HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lydia Lemieux
Applicant
-and-
Guelph General Hospital, Audrey Henderson,
Annette Harrington and Kaye Snowe
Respondents
Decision
Adjudicator: David Muir
Indexed as: Lemieux v. Guelph General Hospital
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated June 29, 2009.
2The underlying human rights complaint (the “complaint”) was filed with the Ontario Human Rights Commission (the “Commission”) on July 3, 2007. In the complaint, the applicant alleged that her right to be free from discrimination in employment on the basis of a disability was infringed by the respondent. In her complaint the applicant made the following particular allegations:
a. The applicant alleges that she was suddenly and unjustly terminated on January 19, 2007. The applicant alleges that the reason given was that her attendance had not met the respondent employer’s expectation. It is also alleged that the respondent employer stated that the applicant was on probation at the time.
b. The applicant alleges that she had completed her probationary period and that the only time attendance was raised with her was at the meeting where she was terminated. The applicant alleges that she missed work only due to illness and due to a work-related injury for which the applicant received WSIA benefits.
c. The applicant alleges that in 2006 when she was performing modified work, the respondent Henderson often directed her to perform tasks inconsistent with her restrictions at the time. The applicant also alleges that Henderson gave incorrect information about her to the WSIB, her family doctor and chiropractor and gave her a Functional Abilities Evaluation Form but called it an Absence Form. The applicant alleges that this caused her difficulties with a WSIA claim for a period of absence. The applicant alleged that the respondent employer appealed her claim to WSIA benefits for the period.
d. The applicant alleges that she missed nine days of work due to illness in 2006 and three days in 2007. The applicant alleges that the three days in 2007 were due to her contracting gastroenteritis in the hospital and she has filed a WSIA claim for that illness which is still in dispute. The applicant alleges that she did not exceed the 10 days of job-protected emergency leave provided under the Employment Standards Act.
3In her final submissions the applicant argued that the complaint contained the additional issue of the failure of the respondents to reinstate her subsequent to her termination constituting a further act of discrimination on their part.
4The adjudication of this Application has been lengthy and tendentious. In addition to a substantial preliminary issue raised by the respondents, which I dismissed in 2010 HRTO 1267, there have been a multitude of Requests for Orders brought by the applicant, which, if not intended to, had the effect of lengthening and delaying the proceeding. In addition to 2010 HRTO 1267 above, 8 Interim Decisions and several Case Assessment Directions (CADs) have been issued dealing with various interlocutory disputes that have arisen.
5A significant complicating feature of this Application, which underlay a number of the interlocutory issues in this Application, is the applicant’s belief that an apparently completely disabling medical condition that emerged close to four months after the dismissal from employment giving rise to this Application can be attributed to her dismissal by these respondents. The applicant has sought to delay this Application (and other related proceedings) while she seeks to obtain evidence to support her belief. Because of this underlying issue, which I have previously determined is only relevant to the appropriate remedy, I directed that the adjudication of this case be bifurcated; dealing first with the issue of whether or not the Code has been violated by the respondents, and then if necessary, deal with any remedial issues in a subsequent phase of the case.
6A hearing was held over 5 days in January, March and May 2011. I heard from the applicant, her mother, and the applicant’s former family physician. I also heard from Deb Steenburgh, a nurse who worked on the applicant’s unit; Carol Watson, an employee in the respondent hospital’s Employee Health Services (EHS); Audrey Henderson, Director of EHS; and Kaye Snowe, Director of Medicine. The parties agreed to make final submissions in writing and were provided by the parties on a schedule agreed to conclude in late August 2011.
7An issue arose at the outset of the applicant’s evidence when it became evident that rather than testify based on her recollection of events, the applicant intended to read from a prepared 38 page handwritten narrative of events. The applicant advised that she had created the document with the assistance of her mother. The applicant took the position that she could not recall events with any certainty because of an allegedly disabling medical condition. Because it is not relevant to the liability, if any, of the respondents under the Code there is no evidence of the precise nature of the alleged disability. It is described by the applicant as a disabling neurological condition. In the voluminous medical documentation filed by the applicant but not entered into evidence, the symptoms are characterized as a possible stress reaction; a somatoform disorder; or conversion disorder, amongst other possible diagnoses. After hearing the submissions of the parties I directed that the applicant give her evidence as best she could without the assistance of the narrative document. I advised the applicant and her representative that it was not a memory test and that her representative could assist the applicant by prompting her with documents and other aids. The applicant was able to relate a narrative of events without any apparent difficulty although there are reasons to question the accuracy of her recollections of some of the incidents described below.
8In addition to the vive voce evidence a large number of documents were tendered by the parties, the bulk of them by the applicant. Much of the material relied upon by the applicant related to two WSIA claims she filed in respect of periods of time she was absent from work.
9After the evidence had concluded, the applicant sought to introduce further documents, which she believes support her claim of discrimination. One of them related to an employee attendance management program available to non-probationary staff. The respondents took issue with the introduction of this material after the evidence was all in and suggested that the applicant’s late recollection of receiving the pamphlet in addition to the Employee Assistance Program Pamphlet specifically mentioned in the complaint was simply the applicant making things up to buttress her case. I have considered this issue and find that whether or not properly introduced at this late stage the document itself adds nothing because it is not relevant. It is not disputed that the respondent employer treats probationary staff differently than it does non-probationary staff when it comes to innocent absenteeism. Accordingly, there is no reason to accept the document into evidence and I decline to do so.
10For the reasons that follow, the Application is dismissed. Although there are other allegations, as set out above, at the heart of this dispute is the respondent employer’s decision to dismiss the applicant from her employment. I will first set out my reasons in respect of that issue.
EVIDENCE AND ANALYSIS
11The Application relates to subsections 5(1) and (2) of the Code. Subsection 5(1) prohibits discrimination in employment: “Every person has a right to equal treatment with respect to employment without discrimination because of… disability.” Subsection 5(2) prohibits harassment in the workplace by the employer, agent of the employer or another employee because of disability, among other grounds. The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred.
The Termination Issue
12In order to be successful the applicant is required to show on a balance of probabilities that a factor in the decision to terminate her employment was a disability or a perceived disability. Despite the earnest belief of the applicant and her mother, there is insufficient evidence to establish that the alleged disability (or perceived disability) of the applicant, whether it is one or not within the meaning of the Code, was a factor in the decision to terminate the applicant.
13The applicant argues that the decision to terminate her employment was based, in whole or in part, on considering days missed due to a health problem, dysmenorhea, which she had reported to the employer and for which she had requested accommodation and days off. The other days missed were days for which a Workplace Safety and Insurance Act (WSIA) claim had been made. The evidence does not support the applicant’s claim.
Summary of Findings
14It is not disputed that the applicant was terminated because of what the respondent hospital felt was an unacceptable attendance record for a probationary employee - in the language of labour relations, excessive innocent absenteeism. The evidence establishes that the respondent hospital understood that the applicant was a probationary employee at the time of her dismissal although in fact she was not by a few hours. Her employment status is not relevant for purposes of the Code analysis; however, I also find that the respondents had no reason to know that the applicant was a person with a disability, if indeed she was such a person at the time. I have also found that the days missed, which the employer had reason to believe the applicant attributed to a workplace injury, were not considered by the employer in making its decision to terminate the applicant’s employment. Furthermore, there is no evidence that the applicant was perceived to be a person with a disability, rather she was perceived to be a probationary employee with a poor attendance record and therefore was not a suitable employee in what was essentially a relief position. Accordingly, there is no evidentiary basis to conclude that the applicant’s alleged disability or any days missed for which WSIA claims were made formed any part of the decision to terminate the applicant’s employment. Nor is there any evidentiary basis to conclude that the applicant was perceived to be a person with a disability.
15Although the allegation in the complaint as it relates to her dismissal from employment is not framed as a failure to accommodate the applicant’s disability to the point of undue hardship, considered from that perspective I find that the respondents did not fail in their duty to accommodate an alleged disability because the respondents had no reason to know that the applicant was a person with a disability while she was their employee. Moreover, I find, based on the evidence tendered by the applicant, that there is insufficient evidence to establish that the absences relied upon by the respondents in making their decision were due to a disability as defined in the Code.
Analysis
16The background facts are not complicated. The applicant is a registered nurse. She began her employment with the respondent hospital on August 14, 2006 first as a regular part-time nurse. She held another position in a nursing home. Pursuant to the collective agreement she was subject to a probationary period of 525 hours. At the outset of her employment the applicant was considered a regular part time nurse and was scheduled on that basis.
17As a part-time nurse the applicant was expected to work a schedule intended to provide coverage for full time nurses who were not available to work. The applicant was also expected to be available to be scheduled on short notice where regular full-time nurses might be unexpectedly unavailable for work.
18During the course of her employment of roughly six months the applicant missed 12 of 75 shifts for which she was scheduled. The applicant was terminated on January 19, 2007. She was terminated as a probationary employee – the respondent hospital believing that she had worked fewer than 525 hours. She was actually not probationary at the time having worked a little more than 541 hours.
19Although framed as a claim of disability (or perceived disability) discrimination, the applicant testified that she did not believe she was a person with a disability. Despite this testimony, the applicant also continued to assert that she was at the material times a person with a disability. The fact that the applicant did not believe that she was a person with a disability, although not determinative, becomes important for reasons set out below.
20The applicant testified that her reasons for absence from work differed depending on the day. The applicant stated that she was absent as a result of dysmenorrhoea on September 14, 15, October 25, 26 and December 18, 2006. She testified that her absence on October 9, 2006 was the result of the effects of pain medication she had taken when she began to experience pain from what she has claimed was a workplace injury suffered possibly on September 23, 2006. She also testified that her absences on November 14, 15 and 16, 2006 were similarly related to this workplace injury. Finally, the applicant states that she was absent on January 2, 3 and 4, 2007 due to a bout of gastroenteritis for which she later filed a WSIA claim on the basis that the gastroenteritis was contracted at work. The applicant testified that she told the respondents Ms. Henderson and Ms. Snowe that she believed that she acquired the gastroenteritis at the hospital prior to her termination. In her submissions the applicant alleged that the respondents Ms. Henderson and Ms. Snowe deliberately did not advise her that the gastroenteritis was a workplace injury so that she would not file a WSIA claim in respect of those days. This allegation was not made in the complaint. I will have more to say on this point below.
21The applicant’s family doctor for a period of time leading up to these events gave evidence. She testified that she had diagnosed the applicant with dysmenorrhoea in 2005 based on the applicant’s self reporting. The applicant’s doctor did not provide any view with respect to whether this condition might have affected the applicant’s ability to report to work, and was not aware that the applicant had missed work as a result of this condition at the time of these events although she saw the applicant more than once during the period of the applicant’s employment with the respondent hospital. The applicant’s doctor testified that she provided a sample of a medication to the applicant in April 2006 with a view to following up with her in a month or two but there was no follow up, although she did see the applicant more than once during this time frame. The applicant’s family doctor also testified that she was asked to draft a letter initially on January 29, 2007 and was later asked by the applicant and her mother to redraft it on March 22, 2007. Dr. Thomson testified that she was asked to change the January 29, 2007 version of the letter at the applicant and her mother’s request in a way that might create the impression that she had been providing ongoing treatment to the applicant for dysmenorrhoea, which in the physician’s view was not the case. The original letter had stated simply that the applicant had visited her for dysmenorrhoea in August 2005 and January 2006.
22The applicant testified that she missed work because of this condition but did not provide any details with respect to why she was unable to report for work. She testified that on those occasions when she was too unwell to report for work she called into her unit and told whomever she might be speaking to that she could not come in because of her dysmenorrhoea. The respondent Deb Steenburgh, who might have received such calls, stated that the applicant may well have called in when she was not able to report for work but she has no specific recollection of the applicant providing a reason for any of her absences. Ms. Steenburgh testified that she would not have recorded such information if it had been provided, unless it was a report of a communicable disease, because it was not material to her concern which was ensuring staffing for the unit. Ms Steenburgh testified that because such information was not material, no record would be kept of the reasons given for an employee not reporting to work.
23The applicant also asserted that she had advised the respondent Hospital in the course of a pre-employment health review that she was a person with a disability and that it might affect her ability to report to work regularly. She related a brief conversation she had with Ms. Watson who conducted the interview. The applicant states that she told Ms. Watson that she suffered from dysmenorrhoea and might periodically miss a day or two of work. She further testified that Ms. Watson said that lots of women have dysmenorrhoea. Ms. Watson denied ever being told by the applicant that she was a person with a disability and in need of an accommodation. Ms. Watson testified that she did not recall any conversation like the one related by the applicant and stated that had the applicant told her that she had a medical condition that might prevent her from working from time to time she would have noted that fact.
24The documentary record of the pre-employment health review was put in evidence and records the contents of the interview. On the front page there is a section entitled “Information for New Employees” which provides in part:
Pre-placement Health Assessments are scheduled for all new employees after a formal job offer has been made. This health assessment is required under the Public Health Act, to ensure all employees are fit to perform the essential duties of their job, and are free of communicable diseases.
Human Resources and the department manger will be advised only if the employee requires special job modifications, or is unable to physically perform the job safely…
25The applicant signed that she had read and understood this preamble respecting the purposes of the health review. The document also includes notes made by the applicant, for example the applicant lists her allergies, including an allergy to latex which would require an accommodation by the respondent hospital. Although a number of minor health issues including occasional low back pain, perhaps associated with a family history of arthritis, are recorded there is no mention of dysmenorrhoea.
26I find it more likely than not that the applicant did not clearly communicate to Ms. Watson that she had a disability that would require accommodation. I come to this conclusion for a number of reasons.
27In considering the credibility issues in this case I have had regard the approach to the assessment of credibility set out in Faryna v. Chomey 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A) at p. 356-57:
…the validity of evidence does not depend in the final analysis on the circumstance that it remains uncontradicted or the circumstance that the Judge may have remarked favourably or unfavourably on the evidence or the demeanour of a witness; these things are elements in testing the evidence but they are subject to whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time…
If a trial judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility…A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.
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 carried conviction of 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. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may be easily self-direction of a dangerous kind.
28As noted above, the applicant has claimed that she has difficulty recalling events because she claims to have not much memory as a consequence of the as yet not definitively diagnosed, disabling neurological symptoms discussed earlier. Although in her evidence the applicant related a quite coherent narrative of events surrounding this Application, it sometimes left the impression of a story memorized rather than a real life recollection of past events in her life. However, more important to my conclusions on credibility is the fact that the applicant testified that she did not believe she was a person with a disability or that dysmenorrhoea was a disability. Given this belief, it is not clear why she would have advised her employer prior to her employment that she was such a person and would require accommodation. Further, the applicant’s belief that she is not a person with a disability and dysmenorrhoea is not a disability, is consistent with the evidence of Dr. Thomson. Dr. Thomson testified that she saw the applicant three times during the period of her employment and there was no mention of dysmenorrhoea interfering with her ability to report to work. Moreover, when challenged on her version of the conversation with Ms Watson, the applicant suggested that the issue might not have been top of mind because she had not missed any work for a period of time and felt that the condition had been successfully dealt with. All of this is inconsistent with the applicant advising Ms Watson that she had a medical condition that would require her to be excused from work from time to time.
29On the other hand, it is not difficult to accept Ms. Watson’s evidence that she did not understand the applicant to have given any indication that she was a person with a disability and in need of accommodation. One of the primary purposes of the pre-employment health review was to identify medical or other issues that would require accommodation by the employer. It seems to me somewhat unlikely that, had the applicant told Ms. Watson that she required accommodation for a medical issue that would affect her ability to report to work when required this would have been ignored by Ms. Watson.
30Finally, there is documentation from this meeting in which the applicant clearly indicated in writing other issues that required accommodation but she did not document any need of accommodation for dysmenorrhoea. For all of the above reasons, I am unable to conclude that the applicant advised the respondents of a pre-existing medical condition of dysmenorrhoea for which she was in need of accomodation.
31Ms. Snowe, the Director of Medicine, testified that she made the decision to dismiss the applicant. Ms Snowe is a registered Nurse and has been employed by the respondent hospital for 35 years in a variety of positions. She testified that she was not aware that the applicant was attributing any of her absences to dysmenorrhoea or any other pre-existing medical condition for which an accommodation was needed. The applicant agreed in cross-examination that Ms. Snowe would have had no reason to know that she was making such a claim. Accordingly, there is no basis in the evidence to conclude that the employer would have had any reason to know that five of the days missed were attributable to an alleged disability.
32The remaining days of work missed were October 9, 2006 and January 2, 3 and 4 2007. The applicant testified that she was unable to work October 9, 2006 because of the effects of pain medication given to her after she was unable to complete her shift and attended at the emergency department of the hospital for treatment. The applicant states that she began to experience pain following a muscle strain which may have occurred while at work on September 23, 2006. The applicant claims that October 9, 2006 is a date included in a WSIA claim.
33Ms. Snowe testified that the absence from work on October 9, 2006 was not identified in the Hospital's records as being the consequence of the WSIA claim. She testified that it was the Thanksgiving holiday weekend and the hospital’s records indicated that the applicant had worked her Saturday and Sunday shift but had been unable to complete the Monday shift, attending instead at the ER. Ms. Snowe testified that the day was never reported to the respondent hospital as a lost day due to a WSIA claim and the ER visit was paid by OHIP and not the respondent hospital as a WSIA claim.
34While there is no reason not to accept the applicant’s evidence that she believed that the pain she experienced and which required pain medication on October 9, 2006 was related to the soft tissue injury she might have sustained at work on September 23, 2006, it is not at all clear that Ms. Snowe would have had any reason to know this. The report of injury provided by the applicant does not record October 9th as a lost day and indeed there are no lost days recorded, initially because the employer provided the applicant with modified work for a number of days. Only later were November 14, 15 and 16, 2006 attributed to the possible workplace injury, but there is no evidence that October 9th was ever claimed to be a lost day. The applicant states that the date of October 9, 2006 is recorded on page 2 of the WSIA form, which should have been in the employer’s possession. However, as indicated, October 9, 2006 is not recorded on the third page of the WSIA claim form as a lost due to a compensable injury. There is no evidence to contradict Ms. Snowe’s evidence that when she made her decision the record of attendance she relied upon did not record October 9, 2006 as a lost day due to a WSIA claim. As a result, I cannot find as a fact that Ms. Snowe would have known that this date was related to the applicant’s WSIA claim. Even if I could infer that Ms. Snowe ought to have known, given her evidence that the applicant’s nine absences she did rely on were the worst attendance record she had known in her 25 or more years of nursing, the result would undoubtedly have been the same even if the applicant’s October 9, 2006 absence was not considered in terminating the applicant’s employment.
35The final three days of absence considered by Ms. Snowe when terminating the applicant’s employment are dates during which the applicant experienced a bout of gastroenteritis which she later claimed was a work related injury for which WSIA benefits were claimed several months later. Although this is not alleged in the complaint the applicant’s position in final submissions was that the employer knew that she had been infected while at work and did not advise her that it was work related and therefore compensable under WSIA.
36The applicant testified that she believes she acquired the condition at work because in her last series of shifts ending December 27, 2006 she had been dealing with patients with diarrhoea and vomiting. She testified that she began to feel ill on December 28, 2006. The applicant testified that she told Audrey Henderson that she believed that she had been infected at work because she had been treating patients with vomiting and diarrhoea on her last shift series ending December 27, 2006. Ms Henderson denied that the applicant had told her this and said that had she done so she would not have ignored such information. Rather, Ms. Henderson testified that she would have taken steps determine if such an outbreak had indeed occurred and taken steps to mitigate an outbreak if one was identified.
37The applicant further testified that when she returned to work on January 9th 2007, the unit she worked in was in outbreak mode and Ms. Snowe berated her and accused her of bringing the virus to the hospital. The applicant states that she responded by saying that she had contracted it from a patient in the respondent hospital in December. Ms Snowe denies that such a conversation took place. She testified that the unit in question was in outbreak mode on January 12th and not January 9th 2007. Ms. Snowe testified that if she actually believed that the applicant had brought the virus into the hospital she would not have shouted at her in the hallway as alleged by the applicant, but would have told her to report to EHS to be cleared for return to work.
38Ms Snowe also testified that it would be very unlikely that an employee claiming to have contracted an illness on December 27, 2006 at the latest would still be ill on January, 2, 3 or 4, 2007. Ms. Snowe testified that their guidelines state that after four days from onset the individual should be clear.
39I am not persuaded that this aspect of the applicant’s evidence can be accepted. It seems unlikely that two officials of a hospital upon being informed that an employee was claiming to have contracted a communicable virus in the workplace would have done nothing with the information. Similarly implausible is the applicant’s suggestion that Ms. Snowe berated her in a hallway and accused her of bringing it to the hospital. I also accept the evidence of Ms. Snowe who is an experienced nurse and hospital administrator about the usual course of an infection that is quite common in a hospital setting.
40On the other hand is the evidence of the applicant, which was not tendered in chief but only came out in response to challenges to other aspects of her evidence in cross-examination. I note that while the applicant claims that a physician told her she had contracted the virus in the hospital there is no contemporaneous documentation to that effect and it is difficult to understand how that conclusion might have been reached given the length of time from the applicant’s exposure to the virus, allegedly on December 27, and her attendance with the physician on January 2, 2007. I also note that this allegation does not appear in the complaint. The statement in the complaint is as follows – Regarding the gastroenteritis, my union advised me to submit a WSIB (sic) claim, as it appears likely that I contracted this illness at the Hospital. This language, suggesting that it only occurred to the applicant when so advised by the union, appeared in her letter to the WSIB dated March 26, 2006 attached to the Form 8 initiating the claim:
Last week, a union representative told me that the three days that I was absent in January of this year should have been WSIB (sic), since my illness occurred at a time when many of such illness (sic) existed at that hospital. For this reason, I returned to the after hours clinic to ask Dr. Hosdil, to submit a Form 8 on my behalf. Dr. Hosdil is away for an extended period of time, so one of the other doctors, Dr. Kotilik filled out the form.
It seems reasonably clear that the applicant did not know and was not told by anyone in January 2007 that her gastroenteritis was contracted from a patient in the hospital.
41More importantly, the respondents also deny that they had any knowledge that there was a WSIA claim in respect of these three days until well after the dismissal. There is no evidence to contradict this assertion as the applicant herself acknowledges that she only made the claim several months later on the advice of a union representative in the context of the grievance proceeding in which the applicant was involved at the time.
42I also do not accept the applicant’s submission that the respondents deliberately did not tell her that she could file a WSIA claim for those three days. As indicated previously, there is insufficient evidence to conclude that Ms. Snowe or Ms. Henderson were aware of this possible genesis of the virus and none whatsoever to support the applicant’s contention that they deliberately chose not to tell her of a the possibility of a claim.
43As a consequence of my conclusions on the facts there is no basis to conclude that the applicant’s alleged disability (or perceived disability) was a factor in the decision to terminate her employment. For all of the reasons set out above, I also find that the applicant did not inform the employer of a disability and made no request for accommodation. Having determined that the applicant’s alleged disability or perceived disability was not a factor in her termination and that the applicant did not inform her employer of a disability or seek accommodation, there is no need to determine whether or not the applicant was a person with a disability within the meaning of the Code.
Other Matters
44The applicant also alleges that Audrey Henderson provided “false, misleading and defamatory information” to the WSIB and to her family physician and that this constitutes harassment on the basis of disability under the Code. The applicant states that Ms. Henderson knew or ought reasonably to have known that such conduct on her part was unwelcome by the applicant because the statements that she made about the applicant and her workplace injury caused unnecessary stress, annoyance, and distress for the applicant in her efforts to correct the information.
45The alleged misinformation concerns the WSIA claim arising out of the applicant’s soft tissue injury, which may have occurred on September 23, 2006. The alleged incorrect information was contained in a letter to the WSIB, which was also received by the applicant’s family physician and a treating chiropractor. The allegedly incorrect information related primarily to the suggestion in the letter that the applicant’s mother was speaking on the applicant’s behalf more often than was helpful. The applicant also took issue with the suggestion made by Ms. Henderson that the applicant might not have been fully compliant with treatment regime. As a consequence of this information the applicant wrote a letter to the WSIB to correct the perception created by the letter that her mother spoke for her too often. She also explained but ultimately did not truly dispute the employer’s suggestion to the WSIB that the applicant was not fully compliant with her treatment regime. Although described in the complaint as incorrect information, which it may or not be, the applicant more recently has characterized the incorrect information as false, defamatory and intended to cause her harm. The applicant does not allege any specific harm, other than having to write a letter of explanation to the WSIB.
46The applicant’s position on this point is difficult to understand. I do not agree that the errors made by Ms Henderson amount to harassment under the Code. Harassment is defined in section 10(1) of the Code as engaging in a course of vexatious comment or conduct that is known or ought to have been known would be unwelcome. As regards what appears to be the applicant’s primary concern - that the letter left the impression that her mother spoke for her too often – while that may have not been entirely accurate in the specific instances, it is not surprising that the employer might have found it difficult to communicate directly with its employee. Nonetheless, the errors in the letter, if that is what they were, are not connected to any Code protected ground and there is no basis to draw the inference that they are. I would also observe that if they are errors, they are trivial mistakes and could not reasonably be understood as vexatious by anyone.
47The applicant also alleged in the complaint that the respondent Hospital directed her to perform duties in excess of her restrictions. The applicant’s evidence at the hearing did not support this allegation, rather she said that the respondent Hospital insisted on scheduling return to work meetings before she saw her chiropractor rather than after she had seen him or her. Notwithstanding this evidence it is unclear what, if any, tasks the applicant was assigned that exceeded her restrictions. I am not satisfied that the applicant has established on a balance of probabilities that there is any basis to conclude that this limited evidence establishes any discriminatory conduct on the part of the respondents.
48The applicant also alleges that she was harassed by Ms. Henderson during the course of her rehabilitation from an alleged workplace injury. This is not an issue raised in the complaint and I am unable to deal with it in these reasons. This allegation is not made in the complaint, which under s. 53 of the Code forms the subject-matter of a transitional application. Accordingly, it is not within the scope of this Application and I have no jurisdiction to deal with it.
49The applicant also alleges that Ms Henderson provided false, misleading and defamatory information in relation to a WSIA claim made in March or April 2007 in relation to the gastroenteritis episode in early January 2007. This allegation, which is in relation to a dispute that arose after the applicant was terminated, is also not made in the complaint, which, as noted above, under s. 53 of the Code forms the subject-matter of a transitional application. Accordingly, it is not within the scope of this Application and I have no jurisdiction to deal with it.
50The applicant in her submissions alleges that the respondent refused to reinstate her after terminating her for the same discriminatory reasons that caused them to terminate her in January 2007. The applicant claims that this is in an allegation made in the complaint. In a Case Assessment Direction dated December 16, 2010, I set out the issues in dispute (and again in 2011 HRTO 183 on January 25, 2011) and until the hearing there was no indication that this was an allegation that the applicant was pursuing. I have reviewed the complaint again and the allegation does not appear in paragraph 7(a) of the complaint form where the applicant is required to set out a description of the incidents which she believes supports the claim of discrimination. However, the applicant does make a statement to this effect in paragraph 9 of the complaint form in describing the steps the union had taken on her behalf to that point.
51I am not satisfied that I should deal with this allegation given that the applicant did not dispute my characterization of the case the respondent had to meet until the 11th hour at the hearing. The point is not a technical one, but one based on fairness to all participants in the hearing process. Applicants not infrequently include allegations in less than obvious parts of the complaint or application forms. So long as it is clear at the appropriate stage of the proceeding what all of the issues are, it is not unfair to require a respondent to respond to the issue notwithstanding that the issue or allegation was not set out in the appropriate portion of the application or complaint form. However, this is different than the current situation where the applicant effectively attempted to add to her allegations at the hearing.
52In this case in addition to the new allegation set out above, the applicant also suggested in another portion of the complaint form that she may have been mistreated by the respondents because of her race. This was not identified as an issue at any stage of the proceeding and no evidence was lead to support such an allegation. The question becomes what is the respondent required to respond to? In my view, a respondent should not normally be required to respond to an allegation unless it is clearly in dispute before the hearing begins, and certainly not after the evidence has concluded. In most cases this will be easy to determine in other less so. One of the reasons that I set out the issues for determination in the CAD of December 16, 2010 was to ensure that the parties were aware of what was in dispute and what was not. In this case, the respondent would not have reason to know that the allegation that the refusal to reinstate was an issue they were required to respond to until several weeks after the evidence concluded when written submissions were received. I do not believe they should be required to do so in these circumstances.
53In any event, having concluded that the respondents’ reasons for terminating the applicant in January 2007 were not discriminatory it follows that there was nothing discriminatory about their continuing to maintain that position after the applicant’s dismissal. Moreover, while there may be cases where a respondent employer might have subsisting obligations for a short time after an employment relationship has been terminated, generally speaking the obligations and liability of a respondent employer will be based on the facts as they existed at the time the decisions were made – what they knew or should have known at the time that a decision was taken, for example - and not in light of new alleged facts that surfaced weeks or months after the fact.
54I note as well that the applicant’s union filed a grievance on her behalf almost immediately after the termination. I observe that the application for WSIA benefits for the three days missed in January 2007, was filed after the grievance was filed and on the advice of the applicant’s union. As all of the issues raised in this Application were alive in the grievance proceeding, it is neither surprising nor discriminatory that the respondents did not change their view of the merits of the dismissal decision.
55The applicant also states that her absenteeism should not have been considered excessive because the Employment Standards Act ("ESA") provides protection for employees who miss up to 10 days a year due to a number of reasons including personal illness.
56Section 50 of the ESA provides for the right of an employee in Ontario to take an unpaid leave for personal illness and family responsibilities. The respondents’ submission was that the forum for adjudication of a claim that an employer refused a leave contrary to s.50 of the ESA is pursuant to the enforcement provisions of the ESA and I have no jurisdiction to consider such a complaint. I take a different view, but the result is the same in this case. There is no evidence that the respondent hospital considered any Code prohibited factors in making its decisions. Framing the question in terms of the right to a job-protected leave under the ESA, there is no indication that the employer in declining to provide such a leave to the applicant failed to consider an alleged disability of which they were aware. I do agree with the respondent that I have no jurisdiction to consider a claim to a job protected leave under section 50 of the ESA, as such.
57The applicant also relies on the fact that the respondent Hospital applies different attendance standards to employees who have completed their probationary period. While the applicant is correct that the evidence establishes that there is a clear distinction made between probationary and non-probationary employees in this regard, this is a distinction based on employment status and not any ground prohibited in the Code (see Law v. Thames Valley District School Board, 2011 HRTO 953).
58The applicant also submitted that the applicant’s dismissal was unlawful because it was in violation of the collective agreement in a number of ways. For example, she states that the respondents failed to provide her written reasons for her termination within 7 days of her dismissal. She cited a labour arbitration case, Hamilton Health. Sciences v. Ontario Nurses' Association, 2010 CanLII 35848 (ON LA), and stated that I should follow the approach taken by the arbitrator. The applicant was provided with a termination letter at the termination meeting on January 19, 2007. Regardless, I have no jurisdiction to interpret and apply a collective agreement except where it is alleged that a provision of such an agreement is itself discriminatory. In this case it is not at all clear what the nexus between this allegation and the applicant’s disability might be, but in any event these are not allegations made in the complaint and accordingly I can not deal with it.
59The applicant feels strongly that her dismissal was unjust because all of her absences were for legitimate reasons. They likely were. Moreover, it is understandable that the applicant reasonably perceives that it was unfair that she lost her job because her attendance was unacceptable to the employer given their mistaken understanding that she was still a probationary employee. However, as the respondents point out in their submissions, the purpose of the Code is not to provide another forum for the adjudication of claims of unfair dismissals due to innocent absenteeism.
60As set out above, the applicant has failed to establish on a balance of probabilities discrimination under the Code. For all of these reasons the Application is dismissed.
Dated at Toronto, this 14th day of December, 2011.
“signed by”
David Muir
Vice-chair