Sleegers v. Spicer’s Bakery of Aylmer Ltd., 2013 HRTO 174

Human Rights Tribunal of Ontario

B E T W E E N:

Joanne Sleegers

Applicant

-and-

Spicer’s Bakery of Aylmer Ltd.

Respondent

DECISION

Adjudicator: Eric Whist

Date: January 31, 2013

Citation: 2013 HRTO 174

Indexed as: Sleegers v. Spicer’s Bakery of Aylmer Ltd.

APPEARANCES

Joanne Sleegers, Applicant

Self-represented

Spicer’s Bakery of Aylmer Ltd., Respondent

Dana Haklander, 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 on the basis of disability.

2The applicant was hired by the respondent as a part-time bookkeeper in October 2009. On November 23, 2010 she experienced a heart attack and was absent from work until January 4, 2011. On February 14, 2011, she was hospitalized for an additional seven days for an unrelated health matter. On February 22, 2011 she went to tell the respondent of her availability to return to work but was told that she was terminated. The applicant is of the view that she was a good employee and that the decision to terminate her employment was because of her health related absences from work. The respondent submits that the applicant’s employment was terminated because of poor work performance.

3A one day hearing was held. I heard testimony from the applicant, Mary Jansen, the applicant’s sister, and Louis Sleegers, the applicant’s spouse. For the respondent, I heard testimony from Steve Nakonecznyj, the respondent’s owner and president, Tracy Nakonecznyj, the respondent’s daytime manager (and spouse of Steve Nakonecznyj) and Jay Gilliland, the respondent’s accountant.

DECISION

4The Application is dismissed. I find that the only reason the applicant’s employment was terminated was for poor work performance. I do not find that the applicant’s dismissal is tainted by a further discriminatory concern about the applicant’s availability for work because of health related reasons.

SUMMARY OF THE EVIDENCE

The Applicant’s Work Performance

5The applicant was hired in October 2009 to initially work 16 hours a week. The respondent had not previously employed a bookkeeper (the bookkeeping had been done by Mr. and Ms. Nakonecznyj) and the applicant was required to address a backlog of work. The applicant subsequently worked eight hours a week. The applicant’s work duties included entering data to record sales, credit card transactions and invoices from suppliers as well as the payment of bills and invoices. She was responsible for ensuring the respondent’s bank accounts were reconciled. She was also responsible for payroll and filing WSIB related documents.

6The applicant testified that she did have difficulties with some of her job duties. She testified that she had difficulty reconciling the credit card account because of the difficulty in getting receipts from staff. She testified that she did make an overpayment to one vendor and did make bookkeeping errors over two pay periods in 2010 whereby staff were paid their CPP and WSIB contributions rather than having them deducted from wages. This resulted in a $5,000 overpayment to staff that the respondent did not completely recover. The applicant testified that she was criticized for this payroll mistake but that this was the only time the respondent raised an issue with her performance. The applicant testified that otherwise she believed that she managed her job responsibilities appropriately.

7The applicant testified that she had taken an accounting course at Fanshawe College and was also employed as a part time bookkeeper for another local employer. She noted that in 2010 Jay Gilliland, the respondent’s accountant, had recommended her for a book keeping position with another small local business.

8Mr. Gilliland has been the respondent’s accountant since 2009. He testified that his principal service for the respondent, as with his other corporate customers, was to advise on and prepare tax returns and the filing of required financial information. In this capacity, he regularly reviewed the financial information the respondent was collecting which included meeting with the applicant, examining the applicant’s bookkeeping work and, if necessary, providing her with direction.

9Mr. Gilliland testified that he believed that he first met the applicant in October 2009 and that at some point soon thereafter he would have asked her questions about her bookkeeping. He testified this would have included asking her about what data she was entering into the computer and that he would have looked at her balance sheets. Mr. Gilliland testified that he concluded that the applicant was in over her head and that he told this to Mr. and Ms. Nakonecznyj. He testified that he advised the applicant to take a QuickBooks course and a basic accounting class. The applicant acknowledged that Mr. Gilliland had recommended that she take a QuickBooks course, that she subsequently began, but did not finish.

10Mr. Gilliland testified that in his subsequent dealings with the respondent, he had concerns with how the applicant was managing. He testified that the applicant was not reconciling payments and expenses in the credit card account. He testified that the “Cash Clearing” Account, an account that should have been reconciled on a daily or weekly basis had, after one three month period, a surplus of over $57,000. Mr. Gilliland testified that in order to assist the applicant he recommended to her that if she was unsure where or how to make a financial entry that she place this entry into a “Ask Jay” account. Mr. Gilliland would then help her make the determination as to where these funds should be allocated. He testified that this account quickly grew to over $30,000.

11Mr. Gilliland testified that during the period October 2009 to November 2010 the applicant made data entry errors that required his time to resolve. This raised concerns for him as to whether the information that the applicant was entering was sufficiently accurate for the respondent’s needs.

12Mr. Gilliland testified that he did think that the applicant had generally improved over time but the accounts were not where they should have been. He testified that he believed the applicant had a good work ethic and was pleasant. He acknowledged that he had recommended her for another part time job but noted that the other business was 10% of the size of the respondent’s business and the bookkeeping requirements involved dealing with significantly fewer invoices.

13Mr. Nakonecznyj testified that he liked the applicant but that he had an ongoing issue with the quality of her work as she had a lack of familiarity with what needed to be done. He testified his concerns also included the fact that the applicant could not produce a monthly report showing sales by date, store location over multiple years. He testified that the applicant did not set up the payroll payment process correctly and that later the applicant made a mistake with payroll whereby employees were overpaid which led to employees being upset when money had to be clawed back. He testified that the applicant made mistakes with WSIB filings that resulted in the respondent being penalized. He testified these were basic mistakes that he hoped would be fixed. He testified that in his view the applicant’s performance did not improve.

14The respondent tendered as exhibits financial documents to corroborate their claim about the applicant’s payroll errors and the Cash Clearing Account reaching a balance of over $57,000.

Fall 2010 Meeting

15Mr. Nakonecznyj testified that he and Ms. Nakonecznyj held a meeting with Mr. Gilliland in the fall of 2010 to discuss their end of year financial figures (the respondent’s financial year end is July 31). He testified it became clear that Mr. Gilliland was exceeding his allocated hours under his contract with the respondent because of the time Mr. Gilliland was required to spend reviewing the applicant’s work. He testified that Mr. Gilliland told them that the bookkeeping job was beyond the applicant’s grasp and that in order to reduce his hours they would have to make a change.t. Mr. Nakonecznyj testified that a decision was made at this meeting to let the applicant go. He testified that he felt that the company would first have to get through the Christmas rush, but after that, when business slowed down, they would let the applicant go. He testified that he asked Mr. Gilliland whether he knew another bookkeeper in the area but he did not.

16Mr. Gilliland testified that he had a meeting with Mr. and Ms. Nakonecznyj in September or October 2010 to discuss the applicant’s work. He testified while there had been some improvements in the applicant’s work, for example, with the cash clearing account, there were still problems, for example, the applicant was not applying GST and HST correctly. He testified that he was concerned about having to deal with Revenue Canada based on the state of the respondent’s books. He testified that he was explicitly asked by Mr. and Ms. Nakonecznyj for his recommendation on whether to keep the applicant. He testified that he recommended that the respondents find another bookkeeper and that it was “time to move on”. He testified Mr. and Ms. Nakonecznyj asked him if he knew another bookkeeper in the area. He said he did not, but that he agreed that he would look for another bookkeeper for the respondent. He testified that Mr. and Ms. Nakonecznyj stated that they were no longer going to keep the applicant, but that they would wait until they had found a replacement for her. He testified that Mr. and Ms. Nakonecznyj told him that they were busy and asked if they could continue with the applicant until they found a replacement. Mr. Gilliland testified that he told Mr. and Ms. Nakonecznyj that, in his opinion, they could.

17Ms. Nakonecznyj, the daytime manager, testified that she and Mr. Nakonecznyj had several meetings with Mr. Gilliland about the applicant’s performance. She testified that Mr. Gilliland said that he believed the applicant was in over her head and should be replaced. She testified that this took place in a meeting prior to November 2010 when the applicant had her heart attack. Ms. Nakonecznyj testified that the applicant was not immediately let go because the respondent was opening a new store.

The Applicant’s Heart Attack and Return to Work

18The applicant had a heart attack on November 23, 2010. The applicant had angioplasty surgery and was hospitalized until December 3, 2010. She returned to work on January 4, 2011. She testified that when she told Ms. Nakonecznyj on November 30, 2010 about her heart attack, Ms. Nakonecznyj told her to take as much time as she needed to recover. She testified that she returned to her same job duties and that she required no accommodation in order to carry out her job duties. Mr. Nakonecznyj testified that after the applicant returned to work he asked the applicant if she required any accommodation including whether she had an issue with negotiating the stairs at work and that the applicant indicated that she did not.

19On February 14, 2011 the applicant was hospitalized for an additional week for an unrelated health issue. The applicant testified that she did not tell Mr. or Ms. Nakonecznyj about the reasons for her hospitalization. Ms. Nakonecznyj testified that she thought the hospitalization may have been related to the applicant’s heart attack.

20Mr. Nakonecznyj testified that in January 2011, he observed that the applicant was entering sales data collated over several days, meaning that he was not getting daily sales figures and was not able to compare sales figures with daily sales figures from previous years. He testified that this information was particularly important to him and that it was the applicant’s failure to be able to provide this information that reinforced his view that it was now time to move on. He testified that he discussed terminating the applicant’s employment with Ms. Nakonecznyj but that it was at this point the applicant became sick and was again absent from work. He testified that he thought the applicant’s absence from work was a natural break point that lent itself to terminating her employment. He testified that it was agreed that Ms. Nakonecznyj would tell the applicant, as Ms. Nakonecznyj and the applicant both worked days (Mr. Nakonecznyj, as a baker, generally works nights). He testified that he and Ms. Nakonecznyj discussed how they didn’t want to stress the applicant and decided that they wouldn’t discuss their concerns about the applicant’s job performance with her. Mr. Nakonecznyj testified that the timing was not ideal as a replacement had not been found. However, business had slowed and Ms. Nakonecznyj now had more time for the books and that the situation with the applicant was not improving.

21Ms. Nakonecznyj testified that for her the need to terminate the applicant’s employment came to a head in January 2011 when she realized that the applicant was not providing daily sales figures for the respondent. She testified that she and Mr. Nakonecznyj discussed on several occasions in January, their plan to terminate the applicant’s employment. She testified that the plan was for Ms. Nakonecznyj to do the books given that they did not have a replacement for the applicant.

Termination of Employment on February 22, 2011.

22The applicant testified that when she visited the respondent’s store in Aylmer on February 22, 2012 after being discharged from the hospital, she was told by Ms. Nakonecznyj that they no longer needed the applicant and that they needed a person on a consistent basis, a person they could rely on. She testified Ms. Nakonecznyj made no mention of the applicant’s job performance or that she had been doing her job poorly.

23Mary Jansen is the applicant’s sister. She is a school principal. She testified that she was present when Ms. Nakonecznyj fired the applicant. She testified that she heard the applicant tell Ms. Nakonecznyj that she was ready to return to work and Ms. Nakonecznyj saying the applicant would not be needed back at work. She then heard the applicant ask if she was being fired to which Ms. Nakonecznyj said yes. The witness testified that she heard Ms. Nakonecznyj tell the applicant that they needed a person to be there on a more consistent basis.

24Both the applicant and Ms. Jansen testified that the exchange between Ms. Nakonecznyj and the applicant took place at the front of the store with two other persons nearby. Both spoke about how humiliating being fired in public was for the applicant. .

25Ms. Nakonecznyj testified that the applicant’s arrival at work on February 22, after her absence from work was unexpected. She testified that the ensuing exchange between her and the applicant took place at the back of the store and that she did not recall anyone else present. She testified that she would not have fired the applicant in front of customers or clients.

26Ms. Nakonecznyj testified that she acted quickly because she was afraid that she would otherwise lose her gumption to proceed with the termination. She testified that the applicant was terminated because she could not do her job properly, not because of her absence from work.

27Ms. Nakonecznyj testified that Ms. Jansen asked whether the applicant’s employment was being terminated because the applicant was sick. Ms. Nakonecznyj testified that she said “no”, that the applicant was being terminated because she could not do her job properly. Ms. Nakonecznyj subsequently testified that she did not tell the applicant why she was being terminated and didn’t because the applicant’s sister was present. She testified that she did not remember stating that they needed someone on a regular or consistent basis.

28I heard brief testimony from the applicant and her spouse, Louis Sleegers, about the impact the termination of her employment had on her and her family, about the financial and emotional pressures it caused. I do not need to detail this testimony in light of my decision to dismiss the Application.

ANALYSIS

The Law

29Section 5(1) of the Code provides that:

5.(1) 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, age, record of offences, marital status, family status or disability.

30The legal onus or burden is on the applicant to bring forward sufficient evidence to prove that she experienced discrimination in violation of the Code. The standard of proof is on the balance of probabilities. This means that the Tribunal must determine whether it is more likely than not that the violations of the Code alleged by the applicant occurred. The case law is also clear that in order for conduct to be a violation of the Code, it is not necessary that the sole or even primary reason for the conduct be discriminatory. Even if there are legitimate reasons for terminating an employee, if one of the factors or considerations was discriminatory, then the termination will be held to be a violation of the Code. See, Giguere v. Popeye Restaurant, 2008 HRTO 2 at para. 65.

31The applicant states in her Application that she was discriminated against because of “health issues (i.e. heart attack)”. The applicant’s heart attack occurred in November 2010. She returned to work in January 2011. It was agreed that she did not ask for or need accommodation because of her heart attack, related surgery or an ongoing heart related condition. She was fired on February 22, 2011 after a further absence from work during which she was hospitalized for an unrelated health issue.

32There is no evidence before the Tribunal that the applicant did, in fact, have a health issue or a medical condition at the time her employment was terminated that would constitute a disability. It is not clear that she continued to have an unrelated medical condition, about which, the respondent was apparently unaware. There was no evidence that she continued to have a heart condition or that she continued to have medical issues in January/February 2011 arising from her medical treatment. However, the definition of disability extends to a perceived disability or to the actual or perceived possibility that an individual may develop a disability in the future. See, for example, Chen v. Ingenierie Electro-Optique Exfo Inc. 2009 HRTO 1641 and, Hinze v. Great Blue Heron Casino, 2011 HRTO 93 As such, if the respondent’s decision to terminate the applicant’s employment was, in any way based on her previously having a heart attack and/or because the respondent perceived the applicant had a resulting heart condition or could develop a heart condition or had a further medical condition that would affect her ability to attend work and perform her job in the future this would constitute discrimination based on disability.

Findings

33I find that the respondent did have reasonable concerns about the applicant’s work performance. The applicant acknowledged some shortcomings with her work, most particularly a mistake she made with payroll and difficulties she had reconciling the credit card account. However, I find the respondent’s evidence that there were additional issues with the applicant’s work performance to be credible. I find Mr. Gilliland’s testimony that as the respondent’s accountant he had concerns about the applicant’s performance to be particularly significant and to which I attach considerable weight. I accept his testimony as an experienced accountant that there were issues about the applicant’s ability to reconcile accounts and that the applicant was making data entry errors. I accept that he had such concerns about the applicant’s basic bookkeeping skills that he recommended that she take further training, training that the applicant did not complete.

34I also find Mr. Nakonecznyj credible when he stated that he was of the view that the applicant made a number of errors of concern to him including what he felt was a very basic payroll error (adding CPP and WSIB deductions to employees’ pay instead of subtracting them) and that he was frustrated that the applicant could not provide the sales data he wanted. The respondent also disclosed documentary evidence that, in my view, corroborated its claims related to the applicant’s performance.

35The applicant testified that she was not made aware of the respondent’s alleged concerns about her performance and that she was never subject to progressive discipline. The respondent’s witnesses generally admitted that they were not as direct with the applicant about her performance as they may have been. In particular, Mr. Nakonecznyj, who I generally found to be a thoughtful, forthright and credible witness, described his efforts to work with the applicant and his reluctance to criticize the applicant’s work. However, I do not find the fact that the respondent may not have provided the applicant with fulsome feedback about her performance to be an indication that they did not have concerns with her performance. I am satisfied, based on the evidence before me, that the respondent did have significant and ongoing issues with the quality of the applicant’s work.

36I further find that the respondent did make a decision in the Fall of 2010, prior to the applicant experiencing a heart attack, that it wanted to terminate the applicant’s employment. Again, I accept the testimony of the respondent’s witnesses, in particular Mr. Gilliland and Mr. Nakonecznyj, when they describe a meeting in the Fall of 2010 at which Mr. Gilliland recommended that the respondent “move on”. The evidence of this meeting was highly consistent and specific on detail, such as Mr. Gilliland’s use of the phrase “need to move on” and Mr. and Ms. Nakonecznyj asking Mr. Gilliland if he could identify other available bookkeepers.

37I accept that the respondent decided that it would not terminate the applicant’s employment at that time. There was evidence before me that they were interested in finding a replacement and that they had further concerns about Christmas and the opening of a new store. Mr. Gilliland credibly testified that he was asked whether the respondent could manage with the applicant in the short term and he said they could.

38I find Mr. and Ms. Nakonecznyj’s testimony that they continued to have concerns with the applicant’s performance in January 2011 to be credible. They both testified about the frustrations with the applicant’s failure to provide needed sales figures in January 2011, an issue that Mr. Gilliland had also identified as having been of concern to Mr. Nakonecznyj. However, more importantly, I accept that in January 2011, Mr. and Ms. Nakonecznyj discussed proceeding with terminating the applicant’s employment. I find that their explanations for deciding to take action in January to be credible; that they continued to have concerns about the applicant’s performance, that they were no longer so busy and that while they did not have a replacement for the applicant they had a plan whereby Ms. Nakonecznyj would do the bookkeeping.

39I accept Mr. Nakonecznyj’s testimony that he and Ms. Nakonecznyj also decided that they would not tell the applicant that she was being dismissed for performance issues. Mr. Nakonecznyj’s testimony on this point was, like his testimony in general, thoughtful, forthright and candid. I accept that he was trying to end a relationship with an employee whom he liked and had tried to coach but had determined was not working out. I also find the decision that they would not tell the applicant about her performance because of the stresses it might cause to be consistent with the respondent’s repeatedly expressed concern about the applicant’s well-being.

40I do not find that the applicant’s absence from November 23, 2010 to January 3, 2011 was a factor in Mr. and Ms. Nakonecznyj’s determination in January 2011 to proceed with the applicant’s termination. I note that the respondent encouraged the applicant to take as much time off as required following her surgery, that the applicant did not request or require accommodation upon her return to work. There was no evidence and no argument that the applicant’s health affected her ability to do her job either before November 23, 2010 or in January 2011 when she returned to work.

41There is an issue as to what occurred when the applicant was dismissed on February 22, 2011. The applicant and Ms. Jansen testified that Ms. Nakonecznyj specifically told the applicant that they needed someone on a more consistent basis, a comment Ms. Nakonecznyj testified that she did not recall making. The issue is whether such a comment, if made, would indicate that one of the reasons the respondent was terminating the applicant’s employment was because of concerns that she would not be available for work for health reasons. If this was a factor in the decision to fire the applicant, I would find that the decision to terminate the applicant’s employment was tainted by a discriminatory concern and that the applicant’s Code rights were violated.

42I heard conflicting evidence as to whether Ms. Nakonecznyj told the applicant that they needed to have someone on a more consistent basis. In my view, it is likely she did. I prefer the applicant and Ms. Jansen’s testimony on this point. Their recollections of the events of February 22 were clear and their testimony about what happened was consistent and forthright. By contrast, Ms. Nakonecznyj’s recollection of events was less specific and her testimony was inconsistent on one particular point. She testified that she did mention that the applicant could not do her job properly and then testified that she did not refer to the applicant’s job performance. Both the applicant and Ms. Jansen testified that Ms. Nakonecznyj did not refer to the applicant’s performance.

43In my view, the termination of the applicant’s employment on February 22, 2011 was awkward and not as well managed as it might have been. There was persuasive evidence before me, namely the consistent and detailed evidence of the applicant and Ms. Jansen, that the applicant’s dismissal took place in the public area of the respondent’s store in Aylmer with a customer and another employee within view. There was evidence that the dismissal was quick with little information being provided by Ms. Nakonecznyj and with some confusion as to whether the applicant was, in fact, being dismissed. (The applicant testified that she had to clarify whether she was being fired). The applicant testified that the way in which she was fired left her feeling humiliated. Ms. Nakonecznyj testified that the applicant’s arrival in the store was unexpected, that she felt she had to proceed with the termination or otherwise she might lose her gumption.

44Mr. and Ms. Nakonecznyj had discussed not wanting to stress the applicant and not referring to the applicant’s poor job performance when dismissing her. It is plausible, in my view, that Ms. Nakonecznyj’s reference to needing someone on a more consistent basis was a clumsy effort to provide the applicant with an alternate reason for her dismissal. In my view, I cannot find, based on the totality of the evidence before me, that Ms. Nakonecznyj’s reference to needing someone on a more consistent basis indicates that the applicant’s dismissal was discriminatory. I do not find, on a balance of probabilities, that a reason the respondent terminated the applicant’s employment was because she had been absent from work for health related reasons or because the respondent was concerned that she would be unavailable for work in the future for health related reasons.

45The clear evidence before me is that the respondent had significant and ongoing concerns about the applicant’s performance and had decided to terminate her employment. I accept that there was a decision in January to proceed with the planned termination. There is no evidence to suggest that the applicant’s absence from work from November 23, 2010 to January 3, 2012 was an issue for the respondents. Indeed, the contrary is more accurate – they attempted to accommodate her illness (perceived or otherwise) throughout. In February 2011 the applicant was absent from work. It appears the applicant would only have missed one or two days of work at this time given her part-time hours. The fact that the applicant was briefly away from work in February 2011 does not lead me to find that her absences were a factor in the termination of her employment, as there were other plausible non-discriminatory reasons for this decision that I have accepted.

46I find it significant that Mr. and Ms. Nakonecznyj had a conversation prior to terminating the applicant that they did not want to refer to the applicant’s job performance in terminating her. There was a discussion about not wanting to stress the applicant. In my view this may have also contributed to Ms. Nakonecznyj’s poorly managed dismissal of the applicant and her reference to needing someone on a more consistent basis.

47For these reasons the Application is dismissed.