Nancy Falcone v. 1458151 Ontario Ltd. o/a The Westbury and Nelson Ribeiro, 2012 HRTO 542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Falcone

Applicant

-and-

1458151 Ontario Ltd. o/a The Westbury and Nelson Ribeiro

Respondents

DECISION

Adjudicator: Mark Hart

Date: March 15, 2012

Citation: 2012 HRTO 542

Indexed as: Falcone v. The Westbury

APPEARANCES BY

Nancy Falcone, Applicant ) On her own behalf

1458151 Ontario Ltd. o/a The Westbury ) Steven Wilson, Counsel and Nelson Ribeiro, Respondents ) and Stephanie Sangster, ) Student-at-law

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code") dated June 26, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on June 13, 2007.

2As stated in my Interim Decision in this matter dated October 4, 2011 (2011 HRTO 1798), the issues raised by the applicant that are within the scope of this proceeding are that the respondents are alleged to have discriminated against the applicant because of her disability in violation of the Code by terminating the applicant from her home position of Director of Care in December 2006 and that the respondents are alleged to have violated the Code by failing to return the applicant to the Director of Care position at any point up to April 2007.

3The hearing in this matter was held on August 17 and November 1 and 2, 2011 in accordance with the expectation, expressed in the Code and the Tribunal's Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. At the hearing, I heard evidence from the applicant and the personal respondent.

The Parties

4The Westbury is a long-term care residence, which at the time of the events at issue in this proceeding was owned by Regency Care. The personal respondent Nelson Ribeiro at all material times was the Administrator of The Westbury.

5The applicant commenced her employment with Regency Care in October 2004 at another residence. The applicant was subsequently awarded the position of Director of Care at The Westbury and commenced work in that position on March 7, 2005. In the Director of Care position, the applicant reported to Mr. Ribeiro as the Administrator of The Westbury.

The Evidence

6The applicant sustained a workplace injury on August 2, 2005 as a result of which she sustained injuries to her lower back and right knee resulting in certain physical restrictions. The applicant filed a claim with the Workplace Safety and Insurance Board ("WSIB") which was accepted. As a result of her injuries, the applicant was on modified hours for the following periods: from August 18 to September 16, 2005, she worked five hours per day; from September 19 to September 30, she worked four hours per day; and from October 3 to November 21, 2005, she worked six hours per day. After this, the applicant resumed working full-time hours, although some physical restrictions remained in place.

7On February 28, 2006, a managerial performance review of the applicant was prepared by the Nurse Consultant for Regency Care. While noting that the applicant had the required knowledge to be an excellent Director of Care, was committed to ongoing learning and was resident focused, the Nurse Consultant stated in the review that the applicant needed to embrace a more consistent active and structured leadership role. Concern was expressed that the applicant needed to audit nursing staff within the home to ensure that they were adhering to established policies and standards. For example, the review noted that multiple reports had been provided with respect to quarterly reports not having been completed and resident care plans not having been reviewed as required, with no improvement in the applicant's performance in this area having been observed despite the applicant having been provided with suggestions and tools to assist her. It was also noted that these issues had been raised on Ministry compliance audits. Concern also was expressed regarding staff not having completed chart audits, pain audits and restraint audits as required, with little improvement despite this issue having been brought to the applicant's attention.

8This review states that the applicant's knowledge could be used to a greater extent out on the floors mentoring the nursing staff. It is noted that after multiple requests, the applicant had just recently implemented assigned floors for clinical supervision. Concern was expressed that the applicant's follow through on such issues needed to be better and more consistent. It also was noted that the nursing department at The Westbury under the applicant's leadership had been slow to implement the quality plan as outlined by Regency Care, and that this needed to be a goal for the upcoming year and that the applicant needed to take a significant leadership role in this process. Concern also was expressed in the review that the applicant needed to ensure that nursing budget lines were adhered to and that invoices and accruals needed to be processed as per policy and procedure.

9A separate managerial performance review dated February 28, 2006 was prepared by Mr. Ribeiro as the Administrator of The Westbury, which echoes many of the concerns expressed by the Nurse Consultant. While noting that the applicant is committed to a "Living Tapestry" approach and works toward cultivating an environment that cultivates this attitude, Mr. Ribeiro in this review expresses concern that while the applicant firmly believes she is a strong and active team player within the home, her beliefs are not supported by feedback received from peers, subordinates and superiors. The review states that the applicant had failed to provide her co-workers with the necessary support and guidance that her position requires in order for the nursing department to move forward. It is stated that the applicant needed to take a stronger leadership role with the nursing leadership team to develop and promote a positive work environment that promotes teamwork, openness and excellence in nursing practice.

10The review cites a number of items that have posed issues in terms of cultivating a team environment and being a positive role model: that the applicant had failed to follow simple directions such as carrying an "ascom" (a communications device) at all times and parking in designated spots; that she had not been holding consistent Registered Staff meetings and not holding any PCP meetings; that she had not implemented an attendance management program even though repeated timelines had come and gone; that she had not completed Registered Staff performance appraisals as required by December 2005 and had not provided Registered Staff with the opportunity to participate in the performance appraisal process, while at the same time informing the Administrator that the performance appraisals were complete even though they were not; and she had provided a lack of support and direction to the Unit Clerk as evidenced by vacation, staffing, payroll and union issues.

11Mr. Ribeiro's review notes that the applicant was at times resistive to changes that were necessary to address issues in the home, and that she failed to develop and implement her own ideas to address issues such as the increasing number of residents who required assistance with feeding and the increasing number of staff injuries. The review states that while the applicant is knowledgeable about relevant legislation, she fails to communicate this knowledge to nursing staff to ensure the home is meeting legislative requirements as well as complying with Regency Care policies and procedures. While recognizing that the applicant had faced a number of challenges at The Westbury, Mr. Ribeiro's review states that the applicant needed to demonstrate her commitment to changing her current behaviours in order to ensure that the nursing department started to move in the right direction. It is noted that the home would not be successful without the applicant taking a leadership role and guiding the nursing department in meeting Ministry of Health standards and Regency Care policy and procedures and in delivering quality care.

12The applicant did not at the time and does not to this day accept virtually all of the concerns about her work performance expressed in these performance reviews. The applicant prepared a response to Mr. Ribeiro's review which she signed on March 15, 2006. In this response, the applicant states that she is a team player who promotes mutual respect and a cooperative work environment, which she states is evidenced from feedback from her co-workers, peers and subordinates. She states that she actively seeks input from the management team members and from nursing staff, and provides in-services and mentoring to registered staff to encourage them to become team leaders and to foster autonomy. She states that she meets with the Nurse Consultant on a regular basis and that all concerns and issues are discussed. She states that due to high nursing staff turnover, much time is spent on basic nursing skills and fostering confidence in the long term care environment.

13Her response states that clinical supervision of the floors takes place on a daily basis and she lists issues discussed weekly by the nurse management team and at leadership meetings with the management team. She states that reports are gathered and reviewed on a monthly basis, that the nursing management team is strong and supportive of each other, and that she welcomes new ideas, suggestions and change. She states that to be successful in her position, she needs to delegate tasks and receive support from the management and multi-disciplinary team.

14The applicant's response states that she takes her job very seriously and always conducts herself in a professional manner. She notes her workplace injury and that she was on modified hours from August 19 to November 21, 2005. She states that she worked diligently in performing her duties, often working past her scheduled hours to meet the needs of the home. Her response states that she does not believe that her employer has been supportive related to her workplace injury.

15On March 15, 2006, the applicant met with Mr. Ribeiro to present her response to Mr. Ribeiro's performance appraisal. Mr. Ribeiro's evidence is that he had requested the applicant to reply to his performance appraisal by March 10, 2006, but the applicant failed to reply and he had to schedule the March 15 meeting in order to obtain her response. In Mr. Ribeiro's view, the applicant's response to her performance appraisal did not identify or address any of the main issues that were affecting the nursing department. Because Mr. Ribeiro's perception of the applicant's work performance varied greatly from her own perception, Mr. Ribeiro's evidence is that at the March 15, 2006 meeting he requested that they complete a performance improvement plan to address the issues affecting the nursing department.

16A performance improvement plan dated March 28, 2006 was prepared by Mr. Ribeiro that included the following components: the applicant was to meet with Mr. Ribeiro every morning for 5 to 10 minutes to review the prior day's activities and all issues, concerns and successes within the department; the applicant was to ensure that all meetings were held as scheduled and in compliance with Regency Care policies and procedures; the applicant was to prepare a plan of action within the next two weeks to ensure that care plan and quarterly report issues and documentation were addressed; the applicant was to ensure that all issues affecting the nursing department were identified prior to being brought forth by consultants; the applicant was to ensure that she followed up with all resident, family and staff inquiries in a timely manner, which included carrying her ascom when out of the office and answering her cell phone when on call; the applicant was to initiate the attendance management program to ensure all staffing issues were addressed in a timely manner; and the applicant was to ensure that all performance appraisals were completed for nursing staff.

17On March 28, 2006, Mr. Ribeiro also issued two disciplinary warnings to the applicant. The first "verbal" warning was issued due to the applicant's failure to provide her reply to the performance appraisal by March 10, 2006 as requested. This warning concludes by stating that failure to improve her response times will result in further progressive discipline up to and including termination.

18The second "written" warning was issued on the basis that Mr. Ribeiro states that at the March 15 meeting, he had advised the applicant that it was her responsibility to meet with him every morning to update him regarding issues and successes in the nursing department but that since that meeting the applicant had only met with him once and had not kept him informed or up to date regarding the progress of the nursing department. This warning concludes by stating that failure to comply with the performance improvement plan will result in further progressive discipline up to and including termination.

19On March 30, 2006, the applicant went off on sick leave due to a stress related anxiety disorder, which the applicant attributes to the issuance of the performance appraisal, the imposition of the performance improvement plan and the commencement of progressive discipline. The applicant remained off work due to this condition until September 7, 2006.

20While off work, the applicant wrote a letter to Mr. Ribeiro dated June 12, 2006 which she presented as a follow up response to her performance appraisal and the verbal and written warnings. In this letter, the applicant states that she had never received any complaints about her performance prior to receiving this documentation, and was led to believe that she was a positive asset and contributor to the organization. She makes reference to her workplace injury, and states that she is saddened that at no time was she offered support or assistance from her employer. She states that her workload, responsibilities and expectations remained the same, and she worked diligently to keep up. She states that there were numerous times when she worked past her scheduled hours to meet the needs of the facility and that she made Mr. Ribeiro aware of this situation. She states that she also informed Mr. Ribeiro that she had been taking work home and completing it after hours and on weekends to the best of her ability.

21Mr. Ribeiro, in his evidence before me, disputed that the applicant had raised with him any issue about not receiving management support for her disability prior to his receipt of her response to his performance appraisal in March 2006. Indeed, his evidence is that, when the applicant returned to work following her injury, he met with the applicant to discuss her disability and any required accommodations, and the applicant stated to him that she would be able to continue to perform the full duties and responsibilities of the Director of Care position within her restrictions. His evidence is that the applicant did not request any specific support from management in order to perform the full duties and responsibilities of the Director of Care position. He further stated in his evidence that the applicant as Director of Care would have been able to delegate to her subordinates any duties or responsibilities that she was unable to perform due to her disability. While the applicant challenged Mr. Ribeiro's evidence in this regard on cross-examination, she did not provide any specific evidence of occasions when she had requested support from Mr. Ribeiro or anyone else in management at The Westbury or Regency Care and had been denied this support.

22Mr. Ribeiro's evidence is that the applicant's June 12, 2006 letter and her unwillingness to accept the performance issues raised in her performance appraisals or the requirements of her performance improvement plan created a concern for him and for management at The Westbury and Regency Care as to whether a positive working relationship with the applicant as Director of Care could be salvaged. As a result, when the applicant ultimately returned to work on September 7, 2006, a meeting was scheduled with the Director of Resident Services for Regency Care (Marg Toni) and a Labour Relations Consultant retained by Regency Care (Elvie Hall) to review and discuss the applicant's June 12, 2006 letter.

23There is some dispute between the parties as to what transpired during the September 7, 2006 meeting. What appears not to be in dispute is that, at least as part of a transitional return to work on modified hours, the applicant agreed to return to work in a modified position to complete documentation for The Westbury's classification as a long term care facility. At the hearing, the applicant confirmed that she took no issue with this modified position and in fact felt supported by management in being offered this modified position.

24What is clearly in dispute is what was discussed at the September 7, 2006 meeting about the applicant's ability to return to the Director of Care position. The applicant's evidence is that she was told at this meeting that she would not be allowed to return to the Director of Care position due to the physical limitations related to her workplace injury. In contrast, in a letter from Ms. Hall dated October 13, 2006, it is stated that there were extensive discussions at the September 7, 2006 meeting about the applicant's ability to return to and meet the demands of the Director of Care position, and that all parties agreed that the applicant would not be able to return to the Director of Care position at that time. Ms. Hall's letter states that the applicant requested some time to think about her options and there was discussion about the investigation of other opportunities at Regency Care that might be available to her. This letter states that all parties agreed that the applicant would continue working in her modified position until November 2006 when the documentation for classification was to be completed.

25On September 19, 2006, the applicant spoke with her WSIB Claims Adjudicator (Marissa Cipilone) and told Ms. Cipilone that she had not been allowed to return to the Director of Care position because of her physical limitations. The applicant's evidence is that Ms. Cipilone said that she was not aware of this and would be contacting the applicant's employer.

26The evidence before me indicates that Ms. Cipilone spoke with Mr. Ribeiro sometime on or before October 2, 2006. The applicant's evidence is that she was told by Ms. Cipilone that Mr. Ribeiro had said that the reason the applicant was not being returned to the Director of Care position was not because of her physical limitations but because of "differences" between the applicant, Mr. Ribeiro and Regency Care. I do not have in evidence before me any memo that Ms. Cipilone may have prepared for the WSIB file regarding her discussion with Mr. Ribeiro, nor was Ms. Cipilone called as a witness to testify before me. I do have a copy of a memo prepared by Ms. Cipilone regarding her telephone discussion with the applicant on October 2, 2006 in which reference is made to the discussion with Mr. Ribeiro. In this memo, Ms. Cipilone records that she advised the applicant that she had spoken with Mr. Ribeiro and had been told that the applicant was not going back to the Director of Care position not because of the applicant's disability but "because of issues which were non work related" (I take this to mean issues that were not related to the applicant's workplace injury). This memo also indicates that Ms. Cipilone advised the applicant that she had been told by Mr. Ribeiro that the applicant was going to be transferred to another home in a management position at the same wage, and that this had been discussed with the applicant and she had agreed. The applicant denies that she agreed to any such arrangement.

27Mr. Ribeiro does not have a specific recollection of his conversation with Ms. Cipilone. However, he disputes that he would have used the word "differences" to describe the reason the applicant was not returning to her Director of Care position at that time. Rather, his evidence is that he would have made reference to "performance issues". This evidence is supported by Ms. Cipilone's memo, which uses the word "issues" as opposed to the word "differences".

28Mr. Ribeiro's evidence is that, at this point in time, no final decision had been made by management not to return the applicant to the Director of Care position. His evidence is that there were work performance issues that he was trying to address with the applicant, as recorded in the performance appraisals and in the performance improvement plan. He states that the applicant's unwillingness to accept and act upon the issues raised in the performance appraisals and performance improvement plan as expressed in her response to his performance appraisal and in her June 12, 2006 letter were of concern to him, which is why the September 7, 2006 meeting with Ms. Toni and Ms. Hall was scheduled. His evidence is that he was informed by Ms. Toni and Ms. Hall that the applicant had presented herself very well at the September 7, 2006 meeting, and that a positive working relationship with the applicant might be salvageable. As a result, following the September 7, 2006 meeting, Mr. Ribeiro's evidence remains that no final decision had been made by management regarding the removal of the applicant from the Director of Care position.

29Mr. Ribeiro's evidence is that this changed as a result of receiving a letter from the applicant dated October 3, 2006. In this letter, the applicant states that she was told at the September 7, 2006 meeting that she would not be returned to the Director of Care position because of her physical limitations and she states that she did not agree with any decision not to return her to this position. The applicant concludes this letter by asking when she would be allowed to return to her position as Director of Care.

30Ms. Hall responded to the applicant's October 3, 2006 letter by her letter of October 13, 2006 (already referenced above). In this letter, Ms. Hall expresses surprise and alarm at the applicant's misrepresentation of the purpose and discussions that occurred at the September 7, 2006 meeting. As indicated above, this letter states that there were extensive discussions at the September 7, 2006 meeting about the applicant's ability to return to and meet the demands of the Director of Care position, and that all parties agreed that the applicant would not be able to return to the Director of Care position at that time. Ms. Hall's letter states that the applicant requested some time to think about her options and there was discussion about the investigation of other opportunities at Regency Care that might be available to her. This letter states that all parties agreed that the applicant would continue working in her modified position until November 2006 when the documentation for classification was to be completed.

31In my view, the different perspectives about the September 7, 2006 meeting as expressed in these two letters may be attributable to miscommunication between the parties. Ms. Hall's letter interprets the applicant as saying that she had not agreed with the temporary transitional placement in a modified position. I do not understand that to be what the applicant was taking issue with. Rather, she was taking issue with what she understood she had been told by the WSIB, which is that she had agreed not to return to the Director of Care position. Nor do I understand the respondents' position to be that as of September 7, 2006 or as of the time that Mr. Ribeiro spoke with the WSIB or even as of the time of the October 13, 2006 letter, any final decision had been made not to return the applicant to the Director of Care position. Rather, Mr. Ribeiro's evidence is that there were performance issues that needed to be addressed and he was further concerned by the applicant's unwillingness to accept and act upon these issues. Indeed, as pointed out by the applicant at the hearing, Ms. Hall's letter states that it was proposed at the September 7, 2006 that the applicant would not be able to return to the Director of Care position "at this time", which reinforces Mr. Ribeiro's evidence that no final decision as yet had been made.

32However, Mr. Ribeiro's evidence is that the receipt of the applicant's October 3, 2006 letter caused him to conclude that a positive working relationship with the applicant as Director of Care was no longer salvageable. His evidence is that he proceeded to have discussions with his superiors at Regency Care and with Ms. Hall as the Labour Relations Consultant about the situation, and a final decision was made not to return the applicant to the Director of Care position at some point prior to the WSIB mediation that was conducted on December 15, 2006.

33In advance of the hearing, the applicant filed with the Tribunal a without prejudice letter dated December 11, 2006 that had been sent by Ms. Hall to the applicant's then legal counsel, Mr. Treloar, in advance of the WSIB mediation, together with proposed Minutes of Settlement. As I ruled at the hearing, in my view, this was a privileged communication protected by the privilege that attaches to settlement communications, and accordingly I will not rely upon this communication for any purpose in this Decision and hereby strike this document (at Tab 21) from the applicant's materials which were marked as Exhibit 4 to this proceeding.

34At the hearing, I also heard evidence about statements that are alleged to have been made by the respondents at the WSIB mediation on December 15, 2006. In particular, the applicant testified that during this mediation, she was told by the WSIB mediator, Rosalie Chiarelli, that the respondents had informed Ms. Chiarelli that the Director of Care position was "no longer available", which the applicant testified that she understood to mean that the Director of Care position had been eliminated entirely. Indeed, the fact that the respondents subsequently proceeded to fill the Director of Care position with someone else was the main reason that compelled the applicant to file her human rights complaint. The applicant also testified that during the WSIB mediation, she was told that she could continue to work in a Nurse Manager position at The Westbury, but was not told that she would be accommodated in this position. Both points are disputed by the respondents. The respondents state that they are statutorily required to maintain a Director of Care position and that their position at the WSIB mediation is that the Director of Care position was not available to the applicant. In my view, the applicant's interpretation that a statement that the Director of Care position was not available as meaning that this position was being eliminated, when she knew that the position was statutorily required, is unreasonable. The respondents also state that they were at all times prepared to accommodate the applicant in a Nurse Manager position, which was to be an additional position created specifically for the applicant.

35As I indicated at the hearing, I am extremely uncomfortable with evidence regarding what may or may not have been said by any of the parties during the WSIB mediation. Mediation discussions are intended to be confidential, for the express purpose of encouraging parties to be open and frank in their communications with the mediator and each other without fear that what they say could be used against them in subsequent litigation. To rely upon statements made by a party during mediation for the purpose of making a finding of fact or law in an adjudicative proceeding would, in my view, be antithetical to the entire purpose of mediation.

36I am further concerned that the statements attributed to the respondents by the applicant were conveyed to her at the WSIB mediation by Ms. Chiarelli as the mediator. Ms. Chiarelli did not testify before me, nor in my view would it have been appropriate for her to do so. Indeed, s. 122(3) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A states that "the mediator shall not participate in any application or proceeding relating to the matter that is the subject of mediation unless the parties to the application or proceeding consent". Mediators typically are not compellable in a legal proceeding to testify to matters shared with them during the mediation process. Once again, in my view, compelling a mediator to testify about what they were told by a part during the mediation process also would antithetical to the entire purpose of mediation. While no-one sought to compel Ms. Chiarelli to testify before me, in my view to allow the applicant to rely upon statements made by the mediator during a WSIB mediation as evidence at the hearing against the respondents would amount to essentially the same thing and would violate the purpose and intent of the mediation process.

37As a result, I will not rely in this Decision on any evidence before me regarding what is alleged to have been stated by any party during the course of the WSIB mediation on December 15, 2006.

38I will, however, rely upon evidence regarding the outcome of the WSIB mediation, as it was understood by the parties. The WSIB mediator prepared a report of the mediation which is evidence before me and which simply sets out the result of the mediation. In this memo, Ms. Chiarelli describes the result of the mediation as being that The Westbury was unable to continue to accommodate the applicant "due to restructuring of the facility" and that the applicant's last day of work would be December 31, 2006.

39The respondents dispute that this is an accurate record of the result of the WSIB mediation, as there was no "restructuring" that had taken place that played any role in their decision to remove the applicant from the Director of Care position. The evidence before me indicates that the actual result of the mediation was that the parties believed there to be an agreement in principle for the applicant to leave her employment at The Westbury as of December 31, 2006 and receive a severance package. However, no minutes of settlement were concluded at the mediation and were left to be negotiated between the employer and the applicant through her then legal counsel. As stated by the applicant's subsequent legal counsel in a letter dated May 10, 2007, "discussions which ensued regarding a settlement were unsuccessful".

40As a result of the unsuccessful settlement discussions, Mr. Ribeiro wrote to the applicant on March 22, 2007 to offer her a full-time Nurse Manager position at her current salary with any appropriate accommodation for her medical restrictions. The applicant returned to work at The Westbury in this position in early April 2007. It was shortly after this that the applicant discovered that someone else had been placed in the Director of Care position, which caused her new lawyer to write the May 10, 2007 letter taking the position that the respondents' failure to return the applicant to the Director of Care position with appropriate accommodation was discrimination because of disability in violation of her rights under the Code.

41The only other factual matter of relevance to the issues in this proceeding is that the respondents involved the services of a WSIB ergonomist to review the Nurse Manager and Director of Care positions in light of the applicant's physical restrictions, and provide an opinion on whether or not the physical demands of either or both of these positions exceeded the applicant's restrictions. The WSIB ergonomist conducted her assessment on May 24, 2007 and issued a report dated May 28, 2007. This report concluded that the physical demands associated with the Director of Care position exceeded the applicant's restrictions and therefore the position was not suitable. While the report also found that the physical demands of the Nurse Manager position also at times exceeded the applicant's restrictions and therefore may not be completely suitable for her, there were a number of suggested accommodations that could be implemented through a work trial to see if the risk factors could be decreased. The conclusion in this report that Director of Care position was not suitable is vigorously disputed by the applicant.

Analysis and Decision

42While the allegations as framed in the applicant's complaint relate to the termination of the applicant from her home position as Director of Care and the failure to return her to that position at any point up to April 2007, in fact the evidence indicates that there was one decision by the respondents which is at issue in this case, which is the decision made sometime in late 2006 to remove the applicant from the Director of Care position.

43As I shared with the parties during final argument, in my view the issues under the Code arising from the respondents' decision to remove the applicant from the Director of Care position are twofold. The primary issue is whether the applicant's disability or her WSIB claim was a factor in the respondents' decision. The secondary issue, which only arises if I find that the applicant's disability or WSIB claim was a factor in this decision and if I find that the applicant more likely than not would have returned to the Director of Care position but for consideration of any discriminatory factor, is whether the needs arising out of the applicant's disability could have been accommodated in the Director of Care position.

44With regard to the primary issue, there are two ways in which it is alleged that the applicant's disability or her WSIB claim was a factor in the respondent's decision. The first allegation is that the reasons given by Mr. Ribeiro in his evidence before me to justify the removal of the applicant from the Director of Care position are not credible and are a pretext for discrimination. The second allegation is that there were factors related to the applicant's disability that underlie at least some of the issues raised regarding her work performance which contributed to the decision to remove her from the Director of Care position. I will address each of these allegations in turn.

45With regard to the first allegation, the applicant expressed her belief that the performance appraisal prepared by Mr. Ribeiro, the subsequent performance improvement plan and the disciplinary warnings she received in late March 2006 did not arise from legitimate work performance concerns but in fact were designed to remove her from the Director of Care position because of her disability or because she had made a WSIB claim. In support of this belief, the applicant gave evidence that prior to her workplace injury, no concerns about her work performance had been raised with her by Mr. Ribeiro. In this regard, the applicant points to the letter of employment that she received when she was appointed to the Director of Care position, that provided for a three month probationary period before which the employer was to have reviewed her performance. There is no dispute that no such formal review was conducted at that time or at any time prior to her workplace injury. The applicant also takes strenuous issue with the content of her performance appraisals, with which she disagrees and does not accept as an accurate portrayal of her work performance.

46I appreciate that there is strong disagreement as between the applicant and Mr. Ribeiro regarding the evaluation of the applicant's work performance in the Director of Care position. However, it is not the role of this Tribunal to pass judgment on whether the applicant or Mr. Ribeiro was right or wrong in relation to the specific performance issues raised. The respondents need only show that the concerns about the applicant's work performance were credible, in the sense that they were sincerely held, and were not a pretext for discrimination.

47In this regard, I note a few things. Mr. Ribeiro's assessment of the applicant's work performance is largely consistent with the performance appraisal prepared by the Nurse Consultant for Regency Care. Concern was expressed by both Mr. Ribeiro and the Nurse Consultant regarding the applicant's failure to ensure that various documentation and reports, including updated resident care plans, quarterly reports, chart audits, pain audits and restraint audits, were completed as required. These issues had been raised on Ministry compliance audits.

48The applicant does not dispute that this documentation was not being completed as required or that this had been raised as a concern in Ministry compliance audits. She also acknowledged in her evidence before me the potential serious repercussions of the home not being found in compliance by the Ministry, including ultimately that its licence to operate as a long-term care facility could be revoked. Rather, it was the applicant's position in her evidence before me that it was the primary responsibility of the registered nurses on staff at the home to complete and update this documentation in a timely manner as required. Her evidence is that she did what she could to try to ensure that this was done, but that ultimately it was the responsibility of the registered nurses as part of their nursing practice.

49While it may be correct that the primary responsibility for completing this documentation resides with the registered nurses, the issue being raised by Mr. Ribeiro and the Nurse Consultant is that as Director of Care, the applicant had ultimate responsibility and accountability for ensuring that this documentation was completed in compliance with Ministry and Regency Care policies and procedures. What was being pointed out was the need for the applicant to take a more active leadership role in ensuring that this was done, given the serious potential consequences of the home not being found in compliance. The criticism in the performance appraisals was that this issue had been brought to the applicant's attention a number of times and she had not done enough to ensure compliance. In my view, this is a legitimate and credible leadership issue for the respondents to have raised with the applicant. Further, the applicant conceded on cross-examination that her ability to take steps to ensure compliance with Ministry and Regency Care policies and procedures was not affected by her disability or medical restrictions.

50Concern also was expressed by Mr. Ribeiro and the Nurse Consultant about the need for the applicant to engage in a greater mentoring role with nursing staff. One specific issue raised in the appraisals was the request to implement assigned floors for clinical supervision. While the applicant states that this ultimately was done, this does not address the concern raised that this was only implemented after multiple requests for her to do so. This too in my view is a legitimate and credible concern that is unrelated to the applicant's disability or medical restrictions.

51Concern was expressed about the slow implementation of the Regency Care quality plan in the nursing department. I did not hear any evidence to indicate that this concern lacked legitimacy or credibility or was related to the applicant's disability. Concern was expressed about the need for the applicant to ensure that budget lines in the nursing department were adhered to. This was one area where the applicant agreed that she needed to show improvement.

52In his performance appraisal, Mr. Ribeiro raised a number of other specific and significant concerns regarding the applicant's work performance, including: that she had not been holding consistent Registered Staff meetings and not holding any PCP meetings; that she had not implemented an attendance management program even though repeated timelines had come and gone; that she had not completed Registered Staff performance appraisals as required by December 2005 and had not provided Registered Staff with the opportunity to participate in the performance appraisal process, while at the same time informing the Administrator that the performance appraisals were complete even though they were not. The evidence before me indicates that these were legitimate and credible concerns, which are unrelated to the applicant's disability.

53Overall, the performance appraisals prepared by Mr. Ribeiro and the Regency Care Nurse Consultant raise quite detailed and specific concerns about the applicant's performance in her position as Director of Care, which belie the applicant's allegation that these are a pretext for discrimination. The main concerns identified appear to me to be legitimate and credible and are unrelated to the applicant's disability. Further, the notion that these evaluations were prepared as a pretext for the respondents' intention to terminate the applicant's employment or remove her from the Director of Care position because of her disability or her WSIB claim in my view is not supported by the positive nature of some of the comments contained in the appraisals. The Nurse Consultant stated that that the applicant had the required knowledge to be an excellent Director of Care, was committed to ongoing learning and was resident focused. Mr. Ribeiro stated that the applicant is committed to a "Living Tapestry" approach and works toward cultivating an environment that cultivates this attitude, is knowledgeable about relevant legislation and recognized that the applicant had faced a number of challenges at The Westbury. In my view, if the performance appraisals truly were a pretext for getting rid of the applicant from the Director of Care position because of her disability or WSIB claim, it is unlikely that they would have been softened in this manner by including positive comments about the applicant.

54In terms of the timing of the performance appraisals and the lack of any earlier performance review as contemplated by the letter of employment, Mr. Ribeiro gave evidence that three months is too short a time period in which to assess a manager's performance and his failure to do a formal three month review with the applicant was no different than for any other management position. There is no evidence to contradict this. I note that the timing of the performance appraisals was around the one year mark of the applicant's tenure in the Director of Care position, which is not unusual or suspicious, and they were prepared at a time when the applicant had returned to working full time hours for over three months.

55With regard to the performance improvement plan, in my view the matters addressed in that plan arise directly from the concerns raised in the performance appraisals and do not appear to be unreasonable. Nor was the applicant's ability to comply with the components of the plan impaired in any way by her disability.

56With regard to the disciplinary warnings, it seems to me that Mr. Ribeiro was using these warnings as a means to get the applicant's attention that she needed to take steps to address the issues raised in the performance appraisals and to demonstrate that he was serious about needing to see positive change.

57Most significant, though, is the fact that at this time, the evidence does not support a plan on the respondents' part to get rid of the applicant from the Director of Care position. Rather, in my view, the evidence supports an effort by Mr. Ribeiro to address work performance concerns that had been identified by himself and the Regency Care Nurse Consultant. What caused the shift towards consideration of whether the applicant should continue in the Director of Care position was not the work performance issues in and of themselves, but the applicant's lack of acceptance of or responsiveness to these concerns. To this day, the applicant continues to refuse to accept the legitimacy of the concerns raised. While it is fine for the applicant or indeed any employee to have their own personal opinion, in my view the applicant's failure to accept the views of Mr. Ribeiro as the person to whom she directly reported or of the Regency Care Nurse Consultant raised a legitimate and serious issue about whether a continued working relationship with the applicant as Director of Care was tenable. This would be true for any employee who received a negative or critical evaluation and simply rejected the concerns and intended to carry on as if those concerns were not legitimate.

58Even in the face of the applicant's failure to accept the legitimacy of the performance concerns raised with her, as evidenced in her written response to Mr. Ribeiro's appraisal and in her June 12, 2006 letter, the evidence indicates that the respondents still did not make a final decision that the applicant would not return to the Director of Care position. I appreciate that the applicant's evidence is that she was told at the September 7, 2006 meeting that she was not being returned to the Director of Care position because of her physical limitations. However, from the applicant's own evidence, what was discussed and agreed upon by all parties at the September 7, 2006 meeting was that the applicant would be placed in a temporary modified position for some period of time until documentation related to the certification of the home had been completed. I do not understand the applicant's evidence to be that she was told categorically at this meeting that a final decision had been made that she would never return to the Director of Care position. If the applicant had been told that, it would make no sense for her to ask, as she did in her October 3, 2006 correspondence, when she would be allowed to return to the Director of Care position. I also note the applicant's reliance on the statement in Ms. Hall's letter of October 13, 2006 that the discussion at the September 7, 2006 meeting was that she would not be returned to the Director of Care position "at this time". This evidence, in my view, supports the agreement reached by all parties that the applicant would not immediately return to the Director of Care position but would first return to a temporary modified position, which the applicant in her evidence at the hearing described as the kind of support from management for her disability and restrictions that she had been looking for.

59As stated above, what ultimately caused the respondents to make a decision not to return the applicant to the Director of Care position was her letter of October 3, 2006, which management viewed as a misrepresentation of what had been discussed at the September 7, 2006 meeting. This appears to have been the culmination of the respondents' concerns about whether a positive working relationship with the applicant as Director of Care was salvageable. After receiving this letter, Mr. Ribeiro's evidence is that management concluded that it was not and accordingly decided to remove the applicant from the Director of Care position.

60I will briefly address the applicant's evidence that, in the context of discussing her performance appraisal, Mr. Ribeiro said to her that he could get rid of her if he wanted to. Mr. Ribeiro denies making this statement to the applicant. His evidence is that at a subsequent meeting, the applicant raised with him an allegation that he had made such a statement, and he had apologized to her if that was how something he had said had come across to her. In my view, little turns on whether or not such a comment was made by Mr. Ribeiro. As already noted above, if Mr. Ribeiro's intention had been to terminate the applicant's employment at the time of the performance appraisal, it is doubtful that he would have included positive comments in her appraisal or initiated the steps set out in the performance improvement plan in order to address what I have found to be legitimate and credible performance concerns. The fact remains that Mr. Ribeiro did not terminate the applicant's employment at that time, but instead wanted to see his concerns addressed in a concrete way. It was only later, after the applicant's refusal to acknowledge or accept the legitimacy of the performance issues raised, that Mr. Ribeiro began to contemplate whether a working relationship with the applicant as Director of Care was salvageable.

61In my view, the respondents' evidence regarding the decision to remove the applicant from the Director of Care position provides a credible explanation for the decision that is not a pretext for discrimination. In my view, the performance concerns raised by Mr. Ribeiro and the Nurse Consultant in the performance appraisals were legitimate and credible. Using the performance improvement plan as a tool, Mr. Ribeiro attempted to get the applicant to address the performance issues that had been raised. When the applicant was not responsive to the concerns raised with her, Mr. Ribeiro used mild discipline to try to get the applicant's attention and demonstrate the seriousness of her need to address the identified concerns. In view of the applicant's refusal to accept the concerns raised about her performance as expressed in her response to the performance appraisal and in her June 12, 2006 letter, management arranged the September 7, 2006 meeting to assess whether the relationship was salvageable. After receiving the applicant's October 3, 2006 letter which was viewed as a misrepresentation of what had been discussed at the September 7, 2006 meeting, the conclusion was reached that the relationship was not salvageable and the decision made to remove the applicant from the Director of Care position. I find that the evidence regarding this sequence of events provides a credible explanation for the respondents' decision that is not a pretext for discrimination.

62Having made that finding, the question remains whether the applicant's disability nonetheless was indirectly a factor in the respondents' decision as underlying at least some of the issues raised regarding her work performance. The first allegation raised by the applicant is that Mr. Ribeiro's performance appraisal fails to acknowledge that during the review period, the applicant had experienced a work-related injury and had worked modified hours for some period of time. It is correct that this is not stated in the performance appraisal document. That does not, however, necessarily lead to a conclusion that the applicant's disability was a factor in the performance appraisal. As reviewed above, the main concerns raised in the performance appraisal were not affected by the applicant's disability or medical restrictions. They were more in the nature of leadership and accountability issues.

63The applicant's principal position is that because of her disability and her need for modified hours, she was unable to manage her full workload and was not supported by management in having her workload adjusted. I have two difficulties with this position. First, as I have noted above, the applicant did not provide any specific evidence regarding occasions when she requested support with her workload because of her disability and where this was denied. Second, though, is that by the time the performance appraisals were prepared in late February 2006, the applicant had been working full-time hours for over three months. Indeed, the applicant was only on modified hours for three months out of the year under review, and even during that time was working four, five and six hours per day. It is not at all clear to me from the evidence that the modified hours worked by the applicant contributed in any material way to the concerns raised in the performance appraisals.

64Moreover, the issue before me is not whether the applicant's disability was a factor in the performance appraisals, but whether it was a factor in the decision to remove her from the Director of Care position. As I have reviewed above, the decision to remove the applicant from the Director of Care position was not made because of the performance concerns raised in the appraisals. At that time, the respondents simply wanted the performance issues addressed. The decision to remove the applicant from the Director of Care position was made because of the applicant's refusal to accept the legitimacy of the performance concerns raised by the respondents and then by misrepresenting, in the eyes of the respondents, what had been discussed at the September 7, 2006 meeting. As a result, even if the applicant's modified hours contributed in some way to her failure to meet expectations as set out in the performance appraisals, I find that this was not a factor in the ultimate decision to remove her from the Director of Care position.

65There are some other issues raised in Mr. Ribeiro's performance appraisal that the applicant contends relate to her disability and need for accommodation. The first is the reference to her failure to follow simple instructions such as parking in designated spots. The applicant's evidence is that she needed to park on the lower level of the parking garage in order to have access to an elevator, as she was restricted from climbing stairs due to her injury. She states that the parking spots designated for staff on that level were often full, and so she would park in a visitor spot. After this issue was raised with her by Mr. Ribeiro, the applicant states that she parked in a designated staff spot on the upper level, but then would have to walk down the ramp to the lower level in order to access the elevator.

66Mr. Ribeiro's evidence is that there was an elevator on both levels. In my view, I do not need to resolve that conflict in the evidence. The documentation in evidence before me supports that the need for staff to park in designated spots was a bit of an ongoing bugbear for Mr. Ribeiro that he addressed repeatedly with his managers. In July 2005, prior to her injury, the applicant raised with Mr. Ribeiro that the parking space on the lower level was usually filled by the time she arrived and asked that a sign be posted to indicate that the space is reserved. Mr. Ribeiro responded by indicating that a sign would be posted. On December 6, 2005, after her workplace injury and in response to yet another e-mail from Mr. Ribeiro to the managers expressing his frustration about staff parking in non-designated spots, the applicant wrote to Mr. Ribeiro to again raise her concern that the lower level designated parking was almost always full by the time she arrived and she wondered whether the sign had made any difference. Significantly, in my view, the applicant does not raise that she needed to park in a designated spot on the lower level due to her disability and request this as an accommodation. In the absence of concrete evidence of such a request having been made, I find that the concern raised by Mr. Ribeiro in the performance appraisal regarding the applicant's failure to follow instructions to park in designated spots was not related to her disability. Nor do I regard this point to be a significant aspect of the performance appraisal, or find that it was a factor in the ultimate decision to remove the applicant from the Director of Care position.

67Mr. Ribeiro's appraisal also makes reference to the applicant having been directed to work the floor along with her team to ensure she did not exceed the budget, but notes that the applicant only told the Administrator (Mr. Ribeiro) that she refused to work the floors and did not inform the Nurse Consultant. The applicant's evidence is that she was unable to work the floors because of her disability and restrictions. It is not at all clear to me that the concern expressed in Mr. Ribeiro's appraisal is the applicant's refusal to work the floors. Rather, the concern being expressed appears to be that the applicant did not inform the Nurse Consultant that she refused to work the floors. In any event, there is nothing in this aspect of the performance appraisal that indicates that the applicant had been asked to work beyond her restrictions. Rather, the direction was for the applicant to "work the floor along with her team". In any event, in the context of the other concerns raised in the performance appraisals relating to leadership and accountability, I do not regard this issue to be a significant aspect of the performance appraisal, nor do I find that it was a factor in the ultimate decision to remove the applicant from the Director of Care position.

68Accordingly, I find that neither the applicant's disability nor her WSIB claim was a factor in the respondents' decision to remove her from the Director of Care position. In light of my finding on the primary issue before me, it is not necessary for me to consider whether the applicant's restrictions could have been accommodated in the Director of Care position.

69For all of these reasons, the Application is dismissed.