HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kimberley Klonowski
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Robyn Kasha, Sal Lentini and Norm Walker
Respondents
DECISION
Adjudicator: Kathleen Martin
Date: August 14, 2012
Citation: 2012 HRTO 1568
Indexed as: Klonowski v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Kimberley Klonowski, Applicant
Timothy Bingham, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services, Robyn Kasha, Sal Lentini and Norm Walker, Respondents
Caroline Cohen and Raj Dhir, Counsel
Introduction
1This is an Application filed June 29, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2A summary hearing was held to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that the Application or part of the Application will succeed and/or on the basis of section 45.1. Following the hearing additional submissions were filed.
3I have determined that the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. My reasons follow.
BACKGROUND
4The Application arises out of the respondent Ministry’s application of an attendance management program to the applicant.
5The applicant is employed as a jail guard at the Central North Correctional Centre, a facility of the respondent Ministry. The individual respondents are the superintendent and deputy superintendents at the Centre where the applicant works.
6On August 10, 2009, the Ministry introduced a new attendance management program: the Attendance Support and Management Pilot Program (ASMPP). According to the Response, in 2008, the Auditor General had reported excessive absenteeism in the Ministry with a number of consequences including substantial costs for replacement workers, overtime payments and imposition of lockdowns. As a result, the existing attendance management program applicable to other provincial government employees was replaced by the ASMPP.
7The purpose of the ASMPP is described as follows:
The purpose of the ASMPP is to support employees to achieve and maintain regular and productive attendance at work by:
raising awareness of the importance of good attendance
promoting improved attendance and reduced absences from work
a commitment to employment accommodation, assistance and return to work
in a manner consistent with the applicable collective agreement and obligations under the Human Rights Code, the Workplace Safety and Insurance Act and the Employment Standards Act, 2000.
9While the ASMPP resulted from the auditor’s report, on its face, the ASMPP applies to non-culpable absenteeism (also known as innocent absenteeism). In general, the ASMPP provides that certain levels of absenteeism will trigger meetings between an employee and Ministry representative, where the attendance record is reviewed, information is provided to the employee and assistance is offered including offers of accommodation. An employee receives a non-disciplinary letter confirming the content of the meeting, with the final level 4 meeting leading to the possibility of termination for innocent absenteeism taking into account the respondent’s duty to accommodate.
8In August 2009, the applicant had a work-related injury for which she received benefits from the Workplace Safety and Insurance Board (“WSIB”). On September 28, 2009, the applicant was advised by letter that because of her absences since August 10, 2009 met the triggering threshold (in excess of four occasions or seven days within a 12 month period), she had entered Level One of the ASMPP and was therefore required to attend an interview on November 12, 2009 to discuss her absences. The letter stated that at the meeting “we will also discuss your ability to perform the duties of your position, whether you feel that there are any extenuating circumstances that have contributed to your absences, and Ministry supports which are available to assist you, as applicable”.
9The absences triggering the applicant’s entry into the program were a result of her work-related injury.
10The meeting was subsequently rescheduled to June 2010, which the applicant attended. At the meeting the applicant states that the Ministry’s representative stated that they considered her absences as sick time and were treating everyone in the same fashion and that only at Level 4 of the program would they consider WSIB issues before dismissal. In the subsequent letter dated June 9, 2010 confirming the meeting, the Ministry outlines the absences which triggered the applicant’s entry into the program, references the applicant’s explanation that the absenteeism is due to a WSIB injury and that she will be having surgery related to the injury which will require additional time off. After referencing the foregoing, the letter states:
Following your surgery and recovery period, we will ask you to have your doctor to complete a Functional Abilities Form (FAF) in order to implement appropriate and timely employment accommodation, if necessary, so that you can have an early and safe return to work.
The Ministry is prepared to support you and is willing to provide assistance to facilitate your regular attendance at work. On behalf of the Employer, I encourage you to take whatever action is required to improve your attendance.
Should you require assistance in dealing with the causes of your absences and if you believe there is any additional information that I should have concerning your absences, please contact me or your Reporting Manager as applicable.
It is important that you realize that your attendance will continued [sic] to be monitored from your Level One entry date of August 31, 2009. However, please be assured that further absences directly related to this WSIB injury shall be precluded in making any determination at Level 4 of the ASMPP. For more information on this please refer to the Attendance Support and Management Pilot Program Employee Guide.
The purpose of this letter is not to discipline you nor will this letter be used in a disciplinary context.
As discussed, if I can be of assistance in helping you meet the Ministry’s attendance expectations, I will be pleased to do so.
11On June 29, 2010, the applicant filed the Application alleging discrimination on the basis of disability. The applicant alleges that she was injured in a workplace accident, made a WSIB claim and has been singled out for discipline for missing time because of her injuries. In the narrative provided with the Application, the applicant states that she has been harassed and threatened by this action and fears the respondents are attempting to prepare a potential case for her dismissal. The applicant cites the beginning of the discrimination as the letter of September 28, 2009 referred to above.
12The applicant, who is a member of the Ontario Public Service Employees Union (OPSEU), had filed a grievance about the ASMPP on August 10, 2009 coinciding with the introduction of the program. The grievance claimed that the respondent Ministry had violated the collective agreement, the Code and the Workplace Safety and Insurance Act and sought a remedy of “full redress and cease and desist practices immediately”.
13The applicant’s grievance was consolidated with 804 other grievances regarding the program and referred to the Grievance Settlement Board. A hearing was convened and on February 5, 2010, Vice Chair Brian Keller issued a one page decision stating as follows:
The Union filed a number of grievances, on behalf of its members, dealing with the Attendance Support and Management Pilot Program. Given the number of grievances, and the importance of resolving this matter as expeditiously as possible, the parties agreed on an expedited process to deal with the grievances. Essentially, it was agreed that the parties would provide me with whatever materials they considered relevant, and would then make submissions on the matter. I was asked to, after considering the materials, as well as the submissions. issue a bottom line decision, without reasons [sic]. I was requested, as well, to issue the decision in point form, for ease of understanding based on the parties submissions. After considering the submissions of the parties, as well as the documents submitted, I hereby make the following Orders:
The Attendance and Support Management Office of the Ministry of Government Services shall exercise reasonable discretion to deal with non-culpable absenteeism on a case-by case basis at progression through levels of the program.
The Employer shall give proper consideration of implications arising under the Ontario Human Rights Code and preclude the consideration of absences that flow from a Disability as defined by the Code.
The Employer shall preclude the consideration of WSIB absences in making any determination at Level 4 of the ASMPP.
In the event of a declared pandemic by the World Health Organization or the Ontario Chief Medical Officer of Health, the Employer will consider whether to suspend the ASMPP, and notify OPSEU of their decision.
The Parties shall meet to negotiate a dispute resolution process to deal with grievances arising out of the ASMPP.
All of the grievances identified in Appendix A are hereby dismissed.
14Following this decision by Vice Chair Keller, the respondent modified the ASMPP in March 2010 to incorporate the first four orders. In addition, the respondent amended the program again in September 2010 to remove consideration of WSIB absences at every level of the program. Thereafter, the applicant received notification by letter dated November 18, 2010 that upon taking the days related to the applicant WSIB-approved absence out of the ASMPP calculation, the applicant had not triggered entry into the program.
DECISION
15In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
16In the Tribunal’s CAD setting up the summary hearing, the Tribunal directed the applicant to specifically make argument about why the Application should not be dismissed as having no reasonable prospect of success and/or pursuant to the s. 45.1 of the Code and point to any evidence on which the applicant will prove that the respondents’ actions, which it appears did not lead to discipline in the applicant’s file, were discriminatory within the meaning of the Code.
17I address first the issue of whether there is no reasonable prospect of success.
Does the Application have no reasonable prospect of success?
18As noted above, the focus of a summary hearing varies depending on the case. In this case, the issue is whether there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. The applicant bears the onus of establishing a prima facie case of discrimination. A prima facie case of discrimination is established when an applicant can show a distinction based on a prohibited ground that creates a disadvantage. See: Ontario (Disability Support Program) v. Tranchemontagne 2010 ONCA 593 at para. 90.
19At the summary hearing and in the parties’ subsequent submissions, there appeared to be no dispute that the applicant could show a distinction. Where the parties differed was whether or not the applicant could demonstrate that she had been disadvantaged.
20The applicant argues that she has been disadvantaged. The applicant argues that she was disciplined and/or disadvantaged relying on the historical basis of the program (the auditor’s report and its recommendation that the then attendance program be evaluated to address employees who abuse sick leave benefits); and the arbitrary standard of seven days (which she asserts can hardly be considered excessive) and its automatic rigid application to her. The applicant also argues that effect of the program has a punitive consequence on her as she “was under so much emotional stress that I would be placed in the new sick program that I did not take any sick time even when I was sick, to the dismay of my fellow co-workers.”
21The applicant states that placing her in the ASMPP rather than the more flexible attendance support program applicable to other government employees is clearly a disadvantage and intended to intimidate rather than support her.
22Finally, the applicant refers to the decision of Vice Chair Keller suggesting that she was treated contrary to this decision given that she continued to be in the program notwithstanding that her absences were as a result of a disability under the Code.
23The respondents dispute the applicant’s submissions and argue that disadvantage must be demonstrated objectively. Here, there is no discipline and no financial loss suffered and the applicant’s subjective perceptions of the program are not sufficient to establish disadvantage.
24Having regard to all of the circumstances in this Application, I find that there is no reasonable prospect that that the applicant will be able to establish disadvantage.
25In this case, the applicant was told that she was in an attendance program, required to meet with her employer to discuss her attendance on a single occasion and at that meeting was told that her attendance was being monitored, the Ministry was prepared to support the applicant to facilitate her regular attendance and that further absences relating to her WSIB injury would be precluded from making any determinations at level 4. The subsequent letter confirmed that it was not discipline and would not be used in a disciplinary context. Ultimately, these absences were removed from the ASMPP.
26Against this backdrop, I find there is no reasonable prospect that the applicant will be able to establish that she was disciplined or otherwise disadvantaged. The letter issued expressly states that it is not discipline. Further and in any event, I do not find that the language used can be reasonably construed as disciplinary. While the content of the letters and meeting references the importance of regular attendance, the letters do not chastise the applicant for her absences nor is there any statement of her employment being in any jeopardy (in fact by the time the meeting was held, the opposite is the case). I have difficulty interpreting the letter as intended to intimidate the applicant as argued by her given that there is reference to accommodation and a statement that the respondent Ministry is prepared to support and assist the applicant.
27While the applicant also relies on the historical background to argue that the program is disciplinary, I do not find this argument convincing. Whatever the historical background, the program that was developed, and more significantly, the treatment of the applicant in this incident, was expressly not disciplinary.
28I do agree with the applicant that there was a mechanical application of a standard to her circumstances. While the applicant argues that this establishes disadvantage, I find that there is no reasonable prospect that the applicant can establish that this is the case. The respondents’ approach to treat all absences the same may be incorrect given that an employer has an obligation to accommodate a person with a disability, but I have difficulty seeing how the mechanical application impacted on the applicant in any objective way given what transpired – a single non disciplinary meeting.
29Finally, the applicant argues that she was disadvantaged because her placement in the program discouraged her from taking sick time for other absences. While the impact on an applicant is a consideration in any application, I agree with the respondents that subjective perceptions of disadvantage alone are in insufficient to establish discrimination. While the applicant may have genuinely felt upset by being placed in the program, the fact remains that she had a single non disciplinary meeting with her employer about her attendance.
30While the applicant also argued that the respondents’ treatment of the applicant was inconsistent with the decision of the Grievance Settlement Board, I do not find it necessary to address this point. At this stage, the issue before me is whether there is no reasonable prospect that the applicant can establish discrimination. I find that there is no reasonable prospect.
31Given this conclusion, it is unnecessary to address the section 45.1 issue.
32The Application is dismissed.
Dated at Toronto, this 14th day of August, 2012.
“Signed by”
Kathleen Martin
Vice-chair```