HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Althea Elrington
Applicant
-and-
Saint Elizabeth Health Care, Shirlee Sharkey, Susan Walsh and Christina Bowen
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Elrington v. Saint Elizabeth Health Care
APPEARANCES
Althea Elrington, Applicant
Brian Elrington, Representative
Saint Elizabeth Health Care, Shirlee Sharkey, Susan Walsh and Christina Bowen, Respondents
Margaret Taylor, Representative
Introduction
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 race, colour, ancestry place of origin and ethnic origin. The applicant was employed as a Registered Practical Nurse who self identifies herself in the Application as a Black woman from Belize. The respondents filed a Response denying that they have acted in a matter contrary to the Code.
2In a Case Assessment Direction dated October 6, 2011, the Tribunal, at its own initiative, directed that a summary hearing be held to determine if this Application had no reasonable prospect of success.
3A summary hearing via telephone conference was held on February 17, 2012. Since, neither the applicant nor her legal representative attended the hearing the Tribunal issued a Decision on February 24, 2012, 2012 HRTO 385, which dismissed the Application as abandoned.
4In a Reconsideration Decision dated August 2, 2012, 2012 HRTO 1518 the Tribunal granted the applicant’s request to reconsider the Decision on the basis that her legal representative had failed to give her notice of the summary hearing.
5On November 26, 2012, the Tribunal held a summary hearing via telephone conference. All of the parties participated during the summary hearing including, Brian Elrington, who acted as the applicant’s representative.
Facts
6The Application alleges that the applicant was terminated from her employment for reasons that are contrary to the Code. The facts in this Decision are summarized from the applicant’s version of the events as detailed in the Application and her oral submissions to the Tribunal during the hearing.
7The applicant was employed by the respondent as a Registered Practical Nurse for approximately 15 years until her termination from employment on October 6, 2010.
8The applicant was assigned to provide home care to a client who was a five year old child. She alleges that on September 23, 2010, the child behaved in a violent manner towards her which included verbal and physical abuse. The applicant states that the child hit her and she grabbed her arm. The applicant left the house without completing the remaining four hours of her shift. The applicant stated that the child’s mother told her that if she left without providing care to the child that she would have the applicant fired from her job. The applicant did not notify her employer of the incident and went for a walk because she was upset and in shock.
9The employer received a complaint from the child’s family and the next day suspended the applicant with pay pending an investigation. The applicant advised the corporate respondent that she had been having difficulty with providing services to the child because she had been subjected to violence in the past on repeated occasions.
10On September 30, 2010, the applicant was reinstated to her position but was given a two day suspension for the events that occurred on September 23, 2010. In this letter the employer advised that there was no documentation in the chart to support the applicant’s allegation that she had been hit before by the child so her employer directed her to provide her notes and charting with respect to the care of the child.
11On October 6, 2010 the applicant’s employment was terminated because the employer believed that the applicant had falsified documentation with respect to the care of the child.
12During the hearing the applicant’s representative explained that they believed that the applicant had been terminated on the basis of customer preference because the employer preferred the customer’s version of events over the applicant’s version. The child’s mother had threatened to have the applicant fired if she left and that is exactly what happened. The applicant also raised the issue that the child was not in fact sick and needed a babysitter. The applicant also alleges that the reasons given by the employer to terminate the applicant were a pretext to mask discriminatory reasons.
13At the commencement of the summary hearing the applicant’s representative also advised that, though it was not included in the Application, the applicant believed that she was transferred out of another assignment earlier in 2010 because of discriminatory reasons. The applicant stated that this transfer occurred because the employer wanted to give the assignment to a white nurse and that the employer created false performance issues.
Decision
14Having reviewed both the written and oral submissions of the parties and case-law I find that this Application has no reasonable prospect of success and should be dismissed for the reasons that follow.
15The Tribunal explains the nature of the test for summary hearing in the decision of Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
16I have considered the Application and submissions made by the parties. It is clear that the applicant believes that she was not fairly treated by her employer and that the employer preferred the client’s version of events. However, the Tribunal does not have jurisdiction over general issues of unfairness that occur in the workplace if they are not Code related. As noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17, for “an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code….”
17The applicant has not proposed any evidence which would establish a link between an alleged ground of discrimination and her treatment by the respondents, including the allegation that she was transferred out of another assignment. There is no evidence to support the applicant’s belief that the decision to dismiss the applicant was a pretext to mask a discriminatory motive. I note that if the employer was looking for a pretext to terminate the applicant’s employment it could have taken the position that the events of September 23, 2010 were sufficient to justify such a dismissal. Instead the employer reinstated the applicant to her position with a two day suspension.
Order
18Since the Application has no reasonable prospect of success, the Application is dismissed.
Dated at Toronto, this 28th day of February, 2013.
“signed by”
Geneviève Debané
Vice-chair