HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sylvie Lepine
Applicant
- and-
6865801 Canada Limited o/a Tim Hortons
Respondent
decision
Adjudicator: John Manwaring
Indexed as: Lepine v. 6865801 Canada
APPEARANCES
Sylvie Lepine, Applicant ) Self-represented
Kevin Rowan, Respondent ) Self-represented
INTRODUCTION
1Ms. Sylvie Lepine (the “applicant”) worked for 6865801 Canada Limited o/a Tim Hortons (the “respondent”) from October 2008 until January, 2010. Her employment was terminated on January 18, 2010 because she left work on January 13, 2010 at her break before the end of her shift without advising her supervisor or the owners and did not call to advise the respondent that she would not work her shift on the following day or any of the remaining shifts for which she was scheduled to work during that week.
2The applicant alleges that, in terminating her employment, the respondent discriminated against her on the basis of disability in violation of sections 5 and 11 of the Ontario Human Rights Code R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant suffers from high anxiety. She testified that she was diagnosed several years ago by her psychiatrist and that her family doctor treats her disorder through medication. She did not provide any medical evidence which supports this testimony but there is no dispute that such a medical condition would constitute a disability with the meaning of the Code. The applicant filed a complaint with this Tribunal on March 17, 2010. The hearing into this application was held in Ottawa on July 14, 2011.
3There is no dispute between the parties that an employer in Ontario cannot discriminate against an employee on the basis of disability in violation of s. 5 of the Code. There is also no dispute that the respondent employer cannot apply ostensibly neutral rules which amount to constructive discrimination in violation of ss. 11(1) of the Code or refuse to make reasonable efforts to accommodate the applicant up to the point of undue hardship.
4Neither party was represented by counsel. As a result, they told their version of the events but did not present legal arguments based on the legislation or case law. The evidence of the parties is consistent except for different versions of certain conversations between the applicant and Ms. Teri Rowan, a co-owner of the respondent. The outcome in this case therefore depends on the application of the relevant legal principles.
Issue
5The issue is this case is very clear: did the respondent violate the Code in terminating the applicant’s employment on January 18, 2010 for cause because she left work before the end of her shift without letting anyone know of her departure and she did not call to advise the respondent that she would be absent from work until January 18, 2010?
Evidence
6There is no real dispute about the events on January 13, 2010 except for the nature of the discussion on the telephone with Ms. Teri Rowan, a co-owner of the respondent. The applicant testified that she left work after her break without advising her supervisor or one of the owners. She did not return to work the following day as scheduled. According to her testimony, she did not phone the respondent to tell either the owners or her supervisor that she would not be at work on the following day. She spoke to Teri Rowan at about 9:45 a.m. on January 13, 2010. She testified that she advised Ms. Rowan that she had had an anxiety attack and that she would be seeing her doctor as soon as possible. She testified that she ended the conversation by hanging up on Ms. Rowan.
7The applicant testified that she left work before the end of her schedule because of an anxiety attack which was provoked by a discussion with her supervisor who criticized her for lowering the temperature on the chilli which is heated in an appliance with a temperature control. For health reasons, the chilli must first be prepared and then kept constantly at the required temperature. The previous day, someone had touched the temperature dial on the chilli so that it was below the temperature required for health reasons. The supervisor was convinced that the applicant was responsible. The applicant denied that she had lowered the temperature or touched the temperature control. She testified that she told her supervisor that she had finished work at 11 a.m. and only worked a small portion of the time when the chilli was being served. According to the applicant, her supervisor insisted that she was lying and that she had worked until 1 p.m. on the day in question.
8The applicant felt very uncomfortable with this confrontation and began to feel very anxious. In her opinion, she was being unfairly accused of doing something which she had not done. She became very agitated and stressed and felt unbearable anxiety. There was no suggestion that the supervisor was going to discipline the applicant but the applicant felt that she was being unfairly accused. She did not leave work immediately but continued to work until her break. At that point, she told a colleague, Monica Bentley, that she was leaving and would not return to work that day. (This was confirmed by Monica Bentley who testified by the consent of both parties even though she was not on the witness list.) She also spoke to an older lady who wears glasses who was not otherwise identified. She left work at approximately 8:45 a.m.
9The applicant stated that she was unable to talk to her supervisor because her anxiety attack was provoked by her supervisor’s behaviour. She felt that her supervisor was picking at her. She testified that she had not had any conflicts with this particular supervisor prior to January 13th. She did not explain why she did not telephone the owners before leaving. The owners’ phone numbers are posted on their office door and employees are asked to call them if necessary. Further, she did not ask Ms. Bentley to tell her supervisor that she had to leave because of an anxiety attack.
10Both parties agree that Ms. Rowan called the applicant shortly after she had left work. At first, she was unable to reach her, but, at about 9:45 a.m., she spoke to the applicant. The applicant testified that, during this conversation, she explained that she had had an anxiety attack, that she had called her family doctor for an urgent appointment, and that she had to get off the phone because she was waiting for a call from her doctor’s office. She did not tell Ms. Rowan that her anxiety attack was triggered by the conflict with her supervisor. The applicant states in the Application that Ms. Rowan told her to bring the medical note into work later that week but during her testimony under oath at the hearing she testified that Ms. Rowan told her during this conversation to bring in a note from her doctor either “today or tomorrow”.
11The testimony of Mr. Kevin Rowan for the respondent presents a different version of this conversation. According to him, Ms. Rowan first called the applicant and left a message requesting a return phone call as soon as possible. The applicant did not return this call. Ms. Rowan called again using a cell phone and the applicant answered. When she was questioned as to why she left work without advising her supervisor or the owners, the applicant became hostile and hung up while Ms. Rowan was still speaking to her. Ms. Rowan immediately phoned again but the applicant did not answer so Ms. Rowan left another message. Later in the day, the applicant spoke to Ms. Rowan on the phone stating that she had been to see her doctor and would be bringing in a doctor’s note.
12For family reasons, Ms. Rowan chose not to attend the hearing and did not testify on the respondent’s behalf. Mr. Rowan, the co-owner of the respondent, testified as to what Ms. Rowan, his wife, told him about this conversation. As a result, the only evidence which contradicts the applicant’s testimony regarding this phone call is hearsay evidence. The applicant was adamant that she was not rude to Ms. Rowan on the phone, although she admitted hanging up on her. Under cross-examination, the applicant did not alter her testimony or make any admissions that might support the respondent’s version of the phone conversation. Because I did not have the benefit of Ms. Rowan’s testimony and the applicant did not have an opportunity to cross-examine her, I accept the applicant’s testimony concerning this phone conversation.
13Between Wednesday and Saturday there was no communication between the applicant and the respondent in spite of the fact that she was scheduled to work. The applicant testified that she did not feel that it was necessary to call her employer because she had told them she had a doctor’s appointment. The applicant did not work as scheduled for the rest of the week. When asked on cross-examination why she did not work on Thursday or Friday, she replied that she was sick.
14The applicant came by the store on the following Saturday and left the medical certificate provided by her doctor, Dr. David Burt. This medical note was submitted into evidence with the Application. It does not state that the applicant has a disability. It simply states that the applicant “is excused from work due to medical illness”, that the date of onset of the illness was January 13, 2010, and that she was expected to return to work on January 18, 2010. Neither Teri nor Kevin Rowan was present when this note was dropped off. The applicant called on Sunday to find out when she was scheduled to work on Monday and was informed that she was not on the schedule. On Monday, January 18, the applicant contacted Teri Rowan who, according to the applicant’s testimony, told her that she could either “quit or be fired”. The applicant refused to quit and was therefore terminated. The applicant did not tell Ms. Rowan of the incident with her supervisor or the reasons for her anxiety attack. She did not relate her absence to an on-going disability. The Record of Employment submitted into evidence by the applicant indicates in Block 16 of the form that the applicant was dismissed (Code M). No explanatory comments were provided in Block 18 of the ROE.
15Mr. Rowan testified for the respondent that Ms. Rowan did not tell the applicant to quit or be fired. However, because Ms. Rowan did not testify, the only evidence before me to contradict the applicant’s evidence is hearsay. As a result, I accept that Ms. Rowan said to the applicant that she had a choice to either quit or be fired. The applicant did not testify that Ms. Rowan made any reference to her disability in this conversation or stated that she was terminating the applicant because of her disability. The justification for the termination was the breach of workplace rules.
16Kevin Rowan testified for the respondent that his understanding was that the applicant had quit her employment. He was told by another employee – an older woman with glasses – that the applicant had told her just before she left on January 13th that she was fed up and that she was quitting her job and would never come back. Mr. William Bittle, a supervisor, testified for the respondent that he was told by an employee who was not identified that the applicant had quit her job. He testified that employees quit their jobs with little or no notice in this industry where there is a high turn-over of employees so this was not unusual or surprising from the respondent’s point of view.
17Mr. Rowan also testified that the applicant came into the store several times between January 13 and 18 and spoke to other employees. She told them they were stupid for continuing to work there and that she was going to get Kevin and Teri Rowan. The respondent did not call any employees to corroborate this testimony and the applicant denied making the statements attributed to her.
18The testimony of both parties establishes that, prior to January 13, 2010, the applicant had not informed the respondent of her disability or asked for any accommodation. She had not given the respondent any medical documents or doctor’s certificates that might have told the respondent that she had a disability. On the date of the incident which led to the applicant’s termination, the respondent did not know, and had no reason to know, that the applicant suffered from a disability. The applicant also testified that the supervisor whose behaviour provoked her anxiety attack did not know of her disability. There is no general obligation for an employee to disclose a disability to an employer except in the context of seeking accommodation, so the fact that the applicant had not said anything prior to January 13 is only relevant to the extent that it helps establish the extent of the employer’s awareness of the disability at the time of the incident which triggered the anxiety attack or on the date of termination.
19Mr. Rowan testified for the respondent that the first time he learned of the incident with the supervisor concerning the chilli temperature was when he received the Application. The applicant did not raise this issue when talking to Ms. Rowan on January 13, January 18, or at any other time. She did not explain the reasons why she left work without advising anyone except to say that she had an anxiety attack.
20The respondent justified the termination on the basis of a serious violation of the rules of behaviour set out in its workplace policies. The respondent’s employees read and sign a copy of the workplace policies at the time of their hiring. The document signed by the applicant was put into evidence and the applicant did not challenge the fact that she had received and read the document. It includes a description of the discipline procedures and states that “Some types of misconduct are so intolerable that they may result in immediate termination for cause....” The forms of misconduct justifying immediate termination include “deliberate misrepresentation or absence from work”, “walking off the job”, and “continued violation of punctuality or attendance”.
21The respondent argued that the applicant had directly violated one of the more serious workplace rules by walking off the job before the end of her shift. This leaves the respondent short-handed which has an impact on its ability to serve its customers quickly and efficiently. She also did not call before the start of her next shift to advise the respondent that she would be off work until January 18th. The rules require that an employee who is too ill to work advise the respondent before the start of her shift. The decision to terminate was based on these two breaches of the rules and policies. In the fast-food industry, it is, by definition, important to be able to serve the customers as rapidly as possible. When employees scheduled to work leave without notice or do not show up to work, the respondent is short-staffed and has difficulty serving customers efficiently. The respondent argued that the applicant’s termination was justified by her deliberate violation of important workplace rules of which she was well aware.
22The respondent put into evidence supervisory notes documenting conversations with the applicant regarding her behavior at work. These notes were supplemented by the testimony of Mr. Bittle, a supervisor employed by the respondent who worked with the applicant during her employment with the respondent. The testimony and notes establish that the respondent had concerns about her performance because of difficulty in working with certain supervisors, conflicts with her co-workers, and complaints of rudeness from customers.
23In addition, Mr. Bittle testified that the applicant was always on time for work except for one morning when he had to call her because she had overslept. There were no warnings in her employment file relating to lateness or absences.
24The evidence about her employment file and concerns about her performance does not assist me in determining if there was discrimination. The respondent does not argue that the termination was justified by a progressive disciplinary process in which this incident is the culmination of previous incidents for which the applicant had received warnings.
25The applicant testified that after the termination of her employment, her condition deteriorated. She was unable to work and spent at least two months under the care of her doctor. In a medical note dated February 9, 2010, Dr. Burt states that the applicant had been off work for medical reasons since January 13, 2010, that she was currently unable to work, and that the date at which she would be able to return to work was undetermined.
Decision
26The issue which must be decided in this case is whether the respondent violated the Code when it terminated the applicant’s employment for cause because her disability was a factor in the decision to terminate.
27For the reasons set out below, I have concluded that the respondent did not discriminate against the applicant when it terminated her employment.
Reasons
28This is not a typical case of breach of the duty to accommodate. There is no suggestion that the applicant needed accommodation to perform her work or that her disability affected her ability to perform the essential functions of her position. The applicant did not ask for accommodation at any time prior to the incident which led to her termination. The applicant is, in essence, arguing that her breaches of the employment rules prohibiting walking off the job without notice and requiring that employees unable to work because of illness advise the employer in a timely fashion were related to her disability. Her argument would be that because she had advised the respondent of her anxiety attack and delivered the medical note, the respondent could not terminate her for cause but, rather, had a duty to inquire into the need for accommodation. Therefore, because the respondent terminated her without inquiring into her need for accommodation, the respondent violated subsection 5(1) and section 11 of the Code.
29Subsection 5(1) of the Code states that:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
Section 11 of the Code states that:
11(1) 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.
11(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
30On the basis of the evidence presented by the parties I reach the following conclusions:
a) While no evidence was put before me other than the applicant’s own testimony as to her disability and a medical note which does not describe the medical reasons underlying her absence from work, I will assume for the purposes of this Decision that the applicant suffers from a high anxiety disorder for which she receives medical treatment and takes medication. This is a disability for the purposes of the Code.
b) This disability had no impact on the applicant’s ability to perform her work and the applicant did not request accommodation at any time prior to her actions which led to her termination.
c) On January 13, the applicant’s supervisor accused her of lowering the temperature of the chilli, which the applicant felt was very unfair. This criticism provoked an anxiety attack.
d) The applicant did not leave work immediately but rather continued to work until her break.
e) The applicant left her workplace at her break without advising either her supervisor or the owners of the franchise that she was suffering an anxiety attack and that she could no longer continue working. She told at least one co-worker that she was leaving, but did not ask her co-worker to inform her supervisor of her departure.
f) At the time, the respondent had no reason to know, and in fact did not know, that the applicant had a disability.
g) After returning home, Ms. Teri Rowan called the applicant to ask why she had left before the end of her shift. The applicant told her that she had suffered an anxiety attack. She also said that she had called her doctor for an urgent appointment and that she was waiting for a call from her doctor’s office regarding the scheduling of that appointment. She did not mention the conflict with her supervisor or say what provoked the anxiety attack. She did not tell Ms. Rowan that she had an on-going anxiety disorder for which she was receiving treatment. The applicant ended the conversation by hanging up on Ms. Rowan.
h) Based on the applicant’s own testimony, Ms. Rowan asked the applicant to bring in the note from her doctor later that day or the following day.
i) The applicant did not call later that day or before the start of her shift the following day to tell her employer that she would not be able to work until January 18, nor did she deliver the doctor’s note later that day or the following day.
j) The applicant did not show up for her scheduled shifts for the rest of the week and did not call to advise her employer of her absence because, according to her testimony, she did not see any reason to do so.
k) On Saturday, January 16, the applicant delivered her doctor’s note to her employer by slipping it under the door to the office.
l) On Sunday, January 17, the applicant learned that her name did not appear on the schedule for the following day.
m) On Monday, January 18, the applicant was informed that her employment had been terminated.
n) The respondent issued the applicant’s Record of Employment on January 29. It indicates that she was dismissed.
o) The first time the respondent learned of the incident concerning the chilli temperature was when it received the Application.
31In this case, the applicant violated two workplace rules by leaving work or “walking off the job”, and not calling to advise the respondent that she would not work her scheduled shifts because of illness. An employee who walks off the job without advising the respondent and neglects to call to advise it that she will be absent from her shift violates the rules of employment of which the applicant was aware. Setting aside the issue of disability, these violations of the rules would, according to the workplace rules, justify termination.
32In order to determine if the decision to terminate for cause in this case amounts to discrimination on the basis of disability, I must therefore determine first whether the respondent knew or ought reasonably to have known of the applicant’s disability and whether her disability was a factor in the termination decision (which would be a violation of s. 5(1) of the Code), or second, in the alternative, whether the workplace rules result in the exclusion or restriction of persons with disabilities including the applicant (which could result in a violation of s. 11(1) of the Code).
33With regard to the first point, the evidence is clear that the respondent was not aware that the applicant had a disability, as this had never been raised by her and was not stated in the medical note she provided. The question then becomes whether the respondent ought reasonably to have known that the applicant had a disability requiring accommodation based upon her statement to Ms. Rowan that she had left work on January 13 because of an anxiety attack, her statement that she was making an urgent appointment to see her doctor, and her subsequent provision of the medical note.
34This Tribunal’s case law establishes that the employee is not required to reveal the exact nature of her disability and that in certain circumstances the employer has a duty to make reasonable inquiries to determine if an employee has a disability and whether there is a need for accommodation. See Wall v. The Lippé Group, 2008 HRTO 50 paras. 81 and 82 and Carter v. Neurologic Rehabilitation Institute of Ontario, 2011 HRTO 170 para. 51.
35The medical note from the doctor does not provide any information about the applicant having a disability. It simply gives January 13, 2010 as the date of the onset of the illness and states that she would be absent from work for medical reasons until Monday January 18. The note itself does not explain why the applicant left work without informing her supervisor or someone else, or why the applicant did not call the respondent to let them know that she would miss work for the rest of the week. The note does not relate this behaviour to a disability., Nor did the applicant. At most, the applicant told her employer that she was planning to see her doctor because she had had an anxiety attack. In my view, these circumstances are not sufficient to suggest that the employer ought reasonably to have wondered whether this one-time anxiety attack was related to some underlying anxiety disorder, so as to impose upon an obligation upon the respondent to take steps to inquire whether the applicant had a disability requiring accommodation.
36As a result, as I have found that the respondent neither knew nor ought reasonably to have known that the applicant had a disability when it terminated her employment, I find that her disability was not a factor in the termination decision such that there is no violation of s. 5(1) of the Code.
37I turn now to the second point, which is whether the workplace rules for the violation of which the applicant was terminated result in the exclusion or restriction of persons with disabilities, including the applicant, in potential violation of s. 11(1) of the Code.
38The first rule violated by the applicant requires an employee to advise the respondent before leaving work because of illness before the end of her scheduled shift. This rule is intended to enable an employee who is obliged to leave work for whatever reason to do so in a manner that minimizes the impact of their leaving on the respondent’s operations. This rule does not discriminate on a prohibited ground and does not constitute direct discrimination. The respondent adopted this rule in good faith with no intent to discriminate against persons with disabilities or the applicant in particular. It is reasonable to ask that an employee, who has to leave work for whatever reason, including illness, advise her supervisor or the owners prior to leaving work. This is not an onerous requirement. An employee who is unable to work for reasons relating to illness or disability can easily advise the appropriate person before leaving work. This is a small workplace in which both the supervisor and the owners are accessible. The rule enables the respondent to take any measures possible to ensure that customers are served efficiently. For example, another employee could be contacted to come in as quickly as possible to help with the workload.
39It would be difficult to argue that this rule excludes or restricts persons with disabilities given that it is in itself a form of accommodation. It allows an employee who is unable to complete her shift because of illness or disability to return home. It establishes a reasonable balance between the need for accommodation and the respondent’s legitimate need to manage its employees and provide fast and efficient service to customers. There is no evidence before me to support that the applicant, because of her disability, was unable to advise her supervisor or the owners of her need to leave work on January 13. While it is arguable that the applicant’s anxiety disorder may have prevented her from approaching her supervisor directly as she was the source of the anxiety attack (although there is no actual medical evidence to support this), there is no potential disability-related explanation for why the applicant failed to call the owners to advise them that she had left work or even told her co-worker to advise the supervisor. In the absence of any disability-related explanation for the applicant’s failure to abide by this work rule, I find that this rule does not result in the exclusion or restriction of persons with disabilities, including the applicant.
40The second rule violated by the applicant requires employees who are unable to work to advise the respondent in a timely fashion. This rule does not constitute direct discrimination on a prohibited ground. The respondent adopted this rule without any discriminatory intent in order to ensure the efficient organisation of the work. This rule facilitates accommodation by allowing an employee to take time off work when necessary but also protects legitimate employer interests. It is reasonable to require that an employee, who is unable to work for reasons of illness or disability, advise her employer that she will not be able to work her shift. This enables the employer to find a replacement and ensure that the franchise is able to properly serve its customers.
41This rule also cannot be considered to exclude or restrict persons with disabilities, including the applicant, within the meaning of s. 11(1) of the Code. No evidence was given before me to indicate that the applicant was unable to communicate her inability to attend work for the rest of the week due to any disability-related reason. Nor do I accept her evidence that, based upon her telephone conversation with Ms. Rowan, she was not required to advise of her continued absence. The applicant’s evidence is that she told Ms. Rowan that she was going for an urgent medical appointment. She did not say anything about whether she would be able to work the following day or for the remainder of the week. In these circumstances, I find that it was unreasonable for the applicant to think that she did not have to inform her employer of her continued absence, and could simply proffer a note at the end of the week after the respondent had been required to scramble to fill her missed shifts.
42Accordingly, I also find that the workplace rules that formed the basis for the termination of the applicant’s employment do not constitute indirect or adverse effect discrimination in violation of s. 11(1) of the Code.
43While it is certainly possible that the decision to terminate the applicant is unfair given the circumstances because the employer applied the rules set out in its workplace policies without giving the applicant a second chance, the Code does not prohibit all forms of unfair treatment of employees. The onus is on the applicant to prove that the respondent discriminated against the applicant on the basis of disability. In this case, given that the respondent terminated the applicant’s employment for cause because of breaches of rules which are designed to ensure that employees who are ill or unable to work because of a disability can exercise their right to accommodation while minimizing disruption of the workplace, the applicant has not satisfied that onus. I conclude therefore that the respondent did not discriminate against the applicant because of disability in violation of the Code.
Order
44Having found that the respondent did not violate the applicant’s right to be free from discrimination on the basis of disability contrary to s. 5 and s. 11 of the Code, the Application is dismissed.
Dated at Toronto, this 21st day of December, 2011.
”signed by”_____________
John Manwaring
Member