respondents deny having such a meeting or issuing a warning letter and say that if such a letter had been prepared, it would be in the complainant’s employee file and the complainant would have a copy of it to present to the Tribunal. They also point to the fact that none of the other employees who would have been present at the time the complainant alleges this event took place confirm her version of events.

20The complainant testified that she was called in to another meeting in September 2006 and presented with another document for her signature. This one indicated that she was being hired as a new employee effective on the date of her return from sick leave in July 2006 and containing terms of employment different from those already in existence. She says that she did not sign the document and was very upset that she was asked to do so. A copy of that document was entered into evidence.

21The respondents offer a different version of events. Ms. Shahabi testified that she intended to get the complainant to sign a “resumption of employment” document restating and reminding the complainant of the terms of her employment, something she says is regularly done in the company after lengthy absences. Her evidence is that the documents are close together in company directory and that she filled out the wrong one.

22This version was also testified to by Ms. Aminian, who went further and stated that this practice was followed if any employee was absent from work for more than two weeks. When questioned she clarified that those who are absent to go on vacation are not required to sign such a document. She also acknowledged that the complainant, who had been absent for five weeks earlier the same year to attend her father’s funeral overseas, had not been asked to sign such a document on her return to work on that occasion.

23Finally, I heard from the witnesses present at the September 8, 2006 meeting when the complainant was presented with a package for signature. The complainant says she was upset but composed. The personal respondents agree that there was no unpleasantness during the meeting and that they gave the separation package to the complainant for her to consider.

24Although there was some evidence provided about the time following the September 8, 2006 meeting, the evidence concerning EI benefits received by the complainant was unclear and neither she nor the Commission provided adequate information regarding the amount of money received by her following her job loss.

25Dr. Azadian, one of the complainant’s physicians gave evidence as to his patient’s psychological condition from September 2006 to the present and the impact of the events that are the subject of this complaint on her. He testified that she has been unable to return to employment since he began treating her, that her medical conditions persist and she has not shown significant improvement.

ANALYSIS AND DECISION

Relevant Code Provisions

26Sections 5(1) and 9 of the Code provide as follows:

5(1). Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

27Disability” is defined in section 10 of the Code, in part, as follows:

“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…

28Section 11 of the Code reads as follows:

A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

Assessment of credibility

29In assessing credibility, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carries conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. [emphasis added]

Findings

30The respondents violated the complainant’s right to equal treatment with respect to employment without discrimination because of disability, contrary to sections 5(1) and 9 of the Code. This occurred when the respondents failed to accommodate the complainant when she requested an ROE in order to apply for sick benefits and when she was presented with an employment contract for her signature purporting to hire her as a new employee following her return to work after a period of illness.

31I am also satisfied that the complainant's disability was a reason for the termination of her employment. However, I am not persuaded that she would not have lost her employment within the following months for non-discriminatory reasons given the uncontested evidence concerning the contraction in size of the respondent company.

Disability

32I find from the oral and documentary evidence that the injuries resulting from the slip and fall accident resulted in a loss of function and a need for the complainant to obtain surgical intervention and treatment and that, during the material time, she suffered from a disability as defined under the Code.

33There was significant dispute about which of the medical notes submitted at the hearing had actually been received by the respondents. Having reviewed the evidence, I find that the notes presented at the hearing were submitted by the complainant’s son to the company, the notes having been obtained for that very purpose. My reasons for reaching that conclusion are as follows.

34The respondents have argued that the notes were not in the complainant’s employee file and that their absence is proof that they were never delivered to the company. I am not convinced by the respondents’ argument. I find it more likely that Ali Noujoumi delivered the notes to the company at the times that they were obtained.

35The evidence of the respondents was that Ms. Shahabi, the director of Human Resources for the company, was on holiday for about three weeks during the complainant’s leave. During Ms. Shahabi’s absence, it is not clear who was responsible for her functions and coverage of the human resources job function appears to have been spotty at best. Ms Aminian testified that if there were emergencies, she dealt with them.

36The respondent company’s practice and procedure for receiving and filing notes, correspondence and communications, as described by the respondents’ own witnesses, was not sufficiently clear or so efficient as to lead me to the conclusion they urge. There appears to be no practice of date stamping correspondence or medical notes as there are none on notes that they acknowledge having received.

37Also, there is no standard practice of documenting in employee files communications or conversations with employees concerning human resource issues, according to Ms. Shahabi’s evidence. All of these factors lead me to conclude that Mr. Noujoumi brought the notes in and they were lost or misfiled.

Delay in Providing an ROE

38There is no dispute that the complainant ceased to receive employment income from the corporate respondent following her injury and that the company did not have a short term disability plan for its employees. While there is some disagreement as to when complainant first requested the ROE, the parties do not dispute that the complainant requested that an ROE be issued so that she could have access to short term sickness benefits through EI.

39It is also clear from the evidence that the complainant did not receive an ROE during the six weeks she was off work, despite having requested one and despite having provided medical support for her inability to work to the corporate respondent. The company did not, in fact, produce an ROE until required to do so by HRSDC, almost three months after the complainant’s accident and well over a month after she had returned to work.

40The respondents’ position is that the company’s procedures required that employees fill out a form to request an ROE when they are leaving the workforce for any length of time. They say that they told the complainant to fill out the appropriate form and were waiting for her to do so before issuing the ROE. They deny having sent her a Release that she alleges she was told to sign as a precondition to issuing the ROE.

41Implicit in the respondents’ position is the idea that, while the failure to issue the ROE for three months may reveal incompetence or a gap in the company’s procedures, it was not a violation of the Code.

42I do not accept this position. The company chose to adhere to an internal policy not mandated by any legislation and failed to accept a phone request from the complainant in lieu of a form that was perhaps more appropriate for those facing planned absences from the workforce rather than unanticipated ones occasioned by injury or illness. They were obliged to issue an ROE in a timely way, something they failed to do.

43Once advised of the complainant’s injuries, her need to take time off to recover from them and having received her request for an ROE, the respondents were under a positive obligation to determine whether the complainant required accommodation to obtain the ROE and, if so, what the appropriate accommodation would be. They did not do so. By insisting on the filling out of a form that the complainant did not have, the respondents failed in their duty to accommodate her reasonable request that an ROE be issued so she could access benefits from another source at a time that she was without employment income. In the circumstances, the company ought to have known that their usual method of requesting an ROE would cause this employee difficulty for disability- related reasons.

44The respondents have not provided any evidence that would establish that dispensing with the use of their form would have amounted to undue hardship.

Return to Work

45I do not accept that the complainant was called on numerous occasions and told to return to work or she would lose her job. The complainant’s position on this point was inconsistent with respect to who called her and when and at odds with previous statements made to the Commission. As such, I am unable to accept her version of events as reliable.

46Despite this, I accept that the failure of the respondents to issue an ROE in order for her to access sickness benefits would have resulted in the complainant feeling that she had to return to work in order to resume receiving income.

47Having reviewed the testimony of Davinder Toor, her supervisor, and the evidence presented by the Commission and the complainant as to the number of hours worked upon her return to work, it appears that the complainant did not make any further requests for accommodation that were not addressed by the respondents.

Issuance of a Warning Letter

48I am not persuaded that the complainant was given a warning letter concerning her performance. There were a number of inconsistencies with respect to the evidence she gave on this point, including when and where she was spoken to by the personal respondents and the failure of people she alleges would have witnessed at least part of what she alleges occurred to corroborate her testimony. There is insufficient evidence for me to conclude that this event took place.

Requirement that Complainant Sign an Employment Contract

49Neither party disputes that the document entitled “Offer of Employment” provided to the Tribunal is the one that was presented to the complainant for her signature at the meeting on September 6, 2006. The explanation provided was that an ongoing ISO audit prompted the production of this offer of employment

50I do not find Ms. Shahabi’s explanation that she prepared, formatted and presented an incorrect document for the complainant to sign to satisfy audit requirements plausible. The document she purports to have wanted to present instead is quite different in nature and the differences would have become apparent during the time spent in filling in the complainant’s personal information. There is no indication that she withdrew the document in the next two days or sent other correspondence explaining her error.

51The timing of the presentation of the document to the complainant is also worthy of note. Ms. Mirashrafi had been back in the workplace for six weeks already. If, in fact, the company’s policy was to require returning employees to sign such a document, surely it would be done at or immediately following that return and not more than a month later.

52Finally, the respondents acknowledge receiving the letter from HRSDC inquiring about the missing or unissued ROE in late August or early September. The fact that the employment contract was produced shortly thereafter is another factor that leads me to reject the position taken by the respondents on this point.

53In these circumstances I find it more likely that the presentation for signature of this document flowed from the complainant having taken time off work in connection with the disabling conditions she faced following her accident and her application for EI benefits. An attempt was made to rewrite the complainant’s employment contract based on her sick leave to her detriment. In any event, the respondents’ actions amount to unequal treatment on the basis of disability.

Termination

54While the complainant is genuinely convinced that the termination of her employment was solely because of her disability and that she would still be employed were it not for the discriminatory conduct of the respondents, I have had regard to the evidence of the president of the company, Reza Javdan, on this point.

55He provided testimony that the services offered by his company changed for business reasons to exclude a function that formed a large percentage of the work done by the complainant, specifically the bare board inspection function. He also gave evidence about the loss of business that led to the reduction of his workforce from 120 to its current complement of 40 employees, a process that began in 2006, the time that the complainant was laid off.

56He testified that the decision to lay off the complainant was made by him, in conjunction with Ms. Aminian, and based on a number of factors including job function and time spent in the quality control position. The reason for the selection of the complainant, according to Mr. Javdan, was the cessation of bare board component inspections and the complainant’s job function being largely unnecessary. He suggests that the decision was made on September 7, 2006, the day after Ms. Shahabi had met with the complainant.

57Mr. Javdan testified and the complainant agreed that until her job loss, their relationship had been positive, that he felt no personal animosity towards the complainant and that her recent sick leave had no bearing on the decision.

58Although I accept Mr. Javdan’s evidence concerning the difficulties his business was experiencing and the undisputed testimony regarding the reduction in the workforce in 2006 and subsequently, I am struck by the fact that the decision to lay off was made the day after the complainant’s refusal to sign a document purporting to characterize her as a two month employee as opposed to one with six years service.

59Having rejected the explanation of incorrect document formatting proffered by Ms. Shahabi and having regard to the fact that Ms. Aminian testified that she was aware of the communications from HRSDC regarding the ROE, I am unable to accept that the decision to terminate was solely based on non-discriminatory grounds and find that the complainant’s sick leave and the subsequent issues faced by the company with respect to their failure to issue the ROE played some role in the decision communicated to her on the 8^th of September.

60However, I am not persuaded that were it not for the discriminatory conduct, the complainant would continue to be employed given the unchallenged evidence of Mr. Javdan regarding the reduction of the workforce during the material time.

Remedy

61The Commission has requested a number of remedies including lost wages to the date of the Tribunal’s decision, monetary compensation and public interest remedies.

62In light of my finding that the complainant’s employment was not secure given concurrent and subsequent reductions in the workforce and the absence of sufficient evidence of amount of benefits received after termination, in my view, there is insufficient basis for an award for lost wages and benefits.

63The complainant is entitled to an award of monetary compensation for the infringement of her right to be free from discrimination and in that regard the Commission has sought $30,000.00 in compensation.

64In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the Court held that Tribunals should consider the following factors in making these awards: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment. In addition to the subjective effects of discrimination on an applicant, it has also been held that it is appropriate to consider the surrounding circumstances and incorporate an objective component to the quantification of monetary compensation: see Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940.

65I accept that the failure of the respondents to issue the ROE after the complainant’s accident caused her great difficulty and distress at a time when she should have been focussing on a speedy recovery and that their conduct immediately preceding her termination upset and humiliated her. I further accept the evidence provided by Dr. Azadian regarding the complainant’s mental and emotional state and, while accepting there likely were and are other factors contributing to and compounding her situation, find the respondents’ actions contributed to her condition.

66Having regard to the factors outlined in Lane, supra, and considering the evidence of Dr. Azadian concerning the complainant’s vulnerability and the impact of these events on her, I find that an award of $15,000.00 in monetary compensation, payable by the corporate respondent, is appropriate. This award will be subject to post-judgement interest if unpaid after 30 days from the date of this Decision. The corporate respondent is also ordered, at its own expense, to provide mandatory human rights training on the accommodation of disabilities in the workplace for all managers and any others within the organization that perform human resource functions within 3 months of the date of this Decision.

ORDER

67Having found that the respondents violated sections 5 and 9 of the Code, the Tribunal makes the following order:

1. The respondent employer, Circuit Centre Inc., shall pay the applicant $ 15,000.00 as monetary compensation. Post-judgement interest on the award of monetary compensation shall be payable on any amounts not paid within 30 days of the date of this Decision in accordance with the Courts of Justice Act.

2. The respondent employer, Circuit Centre Inc., shall provide mandatory human rights training on the accommodation of disabilities in the workplace to all managers and any other staff within the organization that perform human resource functions within 3 months of the date of this Decision.