HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gillian Smith
Applicant
-and-
Camis
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Smith v. Camis
APPEARANCES
Gillian Smith, Applicant
Stoney Elesbeth Baker and Rachel Bernhardt, Law Students
Camis, Respondent
Carole S. VandenHoek, Counsel
Introduction
1This is an Application filed under section 34 of Part IV 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 sex. At the hearing, the applicant withdrew her allegation that she had been discriminated on the basis of sex. The respondent has filed a Response denying the allegations in the Application.
2The applicant alleges that she suffers from a disability, dysmenorrhea and that she was terminated from her employment because she missed three days of work which was related to this disability.
3Numerous Case Assessment Directions and Interim Decisions were issued by the Tribunal in this matter. The hearing took place in Toronto on September 12, 2012 and November 7, 2012. The Tribunal heard the evidence of four witnesses including the applicant’s doctor.
The Law
4The applicant bears the onus of proving on a balance of probabilities that she is afflicted by a disability and that the applicant’s disability or perceived disability was a factor in the respondent’s decision to terminate her employment. In order for a claim of discrimination to be successful, the applicant must establish a causal connection or nexus between her termination from employment and her disability. See, for example, Dixon v. Mississauga (City), 2012 HRTO 1383 at para. 26. In this case, the applicant must also establish that the respondent’s requirement that she attend work had an adverse impact on the applicant because the reason for her absenteeism was related to her disability.
5In this case I have had to make a number of credibility findings and I have considered the decision in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) where the British Columbia Court of Appeal states at page 356-357:
…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.
6I also considered the factors identified by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7, at para. 26: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence.
7For the reasons that follow the Application is dismissed.
The Evidence
8Most of the facts with respect to the applicant’s employment’s and absenteeism are not in dispute. Where the facts are in dispute, I will only address these facts if they are relevant to the issues that I must decide.
9The applicant commenced employment with Camis as a call centre agent, on a part-time basis on January 3, 2011 for a short-term seasonal contract. On April 1, 2011, during her probationary period the applicant’s employment was terminated. During this time period, the applicant was a full-time student and was working approximately 10 to 20 hours per week.
10In February 2011 certain issues with respect to the applicant’s employment started to occur:
a. on February 7, 2011, the applicant failed to attend work or to call in to advise that she would be absent;
b. on February 10, the applicant was late for work;
c. on February 12 and 13, 2011, the applicant advised that she could not attend work due to a family emergency;
d. on February 27, 2011, the applicant did not attend work because she was not feeling well. She presented the respondent with a medical note confirming that she was unfit to work; and
e. on March 2, 2011, the applicant did not attend work because she had pink eye and presented the respondent a medical note.
11There are also other instances when the applicant was at work, but that she did not start her shift, for various reasons, on time.
12With respect to the absences on February 12 and 13, 2011, the applicant advised her supervisor on February 11, 2011 that she could not work the weekend shift because she had a “family emergency”. The respondent immediately wrote back telling her that she did not have to work the scheduled weekend shift, but that the applicant was required to advise as to the nature of the emergency so that she could be marked as having taken emergency leave. The applicant never responded to the employer’s request.
13At the hearing the applicant clarified that the nature of the family emergency was that her dog required surgery. When I questioned the applicant as to the nature of the surgery, the applicant informed me that her dog was getting spayed. She explained that because the veterinary clinic had a last minute cancellation and was quoting her a good price, she wanted to take the veterinarian up on his offer. On cross-examination on this issue the applicant stated that no one else could bring her dog to the vet since it was her responsibility. She did concede that her boyfriend drove her to and from the vet.
14Having considered the evidence of the applicant on this issue, I find that she misled the respondent and that she misrepresented that she had a “family emergency” in order to be excused from working during the weekend. She did not provide any evidence to support a claim that her dog immediately required surgery. Rather, the applicant’s explanation confirms that the alleged emergency was financial, a cost savings, as opposed to a medical emergency that required immediate attention. I also find that the reason that she failed to respond to her employer’s request for further particulars was because she knew that this was not a “family emergency”. I find that this is evidence that the applicant has a propensity to exaggerate events for the purposes of obtaining a personal gain, which adversely impacts on my assessment of her credibility.
15On cross-examination the applicant also acknowledged that, in addition to the issues identified above, on March 4, 2011, she requested a shift adjustment at 6:20 p.m. for the next day because she had an exam. The applicant acknowledged that there was no change to the exam schedule and that she could have made this request earlier. The applicant stated that her education obligations had priority over any work obligations.
The Applicant’s Termination from Employment
16The applicant testified that she suffers from dysmenorrhea which causes her to have severe pains during her menstrual cycle, but that this condition is controlled when she takes birth control pills. The applicant testified that she stopped taking the birth control pill in February 2011 and that she started suffering from the symptoms of dysmenorrhea. She made an appointment with Dr. Patricia Francis on March 21, 2011 and that she was prescribed medication which ultimately was extremely effective in managing the pain.
17The applicant testified that she had her period and was suffering from the effects of dysmenorrhea on March 29 to March 31, 2011 when she missed work. She called in sick on the three days and advised the respondent on March 29, 2011 that she would bring a medical note for these absences. The applicant states that she went back to Dr. Francis for the purposes of obtaining a medical note to confirm her absences from work were medically related to her dysmenorrhea. The applicant testified that the respondent refused to accept her note during the termination meeting on March 30, 2011. The medical note dated March 30, 2011 states:
“This is to confirm that the above patient was seen today for a medical condition. Gillian Smith has severe dysmenorrhea and may have to take time off school for her cycle.”
18The applicant called Dr. Francis as a witness. Dr. Francis confirmed that she met with the applicant on March 21, 2011, conducted a physical examination and prescribed the applicant medication to manage the applicant’s pain. She testified that on March 30, 2011, the applicant attended her office for the purpose of obtaining a medical note to excuse her absences from work. Dr. Francis testified that she refused to give the applicant a medical note excusing her absences on the basis that the applicant was not presenting with symptoms which would prevent her from working. I asked Dr. Francis whether the applicant was menstruating on March 30, 2011. Dr. Francis testified that the applicant was not menstruating on March 30, 2011 and did not have any symptoms of dysmenorrhea. Dr. Francis stated that the applicant was menstruating on March 21, 2011.
19Cassandra Hudson, the Call-Centre manager testified that the applicant’s employment was terminated because of a number of issues which included that she had attendance issues, including no-show, a number of late starts and her failure to respond to the request to clarify the “family emergency”. The applicant was still a probationary employee and Ms. Hudson stated that it was rare to see an employee have so many issues in such a short time. Ms. Hudson characterized these as communication issues, including for example, the applicant’s last minute request on March 4, 2011 which resulted in Ms. Hudson having to work late from home.
20The decision to terminate the applicant’s employment was made on March 30, 2011 on the basis that the applicant was not proving to be a reliable employee. Ms. Hudson also stated that if an employee was absent for more than two consecutive days that they needed to provide a medical note confirming that the absences were for medical reasons. She does not recall looking at the medical note at the termination meeting.
Decision
21Though the respondent takes the position that the applicant does not suffer from a “disability”, as defined in the Code, I do not need to address that issue since I find that the applicant has not proven on a balance of probabilities that any of her absences were related to her dysmenorrhea.
22Though during closing argument the applicant took the position that I should believe the applicant’s version of the events over that of Dr. Francis, I decline to do so. Dr. Francis’s evidence was clear on the point that the applicant was not menstruating on March 30, 2011 and that is why she refused to give the applicant a medical certificate stating that she could not work for medical reasons. I also find that Dr. Francis is an objective independent witness, assisted with medical records made at the time she met with the applicant, and that her testimony is consistent with the note that she provided to the applicant on March 30, 2011. Importantly, this note on its face does not indicate that the applicant was unable to work for medical reasons on March 29 to March 31, 2011 or that she requires any workplace accommodation for her alleged disability. As stated previously, the applicant has misrepresented the reasons for her absences from work on other occasions and this is another example of her propensity to exaggerate or misrepresent the reasons for work related absences. I find that the applicant was not prevented from working, for any medical reason on March, 29, 30 and 31st, 2011. I further find that in light of Dr. Francis’ testimony that the applicant has been untruthful to this Tribunal when she testified that she was menstruating from March 29 to 31st, 2011.
23The applicant alleged that the employer breached the procedural duty to accommodate by failing to make reasonable enquiries at the time that the applicant presented the doctor’s note. However, I find that if there was a failure in the accommodation process it is because the applicant failed to provide to her employer accurate, timely information with respect to her alleged disability. As previously identified in this Decision, the medical note on its face does not identify that she was unable to work or that she required any workplace accommodation because of a disability. As such the duty to accommodate was never triggered by the applicant. Regardless, I would have declined to award the applicant any remedies for any breaches in the duty to accommodate given that I have specifically rejected her testimony on the central issue of the reason for her absences.
24There is no evidence to suggest that the respondent perceived the applicant to be disabled at the time of her termination. I accept Ms. Hudson’s testimony that the applicant was terminated from her employment because she was not reliable and had numerous, repeated issues at work. This is also consistent with the applicant’s own testimony that work was not a priority. Based on the evidence that I heard the applicant did not understand the importance of attending work and communicating accurate and timely information to her employer.
25The Application is dismissed.
Dated at Toronto, this 15th day of May, 2013.
“signed by”
Geneviève Debané
Vice-chair