Misir v. International Clothiers Ltd., 2011 HRTO 391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kuntie Misir Applicant

-and-

International Clothiers Ltd. Respondent

DECISION

Adjudicator: Kaye Joachim

Date: February 22, 2011

Citation: 2011 HRTO 391

Indexed as: Misir v. International Clothiers

APPEARANCES

Kuntie Misir, Applicant ) Steven Sacco, Representative

International Clothiers Ltd., Respondent ) Otilla Araujo

1This is an Application made the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated July 13, 2009.

2The applicant alleges that she experienced discrimination in employment because of disability contrary to sections 5 and 9 of the Code, in that the respondent employer did not accommodate her disability and ultimately terminated her employment.

3The respondent asserts that it fully accommodated the applicant’s injuries. While it did discipline the applicant for performance reasons, it never terminated her employment.

4The applicant began working at the respondent in 1999. By 2008 she was working as a store manager, 40 to 44/hours per week. She was responsible for opening and closing the store.

5The applicant experienced a low back strain on June 3, 2008. The Workplace Safety and Insurance Board accepted her claim for a work-related injury. A return to work plan was developed to accommodate the applicant’s functional abilities and working restrictions. As the applicant was no longer able to work the long hours which were deemed to be an essential part of the job, she was offered a part-time modified key holder position and a modified sales associate position. This offer was approved by the WSIB and accepted by the applicant. The applicant returned to work in September 2008.

6The return to work plan recommended the use of a chair for lower back support. The respondent asked the applicant if she could bring in her own chair while the respondent ordered one. She declined. Accordingly, the respondent immediately purchased a chair which was placed near the cash for the applicant’s use.

7The applicant appeared to believe that being asked to bring in her own chair violated her rights under the Code. It did not. There was nothing unreasonable in asking the applicant if she could provide her own chair, pending the provision of the chair by the respondent. The respondent accepted the applicant’s explanation that she could not bring in her own chair without demur.

8The applicant requested not to be scheduled Monday or Wednesday evening shifts due to the nightly travel home on the public transit that would be required. The respondent offered a nearby location to accommodate the scheduling preference.

9The applicant chose to remain at the same location, accepting the provision of night shifts. She agreed to schedule doctor’s appointments around her shifts and to provide notice to leave shifts for appointments when necessary and to seek approval for any scheduling or shift change with notice.

10In August 2008, the applicant was criticized for using the chair inappropriately. She was reminded that she was supposed to use the chair as required to perform work tasks, not to sit idle. The applicant testified that she was criticised for allowing the chair onto the store floor, and that she was not the one responsible for the placement of the chair. On balance I prefer the respondents’ evidence on this point, as it is confirmed by a written document prepared at the time. I conclude that there was no discrimination in the respondent criticising the applicant for sitting idle in the chair.

11On Wednesday, September 17, 2008, the applicant left work before the end of her shift without ensuring coverage for her position and without requesting approval from her supervisors. On September 18, 2008, the applicant was given a written warning with respect to this incident.

12The applicant states that she did email and phone the health and safety manager but there was no reply. Her manager saw that she was in pain and insisted she should go home. The respondent asserts that the applicant left work early to attend a doctor’s appointment, and that was a breach of the return to work agreement.

13I note that the applicant did not produce the emails she alleges she sent to the health and safety manager that day, nor call the store manager to corroborate her claim that she was given permission to go home. I also note that when she was given the disciplinary letter she did not offer the explanation she offered at the hearing. On balance I do not accept the applicant’s evidence that she left the store because of pain. I find that she left to attend a medical appointment, for which she did not seek prior approval.

14The applicant asserts that on one occasion she was unable to take her breaks every two hours as prescribed by her doctor because she was assigned to work with a new employee with little experience. She was also required to miss her supper break. I heard no evidence from the respondent contradicting this evidence. I am prepared to accept the applicant’s evidence that on one occasion she was required to miss her scheduled breaks which were required as part of her accommodation. However, I do not conclude that this single incident amounts to a failure to accommodate or breaches the applicant’s rights under the Code.

15On October 15, 2008, the applicant did not report or call in advance to report her non-attendance for her scheduled shift. The applicant concedes that she failed to check her schedule and failed to attend in error. She asked to make up a shift on Friday that week instead. The store manager explained that he could not cancel another employee’s shift. The applicant refused to accept this and this led to a somewhat acrimonious discussion with the health and safety manager.

16The applicant received a suspension letter on October 22, 2008, for neglect of duty, wilful misconduct and insubordination arising from the incidents of October 15, 2008. The letter of suspension stated that the applicant was suspended “until further notice.” After one week the applicant submitted a medical note on October 28, stating that she was incapable of working for medical reasons. The respondent treated this as a request for unpaid medical leave.

17The applicant submitted a medical note in July 2009 seeking to return to work. The respondent worked with the WSIB to develop a return to work plan in September 2009. On September 23, 2009, the applicant’s doctors requested supervisor staff changes at the store level to further facilitate the return to work plan. The request was accepted by the respondent and staff changes were made at the store.

18The applicant returned to work for a few days in November 2009, but felt unable to continue working because of pain. She submitted a further medical note from her treating practitioner stating that she was unable to work at her current job, which is part time and light duties, due to increased back pain.

19The applicant has not returned to work since that time. At the applicant’s request, the respondent issued a record of employment indicating that the applicant was ill, but considered the applicant a current employee. It is willing to take her back when she indicates she is capable of working. At the hearing, the applicant testified that she did not consider herself capable of working, even at modified work

20The applicant feels that the respondent did not sufficiently accommodate her needs. She asserts that she was wrongfully disciplined in October 2008 because of her work-related injury and that the suspension letter was effectively a termination letter. The suspension letter outlines the various infractions discussed above.

21I find that the suspension letter related to the respondent’s good faith belief that the applicant was not performing her duties adequately and was not a pretext to dismiss her because of disability. The applicant took a medical leave of absence and the respondent readily agreed to her return to work when her doctor indicated she was ready. The documentary evidence demonstrates that the respondent co-operated fully in preparing detailed return to work plans and implemented the required accommodations.

22I conclude that the respondent took appropriate steps to accommodate the applicant’s return to work from injury. By her own evidence, confirmed by her treating practitioner, the applicant has been unable to work even at modified duties since November 2009.

23The respondent has not breached the applicant’s rights under the Code. The Application is dismissed.