Chyc v. Newmar Window Manufacturing Inc., 2012 HRTO 376

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jolanta Chyc

Applicant

-and-

Newmar Window Manufacturing Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: February 22, 2012

Citation: 2012 HRTO 376

Indexed as: Chyc v. Newmar Window Manufacturing Inc.

appearances

Jolanta Chyc, Applicant ) Self-represented

Newmar Window Manufacturing Inc., ) Carita Pereira, Counsel

Respondent )

INTRODUCTION

1The applicant, who had a work-related injury, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 4, 2009, which alleged that the respondent discriminated against her with respect to employment because of her disability. Specifically, she alleged that the respondent failed to accommodate her disability-related needs, made harassing comments to her related to her disability, failed to give her a raise because of her disability, and disciplined and laid her off because of her disability.

2The respondent filed a Response on December 23, 2009, which denied the allegations of discrimination. Specifically, the respondent stated that it fully accommodated the applicant’s disability-related needs, denied making harassing comments to her related to her disability, did not give her a raise and disciplined her because of attendance issues unrelated to her disability, and laid her off solely because of a severe economic downturn that affected the respondent’s business.

BACKGROUND

3The hearing took place over three days. I heard the evidence of five witnesses: the applicant, three of the respondent’s managers/supervisors, and the respondent’s Human Resources (“HR”) consultant. I also admitted into evidence a number of documents, including medical documents, Workplace Safety and Insurance Board (“WSIB”) documents, employee performance evaluations, employee warnings reports, and production and layoff statistics.

4At the outset of the hearing, the respondent requested that the Tribunal strike a number of allegations from the Application. I heard submissions from both parties, and struck the applicant’s allegations that the respondent caused her disability by denying her safe and appropriate working conditions, and that the respondent provided false facts about her in their “official statements” to WSIB. In my view, these allegations were outside this Tribunal’s jurisdiction,

5Notwithstanding my ruling, the applicant repeatedly raised these allegations and attempted to present evidence about them during the hearing. I directed the applicant several times not to raise these allegations, and tried to re-focus her on her Code-related allegations, but she largely ignored my directions and, at one point, stated that she was only seeking damages in relation to the respondent’s negligence in causing her injury.

6As the hearing progressed, it became increasingly clear that the applicant was attempting to reargue aspects of her claim before WSIB because she was dissatisfied with the results in that forum. I appreciate that the applicant is a layperson whose first language is not English and she may not fully understand the distinction between workplace safety/insurance and discrimination. That said, there was no justification for refusing to follow my directions. The applicant’s lack of cooperation not only lengthened the hearing, it also undermined her case because she failed to adequately focus on her Code-related allegations.

7At the outset of the hearing, I also noted that in section 5 of the Application (“Grounds Claimed”) the applicant did not check off the ground of “sex”, but in section 8 (“What Happened”) she appeared to allege that she was treated differently because she was a woman. When I asked the applicant to clarify whether “sex” was a ground in her Application, she stated that she was not pursuing any allegations of discrimination based on “sex”, and confirmed that she was only alleging that she was discriminated against because of her “disability”.

8However, on the second day of the hearing, well after the applicant had started presenting her evidence, she requested that the Tribunal allow her to amend her Application to include the ground of “sex”. She stated that her main allegation was that her job, which involved repetitive, heavy lifting, was not suitable for a woman and caused her injury. I heard submissions from the parties and denied the applicant’s request.

9The Tribunal has a duty to dispose of applications fairly, justly and expeditiously. See s. 40 of the Code and Rule 1.1 of the Tribunal’s Rules of Procedure. In determining a request to amend an Application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

10In my view, the factors against allowing the requested amendment outweighed the factors in favour of allowing it. The factors in favour of allowing the request were that the allegations were already in the narrative of the Application, and any prejudice to the respondent in not being prepared to answer the allegations could have been cured by adjourning the hearing. The factors against allowing the request were that the applicant’s main allegation appeared to be related to negligence rather than discrimination, and allowing the request would have lengthened the hearing and increased the respondent’s costs. What tipped the scales was that the applicant had declined an opportunity at the beginning of the hearing to make such a request, and when she made her request the next day, she had already unjustifiably lengthened the hearing by repeatedly ignoring my direction not to raise allegations that were not related to the Code.

11After the applicant closed her case, the respondent requested that the Tribunal dismiss the Application, without hearing the respondent’s evidence, on the basis that the applicant failed to establish a prima facie case of discrimination. I received written submissions from the parties, and in an Interim Decision, 2011 HRTO 551, dismissed the applicant’s allegations that the respondent failed to accommodate her disability-related needs, made harassing comments to her related to her disability, and failed to give her a raise because of her disability. My full written reasons are below. I then heard the respondent’s response evidence and the applicant’s reply evidence with respect to the allegations that the respondent disciplined and laid off the applicant because of her disability.

EVIDENCE

12The respondent is a company that manufactures windows and entry doors for new home builders. The applicant started working as a general labourer for the respondent in July 2006. Her main duty was inserting glass into door frames. Her work was repetitive and involved heavy lifting.

13On July 2, 2007, the applicant received her first annual performance evaluation, which gave her an overall rating of 29/40. With respect to punctuality, she received 3/5 (acceptable performance - good). Her evaluation noted that she had four late arrivals for work and seven early departures from work. The respondent gave the applicant a raise in pay following this evaluation.

14The applicant’s arrival to and departure from her place of employment were recorded on a computer through a swipe card system. The respondent tendered into evidence several monthly records of the applicant’s swipe-in and -out times during her employment. The respondent’s HR consultant stated that one of her responsibilities was to track the attendance of employees and notify supervisors of any issues.

15In 2007, the applicant complained to her supervisor that the repetitive, heavy lifting was causing her pain. As a result, the supervisor modified the platform on which the applicant assembled the doors to reduce the amount of heavy lifting. Despite this modification, the applicant continued to experience pain, and on February 22, 2008 she saw a doctor about it.

16On February 25, 2008, the applicant submitted a doctor’s note to her supervisor, which stated that she was unable to perform heavy lifting or repetitive neck or shoulder movements for at least two weeks. The applicant applied for WSIB benefits around the same time.

17The applicant testified that, in response to her doctor’s note, the respondent “slightly” accommodated her by assigning her different duties. Specifically, she stated that the respondent assigned her to put seals on doors, but she also had to do some hole-punching and sawing, which caused her further pain.

18On February 26, 2008, the applicant’s supervisor issued her an oral warning for late arrivals to work and one early departure from work in January 2008. The respondent had a progressive discipline system with four steps: (1) oral warning, (2) written warning, (3) suspension, and (4) dismissal. This was the first warning that the applicant received during her employment.

19In her testimony, the applicant admitted that she was late several times, but stated that her lateness was due to bad weather conditions. She also stated that her one early departure from work was to attend a medical appointment. The applicant’s supervisor testified that the applicant told him that she was late because of transportation issues, and did not provide a medical note to substantiate her early departure from work.

20On March 3, 2008, the applicant met with her physician for an assessment of her abilities and restrictions. On March 7, 2008, the applicant’s physician filled out a WSIB Functional Abilities Form (“FAF”), which stated that the applicant started “light duties” in late February 2008. The FAF also stated that the applicant was capable of working with restrictions, and listed her restrictions as no lifting, no repetitive movement of her neck, shoulders and arms, limited pushing and pulling with her arms, and no exposure of her hands and arms to vibration.

21On March 27, 2008, the applicant spoke with a WSIB staff person. The staff person’s notes indicate that the applicant told her that the respondent eliminated the applicant’s lifting duties after the applicant provided the respondent with a doctor’s note. In cross-examination, the applicant admitted that the respondent removed her lifting duties after it received medical information from her physician in late February 2008.

22On March 28, 2008, the applicant’s physician filled out an updated FAF, which stated that the applicant was still capable of working with restrictions, and listed her similar restrictions to the previous FAF, but specified her right arm, shoulder, and upper back. The FAF also stated that the applicant was unable to use her right upper body parts until she was assessed by a specialist.

23On April 3, 2008, the applicant submitted a doctor’s note to her supervisor, which stated that she was capable of “sorting screws and hinges”. The respondent assigned the applicant to sort screws, which she agreed to do, and also asked her to clean grill bars, which she had difficulty doing and subsequently refused to do because it involved repetitive movements. The respondent did not discipline the applicant for refusing to clean grill bars.

24On April 7, 2008, the applicant saw a doctor who specializes in neurology. The doctor examined her and wrote a report dated April 8, 2008, which stated that during the previous month the applicant had been doing assembly, but no lifting, and during the previous week had a “very light” job that reduced the pain that she was experiencing. In cross-examination, the applicant admitted that the doctor’s statements were accurate.

25On May 15, 2008, a WSIB ergonomist visited the workplace to assess the applicant’s pre- and post-injury work duties. He wrote a report dated June 10, 2008, which made two significant findings. First, he found that the applicant’s pre-injury duties were unsuitable because there were risk factors that could aggravate her injury. Second, he found that the applicant’s post-injury “light duties”, which he specified as putting seals on doors, sorting screws, and cleaning grill bars, were suitable because they did not exceed her medical restrictions. He explained that these modified duties did not involve heavy lifting or have a production quota, and that the applicant was allowed to take breaks as needed. In cross-examination, the applicant admitted that that the ergonomist’s findings were accurate, except for his opinion that she could clean grill bars.

26The applicant testified that the main modified duty that she performed up until the end of her employment was putting seals on doors. She stated that she chose this duty because it was easier than cleaning grill bars. In cross-examination, the applicant admitted that two of the three modified duties that she performed, namely, sorting screws and cleaning grill bars, were the lightest duties that the respondent could offer to an employee on modified duties at the plant.

27On June 23, 2008, a WSIB Claims Adjudicator sent the parties a letter, which accepted the ergonomist’s report and allowed the applicant’s claim for health care benefits. The letter also stated that the applicant told the Claims Adjudicator that the respondent offered her modified duties “immediately” after she submitted a doctor’s note on February 25, 2008. In cross-examination, the applicant admitted that this statement was accurate.

28After her injury, the applicant began leaving work early on certain days. She testified that she told her supervisor that the reason for her early departures was to attend medical and physiotherapist appointments. On June 24, 2008, the respondent’s accountant sent the applicant’s supervisor an email, which indicated that after her injury the applicant had left work early on five different days, but there were no doctor’s notes to substantiate her absence. The supervisor told the accountant that the applicant had left early to attend medical appointments. The respondent then paid the applicant for the work hours that she had missed on those five days.

29On July 24, 2008, the applicant received her second annual performance evaluation, which gave her an overall rating of 26/40. With respect to punctuality, she received 2/5 (marginal performance – needs improvement) because of 18 late arrivals for work and 14 early departures from work. In the notes section, the applicant’s supervisor stated that the applicant had to improve her punctuality with respect to coming in late. In cross-examination, the applicant admitted that the number of late arrivals and early departures was accurate, but stated that her tardiness was because of the pain and lack of sleep resulting from her condition, and that her early departures were for medical appointments. The applicant’s supervisor testified that the applicant failed to respond to his request for medical documentation to substantiate her early departures. The respondent did not give the applicant a raise in pay following this evaluation.

30The respondent’s general manager testified that the credit crisis in the economy in 2007 and 2008 led to a drop in new home sales, which adversely affected the respondent’s business. The respondent tendered into evidence documents that show that in July 2008 low and medium density house sales dropped by nearly half in the Greater Toronto Area compared to the previous month, and that in August 2008 sales dropped even further. The respondent’s general manager testified that the decline had a direct effect on the respondent’s productivity, and that the respondent starting laying off employees in September 2008. According to the respondent’s records, the respondent laid off 13 employees during that month. No one in the applicant’s department was laid off.

31The respondent’s production manager testified that the respondent laid off employees mainly on the basis of seniority, but also took other factors into consideration, such as an employee’s ability to perform a variety of jobs within the plant.

32On September 15, 2008, the applicant called the WSIB Claims Adjudicator to request payment from WSIB for full day absences from work due to medical appointments. On September 25, 2008, the Claims Adjudicator notified the applicant that she would be paid Loss of Earning benefits for her full day absences.

33In October and November 2008, the respondent laid off an additional 13 employees, including one employee in the applicant’s department who had less seniority than her.

34On November 26, 2008, the applicant’s supervisor issued her an oral warning for 45 late arrivals to work since January 2008. In cross-examination, the applicant admitted that she was late 45 times, but stated that her tardiness was related to the pain and lack of sleep resulting from her condition. The applicant’s supervisor testified that the majority of times the applicant told him that she had missed the bus. He also stated that she sometimes told him that she had a medical appointment, but when he asked her to provide a doctor’s note, she failed to do so.

35In January 2009, the respondent laid off a further 36 employees, including six employees in the applicant’s department, three of whom had more seniority than the applicant. The respondent’s production manager testified that the respondent retained the applicant over employees with more seniority than her because of her situation.

36On January 30, 2009, the applicant spoke with a WSIB Claims Adjudicator. The Claims Adjudicator’s notes indicate that the applicant told her that there were lay offs and that her work hours were reduced because of the economy, not her injury. In cross-examination, the applicant admitted that this statement was accurate, and stated that the respondent had fewer customers.

37On February 2 and 3, 2009, the respondent laid off eight more employees, none of whom were in the applicant’s department.

38On February 9, 2009, the applicant’s supervisor issued her a written warning for 48 late arrivals to work and 69 early departures from work since January 2008. The warning specifically stated that the applicant left work early on January 13 and 19, 2009, arrived late for a meeting on February 2, 2009, and, despite being warned about being late for the meeting, arrived late for work and failed to attend a subsequent meeting on February 9, 2009.

39The applicant testified that she should not have been disciplined for the early departures from work because they were all for medical reasons, mainly attendance at physiotherapist appointments. She stated that the respondent manufactured discipline issues in order to later justify her lay off and termination of employment. In cross-examination, the applicant stated that she did not know if the respondent’s record of her late arrivals and early departures was accurate, but admitted that she did not have any evidence to the contrary.

40In cross-examination, the applicant also admitted that it was legitimate for the respondent to discipline her for late arrivals to work, but stated that the respondent marked her late when she swiped in at 7:00 or 7:01 AM and did not discipline other employees who arrived at the same time. She also did not deny that she was late for a meeting on February 2, 2009, but stated that she arrived at work three minutes early. She also admitted that she was late for work and a meeting on February 9, 2009, but stated that her lateness was because of poor weather conditions, and that she did, in fact, attend some of the meeting.

41The applicant’s supervisor and the respondent’s HR consultant both testified that an employee with the applicant’s attendance record would normally have been suspended or fired, but the applicant was not because they accepted her oral explanation that some of her attendance issues were related to her need to attend medical appointments. They stated that the applicant was disciplined because she was late a significant number of times without a proper explanation, and failed to provide medical notes upon request to substantiate several of her early departures.

42The applicant’s supervisor also stated that the applicant was disciplined for swiping in at 7:00 or 7:01 AM because she was expected to be at her work station at that time, not swiping in. He stated that other employees who swiped in at the same time were also disciplined. In cross-examination, the respondent’s production manager denied that the applicant’s lay off and termination of employment resulted from her discipline record. He stated that they were related solely to the plant-wide lay offs and terminations that occurred.

43The applicant tendered into evidence a number of documents that showed that she attended medical appointments in 2008. In cross-examination, however, she admitted that she did not always provide such documents to her supervisor after he asked her to provide them. Her explanation was that WSIB was responsible for providing medical documents to her employer, not her. During her testimony, the applicant stated several times that she had no obligation to provide medical documents to the respondent.

44On February 19, 2009, the respondent laid off the applicant and 14 other employees, including two in the applicant’s department who had more seniority than her. The respondent notified the applicant in writing that she was being placed on a temporary lay off because of a shortage of work. The respondent’s production manager testified that the applicant and other employees were laid off because the respondent was still experiencing a downturn in business. In cross-examination, the applicant admitted that at that time the respondent had less orders and that business was slow.

45On March 18, 2009, a WSIB Return to Work Specialist met with the applicant and representatives of the respondent to discuss the applicant’s allegation that the respondent breached its re-employment obligation. The Return to Work Specialist’s notes indicate that the applicant told her that WSIB should provide her with labour market re-entry assistance because the respondent “highly accommodated” her and similar modified work did not exist elsewhere in the workforce. In cross-examination, the applicant admitted that the statement was accurate with respect to the last stage of her employment.

46On October 27, 2009, the respondent notified the applicant in writing that her employment was terminated because of continuing economic circumstances and a shortage of work. At the hearing, for the first time, the applicant alleged that the termination was also discriminatory. She testified that the termination was discriminatory because, according to employment standards legislation, an employee who is injured or disabled cannot be terminated until two years after the injury. She also stated that the respondent recalled other employees. In cross-examination, however, she admitted that she did not have any specific evidence about the recalls.

47In cross-examination, the respondent’s general manager stated that he did not know how many employees from the respondent’s laid off workforce were recalled, but estimated that it would not have been higher than 30%. In re-examination, he stated that the recall was based on seniority, and that the applicant had a comparatively low level of seniority. The respondent also tendered into evidence documents that showed that its total shipments were 6,358 in 2008 and 3,597 in 2009, and that there was only a small increase in shipments in the last four months of 2009.

ANALYSIS

Applicable Law and Issues

48The Application relates to sections 5, 9 and 17 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of… disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person 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.

49The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.

50The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. In order to establish a prima facie case of discrimination, the applicant must prove that (1) she had, or was perceived to have, a disability, (2) she received adverse treatment, and (3) her disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

51In the case at hand, there was no dispute that the applicant had a disability within the meaning of the Code. The main dispute was whether the applicant received adverse treatment, and, if so, whether her disability was a factor in the adverse treatment.

52If the applicant establishes a prima facie case of discrimination, the respondent must establish defences and exemptions on a balance of probabilities. Although an evidentiary burden to rebut discrimination may shift to the responding party, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119.

53In this case, the issues to be decided are the following:

1. Did the respondent fail to accommodate the applicant’s disability-related needs up to the point of undue hardship?

2. Did the applicant’s supervisor harass the applicant by making comments to her that were related to her disability?

3. Did the respondent refuse to give the applicant a raise because of her disability?

4. Did the respondent issue attendance-related warnings to the applicant because of her disability?

5. Did the respondent lay off the applicant and terminate her employment because of her disability?

Did the respondent fail to accommodate the applicant’s disability-related needs up to the point of undue hardship?

54After hearing the applicant’s evidence and the parties’ written submissions with respect to this allegation, I am not satisfied that the applicant established a prima facie case of discrimination.

55In her Application, the applicant alleged that the respondent denied her proper accommodation after her injury. At the hearing, at its highest, the applicant’s allegation was that the respondent requested that she perform duties beyond her medical restrictions. The applicant’s own evidence was that she ultimately refused to perform such duties. She did not present any evidence that the respondent forced her to perform duties beyond her restrictions, or that the respondent disciplined her because of her refusal to perform such duties.

56Furthermore, the applicant admitted that the respondent immediately removed her lifting duties after it received medical information from her physician following her injury; that a month or so after the injury the respondent assigned her “very light” duties; that her modified duties did not involve heavy lifting or have a production quota; that she was allowed to take breaks as needed; that two of the three modified duties that she performed were the lightest duties that the respondent could offer to an employee on modified duties at the plant; and that the respondent “highly accommodated” her during the last stage of her employment.

57Accordingly, the applicant’s allegation that the respondent failed to accommodate her disability-related needs up to the point of undue hardship is dismissed.

Did the applicant’s supervisor harass the applicant by making comments to her that were related to her disability?

58I am also not satisfied that that the applicant established a prima facie case of discrimination with respect to this allegation.

59In her Application, the applicant alleged that after she expressed concern about being assigned to insert glass into door frames, her supervisor stated: “Who is going to do this job, me?” and “I think you are in the wrong place.” She also alleged that when she expressed an opinion about the respondent’s disposal of scrap material, her supervisor became angry and referred to her as “boss”. She stated that he repeated the first couple of comment on one other occasion, and repeated the second comment several times “for months”. She stated that all three comments were initially made during her first month of employment.

60In her evidence and written submissions, the applicant barely addressed this allegation. In view of the fact that these comments started before she had a disability, I cannot see how they are related to her disability. Furthermore, the applicant did not present any evidence that these comments were directed to her after her injury, or explain how they were related to her disability.

61Accordingly, the applicant’s allegation that her supervisor harassed her by making comments to her that were related to her disability is dismissed.

Did the respondent refuse to give the applicant a raise because of her disability?

62I am also not satisfied that the applicant established a prima facie case of discrimination with respect to this allegation.

63In her Application, the applicant alleged that after her injury she did not receive a pay raise during her second annual performance evaluation. However, in her evidence and written submissions, the applicant barely addressed this allegation. Furthermore, in cross-examination, she made an admission which undermined her allegation.

64The basic facts are not in dispute. The applicant received a pay raise during her first annual performance evaluation, which preceded her injury, but did not receive a raise during her second annual performance evaluation, which was after her injury. In her second evaluation, she also received a lower overall score, as well as a lower specific score for punctuality, which was at the level of “marginal performance – needs improvement”, because of 18 late arrivals for work and 14 early departures from work.

65The applicant testified that her tardiness was because of the pain and lack of sleep resulting from her condition, but she did not present any medical or other evidence to prove that her late arrivals were related to her disability. She also testified that her early departures were for medical appointments, but admitted that she did she did not always provide doctor’s notes to her supervisor to substantiate her early departures. For whatever reason, she stated repeatedly during the hearing that she had no obligation to provide such documentation to the respondent.

66Accordingly, the applicant’s allegation that the respondent failed to give her a raise because of her disability is dismissed.

Did the respondent issue attendance-related warnings to the applicant because of her disability?

67After hearing the parties’ evidence and their closing arguments, I am not satisfied that the applicant proved this allegation on a balance of probabilities.

68The respondent gave the applicant two oral warnings and one written warning for 48 late arrivals to work and 69 early departures from work, and two late arrivals for meetings between since January 2008 and February 2009. As mentioned above, the applicant testified that her tardiness was because of the pain and lack of sleep resulting from her condition, but she did not present any medical or other evidence to prove that her late arrivals were related to her disability. As such, I am not satisfied that the applicant established a prima facie case of discrimination with respect to this aspect of her allegation.

69The applicant also testified that she told her supervisor that the reason for her early departures was to attend medical and physiotherapist appointments. Although she admitted that she did not always provide doctor’s notes to her supervisor to substantiate her early departures, I am satisfied that she established a prima facie case of discrimination with respect to this aspect of her allegation because she established that at least some of the early departures mentioned in the warning notices were related to her disability.

70However, I find that the respondent provided a credible, non-discriminatory explanation for this aspect of the warning notices, which was not rebutted by the applicant. Specifically, I accept the evidence of the applicant’s supervisor and the respondent’s HR consultant that an employee with the applicant’s attendance record would normally have been suspended or fired, but the applicant was not because they accepted her oral explanation that some of her early departures were related to her need to attend medical appointments. In my view, this is logical and makes sense given the applicant’s high number of early departures (69) and the respondent’s four-step, progressive discipline system, in which the third step is suspension. The applicant was not suspended following her third warning.

71I also accept the evidence of the supervisor and HR consultant that the applicant was disciplined because she was late a significant number of times without a proper explanation, and failed to provide doctor’s notes upon request to substantiate several of her early departures. In making this finding, I am relying on the fact that the applicant herself stated repeatedly during the hearing that she had no obligation to provide doctor’s notes to the respondent.

72Accordingly, the applicant’s allegation that the respondent issued attendance-related warnings to her because of her disability is dismissed.

Did the respondent lay off the applicant and terminate her employment because of her disability?

73I am also not satisfied that the applicant proved this allegation on a balance of probabilities.

74The respondent laid off the applicant temporarily in February 2009 and then terminated her employment in October 2009. The applicant alleged that the respondent manufactured discipline issues in order to later justify her lay off and termination of employment, but did not provide any evidence to support this allegation. She also admitted that at that time of the lay off the respondent had less orders and business was slow. Moreover, the applicant’s assertion that employment standards legislation prohibits an employer from terminating an employee who is injured or disabled until two years after the injury is factually incorrect. I am not aware of any provision of the Employment Standards Act, 2000, S.O. 2000, c. 41 or other Ontario legislation that contains such a provision.

75I also find that the respondent provided a credible, non-discriminatory explanation for laying off the applicant, which was not rebutted by the applicant. Specifically, I accept the respondent’s general manager’s testimony, which was supported by documentary evidence that the respondent laid off a significant number of employees because of an economic downturn which adversely affected the respondent’s business. I also accept the respondent’s production manager’s testimony that the respondent laid off employees mainly on the basis of seniority, and the respondent’s documentary evidence showing that three employees in the applicant’s department with more seniority than her were laid off prior to her, and two employees who had more seniority than her were laid off at the same time as her.

76At the hearing, the applicant alleged for the first time that the termination of her employment was also discriminatory. This was somewhat unfair to the respondent because it did not have pre-hearing notice of her new allegation. In any case, the applicant did not prove this allegation on a balance of probabilities. Although she alleged that the respondent recalled other employees, she admitted that she did not have any specific evidence about the recalls. Furthermore, the respondent’s documentary evidence, which I accept, showed only a small increase in business activities in the last quarter of 2009, and the respondent’s general manager, who had knowledge of the recalls, testified that the applicant was not recalled because of her comparatively low level of seniority. The applicant did not rebut any of this evidence.

77Accordingly, the applicant’s allegation that the respondent laid her off and terminated her employment because of her disability is dismissed.

ORDER

78The Application is dismissed.