HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jared Davis
Applicant
-and-
Nordock Inc. and Gerry Stretch
Respondents
DECISION
Adjudicator: Brian Eyolfson
Indexed as: Davis v. Nordock Inc.
APPEARANCES
Jared Davis, Applicant
Mark Dewar, Representative
Nordock Inc. and Gerry Stretch, Respondents
Ian A. Johncox, Counsel
Introduction
1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 14, 2011, and alleges discrimination with respect to employment on the basis of disability. In particular, the applicant, Jared Davis, alleges that his employment as a drill press operator with Nordock Inc. (“Nordock”) was terminated because he attended a few doctor’s appointments. The Application names both Nordock and its Plant Manager, Gerry Stretch, who was the applicant’s supervisor, as respondents.
2The applicant commenced employment with Nordock on July 28, 2010. He explains in his Application that he broke his ankle, at home, on November 9, 2010, and was off work until January 3, 2011. He supplied his employer with medical documentation in relation to this absence.
3The applicant also explains in his Application that, in April and May of 2011, he was required to be absent from work on five occasions due to having “blood work” done, and on one occasion for an ultrasound, and that these absences were in relation to hypothyroidism. He asserts that he told Mr. Stretch that he had hypothyroidism, and that Mr. Stretch was fully aware of, and fine with, all of his medical appointments. The applicant alleges that, on May 20, 2011, Mr. Stretch terminated his employment, stating that he “missed too much work”.
4In their Response to the Application, the respondents submit that, not including occasions on which the applicant’s tardiness was excused due to medical treatment, he arrived late on 16 occasions without any valid excuse, and he received several verbal warnings regarding his excessive tardiness. They submit that the applicant also received a written warning on November 1, 2010, for an absence without explanation, and that he was absent, without explanation, on May 17, 2011. The respondents also submit that the applicant was warned on numerous occasions about spending too much time away from his work station, and that he was observed visiting co-workers, chatting, and taking excessive breaks.
5The respondents submit that Mr. Stretch decided to terminate the applicant’s employment based on the applicant’s excessive unexcused tardiness and absences, as well as the applicant’s habit of abandoning his work station during company time. The respondents deny that the applicant informed them that he was diagnosed with hypothyroidism, but assert that the applicant was excused for all “absences/tardiness” that resulted from his medical appointments. They submit that these occurrences played no role in the decision to terminate his employment. Rather, the decision to terminate the applicant’s employment was based on the number of unexcused absences that he had accumulated.
EVIDENCE
6The applicant and the individual respondent, Gerry Stretch, gave evidence at the hearing. The parties also provided the Tribunal with several documents.
The applicant
7The applicant was asked about a November 1, 2010 “NOTICE OF VERBAL WARNING” document that stated he was given a verbal warning for not calling in or showing up for a mandatory day on a Saturday. He remembered receiving it and testified that he signed it after arguing about it. He testified that he had called in sick on the Friday and said that he would try to come in for the Saturday. The applicant was shown a respondent note, listing seven employees, including the applicant, who were absent for inventory. Beside the applicant’s name it states, “no call”, “no show”, and “sick”. The applicant testified that he did call in, and the respondents knew, but he still got reprimanded when he was sick. He testified that this was the only verbal warning that he received from the respondents. In cross-examination, he testified that he phoned in on the Saturday, “first thing” in the morning. He also testified that he was told to just sign the form and “it goes away after a year.”
8The applicant testified that he broke his ankle and was off work from November 9, 2010 until the New Year. He told his employer what was going on and brought in medical notes. He testified that there was no issue with being off at first, but, toward Christmas, Mr. Stretch asked him, “do you like your job?” and said, “I heard you went out west” to work. The applicant testified that he asked Mr. Stretch how he could work with the “boot” he had. He also testified that he told Mr. Stretch the he could not believe that he was saying that. He testified that Mr. Stretch said he “better get back as soon as” he could. The applicant testified that he got a note from a fracture clinic and went back to work before he should have. Medical notes provided by the respondents from the applicant’s personnel file, dated November 10 and 18, and December 2 and 23, 2010, confirm that the applicant could not work until 10 days after December 23, 2010.
9The applicant testified that, in March 2011, he requested time off because his son was sick. He testified that he spoke to Mr. Stretch who told him how to request the time off in order to get paid. An “Employee Vacation / Time Off Request Form” indicates that the applicant requested March 15 and 16, 2011 off, and that vacation pay be paid if available.
10With respect to a notice of verbal warning document dated April 19, 2011, and signed by Mr. Stretch, which states that the applicant was given a verbal warning for “missing time and lates”, the applicant testified that he did not remember it, did not see it, and his signature is not on it. He testified that he was not aware of any time off that this related to, unless it related to medical appointments.
11With respect to a third notice of verbal warning document dated May 12, 2011, and signed by Mr. Stretch, which states that the applicant was given a verbal warning for not being at his work station, the applicant testified that he never saw it, was not presented with it, and his signature is not on the document.
12The applicant testified that he was diagnosed with hypothyroidism in January 2011, and started to go to medical appointments for hypothyroidism. He testified that he advised Mr. Stretch that he was diagnosed with hypothyroidism the day after he was diagnosed, and that another employee was there and they discussed it. He testified that he advised his employer that he needed time off for blood work because of hypothyroidism, and that his hypothyroidism was “no secret”. He testified that Mr. Stretch said that he was to go to appointments after work, but he told Mr. Stretch that he could not go after work. Mr. Stretch then told him to make his appointments in the morning and come in late. The applicant testified that he made Mr. Stretch aware that he had to have blood work done on a regular basis, which he testified was every two weeks, and that he told Mr. Stretch the night before and also called in on the morning of his appointments. He testified that he asked Mr. Stretch if he needed medical notes, and Mr. Stretch said, “no, save your money.” With respect to the time that the applicant required off for blood work, he testified that it was about three or four hours a month up until May 2011, then it was one time per month.
13The applicant testified that, on the day his employment was terminated, Mr. Stretch called him into his office around 3:00 p.m. and said that he was missing too much time, and he said in response that Mr. Stretch “knew about it.” He testified that Mr. Stretch then said that he missed time back in November 2010, and he said in response that Mr. Stretch “knew” and that he brought him “notes.”
14In cross-examination, the applicant was asked why he did not use any of his employer’s forms in relation to his appointments. He testified that he asked if he needed to and Mr. Stretch told him not to because “he knew”, with the exception of the time that Mr. Stretch told him to fill out a form to see if he could get paid for the time. He also testified that he had no access to the forms, and could only get them through Mr. Stretch.
15The applicant confirmed that he used a “Time Off Request Form” for an absence for an appointment on October 8, 2010. When asked why he did not continue to use the forms, he testified that it was because Mr. Stretch was his supervisor and said it was “okay”, and he questioned why he would fill out a form unless Mr. Stretch told him to fill out a form. The applicant testified that he told Mr. Stretch the night before his appointments that he would be absent the following day for an appointment and that if Mr. Stretch would have given him a form he would have filled it out. He also testified that if Mr. Stretch would have said fill out a form for medical appointments in the morning he would have.
16In cross-examination, the applicant was asked about having to be at his work station at 7:30 a.m. He testified that he would “swipe” his time card on the way in to work, go and get stuff, and then go to his work station. He agreed that if he swiped his card at 7:30 a.m., he was not going to be at his work station at 7:30 a.m. The applicant also testified that often his card did not swipe and he would have to get Mr. Stretch to do it for him. He also testified that there were times he was not in at 7:30 a.m. because of medical appointments and one time because he had to defrost the windshield on his car. The respondent’s documents confirm that the applicant called on January 31, 2011 and said he was “running late, thawing out windshield”, and arrived at 7:50 a.m.
17With respect to the applicant’s time sheets, he was asked about swiping at 7:31 a.m. on August 23, 2010. He testified that it could have been Mr. Stretch swiping for him. He was also asked about swiping at 7:43 a.m. on August 25, 2010. He testified that it was probably a card problem, however, a document provided by the respondents described as “Timeline Notes from Personnel File” states that the applicant left a message indicating that he was “running late”.
18The applicant was asked about swiping at 9:52 a.m. on September 8, 2010. He testified that it was probably a medical appointment, but was unsure, as he only obtained documents from his doctor for November 2010 onwards. The respondents’ documentation states that the applicant called and would be late arriving, however, no reason is stated.
19The applicant was asked about swiping at 8:24 a.m. on February 2, 2011, and testified that he thought it was probably due to blood work. The respondents’ documentation states “late arrival” and the applicant’s documents do not indicate a medical appointment on that day. He was also asked why he left early, at 2:48 p.m., on February 7, 2011. He testified that he thought he went to one of his son’s plays, and that Mr. Stretch knew. He testified that he could not just leave work without telling Mr. Stretch.
20The applicant was asked about arriving at 7:32 a.m., 7:37 a.m. and 7: 34 a.m. on March 1, 7, and 17, 2011, respectively. He testified that, again, it was probably his time card not working.
21The applicant was asked about leaving early, at 2:37 p.m., on April 29, 2011. He testified that he could not just leave early, and that Mr. Stretch knew about it, and that it was for one of his kids’ plays.
22The applicant was asked about being absent on May 17, 2011. He testified that his absence was for an appointment to have an ultrasound on his neck, and that he would have called in, and another supervisor knew too. He testified that he could not get a copy of that appointment note.
Gerry Stretch
23Mr. Stretch testified that he has been a production supervisor with Nordock for 10 years, and that there are about 40 employees. He indicated there were two other supervisors under him.
24With respect to Nordock’s practice for time off, Mr. Stretch testified that notice needs to be given, and that employees come to him and ask for a “time off or vacation sheet.” He confirmed that regarding the applicant’s October 8, 2010, and March 15-16, 2011, absences, the applicant came to him, and that the Time Off Request Forms had to be signed by him or another supervisor.
25On more than one occasion in his evidence, Mr. Stretch denied telling the applicant that he did not need to use a time off form. He testified that everybody had to use a form, and that, with respect to medical appointments, employees have to use a form because he cannot remember everything. Mr. Stretch testified that it was the applicant’s responsibility to fill out the form, and that he does not get the form for the applicant. In cross-examination, Mr. Stretch testified that the time off forms were in his office, so the applicant would have to see him or one of his two supervisors under him to obtain the form.
26Mr. Stretch was asked if he told the applicant that he did not need to take time off for blood work. He agreed that it was quite possible, but testified that he did not recall telling the applicant that he had to take medical appointments after 4:00 p.m.
27Mr. Stretch testified that the number of times the applicant was a few minutes late for work was not typical and was not tolerated. He also testified that when swiping in, it takes about 15 minutes to get one’s gear and find out what is to be done for the day before getting to the work station. He testified that he noticed the applicant’s lateness. In cross-examination, Mr. Stretch acknowledged that if everyone swiped in at 7:30 a.m., there could be a “slow down”.
28Mr. Stretch was asked if he recalled times when the applicant said he left early to go to his child’s play. Mr. Stretch testified that he did not recall. He was asked if a request like that was made, would he have asked for a form to be filled out. He testified that, if the applicant left work for an hour or so early, “no” he would not.
29In cross-examination, Mr. Stretch testified that there was no “requirement” if the applicant wanted to leave an hour early, and that the applicant would just have to tell him. He again explained that if the applicant left an hour or so early, a form was not required, and Mr. Stretch would personally indicate that the applicant left an hour early on his time sheet.
30With respect to the applicant’s absence for the mandatory inventory on October 30, 2010, Mr. Stretch testified that he found out after the fact that the applicant was sick. With respect to the November 1, 2010 verbal warning, Mr. Stretch said that he gave the applicant a warning on November 1, 2010, about his “lates” and “missing too much time”, and testified that he “couldn’t deal with it”. However, the actual document only refers to the applicant not calling in or showing up for the mandatory day on October 30, 2010. Mr. Stretch could not recall the applicant arguing with him, or telling the applicant that the warning would be gone in a year. Mr. Stretch also testified that, with respect to the 7 individuals who were absent for the mandatory inventory, they decided to discipline everybody no matter what the reason was for the absence.
31With respect to the April 19, 2011, verbal warning document, Mr. Stretch testified that he filled it out and put it on the applicant’s personnel file, and that he might have offered the applicant a copy. He testified that it is their procedure to show the employee the letter and the employee’s choice to sign it or not. He testified that sometimes he will tell an employee that he is warning them and use the form as a record. He testified that he always talks to an employee before writing them up and that he talked to the applicant about absences from his work station. In cross-examination, Mr. Stretch testified that he discussed “time missed” with the applicant.
32He also testified that the applicant was not at his work station all the time, other supervisors were saying they could not find him, and he was gone for 15 minutes at a time when he should not be gone more than five minutes. He testified that this affects production, and there were complaints that the applicant was absent and not in his area.
33Mr. Stretch testified that the applicant was “above average” with respect to his “work ethics” when he first started but changed. He explained that the applicant “went off with his leg”, and that was fine, but not long after he came back, he was calling in and being late.
34With respect to the May 12, 2011 verbal warning document, Mr. Stretch testified that, again, the applicant was not at his work station. He testified that he recalled just warning him and not giving him a copy. He testified that he told the applicant that he had to get his “act cleaned up” and be at his station, and show up for work. He testified that the applicant said he had some problems, but Mr. Stretch did not recall what they were.
35Mr. Stretch also testified that, normally, he asks employees to sign verbal warning documents and most sign them. When asked why there are two verbal warning documents for the applicant, without the applicant’s signature, Mr. Stretch testified that if someone is doing a decent job, he gives them “a break” and just warns them. He then takes the document and places it “on record”. He may tell an employee three times before he writes it up. He also testified that there is a written warning document that is used after an employee gets “verbally written up” three times. However, he did not recall if there was a policy in relation to that.
36Mr. Stretch was asked if it was a problem for Nordock when the applicant broke his ankle and was off. He testified that they had to get someone else to put in his place. When asked if he put pressure on the applicant to come back early, he denied that he did. He also testified that the sooner the applicant came back, the better it was, but he could not recall telling the applicant that. He agreed that he made a comment about the applicant going out west, but testified that he was just being funny or sarcastic. He did not recall saying anything about the applicant liking his job, or getting back to work. With respect to the applicant’s broken ankle, Mr. Stretch ultimately testified that it had no role in the termination of the applicant’s employment.
37When asked if the applicant’s appointments for hypothyroidism had any role in the termination of the applicant’s employment, Mr. Stretch denied that they did, and testified that others had to take time off to go to medical appointments. When asked if he asked the applicant for medical notes, he testified that he did not recall. He again testified that he would not have told the applicant that he did not have to complete time off forms, and that he reminded the applicant to do them. He did not recall why the applicant was not completing the forms.
38Mr. Stretch testified that the applicant’s late attendance and missed time was worse as compared to others. He testified that he was not given a reason for the applicant’s absence on May 17, 2011. He testified that the applicant’s employment was terminated because of time missed and his time away for his work station. He denied telling the applicant that his employment was being terminated for missed time due to his broken ankle. He testified that he told the applicant that his employment was being terminated for “overall time off” and he never said anything about appointments. He testified that it was “too much time” and that he lost his patience.
39Mr. Stretch testified that the applicant was hired as a punch press operator and later moved to the drill press. In cross-examination, he acknowledged that the change could be characterized as a promotion, and testified that the applicant was promoted because he was doing a good job at that point.
40Mr. Stretch was asked when he was aware that the applicant needed time off for blood work. He testified that it was “over the fall” but he did not recall what month. He testified that he did not recall discussing with the applicant the time off that he was going to require. When asked about the applicant breaking “his leg”, Mr. Stretch could not recall when it was, how long the applicant was off work for, nor any discussion with the applicant regarding his injury.
41Mr. Stretch was referred to a phone memo to him dated April 5, 2011, indicating that the applicant left a message that he would be about an hour late. He did not recall any discussion with the applicant about why he was late that day. He also could not recall asking the applicant why he was absent on May 17, 2011. Mr. Stretch also did not recall asking the applicant why he was consistently late, and testified that he did not remember all of his conversations regarding the applicant’s lateness.
ANALYSIS AND DECISION
Relevant Code provisions
42Sections 5(1) and 9 of the Code state as follows:
5(1). Every person has a right to equal treatment with respect to employment without discrimination because of… disability.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
43In addition, “disability” is defined in s. 10(1)(a) of the Code, in part, as follows:
- (1)(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device…
Assessment of credibility
44To the extent that any issues addressed in this Decision turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:
…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.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the 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 the 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 (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Does the applicant have a disability within the meaning of the Code?
45The applicant states in his Application that he broke his ankle on November 9, 2010. Medical documentation provided by the respondents, from the applicant’s personnel file, indicates that the applicant was unable to work as of November 10, 2010 as a result of his broken ankle. A medical document dated December 23, 2010 states that the applicant may return to work after 10 days. The applicant testified that he attended a fracture clinic.
46The applicant also explains in his Application that he has hypothyroidism. He testified that, after he was diagnosed with hypothyroidism, he started to attend medical appointments related to that. He also testified that he needed time off work for blood work related to hypothyroidism, and explained that he needed about three or four hours off a month up until May 2011, then it was one time per month.
47The respondents did not dispute that either the applicant’s broken ankle or his hypothyroidism constitute a disability within the meaning of the Code.
48In the circumstances, I am satisfied that both the applicant’s broken ankle, which caused him to be absent from work for several weeks, and his hypothyroidism, which required him to attend medical appointments on a regular basis, are disabilities within the meaning of the Code.
Was the applicant subjected to discrimination on the basis of disability when his employment was terminated?
49The applicant submitted at the hearing that his employment was terminated solely because of the time off work that he required related to hypothyroidism.
50The applicant provided a document signed by his doctor dated December 5, 2011. The document confirms that the applicant was seen in his doctor’s office on November 23, 2010, and January 21, March 21, and April 19, 2011. The document also confirms that the applicant was at a laboratory to give blood in order to test his thyroid on March 28, April 5, and May 13, 2011. He also attended an x-ray department on November 10, 2010. Other documentation from the applicant’s personnel file, consistent with his evidence, confirms that the applicant’s November 2010 medical visits were in relation to his ankle, and he was off work on January 21, 2011 because of an ear infection. Consequently, while the applicant testified that he needed time off work for medical appointments and blood work in relation to hypothyroidism commencing in January 2011, the medical documentation he provided suggests that he did not require time off work for these reasons until late March 2011.
51The April 19, 2011 notice of verbal warning document from the applicant’s personnel file refers to “missing time and lates”. The “Timeline Notes from Personnel File” document provided by the respondent has the following entry for April 19, 2011: “left message will be about hour late, arrived 11:12, Gerry Stretch spoke to Jared again about too much time off (verbal warning noted in file)”. As set out above, the document signed by the applicant’s doctor confirms that he attended his doctor’s office on April 19, 2011.
52The applicant testified that he discussed being diagnosed with hypothyroidism with Mr. Stretch, and advised his employer that he needed time off for blood work because of hypothyroidism. He testified that he made Mr. Stretch aware that he had to have blood work done on a regular basis, and that he told him the night before, and also called in on the morning of, his appointments.
53In their Response, the respondents submit that the applicant never informed Mr. Stretch or anyone in management that he had been diagnosed with hypothyroidism, but that he did inform Mr. Stretch that he was going to be late on several occasions in April of 2011 for doctor’s appointments, and that he was excused from all “absences/tardiness” that resulted from these appointments. They submit that these occurrences played no role in the decision to terminate the applicant’s employment.
54While it appears from Mr. Stretch’s evidence that he was aware that the applicant needed time off for blood work, he did not specifically indicate in his evidence whether or not he was aware that the applicant had hypothyroidism. He was asked if the applicant’s appointments for hypothyroidism had a role in the termination of the applicant’s employment, and denied that they did. However, Mr. Stretch did not actually deny knowing that the applicant had hypothyroidism.
55The applicant, on the other hand, was very clear in his evidence that he advised Mr. Stretch that he had hypothyroidism, and that he needed time off for blood work in relation to hypothyroidism. The applicant’s evidence in this regard is consistent with the statement in his Application that he told Mr. Stretch that he had to get blood work done, and that he told Mr. Stretch that he had hypothyroidism after he found out. The applicant confirmed on cross-examination that his Application was accurate.
56I also note that, throughout his evidence, Mr. Stretch recalled very little with respect to any conversations that he had with the applicant. In the circumstances, I prefer the evidence of the applicant that he told Mr. Stretch that he had hypothyroidism and that he required time off work for blood work in relation to hypothyroidism, and I find that the applicant did so.
57I also accept the applicant’s evidence that Mr. Stretch did not require that he provide medical notes for his appointments during this time period, or complete Time Off Request Forms. The applicant was clear in his evidence that he asked and Mr. Stretch told him that he did not need to provide medical notes. Mr. Stretch, on the other hand, testified that he could not recall if he asked the applicant for medical notes.
58With respect to Time Off Request Forms, while Mr. Stretch denied more than once telling the applicant that he did not need to use a form and testified that he reminded the applicant to complete them, he also testified more than once that he would not have asked for a form to be filled out for a request to leave an hour or so early. Mr. Stretch also testified that employees come to him and ask for a time off form, and that the forms are in his office, so an employee would have to see him or one of his two supervisors under him to obtain and complete a time off form. He also testified inconsistently, however, that it was the applicant’s responsibility and that he does not get the form for the applicant. The applicant testified that he had no access to the forms, and that he could only get them through Mr. Stretch.
59In the circumstances, I prefer the evidence of the applicant that Mr. Stretch told him that he did not need to complete a time off form for his medical appointments, and that he would have completed a form had Mr. Stretch asked him to do so and provided him with a form. The applicant’s evidence regarding his time off forms is supported by Mr. Stretch’s evidence that he kept these forms in his office. I also find that the applicant’s evidence in this regard is consistent with his evidence that he told Mr. Stretch about his appointments the night before and phoned in on the morning of his appointments as he was concerned that Mr. Stretch might forget.
60The “Timeline Notes from Personnel File” document indicates that the applicant left a message that he would be about an hour late on March 28, and April 5 and 19, 2011. The document also indicates that he left early on March 21, and arrived late on May 13, 2011. The document signed by the applicant’s doctor confirms that the applicant had medical appointments on these five days.
61Contrary to the respondents’ assertion that the applicant’s absences for medical appointments related to hypothyroidism played no role in the decision to terminate his employment, I find that absences for medical appointments related to the applicant’s hypothyroidism did, in fact, play a role in the decision to terminate his employment. Although the April 19, 2011 notice of verbal warning document does not specify what time missed it is in relation to, it was given on a date that the applicant attended a medical appointment and left a message with his employer that he would be about an hour late. Further, the respondents’ Timeline Notes from Personnel File document states that Mr. Stretch spoke to the applicant again about too much time off and refers to a verbal warning being noted on file. In the circumstances, I find that the applicant’s absence on April 19, 2011 was for reasons related to his hypothyroidism. I also find that this absence was at least one of the reasons for the April 19, 2011 notice of verbal warning, and ultimately played a role in the termination of the applicant’s employment by the respondents.
62In the circumstances, I also prefer the evidence of the applicant that he did not see the April 19, 2011 notice of verbal warning document. His signature is not on the document, and Mr. Stretch testified that it is the respondents’ procedure to show the document to an employee and the employee’s choice to sign it or not. He testified that, normally, he asks employees to sign verbal warning documents and most sign them. Mr. Stretch also testified that he filled out the document and put it on the applicant’s personnel file, and that he might have offered the applicant a copy. Although he testified that he always talks to an employee before writing them up, he testified in his evidence in chief that he talked to the applicant about absences from his work station, rather than time missed, in relation to the April 19, 2011 document. When asked why there are two verbal warning documents for the applicant without the applicant’s signature, Mr. Stretch seemed to testify that he sometimes just warns an employee and then takes the document and places it on their file. In any event, in my view, the applicant had a good recollection of events in the workplace, and it is more likely than not that he would have recalled receiving a warning for time missed on a date that he was absent due to a medical appointment.
63In addition, I find that, at the time the April 19, 2011 verbal warning document for “missing time” was created, the applicant had also been absent on March 28 and April 5, 2011, for blood work to test his thyroid. Further, I find that it is more likely than not that the applicant’s absence for a medical appointment on March 21, 2011 was for reasons related to hypothyroidism, in light of the timing of that appointment. He was also subsequently absent on May 13, 2011 for blood work to test his thyroid.
64Mr. Stretch testified that the applicant’s employment was terminated for reasons including time missed and that he told the applicant that his employment was being terminated for “overall time off” but he never said anything about appointments. He testified that it was “too much time” and that he lost his patience. While Mr. Stretch testified that the applicant’s appointments for hypothyroidism had no role in the termination of his employment, it does not appear that the respondents maintained any record of when the applicant was absent due to appointments related to hypothyroidism, in order to distinguish these absences from any other absences, despite the applicant telling Mr. Stretch that he required time off work in relation to hypothyroidism as I have found above. I have also found, as set out above, that Mr. Stretch did not require the applicant to provide medical notes for these appointments, nor did he require that the applicant complete Time Off Request Forms for these appointments.
65I have found, in particular, that the applicant’s absence on April 19, 2011 was for reasons related to his hypothyroidism, and that this absence was at least one of the reasons for the April 19, 2011 notice of verbal warning. This notice of verbal warning was, in turn, a factor in the respondents’ decision to terminate the applicant’s employment. The respondents’ Timeline Notes from Personnel File document states as follows: “Let go at end of shift for missing too much time, 3 verbal warnings given in regards to not staying at work station during work hours and time missed.”
66With respect to time missed by the applicant, Mr. Stretch testified that he went through the “time cards” and the doctor’s notes that they had. He did not recall receiving any doctor’s notes that were not in the applicant’s personnel file. Medical notes in the applicant’s personnel file provided by the respondents confirm absences related to the applicant’s broken ankle and for an ear infection on January 21, 2011. While there do not appear to be any medical notes in the applicant’s personnel file for his absences related to hypothyroidism, the absences that I have found that were related to the applicant’s hypothyroidism are recorded in both the applicant’s time sheets and the respondents’ Timeline Notes from Personnel File. There is no indication in the respondents’ documents that these absences are for medical reasons. As such, I find that it is more likely than not that all of the applicant’s absences due to hypothyroidism were a factor in the decision to terminate his employment.
67With respect to the respondents’ position that the applicant’s employment was terminated due to excessive unexcused tardiness and absences, not related to disability, and abandoning his work station during company time, I note that the applicant did not deny being absent from his work station when he should have been there. With respect to tardiness, the applicant testified that often his card did not swipe and he would have to get Mr. Stretch to do it for him. However, I note from the applicant’s time card report that he was in late approximately 14 times between August 23, 2010 and May 11, 2011. Four of these times, the applicant was considerably more than just a few minutes late, and there is no indication that these late arrivals were in any way related to disability. I accept, therefore, that there were times when the applicant should have been at his work station but was absent.
68I also note that the applicant was absent for the entire day on May 17, 2011, just three days prior to his employment being terminated. The respondents’ Timeline Notes from Personnel File document states that the applicant called on that day to say that he would not be in but no reason for the absence is stated. The applicant testified that he was absent on May 17, 2011 for an ultrasound on his neck, and that he could not get a copy of that appointment note. However, the applicant also stated more than once in his Application filed July 14, 2011, that his appointment for an ultrasound was on April 20, 2011. He also indicates in his Application that he told Mr. Stretch that he would have to leave at 2:00 p.m. on April 20, 2011, to be at the clinic for his ultrasound. In the circumstances, I am not satisfied that the applicant has established that his absence for the entire day on May 17, 2011 was related to a disability within the meaning of the Code.
69Although I have not found that the applicant’s May 17, 2011 absence was related to disability, and I have accepted there were times when the applicant was absent from his work station for reasons that do not appear to be related to disability, I have found, as set out above, that the applicant required time off work to attend medical appointments due to a disability within the meaning of the Code, and that he advised his employer. I find that the applicant’s absences to attend medical appointments related to his hypothyroidism were nevertheless a factor in the decision to terminate his employment. I find therefore that the applicant was subjected to discrimination, contrary to the Code, when his employment was terminated by Mr. Stretch on May 20, 2011. I also find the respondents, Nordock Inc. and Gerry Stretch, to be jointly and severally liable for the violation of the Code.
REMEDY
70The Tribunal’s remedial powers are set out in s. 45.2(1) of the Code, which provides, among other things, the power to order monetary compensation and restitution for loss arising out of the infringement, including compensation and restitution for injury to dignity, feelings and self-respect. The Tribunal may also direct any party to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Code.
71In his Application, the applicant seeks monetary compensation, including lost wages and compensation for emotional and financial stress, and human rights training for Nordock’s supervisors and managers.
Lost income
72It appears from the respondents’ documents that the applicant was paid one week in lieu of notice when his employment was terminated. The applicant testified that, after his employment was terminated, he received Employment Insurance. He then worked for one month, on contract, in December 2011, and, at the end of January 2012, commenced part-time employment. When asked in cross-examination about not having any evidence of a “job search” after May 20, 2011, the applicant testified, “I didn’t, you’re right.”
73I agree with the respondents’ submission that there is no evidence that the applicant made any efforts to find another job after his employment was terminated by the respondents, at least until he obtained employment in December 2011. In the absence of any evidence whatsoever that the applicant attempted to mitigate his losses by seeking alternate employment for several months after his employment was terminated, I do not find that it is appropriate to award compensation for lost income. See Duliunas v. York-Med Systems, 2010 HRTO 1404, at paras. 92-97.
Injury to dignity, feelings and self-respect
74Prior to section 45.2(1) of the Code coming into force, the Tribunal had identified the relevant criteria to be used in assessing the appropriate award of damages to compensate for the infringement of rights enumerated in the Code which have an intrinsic value and for mental anguish. See Sanford v. Koop, 2005 HRTO 53. Although the remedial provisions of the Code no longer refer to “mental anguish”, the Tribunal has found the criteria developed in previous cases helpful in determining the appropriate damages for injury to dignity, feelings and self-respect. See S.H. v. M(…) Painting, 2009 HRTO 595, and Hughes v. 1308581 Ontario, 2009 HRTO 341. The Divisional Court, in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC), 295 D.L.R. (4th) 425, held that the following are among the factors that Tribunals should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment.
75In addressing relevant factors in determining damages for injury to dignity, feelings and self-respect, in particular cases, the Tribunal provided the following comments in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras. 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53, 2005 HRTO 53 at paras. 34-38.
76In O’Brien v. Organic Bakery Works Inc., 2012 HRTO 457, at paras. 46-47, the adjudicator reviewed the Tribunal’s awards for disability-related discrimination involving a termination of employment, and agreed with the applicant that the range of awards was generally $10,000 to $20,000. The Tribunal noted, however, that where $15,000 to $20,000 has been awarded, the cases have involved either multiple breaches, conduct occurring over a longer period of time, or evidence of significant psychological or emotional consequences.
77In the present case, the applicant submits in his Application that the termination of his employment by the respondents affected him in a lot of ways. He states that he did not miss work because of not wanting to go in, but due to medical reasons, and this really bothers him and he gets upset. He refers to financial difficulties associated with not working. He states that he could no longer afford to pay rent and had to move his family to another city to live with his mother. He also states that he feels depressed, that he cannot support his family the way he should, and that this has caused emotional strain between him and his wife.
78At the hearing, the applicant testified that he really liked working at Nordock, and thought that he would be there for a long time, although he had worked there for less than 10 months at the time his employment was terminated. He testified that the termination of his employment resulted in mental stress, although he did not receive any treatment for stress. He also referred to having two children to care for.
79I accept that the applicant felt stressed and depressed as a result of the termination of his employment, and that he experienced financial challenges. In my view, an award at the lower end of the range would be appropriate in the present case. Having regard to all of the circumstances, I find an award of $12,000 to be appropriate compensation for the impact of the discriminatory termination of the applicant’s employment on his dignity, feelings and self-respect.
Future compliance
80Mr. Stretch testified that he did not think that Nordock has an accommodation policy. While the respondents attached a Nordock violence and harassment policy to their Response, there is no indication that Nordock has a human rights policy that addresses the duty to accommodate.
81In my view, the respondents could benefit from developing a human rights policy that addresses the duty to accommodate, and from training on the policy. I find that it is appropriate in the circumstances to order that the respondents develop a human rights policy, and implement training on the policy, as set out below.
ORDER
82The Tribunal orders as follows:
Within 30 days of the date of this Order, the respondents shall pay the applicant $12,000.00 for injury to dignity, feelings and self-respect;
Pre-judgment interest is payable on the above amount from May 20, 2011, to the date of this Decision, in accordance with the Courts of Justice Act. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act;
Within 120 days of the date of this Order, the respondents shall, at their own expense:
(i) develop and implement a workplace human rights (anti-discrimination and anti-harassment) policy, that includes the duty to accommodate in the workplace, and distribute the policy to all supervisors, management and staff;
(ii) provide a mandatory human rights training program about human rights and, in particular, the duty to accommodate, for all supervisors, management and staff who perform supervisory and/or human resources functions; and,
- Within 130 days of the date of this Order, the respondents shall confirm to the applicant’s representative in writing that the steps set out in paragraph 3 of this Order have been complied with.
Dated at Toronto, this 27th day of November, 2012.
“signed by”
Brian Eyolfson
Vice-chair