HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shahenaz Alibhai
Applicant
-and-
Aditya Birla Minas Worldwide Inc.
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Alibhai v. Aditya Birla Minas Worldwide Inc.
APPEARANCES
Shahenaz Alibhai, Applicant
Self-represented
Aditya Birla Minas Worldwide Inc., Respondent
Jonathan Maier, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and age.
2The hearing on this matter was held on October 4 and 5, 2012, February 13 and 14, 2013 and March 15, 2013. The applicant testified and the respondent presented four witnesses: Diane Caccavale, the respondent's Operations Manager for its Oshawa OnStar Program; Crystal Hughes, a Team Leader at the respondent's Oshawa location; Lorraine Stevenson, a Human Resources Specialist at the respondent's Oshawa location and Kaitana Jeffers, a Human Resources Manager for the Respondent. Each of the respondent’s witnesses adopted her summary of expected evidence disclosed pursuant to rule 17.2 and also provided additional testimony. The parties adduced 15 documents into evidence, including two books of documents containing seven tabs (for the applicant) and 47 tabs (for the respondent), respectively.
3At the outset of the hearing, the respondent requested that I bifurcate the hearing, i.e., determine first whether the respondent violated the Code, and, if so, reconvene the hearing to deal with the issue of remedy. I granted this request.
BACKGROUND
4The applicant was a Subscriber Advisor in the respondent's OnStar Program from October 31, 2005 until March 11, 2010, when the respondent terminated her employment. It is common ground that OnStar is an in vehicle security, communications and diagnostic system that is available on select vehicles made by General Motors. Subscribers (i.e., owners of General Motors vehicles with OnStar service) are routed to the respondent's call center in Oshawa for assistance with emergencies, mechanical problems or navigation. Subscriber Advisors are trained to assist subscribers and to forward them to qualified personnel when a subscriber requires assistance beyond their capabilities.
5In 2007, the applicant was unfortunately required to travel to Tanzania for extended periods due to family emergencies. In February 2007, the applicant's mother passed away in Dar es Salaam and the applicant travelled to Tanzania for the funeral, returning in March 2007. In the fall 2007, the applicant's father fell ill and was hospitalized in Dar es Salaam. The applicant was granted a compassionate leave to care for her father. Sadly, the applicant's father passed away in January 2008. The respondent granted the applicant several extensions to the leave of absence. The applicant returned to work on February 28 2008.
EVIDENCE
Performance Management / Termination of Employment
6There is no dispute that the respondent closely monitors Subscriber Advisors’ performance. Each week, Team Leaders evaluate randomly selected calls for each Subscriber Advisor which is known as "VOICE" (Vision Of Integrating the Customer Experience). The Team Leader evaluates the quality of an Advisor’s performance pursuant to criteria identified on the VOICE form. The respondent also evaluates an employee based on the time he or she spends on each call, how quickly and accurately the Advisor identifies information for customer, the time he or she spends entering relevant information during and after a call and the time he or she spends away from his or her workstation. An Advisor’s weekly performance relative to these criteria is recorded on a “SMART DISCUSSION SUMMARY” form, which the Team Leader discusses with them to identify areas of improvement. The respondent also maintains a “Performance Calendar”, which is a calendar on which management records notable information about Advisors, including performance discussions, absences etc. Subscriber Advisors also complete "weekly bulletins", which is a multiple choice quiz regarding call handling policies and procedures. Subscriber Advisors may be eligible for a monthly performance payment (i.e., a bonus) if he or she meets the respondent’s performance criteria, depending on his or her ranking relative to other Advisors, which is recorded on a monthly “Achievement Report” compiled for each Advisor.
7The applicant's evidence was that she performed well in the Subscriber Advisor role, despite health issues that became more pronounced after the death of her parents. The applicant adduced documents demonstrating that she routinely received performance pay prior to June 2009 and received pay increases in December 2005 and April 2009. The applicant also adduced awards she received in 2008 recognizing performance achievements and for volunteering to work overtime in July 2009. Finally, the applicant adduced 19 VOICE forms scoring calls she handled in late 2009 and early 2010 where she received a score of 4.0 (a perfect score) or just below. Crystal Hughes, the applicant's team leader at the time scored nine of these calls.
8The applicant testified that, despite her performance, the respondent began to subject her to unjustified performance management. The applicant stated that the respondent began to make an issue of her performance after she complained when she did not receive performance pay in December 2009 and after Ms. Hughes became her team leader, also in December 2009.
9The applicant's evidence was that Ms. Hughes subjected her to constant criticism that was anything but constructive and amounted to harassment. The applicant stated that she was constantly required to meet with Ms. Hughes to discuss her performance, sometimes in front of her peers. The applicant stated that Ms. Hughes spoke to her in a condescending, demeaning manner and that that constant criticism caused her stress. In cross-examination the applicant agreed that she mostly did not agree with the criticism of her performance.
10The applicant testified that the respondent was aware that she suffered from medical conditions because of the several medical notes she provided over the course of her employment. The applicant noted that she had been absent for extended periods because of her parents and that her health issues became evident after the loss of her parents. The applicant stated that she was ill several times and was taken from work to a hospital on occasion. The applicant contended that the respondent harassed her and terminated her employment because of her ill health.
11The applicant stated that she approached Human Resources for assistance. In particular, her evidence was that she asked to be assigned to a different Team Leader, as she seemed to be “stuck with” Ms. Hughes. However, in cross-examination, the applicant acknowledged that Subscriber Advisors "bid" for shifts each month and that bidding was based on seniority. In 2009, the applicant stated that she had about four years of service and was able to secure her preferred shift most of the time. She agreed that her preference was the day shift because she wanted to be free on evenings.
12The applicant maintained throughout her testimony that the respondent's criticism of her performance was not accurate or honest. Respondent's counsel put many performance related documents to the applicant including VOICE forms, Smart DISCUSSION SUMMARIES, entries from Progress Calendars and incentive pay Achievement Reports. Without exception, the applicant agreed with feedback reflecting positively on her performance and rejected any and all criticism. In fact, the applicant testified that the respondent falsified some of its documents to support its allegations of poor performance. In cross-examination she acknowledged that several of the documents criticizing her performance were prepared prior to Crystal Hughes becoming her team leader and were drafted by other team leaders. The applicant also acknowledged that she was assigned to the respondent’s “Performance Lab” for several months in the late summer and fall of 2009. The applicant agreed that Advisors are assigned to the Performance Lab for additional coaching and training when management judges their performance to be deficient.
13The applicant noted that some of the Achievement Reports in her possession that she disclosed were different than the documents the respondent disclosed prior to the hearing. The applicant adduced Achievement Reports regarding June, August, September, November and December 2009 and January and February 2010. In each case, the applicant's document differed from the documents purported to be the respondent's copies in terms of scores assigned, the bonus payout earned and in most cases the name of the team leader compiling the report.
14Ms. Caccavale testified that the criteria for receiving a monthly bonus payment changed in June 2009. Prior to June 2009, all Subscriber Advisors who met the respondent’s performance criteria were eligible for a payment. After June 2009, only those ranked in the top 50% of Advisors were eligible. Ms. Caccavale explained that when this change was implemented, the respondent began to calculate rankings and payments throughout each month to track expected payouts, which could change for a variety of reasons, including staff departures and fluctuations in performance. Ms. Caccavale’s evidence was that management produces “working copies” of Achievement Reports throughout the month that reflect Advisors’ ranking at the time and also final Reports that are used to determine Advisor’s actual entitlements. According to Ms. Caccavale the working copies displayed a payment amount, based on her relative rank at the time the Report was produced, whereas the final copies did not indicate any number with respect to a payout amount. Ms. Caccavale stated that the practice of producing working copies explains the different Achievement Reports in the same month, as some (i.e., those stating payment amounts) are working copies and others (i.e., without payment amounts) are final copies.
15Ms. Caccavale’s evidence was that the applicant requested to speak to her regarding the Achievement Report score assigned to her in November 2009. The score was quite low and the applicant was not eligible for performance pay. Ms. Caccavale stated that the applicant disputed the score and Ms. Caccavale agreed to review the metrics on which the score was calculated. Specifically, Ms. Caccavale reviewed the applicant’s quality results, bulletin scores and VOICE reports and concluded that the scores were accurate. According to Ms. Caccavale the applicant was not happy with the outcome and was defensive and argumentative in the meeting held to discuss the review.
16Ms. Caccavale also testified that she had several meetings with the applicant in the winter of 2009/2010 regarding her relationship with her Team Leader, Ms. Hughes. Ms. Caccavale stated that the applicant accused Ms. Hughes of singling her out and not evaluating her performance fairly. Ms. Caccavale’s evidence was that she listened to some of the applicant’s calls that had been identified as below standards and concluded that the applicant’s performance had been deficient and Ms. Hughes’ assessments were accurate and appropriate. According to Ms. Caccavale, the applicant was often argumentative when they met to discuss her concerns and consistently refused to acknowledge any problems with her tone or behaviour on the calls Ms. Caccavale reviewed.
17Ms. Hughes testified that she became the applicant's team leader in or about December 2009. Ms. Hughes stated that team leaders bid on their shifts every three months and Subscriber Advisors bid each month. As with Subscriber Advisors, seniority is the deciding factor in the team leader bidding process. Ms. Hughes evidence was that she was the second or third most senior team leader in 2009-2010 and was therefore able to select the shift she preferred. Ms. Hughes explained that she always tried to pick a day shift and to have at least one day off on the weekend. Ms. Hughes evidence was that the schedule was not set to ensure she supervised the applicant, and she was not directed to bid on the shift on which the applicant worked.
18According to Ms. Hughes, she noticed that the applicant's soft skills were deficient. In particular, Ms. Hughes stated that the applicant tended to be abrupt with customers and did not display appropriate empathy. Ms. Hughes explained that this was a serious performance issue because subscribers are often in stressful situations; therefore, providing clear, accurate information in a positive and empathetic and reassuring manner is crucial. Ms. Hughes noted that 70% of the scores on a VOICE form are allotted to these skills.
19Ms. Hughes described the process she employed to address the applicant's performance issues. Ms. Hughes provided the applicant with constructive feedback and coaching sessions and weekly SMART sessions. She stated that she would also often hold listening sessions with the applicant in which they would listen to one or more call together in the coaching room. Ms. Hughes' evidence was that during these sessions she would review feedback provided by herself or quality control analysts who had reviewed the call. Ms. Hughes stated that she used "self-discovery" techniques when the applicant listened to a call she had taken and asked her to evaluate it before receiving feedback. Ms. Hughes stated that she would also ask the applicant to indicate what she felt she had done well what she would do differently in the future. Ms. Hughes testified that the performance techniques she used to attempt to assist the applicant were no different than those she employed with other employees, although coaching sessions tended to be longer with the applicant. Ms. Hughes stated that she also met more often with the applicant, which she described as normal in cases of performance difficulties. Notwithstanding her efforts, Ms. Hughes stated that the applicant refused to accept that her performance was in any way deficient and would not accept that her soft skills needed to improve. In this regard, Ms. Hughes reviewed several SMART evaluations and VOICE records regarding individual calls that were critical of applicant's performance and with which the applicant disagreed. Ms. Hughes testified that she had no ability to alter performance management documents once they were entered into the respondent’s system and that the applicant's calls that she reviewed were selected at random.
First Written Warning
20Ms. Hughes’ evidence was that she gave the applicant a written warning on December 26, 2009 regarding call handling procedures for subscribers who use "Turn- By-Turn" (“TBT”) services. When a subscriber asks for TBT services, the Subscriber Advisor downloads a route to the subscriber’s OnStar system, which then gives the subscriber a route and directions. Advisors are required to encourage (i.e., upsell) subscribers using TBT services to upgrade to a "Safe and Sound" package, which is a more advanced navigation system. Ms. Hughes noticed that the applicant did not identify the value in making such an upgrade during a TBT call on December 14, 2009. Ms. Hughes stated that she reviewed the applicant's file and learned that the applicant received a verbal warning for the same issue on October 11, 2009. Ms. Hughes stated that her investigation revealed that two similar incidents occurred subsequent to the verbal warning, on October 20, 2009 and November 7, 2009. Consequently, Ms. Hughes concluded that a written warning was necessary, as the applicant had not improved her performance in this area. Ms. Hughes testified that she prepared the warning and that Human Resources approved.
21As noted above, Ms. Hughes testified that she delivered the warning to the applicant on December 26, 2009. Ms. Hughes stated that she played the calls in question for the applicant and pointed out the issues with the applicant's performance. According to Ms. Hughes, the applicant did not agree that there were any issues with the calls or that her performance had been lacking. Rather, she asserted that the respondent was "out to get her" without offering any support for the allegation.
Second Written Warning
22Ms. Hughes' evidence was that the applicant continued to show no improvement in her soft skills, i.e., tone and demeanor on calls or any acknowledgment that she needed to improve, despite the performance coaching provided to her, as described above. Ms. Hughes stated that she reviewed the applicant's file, which contained a verbal warning dated November 17, 2009 for similar issues. Ms. Hughes therefore concluded that a written warning was appropriate, which was again approved by Human Resources.
23Ms. Hughes' testified that she delivered this written warning on January 29, 2010. The letter identified 11 call subsequent to November 14, 2009 in which the applicant's tone, demeanor, engagement, empathy and listening skills were judged to be inadequate. The letter also warned the applicant that continued failure to meet the respondent's performance expectations could result in the issuance of a Last Chance Agreement.
Last Chance Agreement
24During a meeting on February 11, 2010 with Ms. Hughes and Ms. Jeffers to discuss bathroom breaks (see below), the applicant accused Ms. Hughes of criticizing her unfairly and holding her to unfair standards. Ms. Hughes therefore offered to have her most recent VOICE assessment (in which Ms. Hughes assigned a score of zero) reviewed by Troy Welsh, a Quality Control Analyst. Ms. Hughes stated that Mr. Welsh reviewed the call and also concluded that the applicant's performance was significantly below standard.
25Ms. Jeffers confirmed in her evidence that Mr. Welsh reviewed the call in question and that he confirmed Ms. Hughes’ assessment. Ms. Jeffers’ evidence was also that the applicant met with her several times because the applicant believed that Ms. Hughes was singling her out and holding her to a different standard than other Advisors. Ms. Jeffers stated that she advised the applicant that she had reviewed the calls in question herself and agreed with Ms. Hughes’ assessment and that she should focus on improving her skills as directed by Ms. Hughes.
26Ms. Hughes' evidence was that, notwithstanding the performance management discussions held on February 11, 2012, the applicant was involved in two similar incidents the next day, February 12, 2012. In light of the applicant's failure to improve her soft skills despite coaching and warnings about her performance, Ms. Hughes concluded that a final warning and Last Chance Agreement was appropriate. Again, Human Resources approved Ms. Hughes' decision. Ms. Hughes' evidence was that she delivered a last chance agreement to the applicant on February 13, 2010, in the presence of Debbie Hole, Team Manager. The Last Chance Agreement set out six examples in which the applicant's performance was deficient, subsequent to receiving the written warning on January 29, 2010. The document warned the applicant that further incidents of poor performance would result in the termination of her employment without notice or payment in lieu of notice. The applicant did not agree with the respondent’s assessment and refused to sign the document.
Termination of Employment
27Ms. Hughes' evidence was that she hoped the applicant's performance would improve. However, by February 24, 2010, the applicant had incurred three further incidents in which her performance was deficient because she failed to communicate well with customers. Ms. Hughes stated that as a result of the applicant's inability to improve her performance and her unwillingness to accept that she needed to improve, the respondent decided to dismiss the applicant. Ms. Hughes testified that the respondent terminated the applicant's employment on March 11, 2010.
Accommodation
Bathroom Breaks
28There is no dispute that the applicant provided the respondent with a letter dated September 21, 2009 from her doctor. In the letter, the applicant's doctor advised that she was taking medication that caused her to urinate frequently and that "she may require provisions at work to allow her to do so". The applicant's evidence was that the respondent nonetheless questioned her about her bathroom use. Specifically, the respondent asked her why she used the first-floor washroom instead of the washroom on the third floor, where her work station was located. The applicant stated that she used the first-floor washroom because the third-floor washroom was heavily used and often dirty. The applicant's evidence was that the smell of the washroom had caused her to be ill.
29In cross-examination, the applicant agreed that the respondent allowed her to take extra washroom breaks after she provided her doctor's note. The applicant acknowledged that she worked on the third floor of the facility, which is a large office building and the applicant agreed that there were washrooms on each floor. The applicant was unable to say how long it would take her to travel to either the third or first-floor washrooms. The applicant’s evidence in cross-examination was that she would take either the elevator or stairs back and forth to the first-floor depending on whether she had to wait for the elevator. The applicant also could not remember whether she had complained about the cleanliness of the third-floor washroom before the respondent spoke to her about using the first-floor washroom. Ms. Hughes’ evidence was that the respondent had no concerns with the number of breaks the applicant required, but expected her to use the closest washroom, i.e., the washroom on the third floor. Ms. Jeffers testified that she and Ms. Hughes met with the applicant on February 11, 2010 to express this expectation to the applicant and the applicant responded that the third-floor washroom was unclean and smelled. Ms. Jeffers evidence was that she advised the applicant that the washrooms were all cleaned regularly and that the respondent expected her to use the third-floor washroom. Ms. Hughes' evidence corroborated Ms. Jeffers account of this meeting.
Ergonomic Assessment
30The applicant’s evidence was that she began to experience pain in her hands, which she attributed to the significant amount of typing Subscriber Advisors are required to do. The applicant saw her doctor, Dr. Eapen, about this issue that he provided her with four short notes regarding the ergonomics of her workstation. The applicant testified that she provided the notes to the respondent. Dr. Eapen did not testify. The first note, dated November 11, 2007 requested an ergonomic chair for the applicant. A second note is dated July 11, but the number indicating the year is illegible and the applicant indicated that it may have been 2009 or 2010. As the applicant was not employed by the respondent in July 2010 find it most likely that the date was 2009. This note requested an ergonomic assessment for the applicant’s work station and chair. The third note is dated October 15 and again the number indicating the year is unclear, but appears to be either "07" or "09". This note indicates that the applicant was experiencing pain in her right wrist related to computer use and requested an ergonomic assessment for her keyboard, mouse and workstation. The fourth note is dated April 29 with the number indicating the year again being undecipherable. This note is partially illegible but refers to a wrist rest and the applicant's keyboard.
31The applicant’s evidence was that Lorraine Stevenson, from the respondents, Human Resources Department attended her workstation and adjusted her chair to fit the applicant appropriately. The applicant explained, however, that Subscriber Advisors are not assigned a specific workstation or chair. Consequently, Ms. Stevenson gave the applicant a notice to place on the chair informing coworkers not to use the chair because it had been ergonomically "set up" for the applicant. The applicant stated that the chair was set aside when she was not working to prevent others from using it. There is no dispute that these precautions were not entirely effective, as other personnel nonetheless took the chair on occasion. As a result, another chair would have to be adjusted to meet the applicant's ergonomic needs.
32The applicant's evidence was that the respondent had assigned other Subscriber Advisors specific workstations that were adjusted to meet their ergonomic needs. The applicant also asserted that the respondent did not provide her with an ergonomic keyboard and mouse pad as directed by her physician.
33In cross-examination the applicant indicated that she did not remember if she received a new mouse pad after Ms. Stevenson conducted ergonomic assessment of her workstation. The applicant stated that she was not aware that all of the Subscriber Advisors chairs were ergonomic chairs, but noted that they must be adjusted individually. The applicant also did not recall whether Ms. Stevenson conducted a second ergonomic assessment of the applicants work station in December 2009.
34Ms. Stevenson began her employment with the respondent in March 2004 and has been the Human Resources Specialist since November 2004. In that role, Ms. Stevenson is responsible for health and safety, first aid, ergonomics and general employee relations. Ms. Stevenson's evidence was that she has taken courses in ergonomics, commencing with a course at Durham College in 1995. Ms. Stevenson stated that, since 1995, she continued to take training courses in her employment previous to the respondent and completed her joint health and safety certification in 2005, which included ergonomics. Ms. Stevenson indicated that she continues to take courses regarding ergonomics and has worked with ergonomist's from The Workplace Safety and Insurance Board and return to work specialists. Ms. Stevenson's evidence was that she has conducted ergonomic assessments throughout her employment with the respondent and with previous employers. Ms. Stevenson estimated that she has been performing ergonomic assessments for at least 15 years.
35Ms. Stevenson's evidence was that all the chairs used by Subscriber Advisors are fully adjustable ergonomic chairs that can be adjusted for height, back height, lumbar support, arm rest support, leg support (by adjusting the seat pan) and also has tilt adjustments. Ms. Stevenson testified that when performing an ergonomic assessment she would first deal with the employee’s chair, to ensure that the chair was at the appropriate height, the seat pan set correctly, the lumbar support adjusted for the employee’s back and the arm rests sent to reduce pressure on the shoulders. Ms. Stevenson noted that the desks are also ergonomic and the desk trays are adjustable to allow an employee to stand or sit at his or her workstation. Accordingly, Ms. Stevenson stated that she would adjust desk trays for the employee’s arms and shoulders. Finally, Ms. Stevenson said that she would also adjust the computer monitor, which is height and tilt adjustable. Ms. Stevenson explained that while performing an ergonomic assessment the employee for whom the assessment was made would remain at the workstation to test the adjustments.
36Ms. Stevenson testified that she received an e-mail request from the applicant’s team leader to provide assistance to the applicant. The e-mail message in question is dated October 25, 2009 and indicated that the applicant was "still looking for her chair" and that she understood her mouse pads were in. Ms. Stevenson's evidence was that she conducted an ergonomic assessment of the applicant’s work station, including adjusting the applicant's ergonomic chair and keyboard, and provided her with new mouse and wrist pads. According to Ms. Stevenson, she instructed the applicant to place a sign on the chair indicating that the chair was reserved and assigned solely for her use. Ms. Stevenson stated that she recorded completing the ergonomic assessment by writing on a printout of the e-mail message requesting her assistance, which the respondent produced. These notes indicate that the assessment was completed on October 27, 2009 and also indicate that Ms. Stevenson provided the applicant with mouse and wrist pads and set up her chair and keyboard. The note also indicates that Ms. Stevenson advised the applicant to lock away the pads at the end of each shift.
37Ms. Stevenson's evidence was that she received a second request to assist the applicant about a month later. The respondent produced an e-mail message, dated November 30, 2009, from the applicant's Team Leader at the time requesting that Ms. Stevenson "set up" the applicant's ergonomic chair. Ms. Stevenson's evidence was that she attended the applicant’s work station on December 2, 2009 and again adjusted her ergonomic chair and workstation, as before. Ms. Stevenson identified a handwritten note on a paper copy of the e-mail request as hers. The note indicated that she completed setting up the applicant’s chair and desk on December 2, 2009. Ms. Stevenson explained that additional mouse and wrist pads were not needed.
38Ms. Stevenson did not recall if she assisted the applicant after December 2009. She also noted, however, she never received any complaints from the applicant about her workstation after December 2009 or any requests for additional ergonomic equipment.
February 18, 2010
39The applicant testified that on February 18, 2010 she fell ill during the first call she handled that day shortly after 8 a.m. The applicant began to feel dizzy and therefore put the customer on hold and notified her supervisor who took over the call. According to the applicant, at least one, and possibly two, first-aid responders employed by the respondent were summoned. The first-aid responders asked if she could walk and when she said she could not she was wheeled into another room. The applicant stated that after several minutes her vision started to come back and the first-aid responders decided to send her to the clinic by taxi, rather than calling an ambulance. Once at the clinic, she was seen by doctor who checked her blood pressure, which was very high. The doctor decided that she should go to the hospital and she proceeded to the emergency room at Lakeridge Hospital in Oshawa by taxi. The applicant adduced doctors’ notes confirming her attendance at both facilities and that she should be off work for 24 hours. After she left the hospital she returned to work to retrieve her car and belongings. While there, she provided the doctors’ notes to Ms. Hughes. She then drove to her home in Whitby, a trip of between 20 and 30 minutes. The applicant contended that the first-aid responders should have sent her to the hospital by ambulance – as they had done in the past – and that failure to do so put her life in danger. As described more fully below, I did not require the respondent to adduce evidence on this issue.
Analysis and Decision
40Section 5(1) and (2) of the Code state as follows:
Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
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 race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
41The applicant has the onus of proving that the respondents violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondents discriminated against her on the Code grounds alleged. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
42Where the parties’ evidence conflicted, I have determined the facts of this case, on a balance of probabilities, based on my assessment of the witnesses’ credibility. In assessing credibility, I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At pages 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
Other factors for assessing credibility include the witness’s motives, the witness’s relationship to the parties, the internal consistency of their evidence, and inconsistencies and contradiction in relation to other witnesses’ evidence: Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
Performance Management/Dismissal
43In general, there is little factual dispute between the parties regarding the events leading to the termination of the applicant’s employment. That is, the respondent applied corrective action to the applicant when it found her performance lacking in certain key respects. When the respondent saw no improvement in the applicant's performance, it issued warnings that became progressively more serious until it took the decision to dismiss the applicant for cause. The respondent characterized this exercise as normal performance management and progressive discipline. The applicant characterized the respondent's actions as discrimination and harassment because of her disability, which she indicated was high blood pressure.
44The respondent made extensive submissions urging me to find that the applicant did not establish that she actually has a disability, given the limited medical evidence provided, which it submitted was in any event hearsay as the applicant's doctors did not testify. I need not rule on this issue because, even assuming the applicant has a disability, the applicant has shown no connection between the respondent's behaviour and a disability. The applicant's evidence was that she had been a strong performer in the past and that she did not agree with the respondent's criticism of her performance or that she needed to alter her work in any way. The applicant's evidence was that her medical condition caused her to have higher absenteeism and therefore submitted that the respondent fabricated performance management issues as a pretext for dismissing her.
45The applicant pointed to the doctors’ notes she provided over the course of her employment to support absences due to illness. She also pointed to the fact that the respondent required her to provide these notes. What she did not do, however, was provide any evidence that her absences were problematic for the respondent or that the respondent ever raised any concern about her absences with her other than to require her to provide supporting documentation. The fact that the respondent required her to provide doctors notes to cover absences is not per se discriminatory and the applicant provided no evidence that she was singled out in this respect.
46Neither did the applicant establish that the performance management the respondent applied to her was fraudulent or a pretext. The applicant's chief evidence in this regard was the apparent discrepancies in Achievement Reports the respondent created regarding the applicant. These documents appear to show different results in the same time period. I accept, however, the respondent's explanation that the reports are run throughout each month to gauge Subscriber Advisor's progress relative to incentive pay eligibility and therefore are subject to change. Apart from the Achievement Reports, the respondent adduced an impressive amount of performance related documentation that indicated that the applicant was consistently failing to meet expectations in the latter half of 2009 in early 2010, which was consistent with her not receiving performance payments as indicated in the respondent's Achievement Reports. Contrary to the applicant's contention, the evidence disclosed that the applicant was not targeted by Ms. Hughes. Rather, the evidence established that several of the respondent's managerial and quality control personnel judged the applicant's performance to be unsatisfactory, before and after Ms. Hughes became the applicant’s Team Leader, including assignment to the respondent's performance lab in the late summer and fall of 2009. I also note that Ms. Hughes gave the applicant perfect and satisfactory scores on her work when warranted, which does not support the applicant’s theory that Ms. Hughes was “out to get” her. I accept Ms. Hughes' uncontradicted evidence that she became the applicant’s team leader as a result of the shift bidding procedure and not because she was assigned to monitor the applicant. The evidence was also undisputed that the applicant could have bid on different shifts had she wanted to avoid Ms. Hughes.
47It is clear that the applicant did not agree with the respondent's assessment of her performance and therefore concluded that the respondent had an ulterior purpose in its criticism of her. It may be that the respondent's assessment of the applicant's performance was incorrect, although that seems unlikely in light of the evidence before me. However, the issue for the Tribunal is not whether the respondent's assessment of the applicant's performance was correct, but whether the applicant's disability was a factor in the respondent's performance management in employment decisions about her. For the foregoing reasons, I find that evidence does not support such an inference. While the applicant alleged discrimination and harassment because of both disability and age, she adduced no evidence regarding age discrimination.
Incident on February 18, 2010
48Similarly, I find that there is no connection between the respondent's actions on February 18, 2010 and a prohibited ground of discrimination. At most, the applicant's evidence established that she did not agree with the first aid responders’ decision to send her to a clinic by taxi, rather than to a hospital by ambulance. This decision seems to have been a judgment call and the applicant gave no evidence that would permit an inference that the decision was based on discriminatory factors. Further, as discussed in Ontario (Disability Support Program) v. Tranchemontage, 2010 ONCA 593 discrimination occurs when an individual is subject to a distinction on a Code ground that results in a disadvantage. The applicant presented no evidence that she suffered any disadvantage because the first-aiders’ decision. Rather she speculated, without any supporting evidence, that the decision endangered her life. In these circumstances, this allegation had no reasonable prospect of success and I did not require the respondent to adduce evidence on this issue.
Duty to Accommodate
Ergonomic Assessment
49As noted in Crowley v. Liquor Control Board of Ontario, 2011 HRTO 1429, the first issue involved in assessing purported disability related request for accommodation is whether the applicant had a disability within the meaning of the Code at the material time. In this respect, the applicant's evidence was limited to the doctors' notes she adduced regarding requests for ergonomic assistance. The respondent objected to the admission of the medical notes adduced by the applicant because they were hearsay, as the applicant's doctors did not testify and could not be cross examined. The respondent submitted that the documents could be admitted to demonstrate a request for accommodation, but not as proof of disability or the need for accommodation, pursuant to Baber v. York District School Board, 2010 HRTO 538 paragraphs 19 to 22. I agree that the doctors' notes are hearsay and I attached no weight to them as evidence of the applicant's purported disability. I note, in any event, the notes do not state that the applicant has a disability and only one note gave any information regarding restrictions, i.e., that she was experiencing pain related computer use.
50The applicant herself gave evidence that she underwent a surgical procedure on her left arm several months after leaving the respondent’s employ to relieve discomfort she alleged was caused by excessive computer use while employed by the respondent. There was no medical evidence, establishing this connection, however, other than a letter dated August 15, 2011 written by Dr. Narini, the surgeon who performed the procedure on the applicants left arm. In the letter, Dr. Narini stated that excessive typing “certainly could be the cause” of the difficulties she experienced with her left thumb. Dr. Narini did not testify and this letter was hearsay to which I attached no weight. In any event, the letter also provided mere speculation about the cause of the applicant’s malady and says nothing about the ergonomics of her work station. In my view, the letter provided no proper basis for concluding that the issue with the applicant’s thumb was caused by a lack of ergonomic assistance. Accordingly, I find that the applicant did not establish that she had a disability related to her requests for ergonomic assistance.
51Regardless, I find that the respondent met the applicant's request for ergonomic assistance. To the extent the applicant's evidence conflicted with Ms. Stevenson's, I prefer Ms. Stevenson's evidence. The applicant displayed gaps in her recall of her interactions with Ms. Stevenson and was at times vague and evasive in her evidence. Ms. Stevenson's testimony was more detailed and precise and was supported by documents prepared at the time, her contemporaneous notes in particular. I find that the medical notes adduced by applicant are admissible for the purposes of establishing that the applicant asked for accommodation pursuant to Baber, supra, and the evidence established that the respondent treated them in this manner. The applicant submitted that these notes indicated that she required an ergonomic keyboard, which she did not receive. In my view, the notes do not support that conclusion. The only specific request was for ergonomic chair and the evidence was that all the chairs used by Subscriber Advisors were fully adjustable ergonomic chairs. Two other notes requested an ergonomic assessment and did not indicate that any specific measure was required. In my view, the respondent met this request when Ms. Stevenson, who is trained and well experienced in ergonomics, twice attended at the applicant's workstation, assessed the applicant's needs and made the adjustments to the applicant's desk and chair that she judged appropriate, including providing applicant was a new mouse pad and wrist support supports. A fourth note mentions a wrist rest and a keyboard, but is partly indecipherable and it is not all clear what was intended by this note. Moreover, there was no evidence that the applicant raised any concerns about her workstation after Ms. Stevenson's second visit with her. In these circumstances, I find that the evidence does not establish that the respondent failed to accommodate the applicant's ergonomic needs.
Washroom Breaks
52The applicant requested and was granted additional washroom breaks to address the side effects of her blood pressure medication. The issue is whether the respondent was entitled to require the applicant to use the washroom on the third floor, where she worked, rather on the first floor as had been her habit. In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 the Supreme Court of Canada described the accommodation process as a multi-party inquiry. An employee seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation, which includes accepting reasonable proposals that would meet his or her needs. In this respect, the Court noted that an employee cannot expect a perfect solution, but accommodation that is reasonable in the circumstances. The employer is in the best position to determine how to provide accommodation without undue interference to its operations and is responsible for originating proposals to provide reasonable accommodation to the point of undue hardship.
53The applicant's identified need was to take additional washroom breaks; there was no indication that she needed to use any particular washroom. The respondent was entitled to determine how it would accommodate the applicant's needs. Using the washroom on the third floor met the applicant’s need and minimized the applicant's absence from her work. In my view, the applicant should have alerted the respondent of any concerns regarding the cleanliness of the third floor washroom rather than unilaterally deciding to use the washroom on the first floor. However, the applicant did not complain about the third-floor washroom until she was confronted about going to the first floor. The applicant gave no evidence that cleanliness continued to be an issue after the respondent directed her to use the third-floor washroom. Accordingly, I find the respondent provided the applicant with a reasonable accommodation regarding her washroom breaks.
54The Application is dismissed.
Dated at Toronto, this 24th day of September, 2013.
“Signed by”
Douglas Sanderson
Vice-chair