Grills v. Procter and Gamble Inc., 2013 HRTO 371

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Linda Grills

Applicant

-and-

Procter and Gamble Inc.

Respondent

DECISION

Adjudicator: Naomi Overend Date: March 5, 2013 Citation: 2013 HRTO 371 Indexed as: Grills v. Procter and Gamble Inc.

APPEARANCES

Linda Grills, Applicant Self-represented

Procter and Gamble Inc., Respondent Madeleine Loewenberg, Counsel

introduction

1The applicant filed this Application on March 21, 2011, alleging discrimination in employment on the basis of disability, age and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H. 10 as amended (the "Code"). The hearing proceeded on November 6, 2012, at which time I heard argument on a motion to dismiss and the applicant's testimony-in-chief.

2I assisted the applicant in giving her testimony by asking her questions and ensuring she gave evidence on the issues raised in her Application. At the end of the applicant's testimony-in-chief, it appeared that the applicant was conceding that the respondent had offered her suitable modified work in an attempt to accommodate her various disabilities, but that she was no longer capable of doing any of the possible jobs at the respondent's Brockville facility.

3In light of this information, I asked the applicant whether she wished to pursue her Application. She was not able to answer the question. Given the late hour, I adjourned the hearing and advised that I would send out a Case Assessment Direction ("CAD") to the parties advising the next steps.

4The CAD sent out on November 9, 2012 asked the applicant to advise whether she wished to pursue her case or withdraw her Application. She was asked to do this by November 30, 2012, but did not do so until December 14, 2012, at which time she submitted a Request for an Order During Proceedings stating she wished to proceed with her Application.

5Earlier that day, the respondent also filed a Request for an Order During Proceedings asking to dismiss the Application. The respondent asked to proceed by written submissions, but since the applicant had the right to make oral submissions, I issued a second CAD, dated January 10, 2013, advising the parties that the Tribunal would schedule a two-hour conference call. Subsequent to that, the applicant advised the Registrar that she wished to proceed by way of written submissions.

6A final CAD, dated January 25, 2013, advised the parties that the applicant could file her written submissions in response to the respondent's Request to dismiss by February 11, 2013. The applicant has not filed written submissions as of the date of this Decision and the time for so doing has passed. It has now been more than two months since the hearing.

decision and analysis

7The applicant worked on contract for the respondent at its Brockville facility from May 26, 2008 to April 2010. She testified that her contract would come to an end on May 25, 2010 (two years less a day), but that after six months (i.e., November 2010), she would have been eligible to apply for another contract.

8The Application details a number of allegations relating to the entire period she worked at the respondent facility. In Interim Decision, 2011 HRTO 2009, dated November 4, 2011, I dismissed the applicant's allegations of "unsafe working conditions" and "verbal abuse" as being outside the jurisdiction of the Tribunal. In addition, I declined to amend the applicant's Application to add allegations of sexual harassment on the basis that they would have been outside the one-year limitation period set out in s.34 of the Code even if they had been included in the Application at the time it was initially filed with the Tribunal.

9The only allegations I advised the applicant I would hear were the ones relating to the period from January to April 2010. During this period, the applicant alleges that she was discriminated against on the basis of disability, age and reprisal.

10The applicant testified that she started experiencing significant problems involving a number of her joints in the fall of 2009, which caused pain, swelling and numbness. She attributes these medical problems to the work she did for the respondent, but the issue of causation is a matter properly before the Workplace Safety and Insurance Board ("WSIB"), not this Tribunal.

11In any event, she advised the medical centre at the respondent's Brockville facility of her medical problems, and was offered modified work on the "Tide to Go" and the "Value Add" lines in 2010. She does not take the position that the respondent refused to offer her modified work or that she advised the respondent's representatives that the modified duties offered were inappropriate.

12In early March, the applicant was involved in what was subsequently accepted by the WSIB to be a work-related injury to her ribs. She reported this, and a nurse in the respondent's medical centre filled out an Occupational Injury/Illness Report on her behalf. The applicant testified that by March 14, 2010 the pain had become intolerable and she was ordered by her doctor to take a two-week leave from her job.

13The applicant alleges that the respondent fired her at the outset of the leave, but that once her WSIB claim was accepted, the company made arrangements for her to return to work. However, her WSIB claim was accepted on April 1, 2010. The decision letter of that date makes reference to the applicant having returned to modified duties on March 29, 2010.

14The applicant testified that she suffered a groin injury shortly after her return to work on March 29, 2010, which became more painful over time. By the end of her shift on April 5, 2010, she was barely able to walk and was no longer able to work. She went to the hospital and saw the emergency room physician whom she had previously seen. Once again, she was told that she had to take time off (the medical report states until April 12, 2010) to recover from the pain.

15The following morning she went to work to report this to her supervisor. Her team manager asked her to attend a meeting with two representatives from Human Resources, which she did. Eventually, she states they were joined by the Director of Human Resources. The applicant alleges that at this April 6, 2010 meeting the Human Resources representatives were making light of her injuries/medical condition and suggesting that she was simply getting too old to do the job any longer. She further alleges that she overheard the Director tell the others in a discussion to which she was not a party, the following:

She has to leave today before she hurts herself on the line again!

Her age is against her working here anymore!

This job is too physically strenuous for her at this time.

16At the end of the meeting, the applicant testified, she believed she was fired from her job by the respondent's representatives. She testified that she asked to go see her work mates in the lunch room before leaving and that the respondent granted permission to do this. She then left the respondent facility and did not return to work before her contract ended in late May. However, she did testify that she came in for appointments with the doctor in the respondent's medical centre on April 8 and 15, 2010 after her departure.

17In addition, the applicant alleges that the respondent prevented her from filing a WSIB claim, forcing her instead to go on "medical EI." She testified that this was discussed at the April 6, 2010 meeting, and then she was told the following day (April 7, 2010) by Human Resources that she had to cancel her WSIB claim so that the respondent could issue the form allowing her to take "medical EI." The applicant testified that she did not want to get a Record of Employment allowing her to go on such a leave because she believed that such a document signalled the end of her employment.

18The applicant states in her Application that she got a call from a WSIB representative on April 22, 2010 asking why the applicant had "cancelled her claim." The applicant states that she told this individual that the respondent had said it could not "process her Medical E.I. claim" until she did that. The applicant further states that this person at the WSIB advised the applicant to speak with her GP and the doctor in the respondent medical centre and resubmit her claim.

19The applicant does not say whether she took the advice of this person at the WSIB. Moreover, during her testimony, she was unable to explain why the WSIB issued a letter on April 16, 2010, which she submitted into evidence, in which the WSIB denied her claim for the groin disability on the basis that it could not find her "injuries were causally related to [her] work."

20After leaving the respondent on April 6, 2010, the applicant eventually applied for and received EI sickness benefits. She testified that she was diagnosed with osteoarthritis around this time, and that the disorder causes debilitating pain and swelling that shifts from joint to joint. She further testified that, as of the hearing date, more than 2.5 years after her departure from the respondent, she is still in considerable pain and even doing a task as small as a few dishes causes her pain. She acknowledged that there were no modified duties at the respondent's Brockville facility which she would have been able to do following her departure in April 2010.

21Although she did not explicitly state this, it would appear that the applicant is alleging the following acts by the respondent constituted breaches of her rights under the Code:

• The first termination of her employment on or around March 14, 2010, which was reinstated subsequent to a decision by the WSIB, as a result of her need to take disability-related time off work;

• The second termination of her employment on April 6, 2010, again because of her need to take disability-related time off work, which the applicant alleges was motivated by her disability and/or her age;

• The failure to accommodate her medical needs by providing her with suitable modified work following her groin injury; and

• The demand that she withdraw her WSIB claim with respect to this groin injury.

22On the evidence led, I cannot find that any of these alleged breaches of the Code occurred. With respect to the first alleged termination in March 2010, the evidence led seems to show that the applicant returned at the end of the recommended two-week period off work without any intervention from the WSIB. Indeed, the decision from the WSIB submitted by the applicant was issued after her return to work (and makes reference to her return in the narrative). Although the applicant may have believed her employment may have been terminated, her testimony and documents do not support this belief.

23Likewise, her assertion that her employment was terminated prematurely on the basis of her disability and/or her age at the April 6, 2010 meeting is not supported by the applicant's evidence. The respondent submitted an Employer's Report to the WSIB that day (albeit denying the applicant's assertion that the injury/illness was caused by the work she performed at the respondent facility) which makes no reference to the applicant's employment being terminated. The applicant continued to see the doctor in the respondent's medical centre, following her departure, which she would not have been entitled to do if she had been fired. The purpose of these visits to the doctor was to facilitate the return to work process.

24The applicant's testimony was clear that by April 6, 2010, she was in a tremendous amount of pain and she was not able to do any modified work for the respondent then or, for that matter, since. The failure to provide her with modified work following April 6, 2010 was not an act of discrimination, but a reflection of the reality that there was no modified work the applicant was capable of doing in the period before her contract expired.

25The applicant testified that she believed that the act of issuing her a Record of Employment ("ROE") was tantamount to firing her. However, the ROE issued by the company on April 26, 2010 (i.e., 20 days after the meeting) stated that the reason for issuing it was for "illness or injury." This enabled the applicant to apply for EI sickness benefits, which she did. A person can apply for these benefits without losing their employee status.

26Finally, with respect to the applicant's position that the company forced her to withdraw her WSIB claim in order for to apply for "Medical EI" the documents, again, do not support her position. Despite the fact that she testified that she did this around the time of her departure (on or around April 7 or 8, 2010), the applicant submitted no documents to prove that she asked the WSIB to stop processing her claim. Indeed, the only WSIB documents submitted – an acknowledgement of the claim and then a subsequent denial of it, dated April 8 and 16, 2010 respectively – suggest the opposite.

27The applicant testified that she was told by both the WSIB and the doctor at the respondent medical centre that she should "re-submit" her claim, but she filed no documents to suggest she did or provided any explanation for why she did not. The applicant appeared to have a genuine belief that she could either go on WSIB or EI sickness benefits, but I cannot find on the evidence before me that the respondent required her to withdraw her claim for the former as a condition of issuing an ROE.

28The applicant bears the onus of establishing that she was subject to discrimination in employment on the basis of her disability and/or her age, or that she was subject to reprisal. Having heard the applicant's testimony and reviewed the applicant's documents, I find that she has failed to demonstrate that she was subject to any adverse treatment with respect to her employment by the respondent. In the absence of any adverse treatment, the applicant has no reasonable prospect of success of establishing discrimination and/or reprisal and her Application cannot continue: See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

Order

29This Application is, accordingly, dismissed.