Pryse v. Community Living Dufferin, 2011 HRTO 1813

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Pryse

Applicant

-and-

Community Living Dufferin

Respondent

-and-

Canadian Union of Public Employees and its Local 3083

Intervenor

Decision

Adjudicator: Naomi Overend

Date: October 6, 2011

Citation: 2011 HRTO 1813

Indexed as: Pryse v. Community Living Dufferin

APPEARANCES

Laura Pryse, Applicant ) Self-Represented

Community Living Dufferin, Respondent ) Lisa Carty, Counsel

CUPE Local 3083, Intervenor ) Paul O’Ryan, Counsel

INTRODUCTION

1The applicant, Laura Pryse, was terminated from her employment as a support worker in the respondent’s group homes at the end of her period of probation. She believes that her job was terminated in reprisal for notifying the respondent (via her manager) of an allegation of abuse made by one of the residents about a senior staff at her group home.

2The respondent denies that the allegation had any influence on its decision, and that the decision had been made to terminate the applicant’s employment for performance-related reasons days before its manager received the email advising her of the allegation.

3Two weeks prior to the hearing, the applicant raised for the first time a further allegation of reprisal, namely that the respondent advised Service Canada that the applicant had earned money following the termination of her employment, which briefly jeopardized her entitlement to Employment Insurance benefits for that period. The respondent denies this allegation.

4The applicant filed her Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal in employment. For the reasons discussed below, the evidence does not support a finding of reprisal in violation of the Code with respect to the allegation in her Application or the allegation raised prior to the hearing.

EVIDENCE

Procedural Matters

5At the outset of the hearing, the respondent made the request, which was unopposed by the applicant, that the Tribunal refrain from identifying the individuals residing at the group homes by name or other information. Given their vulnerable status, I indicated that I would respect this request. Where for the sake of clarity it is necessary to identify these individuals, I have done so by initial.

6The applicant asked to tape record the hearing for her own purposes. In light of the above order, and keeping in mind the reason for this request, I indicated that she could tape record her evidence, but that the recording could not be shared with anyone, or otherwise publicized. I also indicated that the purpose of the recording was for her personal use and did not form part of the record of proceedings of the Tribunal.

7The applicant indicated that she would be testifying and calling one additional witness. Prior to the hearing, the respondent indicated that it did not wish to cross-examine the applicant’s third-party witness (a former employer of the applicant) and that it was content to have her will-say statement admitted for the truth of its contents. As it turned out, this witness’s evidence was irrelevant to the issues before me.

8As part of her compliance with Rule 16 of the Tribunal’s Rules of Procedure, the applicant filed a large number of documents. She indicated that she erred on the side of over-inclusion because she was not sure what would be regarded as relevant. We spent much of the first morning reviewing those documents. Most of the arguably relevant documents were already included in the respondent’s book of documents. The small number that were not were made exhibits.

9The applicant indicated that she did not want to provide her case-in-chief through oral testimony as she was concerned that she would leave matters out. I exercised my discretion to allow her to submit her Application, her Reply and her lengthy will-say as her case-in-chief. This was supplemented by her oral testimony in answer to questions I posed to her. The respondent had the unrestricted right to cross-examine the applicant.

10For its part, the respondents called three witnesses, all of whom were involved in the decision to terminate the applicant’s employment. The first, Nadene Buck, is the Residential Manager, and was the applicant’s supervisor at the time of her termination. Diane Slater is the Director of Adult Services (and Ms Buck’s immediate supervisor) and was also responsible for the applicant’s first performance appraisal. The third witness, Sheryl Chandler, is the Executive Director of the respondent.

Overview

i. December 2008 – April 2009

11The respondent provides support services for intellectually disabled individuals living in the Orangeville area. Among the many services it offers is the Residential Program in which it operates 11 group homes. The applicant was hired to work in the Residential Program, initially as a part-time relief worker. As a part-time relief worker, she filled in for group home support workers who were on vacation or off due to illness.

12The applicant was hired on October 29, 2008, although she did not start working until December of that year. Her six-month probation would have ended on April 29, 2009, but the applicant and her union (CUPE Local 3083) agreed to extend her probation by three months to July 29, 2009.

13Although the applicant appears not to have read much into this extension, Ms Slater testified that if the extension had not been agreed to, the applicant’s employment would have been terminated before her probation expired in April. Referring to the performance appraisal prepared at that time, Ms Slater testified that she formed the opinion that the applicant was not always a “team player,” questioned the routines of the persons in the program and was seen as spending too much time at the computer rather than fulfilling her tasks at the group homes.

14One of the incidents that informed the performance appraisal occurred in late March when the applicant reportedly had a “verbal altercation” with one of the support workers in the group home. The applicant received “counselling” for this, and was warned that if things did not improve further “disciplinary action may be taken,” which in this unionized environment took the form of an oral reprimand.

15In her testimony, the applicant described what she regarded as inappropriate behaviour on the part of the other participant to this altercation. However, as I explained to her at the hearing, my job in this regard is not to determine whether the applicant was at fault, but only whether the respondent perceived her to be.

16The applicant states in her Application, which was prepared on August 10, 2009, that she had been “censured for not following ‘house programming’” in February 2009 when she had been asked to “isolate a resident with a history of mental illness and refused, citing it was cruel, abusive, and a violation of his rights.” She states further in the Application that it was this incident that had led to her probation being extended. The applicant makes no mention of the March 2009 incident in her Application.

17The three respondent witnesses testified that they were not aware of the February incident described by the applicant, that there is nothing in her file concerning this and that it did not lead to the extension of the applicant’s probation. There is no reference to this incident in the April performance appraisal.

18The applicant testified that she received a letter at the same time as her performance appraisal, which she was unable to locate in time for the hearing. She said that it talked about two incidents, which she subsequently “appealed.” The applicant was able to locate one of these appeals concerning an incident between her and support worker by the name of Priscilla at a different group home.

19As with the other incident, the applicant testified about why her behaviour on that day was, in fact, appropriate and served to calm a tense situation with an individual residing in the group home. Again, it is not my role to determine whether the applicant ought to have been disciplined about this, but simply determine whether the respondent believed her behaviour to be problematic at the time.

20The appeal filed by the applicant is in the form of an email to her immediate manager. In this unionized environment, there was no “appeal” mechanism per se, and while her manager promised to discuss the issue with the manager of the group home in question, nothing further came of it.

ii. April 2009 – July 2009

21The applicant testified that she believed she was doing fine in the period that followed her April performance review. She applied for and was given the position of part-time permanent support worker II. Shortly after that, she applied for and was given a position as residential weekend worker at the support worker III pay scale. Each of these involved a pay increase and more responsibility.

22The two managers, Buck and Slater, testified that in each instance the applicant was the only candidate for the position. Because they were unionized positions, the respondent was required to post internally and hire any qualified candidate who applied. The applicant was deemed qualified for both positions and so she was hired. Indeed, the respondent’s witnesses testified that the applicant had impressive educational qualifications and prior work experience.

23Ms Slater testified that she had hoped that giving the applicant a permanent assignment to a group home (rather than having the applicant work at multiple locations) might help her form bonds with the other staff. With respect to the next promotion to the support worker III position, it was hoped that the more solitary nature of that job (weekend worker) might be the “niche” in which the applicant finally fit.

24The applicant testified that she did not receive any written or verbal warnings in the three-month period after her performance review. She acknowledged that the house manager spoke to her about undermining the diet of one of the persons under her care by including pie in a proposed meal. She also acknowledged that there was some issue when the applicant failed to order the pre-agreed upon meal at an outing to Swiss Chalet. The applicant justified her choices in each instance.

25There is reference to these incidents in a partially-completed performance appraisal form the respondent submitted into evidence. Ms Buck testified that she started preparing the applicant’s final performance appraisal as a probationary employee relying on feedback she received from the three immediate managers who worked with the applicant. She did not complete this form as she realized that people were still identifying the same issues that were flagged as problems in the applicant’s April performance appraisal.

26Ms Buck testified that the applicant’s perceived ongoing problems were raised in two Adult Services Team (“AST”) meetings. The minutes for the May 14 and June 9, 2009 AST meetings were entered into evidence as they briefly summarized the discussion about the applicant.

27Following the AST meeting in May, Ms Buck said she made a point of speaking to the applicant about some of the matters raised in a meeting on May 27, 2009. The applicant states that there was a meeting on May 27, but that it concerned her promotion to the support worker III position, although she did acknowledge that Ms Buck may have told her she was too “rights minded” and made a comment that team work was important at that meeting.

28Ms Buck testified that she spoke with Ms Slater about the concerns that were continuing to be raised about the applicant during the preparation of the final performance appraisal. Both witnesses testified that on or about July 8, 2009, they agreed that it was appropriate to terminate the applicant’s employment prior to the expiration of her probation.

29All terminations have to be approved by the Executive Director, Sheryl Chandler. Ms Chandler could not remember the exact date on which they met, but could recall briefly discussing the reasons with Ms Buck and Ms Slater and giving her okay to the termination. Ms Buck and Ms Slater testified that this meeting took place on July 9, 2009.

30Ms Buck testified that once she had the approval of the ED, she wrote an email to the applicant on July 10, 2009, suggesting that they meet the following week on the Wednesday or Thursday, which was the last week she was working before going on a two-week holiday. There is an email from the applicant dated July 7, 2009 (i.e., pre-dating the email from Ms Buck), in which the applicant notes that her “probation meeting” is coming up and suggesting the two meet the week of July 20-24. In follow-up to Ms Buck’s email, the applicant agreed to meet on Wednesday, July 15, 2009 at 1:00 p.m. This appointment was confirmed by Ms Buck in an email sent the morning of July 11, 2009.

iii. July 11, 2009 – July 15, 2009

31The applicant worked July 11, 2009, which was a Saturday. At 4:51 p.m. that day she wrote an email to Ms Buck about a concern she had about issues raised during a routine human rights survey of one of the residents of the group home. The content on the email was as follows:

I was asked to complete [DW’s] rights survey. When I asked if she had ever been yelled at she said yes by teachers [identifying information deleted] when she was child. I said what about now, and she said, yes, all the time, by [the house manager]”. I said maybe it’s just the way [the house manager] sounds but [D] insisted she’s yelled at and is frequently driven to tears. She went on to recount various occaisions [sic] when she was yelled at, that she is obviously still upset about. So under yelled at, I entered yes, by teachers in [__]. I was hoping I could leave this matter with you because you are in a better position to handle this matter. If there is any thing further you would like me to do, please advise, otherwise, I will just leave it as it has been brought to your attention vs. the right’s committee’s and you will take any action you deem necessary.

Sincerely … Laura

32In her Application, the applicant states that a “resident with an intellectual disability reported to [her] that the senior staff” at the group home “had verbally abused her.” The applicant’s Reply describes this behaviour as mistreatment/verbal abuse”. In her will-say statement, the applicant elaborated that DW had told that the house manager had recently “yelled at her and called her ‘stupid’ in front of everyone” at a mall.

33By way of background, the respondent periodically administers what are labelled “human rights surveys” to the persons who live in their group homes. This survey deals with a large number of issues including whether the individual believes their rights to privacy, personal information and autonomy, are being respected by the respondent.

34This was the first time the applicant had been asked to administer the survey, which she said she did to two individuals, one of whom was DW. In her will-say, the applicant states that she was told by the person who asked her to do the surveys that she was “to conduct the interview to illicit [sic] certain answers.” She said this person also told her that “any area where staff feels a resident’s rights are curtailed would be huge issue – causing a lot of work and would be a problem as far as she was concerned.” She does not raise this issue in either her Application or her Reply.

35The applicant cross-examined the Executive Director about the problems that a negative survey might cause for the respondent, but Ms Chandler denied the suggestion that such a document would harm the respondent’s hope for accreditation by an external agency. She testified that they do receive negative responses and that if the results were always good, there would be no point in doing the survey.

36It is common ground that Ms Buck was unlikely to have seen the applicant’s July 11, 2009 email until Monday, July 13, 2009. She did not follow-up with the applicant concerning the email, but testified she met with DW upon her return from vacation three weeks later (i.e., sometime after August 3, 2009). She was unable to meet with DW the week of the July 13-17, 2009 as DW was on vacation out of the country (and Ms Buck was away the following two weeks). According to Ms Buck, DW did not confirm the allegations against the house manager, but did refer to a previous incident that had already been addressed.

37The applicant met with Ms Buck and Ms Slater on July 15, 2009, as arranged earlier. Her employment was terminated at that meeting. The applicant took issue with the fact that no union steward was present and that she did not receive a completed performance appraisal. The respondent’s witnesses testified that the applicant did not get a performance appraisal because she was being fired. Moreover, as a probationary employee, she was not entitled to have a union steward at the meeting.

iv. Post-termination

38The applicant applied for and received Employment Insurance (EI) benefits following her termination. In March 2010, she received a notice from Service Canada indicating that it had received information that she had earned $1,392.78 in income from the respondent in August 2009, and asking her to provide a response by April 27, 2010.

39The applicant provided a response denying that she had received any such income. On April 28, 2010, R. Wong from Service Canada wrote to her to advise her that her “entitlement to Employment Insurance benefits for the weeks reviewed is considered in order.”

40The respondent denied that it had provided any such information to Service Canada. It said that it had reported the wrong amount for “lieu notice” on the first two Records of Employment (ROEs) it had issued, and that it had had to issue a third ROE with the correct information on August 11, 2009. It was pointed out to the applicant in cross-examination that the amount of the vacation pay and “lieu notice” added up to $1,392.78.

41The respondent was only advised that this was an issue two weeks before the hearing. Ms Chandler testified that all the respondent was able to do in that short period of time was verbally confirm with Ms Wong, the author of the April 28, 2010 letter from Service Canada to the applicant, that she did not have any letters in her file from the respondent reporting income for the month of August. Ms Wong advised Ms Chandler that there was a written note of a telephone call in April 2010 in which she verbally confirmed with the respondent that the applicant had not earned any income in August 2009.

DECISION AND ANALYSIS

Reprisal

42The Code protection against reprisal is as follows:

8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe the right of another person under this Act, without reprisal or threat of reprisal for so doing.

43With respect to the termination of her job, the applicant alleges that she was reprised against for “refusing to infringe the right of another person under this Act.” It is unclear how advising the respondent (via her manager) that an intellectually disabled resident was being yelled at by a staff member is “refus[ing] to infringe the right of another person under this Act.”

44There is no suggestion in the applicant’s email to Ms Buck that DW’s rights under the Code were being infringed. The Code does not generally prohibit mistreatment of a person who happens to fall within one of the enumerated grounds of the Code (in this case disability) unless there is a link between that treatment and a prohibited ground under the Code. Rather, the Code prohibits harassment or unequal treatment against a person where the harassment or unequal treatment occurs because of the person’s membership in the protected ground.

45The applicant’s email does not specify the link between the treatment (yelling) and DW’s disability (or membership in some other protected ground). The allegations of yelling could have been, for instance, for reasons entirely unrelated to DW’s disability.

46It is common ground among the parties that Ms Buck would not have seen the email until Monday, July 13, 2009, at which time she would not have been able to speak to DW, who was out of the country on vacation. It is also common ground among the parties that Ms Buck did not follow-up with the applicant, nor did the applicant file anything further with her.

47The applicant now claims that DW told her about a recent incident in which the house manager called DW “stupid” in a public setting. Had the applicant shared this information in the email, this might arguably have provided the necessary link. However, the applicant did not include this or any other meaningful detail in her email. Indeed, even though this information would have been clearly relevant, the applicant did not disclose it until she filed her will-say two weeks before the hearing. This last-minute disclosure casts some doubt on the veracity of the information.

48Even if the applicant was able to demonstrate that the act of writing the email to the respondent amounted to refusing to infringe the right of another, that is but one element of reprisal. She also has the burden of proving that the respondents reprised against her for writing this email.

49The applicant says the reprisal can be inferred from the following facts: she was a good employee, who had received two recent promotions, had not been told in writing of any problems and who was fired two days after the email would have been received by the respondent.

50The respondent counters this line of reasoning, saying the applicant 1) had a problematic history with the respondent, which is documented; 2) had only been hired into the two higher-paying positions because she was the only candidate and was qualified; 3) that the decision to terminate her employment had been made in advance of the receipt of the email, and 4) the email concerning DW’s complaint did not constitute a “problem” for the respondent and was investigated in due course.

51With respect to the applicant’s employment history, the evidence supports the respondent’s position that its staff believed the applicant was someone who questioned and sometimes ignored established routines, and who was otherwise not a team player.

52It is important to emphasize at this point, that I am not required to determine whether objectively the applicant was a problematic employee. The case law states that, unlike other protections in the Code, the applicant must show that the respondent “intended” to reprise against her. See Jones v. Amway of Canada, Ltd. [2002] O.J. No. 1504, at para. 11.

53In proving intention, the applicant bears the burden to show that the respondent did not sincerely hold the view that her performance warranted termination. It does not assist the applicant to prove only that the respondent’s view of her performance was wrong.

54The difficulty with the applicant’s argument is that it fails to acknowledge that the respondent had problems with her performance that pre-dated her July 11, 2009 email. Whether or not she agreed with their assessment, the applicant’s managers and co-workers were expressing frustration over the applicant’s ability to work in a team long before the email.

55While she describes her April performance review as “excellent” in her Application (with one notable exception), the performance review suggests quite a different picture. In only one of numerous categories is the applicant rated at above satisfactory, and in many categories she is rated as “improvement required.”

56While the applicant asserts in her Application that the only problem noted in her April appraisal is in regard to an incident that happened in February 2009, there is, in fact, no reference to this incident in that document. There are, however, references to other incidents, which the applicant acknowledged in cross-examination were brought to her attention. While she may have a different view than the respondent with respect to her blameworthiness, she did not suggest in her answers that the respondents considered these incidents to be inconsequential.

57The applicant does not deny that her probation was extended and did not challenge Ms Slater’s evidence that had the applicant and the union not agreed to the extension, her employment would have been terminated in April 2009. All of this suggests that there were pre-existing problems from the respondent’s perspective.

58The applicant may well have taken from the fact that she was promoted into first a part-time support worker II position and then a part-time support worker III position that many of the issues with the respondent had resolved themselves. However, I accept the respondent’s evidence that the applicant was the only candidate in each of the competitions and that under the collective agreement the respondent was obliged to fill them with a qualified internal candidate before conducting an external search.

59The evidence suggests to me that the respondent (namely the applicant’s managers and co-workers) continued to have issues with the applicant. The notes from the two AST meetings in May and June support the respondent’s position that the applicant’s performance was still regarded as an issue, even after she had been promoted. Even the applicant acknowledged that Ms Buck did caution her about her “rights minded” attitude in the meeting at which she was told she was being given the support worker III position.

60I accept the respondent witnesses’ evidence that they had started a performance appraisal, but did not finish it because they came to the view that the applicant was not working out. I also accept that her two managers and eventually the CEO met on July 8 and 9, 2009, at which time they concluded that the applicant’s employment would be terminated. The applicant did not meaningfully challenge their evidence in this respect, which appeared to be sincerely given and consistent with the (albeit small amount of) documentary evidence. The applicant did not attack this evidence in final argument but simply ignored it.

61The fact that I accept that the decision to terminate the applicant’s employment pre-dated her email to Ms Buck undermines the applicant’s position that the email was a factor in the decision.

62Moreover, I accept the respondent’s evidence that this email did not raise allegations that were extraordinary or which represented a significant challenge to the respondent, as postulated by the applicant. I accept the respondent’s witnesses’ testimony that the surveys are administered to unearth problems and deal with them. While the applicant suggests that abuse is perhaps widespread at the respondent’s facilities, and that the respondent does not want to deal with it, she called no reliable evidence to support this theory.

63Finally, with respect to the late allegation that the respondent reprised against the applicant for instituting proceedings under the Code, the applicant has failed to demonstrate that the respondent advised Service Canada (EI) that the applicant received income in August 2009. I accept the respondent’s explanation that the EI representative at Service Canada must have mistakenly thought the August ROE was a statement of income received by the applicant in that month.

64For the reasons set out above, the applicant has failed to establish that the respondent reprised against her for refusing to infringe a right of another person or for instituting a proceeding under this Code. The Application is, accordingly, dismissed.