Lisa Trites v. New Directions Aromatics Inc., 2013 HRTO 2102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lisa Trites

Applicant

-and-

New Directions Aromatics Inc.

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: December 19, 2013

Citation: 2013 HRTO 2102

Indexed as: Trites v. New Directions Aromatics Inc.

APPEARANCES

Lisa Trites, Applicant Self-represented

New Directions Aromatics Inc., Respondent Steven Smith, Representative

Introduction

1The applicant claimed that the respondent discriminated against her because of her disability contrary to the Human Rights Code, R.S.O. c. H.19, as amended (the “Code”). Specifically, she claimed that the respondent terminated her employment due to her shoulder injury. The respondent denied that the applicant was terminated because of her disability. Instead, it claimed that it terminated the applicant because she was not a “good fit” due to her apparent belief that she would be working in an office position rather than the position for which she was hired.

2For the reasons set out below, I find that the applicant has established on a balance of probabilities that her disability was a factor in her termination.

FActual background

Applicant’s hiring

3The applicant applied for a Customer Service Clerk position with the respondent on February 19, 2013. The respondent is in the business of supplying aromatic compounds. Alex Thomas, the respondent’s owner, testified that he did not think the applicant possessed the necessary qualifications for the Customer Service Clerk position. Mr. Thomas testified that he told the applicant, in the employment interview, that her resume looked interesting but pointed out that she had no experience in customer service. According to Mr. Thomas, he told the applicant that he had brought her in for an interview due to her experience with inventory control. Mr. Thomas testified that he told the applicant there were many opportunities within the company. He told her that there might be future opportunities to act as a liaison with the purchasing department. The respondent decided to train the applicant in various areas of warehouse. According to Mr. Thomas, the respondent never intended to assign the applicant to work in the office. Instead, it intended to assign the applicant to a warehouse position.

4Based on all the testimony at the hearing, I accept that Mr. Thomas told the applicant that she was not qualified for the Customer Service Clerk position for which she had initially applied. However, the evidence at the hearing showed that the respondent had not exactly determined where it would place the applicant at the time she was hired. I accept that the respondent intended to assign the applicant to a position in its warehouse. However, I find that this intention was not made entirely clear to the applicant. The applicant testified that, although she had applied for a Customer Service Position, it was unclear when she was hired exactly what her position would be with the respondent. Although the employee information sheet she signed when she was hired identified her job title as “Production Assistant”, the applicant testified that the space for the job title was blank when she signed the form. She testified that she was told that the office would fill it in. This was not disputed by the respondent’s witnesses.

5The applicant testified that, around the time she was hired, Mr. Wallace, the respondent’s general manager, mentioned to her that the respondent intended to create a new position that would involve learning all aspects of the company. I accept the applicant’s testimony on this point. Her testimony on this point was not questioned in cross-examination and Mr. Wallace did not testify at the hearing. The applicant testified that Mr. Wallace told her she would start out in the warehouse so she could learn more about the respondent’s products. According to the applicant, when Mr. Wallace introduced her to employees in the customer service area, he said that the respondent was not sure where the applicant was going to work and what her position would be. The applicant’s understanding was that her position had yet to be determined. I find that Mr. Wallace’s remarks led to considerable confusion for the applicant about the position she would be assigned to fill with the respondent.

6The applicant started work on March 18, 2013. She was to serve a three month probationary period.

7The applicant has had two shoulder surgeries due to rotator cuff tendonitis. In the relevant time period she was unable to perform repetitive tasks such as lifting, pulling and pushing. The respondent did not dispute that the applicant’s shoulder injury constitutes a disability under the Code.

8There is also no dispute that the respondent knew that the applicant had a shoulder injury when she was hired. Mr. Thomas testified that the applicant told him that she had rotator cuff tendinitis when he interviewed her. He testified that he told Ms. Patino, the warehouse manager, about the injury and told her that the applicant was not to do any repetitive lifting. The applicant testified that she told Mr. Wallace about her shoulder injury when he gave her a tour of the warehouse. The applicant also told Mr. Wallace on her first day of work that she would have to take time off the following week to have an MRI on her shoulder. Given the above, there is no doubt that the respondent knew that the applicant had a shoulder injury that restricted her from doing any repetitive or overhead lifting. It is also not disputed that Mr. Thomas hired the applicant despite her shoulder injury.

9The applicant spent two weeks training in different departments. According to the applicant, the training during the first week affected her shoulder but she continued to perform the required tasks since she knew that the position was not permanent. From April 1-4, 2013, the applicant assisted with the inventory. According to the applicant, while working on the inventory, another employee asked her whether she was going to be the new supervisor. She testified that this appeared to her to be a possibility but she still did not know what her permanent position would be at that point.

10During the week of April 1, 2013, an issue arose between the applicant and a senior employee named Mohinder who worked at the filling station. According to the applicant, she sensed some resistance from Mohinder when she gave her certain requirements for what needed to be filled. The applicant felt that Mohinder was questioning the requirements because the applicant was new. The applicant told Ms. Patino that she might want to give Mohinder the requirements as Mohinder seemed to be questioning them. Ms. Patino had a discussion with the applicant and Mohinder to resolve the situation. The applicant testified that the incident was minor and that she felt everything was resolved after the brief discussion.

11Ms. Patino testified that the applicant had told her that Mohinder had been rude. Ms. Patino testified that she discussed the situation with the two individuals. Ms. Patino did not suggest that the incident was more than a minor one. Ms. Patino did testify that Mohinder mentioned after the discussion that the applicant was always saying she had applied for an office position but that none seemed to be available. Mohinder did not testify at the hearing. The applicant denied constantly commenting to Mohinder or other employees that she had applied for an office position. Instead, the applicant testified that, when asked, she told other employees that she had applied for an office position but that she was not yet sure what the respondent had planned for her. I accept her testimony on this point since I heard no first-hand testimony from other employees to contradict it. Although the Tribunal has the power to accept hearsay evidence, such evidence is generally accorded less weight. On balance, I prefer the applicant’s evidence about what she told other employees rather than Ms. Patino’s evidence about what Monhinder told her that the applicant told other employees.

April 4, 2013 – 9:30 AM – In Charge Position Proposed to Applicant

12On the morning of April 4, 2013, Ms. Patino told Mr. Thomas that she needed someone in charge of the filling area. Mr. Thomas suggested that the applicant could be placed in this position. According to Mr. Thomas, he sensed some hesitation from Ms. Patino when he suggested the applicant but he was not sure why.

13Ms. Patino testified that, at approximately 9:30 AM that morning, she told the applicant that she planned for her to be in charge of the filling station. Ms. Patino asked the applicant whether she would be comfortable in that position. While the applicant and the respondent disagreed on the title of the position that was proposed, I find that the title is not relevant. The applicant testified that the position was filling “supervisor”. Meanwhile, the respondent’s witnesses testified that the position was an “In Charge” position since the former In Charge person was moved to the supervisor position several months earlier. In my view, the name of the position proposed to the applicant is not relevant. What is relevant is that Ms. Patino proposed the position to the applicant the morning of April 4, 2013 at approximately 9:30.

14The applicant asked Ms. Patino whether the position would involve any lifting that might aggravate her shoulder. Ms. Patino told the applicant that she would not have to do any of the heavy hands-on work except when other employees needed extra help. The applicant told Ms. Patino that she was confident she would be able to carry out the duties of the position so long as it did not involve continuous lifting.

15Ms. Patino went on to ask the applicant what was wrong with her shoulder. The applicant replied that she had rotator cuff tendinitis and that two bones in her shoulder were rubbing together. Ms. Patino asked the applicant whether she was going to need surgery on her shoulder. The applicant told Ms. Patino that she had had two surgeries and that she would be seeing her doctor to find out what the next steps were. The applicant told Ms. Patino that her doctor wanted to avoid further surgery but instead wanted to try pain relief injections. Ms. Patino asked whether the applicant’s doctor thought they would help. The applicant told her that he felt confident given the results he has seen in other patients. Ms. Patino then asked the applicant if she had any doctor’s notes that identified her shoulder restrictions. The applicant said she did and that she would bring them in the following day.

16Ms. Patino testified that she told the applicant that the most important thing was how she felt about the company. The applicant told Ms. Patino that she had applied for an office position and she did not know what her position was since she had been trained in various parts of the warehouse. She asked whether the In Charge position would affect her ability to move into an office position in the future. Ms. Patino told the applicant that she was under impression that the applicant was hired to work in the warehouse. Ms. Patino told the applicant that she would clarify this point with Mr. Wallace.

17The applicant had no further interactions with Ms. Patino or Mr. Wallace until 11 AM.

April 4, 2013 – 11 AM Applicant Terminated

18An hour and a half after this discussion, around 11 AM, the applicant’s employment was terminated. She was called into the office to meet with Ms. Patino and Mr. Wallace. According to the applicant, she thought that the meeting was called to clarify what her position would be. Instead, according to the applicant, Ms. Patino and Mr. Wallace told the applicant that there were no office positions available and that they no longer had any openings available in the warehouse. The applicant questioned why she was being terminated when an hour and a half before Ms. Patino had proposed that she be put in charge of the filling area in the warehouse. The applicant asked whether they were terminating her employment due to poor performance. Mr. Wallace responded “Your performance was fine. I don’t know what to tell you.”

19At this point, the applicant asked whether the termination related to her shoulder. There is a dispute about what was said next. The applicant testified that Ms. Patino started to respond “We don’t want you to hurt yourself further...” when Mr. Wallace cut her off and said “No it has nothing to do with your shoulder.” Ms. Patino denied saying that they did not want the applicant to injure herself further. She testified that, instead, she and Mr. Wallace replied that the termination had nothing to do with the applicant’s shoulder injury.

20Mr. Thomas also testified that Ms. Patino had said that the termination had nothing to do with the applicant’s shoulder injury. However, I attach no weight to his testimony on this point since Mr. Thomas was not present for the termination meeting. His testimony was entirely based on what Ms. Patino told him she had said at the termination meeting. As noted above, Mr. Wallace was not called to testify at the hearing so I do not have the benefit of his testimony. On balance, I cannot conclude that Ms. Patino did in fact start to say that they did not want the applicant to injure herself further at the termination meeting. However, I do accept that the applicant got this impression due to Ms. Patino’s demeanour and the fact that she was being terminated so soon after Ms. Patino had proposed to put her in charge of the filling area. Even if I cannot conclude that Ms. Patino made this statement at the meeting, as I explain below, I find that the applicant has met her burden of proving discrimination due to the timing of her termination as well as the lack of any credible rational explanation from the respondent regarding the reasons for the termination.

21According to Ms. Patino, after she proposed the In Charge position to the applicant, she told Mr. Thomas that the applicant should be terminated because she was not “a good fit” for the company. When asked what changed in the hour and a half between the time she proposed the In Charge position to the applicant at 9:30 and her termination at 11 AM, Ms. Patino said that she felt that the applicant was not committed to filling a warehouse position. Ms. Patino testified that she believed this to be the case due to the applicant’s question about how the In Charge position might affect her ability to move to an office position in the future. Ms. Patino also testified that one of the other employees, Mohinder, had also mentioned her impression that the applicant would not be a good fit since she had talked about applying for an office position.

22In its Response, the respondent stated that Mohinder raised this issue between 9:30 and 11 AM on April 42013. It relied upon Mohinder’s comment as a factor to explain why Ms. Patino decided, during this time, that the applicant was not a good fit for the respondent. However, in her testimony, Ms. Patino was clear that Mohinder had provided her views on the applicant a couple of days before Ms. Patino proposed the In Charge position to the applicant. In her testimony, Ms. Patino stated that Mohinder shared her views about the applicant after Ms. Patino met with Mohinder and the applicant over the misunderstanding at the filling station.

23When I pointed out this inconsistency, the respondent’s representative prompted Ms. Patino by asking her whether she had a second discussion with Mohinder between 9:30 and 11 AM on April 4, 2013. At this point, Ms. Patino stated that Mohinder also raised her views about the applicant a second time, between 9:30 and 11 AM on April 4, 2011. On balance, I do not find it credible that Mohinder provided her views about the applicant a second time on April 4, 2013 because it was Ms. Patino’s clear testimony that Mohinder had provided her comments to her a couple of days earlier. She mentioned no further comments until prompted by the respondent’s representative. I accept Ms. Patino’s initial testimony that Mohinder provided her views about the applicant a couple of days before Ms. Patino proposed the In Charge position to the applicant. In any event, as described below, even if I am wrong and Mohinder repeated her views to Ms. Patino a second time on April 4, 2013, I do not accept the respondent’s submission that Mohinder’s impressions of the applicant’s commitment to a warehouse position provide a full rational credible explanation for the applicant’s termination in the circumstances of this case.

APPLICABLE LAW

24Under s. 5 of the Code, every person has a right to equal treatment with respect to employment without discrimination because of a number of grounds including disability.

25The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that her disability was a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. If an applicant makes out a prima facie case of discrimination, the evidential burden shifts to the respondent to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence. See Shaw v. Phipps, 2010 ONSC 3884 at para. 77, upheld 2012 ONCA 155.

26If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that an inference of discrimination is more probable from the evidence than the explanations offered by the respondent. See Shaw v. Phipps at para. 77. However, it is well-established in human rights law that the protected ground need only be one factor in a termination decision in order to find a violation of the Code. The protected ground does not have to be the only or primary factor leading to the termination. See, for example, Phipps v. Toronto Police Services Board, 2009 HRTO 877 at para. 16 aff’d in Shaw v. Phipps, 2010 ONSC 3884.

27The outcome of this Application turns primarily on the relative credibility of the applicant and Ms. Patino. Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so above. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. As the Court of Appeal found in that case,

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour 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.

Findings

28I find that the applicant has successfully established on a balance of probabilities that her disability due to a shoulder injury was a factor in the termination of her employment.

29The timing of the applicant’s termination gives rise to a strong inference that her shoulder injury was at least a factor in the respondent’s decision to terminate her employment. In reaching this conclusion, I have carefully considered the fact that it was not disputed that the respondent was aware that the applicant had rotator cuff tendinitis and lifting restrictions at the time that Mr. Thomas hired her. Despite this fact, I find it significant that Ms. Patino and the applicant had just had a more detailed discussion about her injury, her prognosis and her restrictions just an hour and a half before her employment was terminated. Mr. Thomas’ termination decision was based on Ms. Patino’s determination that the applicant should be terminated because of a lack of fit with the company.

30As noted above, Ms. Patino proposed to put the applicant in charge of the filling area in a discussion at 9:30 AM on April 4, 2013. An hour and a half later, Ms. Patino and Mr. Wallace met with the applicant to terminate her employment. A question arises as to what occurred between 9:30 and 11 AM that would cause Ms. Patino to change her mind so thoroughly about the applicant’s prospects with the company.

31The applicant submitted that the factor that changed Ms. Patino’s mind was the extended discussion she had with Ms. Patino about her shoulder injury, her continuing restrictions and her prognosis. During this same discussion, the applicant also expressed concerns about ensuring that her work would not aggravate her shoulder. All of this, according to the applicant, was a factor in the termination of her employment since she had no other interactions with Ms. Patino or any other management representative between 9:30 and 11 AM.

32The respondent, meanwhile, submitted that the applicant’s disability played absolutely no role in its decision to terminate her. According to the respondent, the factor that changed Ms. Patino’s mind about the applicant was her perception that the applicant was not committed to a warehouse position and would not be a team player because she appeared to hold out hope for an office position. The respondent also argued that another factor that explained Ms. Patino’s determination was that one of the applicant’s co-workers, Mohinder, expressed the view that the applicant was not a good fit because she talked about working in the office. As noted above, based on Ms. Patino’s testimony, I find that Mohinder made the comment a couple of days before Ms. Patino proposed to put the applicant in charge of the filling area. Further, even if I were to accept that Mohinder communicated her views to Ms. Patino again between 9:30 and 11 AM on April 4, 2013, Mohinder’s comments would not be new information to Ms. Patino since Mohinder had already made the comments a couple of days before. Therefore, I find that the comments, even if made, were not a new factor that would explain Ms. Patino’s change of mind about the applicant’s “fit” with the company after she proposed the filling area position to the applicant on the morning of Apirl 4, 2013.

33The lack of a reasonable explanation for the timing of a termination of employment is a factor to consider when determining whether that termination was influenced by a prohibited ground of discrimination: Osvald v. Videocomm Technologies, 2010 HRTO 770, at para. 35. In addition, the Tribunal must be careful to examine an employer’s assertions that an employee is not a “good fit” in order to ensure that no discriminatory reasons underlie this judgment.

34On all of the evidence before me, I find that the respondent’s explanations do not provide a rational credible and full explanation of the reasons for the applicant’s termination. I find that the applicant has made out her burden of proving that an inference that her disability was a factor in her termination is more probable than the explanations provided by the respondent.

35I do not accept the respondent’s assertion that the only reason for the applicant’s termination of employment was because her response to Ms. Patino demonstrated a lack of commitment to the warehouse position and also that she would not be a team player in the warehouse. Based on the evidence at the hearing, I have found that the applicant was not constantly telling other employees that she was hired to work in the office, as argued by the respondent. Instead, I found that there was a considerable lack of clarity around exactly what position the applicant would be assigned to. I accepted the applicant’s testimony that, when asked, she told other employees that she had applied for an office position but that she was not yet sure what the respondent had planned for her. As noted above, the applicant told Ms. Patino that she was confident she would be able to carry out the duties of the In Charge position so long as it did not involve continuous lifting. She also agreed to bring in notes from her doctor about her restrictions the following day. The applicant did ask whether the In Charge position would affect her ability to work in the office in the future. However, based on all of the evidence, I do not accept the respondent’s claim that the applicant was terminated because her response to Ms. Patino demonstrated a lack of commitment to the warehouse position.

36I also do not accept that Mohinder’s comments provided another credible reason to explain the applicant’s termination. Even if Mohinder was a senior employee, she was not a member of management. In my view, it is not consistent with the preponderance of probabilities that Ms. Patino would have terminated the applicant due to Mohinder’s impression of the applicant’s commitment to a warehouse position. This is especially the case since I have found that Mohinder made her comment a couple of days before Ms. Patino proposed the In Charge position to the applicant. On balance, I do not accept that the applicant’s apparent interest in an office position or the views expressed by a co-worker provide a full, rational and credible explanation for her termination.

37In the absence of a reasonable explanation from the respondent that fully explains its decision to terminate the applicant’s employment, suddenly, one hour and a half after proposing to put her in charge of the filling area, the applicant has satisfied me that the respondent has violated the Code. The applicant has met her burden of showing that, on a balance of probabilities, her disability was a factor in the respondent’s decision to terminate her employment.

Remedy

38The Tribunal’s broad remedial jurisdiction is set out as follows in s. 45.2 of the Code. Among other things, the Tribunal has the power to direct the party who infringed the right to pay monetary compensation to the party whose right was infringed for “loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.” The Tribunal also has the power to direct a party to do anything that will promote compliance with the Code.

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

39In her Application, she sought damages for lost wages. She did not seek monetary compensation for injury to dignity, feelings and self-respect under s. 45.2 (1) of the Code. In her Application, the applicant listed $1,792 as the amount of lost wages up to the date of her Application (May 1, 2013). The applicant also sought as a non-monetary remedy that the respondent put in place policies to ensure that other employees are not discriminated against.

40The applicant testified at the hearing that she became re-employed on June 17, 2013. She testified that she searched for employment from the date of her termination until the date she became re-employed.

41The applicant was self-represented. At the hearing she did not make submissions as to whether she was seeking monetary compensation for injury to dignity, feelings and self-respect under s. 45.2 (1) of the Code. Meanwhile, the respondent’s representative submitted that the Tribunal does not have jurisdiction to award any amount other than what was sought in the Application. He referred to unspecified caselaw, but provided no cases to support this position.

42In the circumstances of this case, and due to the lack of any detailed submissions on the issue of remedy, I find it appropriate to remain seized on this issue. The parties are directed to file written submissions on the two following issues: (1) whether the Tribunal has jurisdiction to award a remedy that was not claimed in the Application in the circumstances of this case and (2) if so, what the appropriate remedy is for the violation of the Code in this case.

order

43For the reasons set out above, the Tribunal makes the following order:

a. The respondent has breached s. 5 of the Code.

b. I will remain seized of this matter to dispose of the issue of remedy.

c. The applicant is directed to file written submissions and relevant caselaw with respect to the two issues identified in para. 42. She must file these materials with the Tribunal, with a copy to the respondent, no later than 21 days after the date of this Decision.

d. The respondent is directed to file written submissions and relevant caselaw responding to the applicant’s submissions, copying the applicant, no later than 21 days of the date it receives the applicant’s written submissions.

e. In the event that one or both parties fail to comply with these directions, the Tribunal will decide the issue of remedy based on the materials before it.

44I remain seized on the issue of remedy.