HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Deonarain
Applicant
-and-
The Regional Municipality of Peel
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: Deonarain v. Peel (Regional Municipality)
APPEARANCES
Lisa Deonarain, Applicant
Self-represented
Regional Municipality of Peel, Respondent
Ann C. Dinnert, Counsel
Background
1The applicant was employed by the Regional Municipality of Peel, in various positions for approximately 20 years, the last being Client Support Analyst in the Information Technology (“IT”) Department. The applicant was on a sick leave from November 8, 2011 to April 1, 2012. The applicant was off from work for clinical depression. Upon her return to work on April 1, 2012 the respondent terminated the applicant’s employment on a without cause basis and offered her a severance package. The applicant did not accept the severance package and filed this Application in which she alleges that the respondent’s decision to terminate her from her employment is discriminatory because of her disability.
2The respondent denies that it discriminated against the applicant when it decided to terminate her employment. It asserts that the decision was made prior to the applicant’s sick leave and prior to any knowledge that the applicant had a disability. The respondent alleges that its decision was based on numerous performance issues and the applicant’s inability to get along with her immediate supervisor Rajani Sharma, the Client Relations Manager. The respondent asserts that it had scheduled a termination meeting with the applicant for November 8, 2011 but the applicant did not attend work on that day and instead commenced a sick leave and did not return to work until April 2, 2012. When the applicant returned to work on April 2, 2012, the respondent proceeded to terminate the applicant’s employment. During the applicant’s absence from work a report from an external auditor recommended that the applicant’s position, along with three others in the role of Client Support Analyst should be eliminated. The respondent asserts that this recommendation arose entirely separate and apart from the prior decision to terminate the applicant and they decided they would rely on this instead of the separate and independent decision to terminate the applicant’s employment for performance reasons. On April 2, 2012, the respondent communicated to the applicant that the elimination of her position was the reason for the termination of her employment.
3The issue that the Tribunal must determine is whether the applicant’s alleged disability was a factor, in whole or in part in the respondent’s decision to terminate the applicant’s employment.
Credibility
4The theory of the applicant’s case is that the respondent has fabricated any performance issues in order to justify her termination from employment. The applicant also asserts that she disclosed her disability to her immediate supervisor, Ms. Sharma who appeared to be very supportive. However, the applicant alleges that, unbeknownst to her at the time, Ms. Sharma was fabricating a case to justify the applicant’s termination from employment. These allegations are vehemently denied by Ms. Sharma. Ms. Sharma maintains that the applicant never disclosed to her that she was suffering from depression or any other type of disability and that the applicant was terminated for unrelated performance issues.
5As in most cases of this nature the Tribunal will have to assess not only the credibility of the witnesses but the credibility of the reasons provided by the employer for the applicant’s termination from employment. One of the most often citied cases in relation to the factors and approach to assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…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.
The applicant’s evidence
7The applicant testified in support of her Application and called no other witnesses.
8The applicant started working for the respondent in 1988 when she assumed an administrative position at the age of 25. She upgraded her skills and eventually found work in the respondent’s IT department. When her position was made redundant she successfully applied for the position of Client Support Analyst and commenced these duties in January 2011.
9She explained that she had been going through a breakdown of her marital relationship since 2009. The resulting legal divorce proceedings occurred over a protracted period of time and the applicant was still in midst of addressing these issues in the fall of 2011. The applicant testified that she had a very close relationship with her supervisor Ms. Sharma and that she kept her apprised of what was going on often on long walks that they would take together.
10The applicant also testified that since the summer of 2011 she started having panic attacks which were related to have to cope with the legal issues surrounding her divorce. This included the fact that she would have to leave the matrimonial home and that she anticipated that this would reduce the time she would be able to spend with her three adult children who are all in their 20s. She indicated that she had a panic attack in June 2011. The applicant initially had difficulty recalling when she had the panic attack but then stated that this occurred on June 22, 2011. She later stated that the panic attack occurred on June 28, 2011. No other date was provided to the Tribunal.
11The applicant testified that in the fall of 2011, she had to attend court in order to address outstanding issues with respect to her divorce including the disposition and sale of the matrimonial home.
12October 21, 2011, is an important date with respect to my determination of this matter. The testimonies of the applicant and of Ms. Sharma, as will be detailed below, are diametrically opposed. It was the respondent’s position that on this day after an exchange of emails with a client (referred to as “Michael”) the applicant and Ms. Sharma had words which resulted in the applicant leaving work at 10:30 a.m.
13The applicant’s initial testimony with respect to the events of October 21, 2011 was that she was at work and that she starting thinking about her children and the fact that she would have to vacate the family home which caused her to spontaneously have an emotional breakdown. During cross-examination the applicant maintained that nothing had provoked or caused her to have this emotional breakdown and that this just happened spontaneously. The applicant states that she could not focus and started crying. Ms. Sharma comforted her and told her that she should go home and take whatever time off she wanted. The applicant states that Ms. Sharma was very supportive of her and concerned. During cross-examination the applicant denied that she had sent any emails to the client on October 21, 2011 involving any costing issues. She denied that she had words with Ms. Sharma or any other type of disagreement. She says that she left work at 10:30 a.m. suffering from a profound emotional breakdown and went straight home to bed.
14The applicant attended work the next week, without having gone to see any medical professional to assist her with her alleged emotional breakdown. The applicant denies that when she returned to work that she had any ongoing difficulties with Ms. Sharma.
15The applicant also alleged that there was an issue with respect to the applicant’s ability to take a religious holiday on October 25, 2011. The applicant testified that Ms. Sharma told her that she could take this day off but later changed her mind and required her to attend work. The applicant also testified that she was struggling to come in to work on this day for separate medical reasons - that she was achy and started to have migraines. She testified that around this time she noticed that this (the achiness and migraines) was affecting her work because she was making small typographical errors in her written correspondences. During a vigorous cross-examination the applicant stated that this was the only performance issue that she was having at work and that these started after October 21, 2012.
16The applicant testified that she went to a walk-in clinic on November 3, 2011 but that she was told that she was fine. On November 4, 2014 she left at 4 o’clock because she had a stomach ache.
17On November 8, 2011, the applicant attended her family physician and she was diagnosed with depression, prescribed medication and she commenced a two week sick leave which was eventually extended to April 1, 2012. The applicant tendered copies of her family physicians notes and her last appointment had been on February 2, 2011.
18The applicant returned to work on April 2, 2012. She met with the occupational health nurse and Ms. Sharma to discuss her return to work. She was then escorted to the human resources department and was advised that in fact her employment was being terminated. The applicant was told that the reason for her termination was that her position had been eliminated. The applicant was in shock. At the time of her testimony she was still unemployed and she was seeking reinstatement with respondent.
19During the course of the applicant’s evidence I raised the issue that the applicant had not supplied a number of relevant medical records in support of her medical condition, including the dates that she obtained medical attention for her panic attacks. The respondent advised that these medical documents had not been disclosed during the course of the exchange of arguably relevant documents and that it would be challenging this evidence since it was unsupported by medical evidence.
20The applicant advised the Tribunal that she had been unable to obtain certain medical records. She asserted that she was advised that only lawyers could obtain medical records from physicians. I advised the applicant that this was incorrect and that in fact there were mechanisms in place at the Tribunal, including the issuance of summonses, to assist the parties to obtain these records. I noted at the hearing that the applicant had at one point been represented in this proceeding by at least one solicitor.
21I advised the applicant that these medical records were very important to her case and that, as such, she could be entitled to an adjournment so that she could take steps to obtain these medical records. The applicant advised the Tribunal that she did not want an adjournment and that she wanted to proceed with the hearing without any further delay. The applicant advised that she was satisfied to proceed based on the evidence that had been submitted to the Tribunal.
The respondent’s evidence
22In addition to Ms. Sharma, the respondent called Nina Mahli, a Human Resource Associate; Jannette Myers-Sinclair, the Security Advisor of the IT department; Dale McKechnie, a Human Resource Associate; and Geovanni Mosquera, the Director of IT as witnesses.
Nina Mahli
23Ms. Mahli testified with respect to the respondent’s decision to reorganize the IT department in 2008-2009. She was involved in the identification of employees who may not have the required skill set and abilities to continue to be involved with the respondent. In September 2009, she was advised that the applicant had been identified as one of the individual who should be terminated and she obtained legal advice with respect to the appropriate package to be offered to the applicant. It was decided however, that the applicant’s employment would not be terminated and that she would be permitted to compete for any new positions. The applicant was successful in obtaining one of these new positions and her employment with the respondent was not terminated at that time.
24Ms. Mahli had no other information to provide the Tribunal and was not involved in the decision to terminate the applicant’s employment, allegedly made in November 2011.
Jannette Meyers-Sinclair
25The applicant briefly reported to Ms. Meyers-Sinclair, for three months from February to April 2011, when she assumed the position of Acting Client Relations Manager. Ms. Meyers-Sinclair testified that she had numerous issues with the applicant, including that she would often not respond to her e-mails and she would not answer her phone. The applicant would often arrive late and leave early and it was difficult to pin her down to a schedule and one day did not even call-in to advise that she would be absent from work. Overall Ms. Meyers-Sinclair found that the applicant performed the bare minimum, her work was incomplete and she never took the initiative. Ms. Meyers-Sinclair also stated that she was told by Javier Lopez, the applicant’s former supervisor that he had had great difficulty working with the applicant.
26Ms. Meyers-Sinclair did not provide any specific incident which occurred during the course of these three months. She testified that for example, when she would ask the applicant for some information the applicant would sometimes simply forward her links where she could find the information. None of these concerns were put to the applicant in writing and Ms. Meyers-Sinclair chose not to formally address these issues because she was only in the position temporarily.
The evidence of Ms. Sharma, Ms. McKechnie and Mr. Mosquera
27The decision to terminate the applicant’s employment was made by Ms. Sharma in consultation with Ms. McKechnie and Mr. Mosquera who both supported her decision.
28Ms. Sharma assumed the position of Client Relations Manager in May 2011 and reported to the IT Director Mr. Mosquera. Ms. Sharma’s only report was the applicant, who assisted her with her work. Their desks were next to each other though the nature of both of their positions required them to travel to other buildings for work, including meetings.
29Ms. Sharma testified that she had a difficult working relationship with the applicant from the beginning. In June 2011, she had issues with respect to being able to locate the applicant during working hours. When she tried to address work related issues the applicant became very defensive. The applicant told Ms. Sharma that she believed that Ms. Sharma had been hired to fire the applicant from her position. Ms. Sharma had difficulty reaching the applicant at work and knowing where the applicant was during working hours. Ms. Sharma denies that the applicant confided to her any disability-related issues including that she was suffering from depression and/or anxiety.
30Ms. Sharma testified that the last straw occurred on October 21, 2012. Her evidence is in stark contrast with the applicant’s evidence. She was approached by Javier Lopez the applicant’s former supervisor who advised her that he did not want the applicant to send him anymore emails. Further, he told her that any costing issues including appropriate cost centre information should not be sent directly to the client but instead should be sent to Mr. Lopez. It appears that there may have been some sensitivity as to which department should bear the costs attributable to IT projects. Depending on the nature of the IT project these costs could be included in a number department budgets or attributed to the corporate budget.
31Ms. Sharma testified that she had a conversation with the applicant and they were both in agreement that she should not ask the client about any cost centre information. Ms. Sharma testified that she was shocked to see that the applicant had sent an email to the client requesting costing information, which had been contrary to her instruction. Ms. Sharma got up from her seat, turned around and asked the applicant why she had just sent an email to the client asking about costing information because they had just had a conversation that this was not appropriate.
32Ms. Sharma testified that the applicant became very confrontational and defensive. The applicant responded that she had told Ms. Sharma to send her an email if she wanted her to do something. Ms. Sharma testified that the applicant then told her that she was not a good supervisor and a verbal exchange between the two ensued. The applicant went on about the fact that she had no problems with her other supervisors. The applicant told her “Thanks for ruining my day. I’m calling in sick and I’m going home”. This was at approximately 10:30 a.m. Ms. Sharma was shocked that the applicant had spoken to her in this matter, and that she failed to take any responsibility for her error in sending the email to the client.
33As previously stated, the above-noted exchange was denied by the applicant. She vigorously cross-examined Ms. Sharma insisting that none of this had occurred on October 21, 2011 but that in fact the reason that the applicant was upset at work was that she received a text message from her son because he had just found out that she was losing the matrimonial home. Ms. Sharma denied that the applicant had received a text message from her son that day. I note, and this will be addressed below, that the questions put to Ms. Sharma by the applicant during her cross-examination are in stark contradiction to the applicant’s own testimony that there was no trigger to her spontaneous break down at work.
34During Ms. Sharma’s cross-examination the applicant raised the issue that the email that she allegedly sent on October 21, 2012 had never been produced by the respondents. Ms. Sharma testified that the email did in fact exist and that it was available in her mailbox. Though she did not remember the client’s name she knew that the first name was “Michael” and the last name was something like “Goby”.
35The applicant asked that this email be produced by the respondent. On March 13, 2014, I issued Interim Decision 2014 HRTO 355 which directed the respondent to search its emails, locate the one sent to “Michael” and to bring copies the next day of hearing.
36On March 14, 2014, the second day of hearing, the respondent brought a series of emails sent on October 21, 2011 between the applicant and Michael. The first is a detailed e-mail sent by the applicant to Michael at 8:51 requesting some information for a proposed project including the “range of the budget”. Michael responds to the applicant at 9:33 that he will get back to her during the first week of November 2011.
37At 9:38 the applicant sends Michael another email advising that she requires cost centre information in order to engage a vendor and whether the client can provide this information. At 9:41 Michael responds to the applicant that he was under the impression that this was a corporate program and he was wondering why his department would have to cover the cost. At 9:55 Michael sends another email to the applicant about the project including “what are we looking at for cost?” At 9:55 the applicant sent an email to Michael which simply states “Ignore my last email regarding the cost centre.”
38On the second day of hearing the applicant advised the Tribunal that she had the ability to search some of her emails from home and that she had in fact in her possession the above-noted emails with the exception of the email sent at 9:55 in which she advises Michael that she no longer requires the cost centre information. The applicant advised the Tribunal that she disputed that she had in fact sent the 9:55 email to the client and that this had been fabricated by the respondent. This was an allegation which was vehemently denied by the respondent.
39I advised the parties that since the applicant was disputing the authenticity of the 9:55 email that the Tribunal would have to decide whether the email should be accepted into evidence for the truth of its content. I discussed with the parties the potential application of section 34.1 of the Evidence Act which deals with electronic records and whether or not I should be guided by those principles in determining the admissibility of the 9:55 email. I therefore directed the respondent to provide an Affidavit from the IT employee who had located the email in advance of the next scheduled day of hearing. I also advised the applicant that she would have an opportunity to decide whether she wanted to cross-examine the affiant and to disclose any evidence she wanted to rely on in support of her position that she had not sent this email. I set a time-line by which the parties were to exchange this information and proposed evidence.
40On April 4, 2014 after reviewing the Affidavit the applicant advised the Tribunal that she was no longer challenging the authenticity of the email and this document was accepted into evidence for the truth of its content.
41Ms. Sharma testified that she decided that she needed to address the issues that occurred on October 21, 2012 with human resources. A meeting was scheduled with Ms. McKechnie at 11:00 a.m. on October 25, 2014. Ms. Sharma prepared a document on this date entitled “Performance Issues- Lisa Deonarain [hereafter referred to as the “October 25 Memo”].
42Ms. Sharma testified that she next went to talk to Mr. Mosquera her supervisor. She stated that he was supportive of her and told her that there had been on-going issues with the applicant for a number of years. Mr. Mosquera testified that he supported the decision to terminate the applicant’s employment because for a number of years that the applicant’s supervisors had had difficulties with the applicant.
43During cross-examination, Mr. Mosquera explained the circumstances surrounding the applicant’s most recent evaluation in February 2011. He disagreed with the evaluation made at the time by Angelina Seguin, who had only worked with the applicant for three months. Ms. Seguin did not want to include any performance issues that pre-dated her supervisory role, and which she had not been involved with because she did not want to start on the wrong foot with the applicant. He sought advice from Ms. McKechnie who told him that he could not compel Ms. Seguin to change her evaluation, so he signed the evaluation even though he did not agree with its contents.
44After consulting with Ms. McKechnie and Mr. Mosquera, Ms. Sharma made the decision to terminate the applicant’s employment.
45On October 25, 2011 the applicant advised at 5:44 “As per your discussion and approval, I will be taking tomorrow off”. Later that night Ms. Sharma wrote an email back stating:
As per our conversation last week, you indicated to me that you did not require this day off. I was expecting you to be in the office since I will be at Peel all day tomorrow. If there was a change and you needed the following day off then you needed to provide sufficient notice’ for such a request.”
46The applicant replied later that night. “No worries! I’ll drop in at the “Town Hall” then head over to the office. Is that ok with you?” Later that night Ms. Sharma replied that the applicant should attend the town hall meeting. The applicant did not attend the town hall meeting on October 26, 2012 and did not advise Ms. Sharma that she had not attended nor did she respond to any enquiries as to why she did not attend.
47The applicant did not attend work on October 27, 2012 because of illness. Ms. Sharma responded later that day: “I hope you feel better. I also wanted to let you know that I’ve instructed Faitha to record your absence for Friday as sick day. I told her that you left around 10:30 am.”
48Ms. Sharma testified that her working relationship with the applicant further deteriorated, including that on October 27, 2012, she was no longer able to access the applicant’s calendar. She asked the applicant to make sure to adjust her permissions settings so that she could review her calendar. On this day she also asked the applicant to explain why she did not attend the town hall meeting as she had promised to do.
49Ms. Sharma testified that a meeting was scheduled with Ms. McKechnie on November 3, 2012 on the next steps to be taken to implement the decision to terminate the applicant’s employment. There are email correspondences confirming that by November 4, 2012, they had decided that the termination would take place on Tuesday November 8, 2012. Ms. McKechnie also sent Ms. Sharma a termination checklist and script.
50Ms. McKechnie confirmed that the decision to terminate the applicant was made on November 3, 2011. Ms. McKechnie also testified that there had been an ongoing reorganization of the IT department and that at least 10 people had been let go in the last few years.
51The termination meeting did not take place on November 8, 2014, as the respondent witnesses testified was intended, because on November 8, 2014 the applicant called in sick and did not attend at work. She did not return to work and eventually went on STD. Ms. McKechnie testified that she believes that the applicant suspected that she would be terminated because she had access to Ms. Sharma’s calendar and saw that there was a meeting scheduled between the two.
52Ms. McKechnie testified that during her absence the auditor’s report recommended that the Client Support Analyst positions be eliminated. She decided that this would be the reason that would be communicated to the applicant because it was a softer and kinder approach to tell the applicant that her position was made redundant as opposed to delving into her performance issues. Although the decision has previously been made to terminate the applicant’s employment for performance related reasons, Ms. McKechnie testified that the respondent had none-the-less decided to effect that decision on a without cause basis, which would have entitled the applicant to a termination package. Ms. McKechnie testified that given that decision, this was still a without cause termination from employment which entitled the applicant to a termination package.
53She stated that the respondent did not expect the applicant to return to work on April 2, 2012. When she received a call informing her that the applicant was at work, there was some delay because she had to amend the termination package to reflect the new termination date and that this required some changes to the documents. She was present at the termination.
Decision
54Having carefully considered this matter I find that the applicant has not met her onus on a balance of probabilities of establishing that the respondent infringed her rights under the Code. For the reasons that follow I find that the applicant’s alleged disability was not a factor in the respondent’s decision to terminate her employment.
55The respondent denies that the applicant has a disability as defined by the Code. However, for the purposes of this Decision and because I am dismissing the application for separate reasons, it was not necessary it was not necessary to make that determination and I have assumed, without finding, that the applicant has a disability.
The events of October 21, 2011
56There are a number of credibility related issues that I must address. The majority of these issues relate to the testimony of the applicant and that of Ms. Sharma. The applicant’s testimony was that she repeatedly told Ms. Sharma that she had a disability, that no performance issues were raised with her and that in fact her relationship with Ms. Sharma was fine. Ms. Sharma denies that the applicant disclosed that she had a disability, she maintains that she had ongoing discussions with the applicant about her performance and that the working relationship after October 21, 2011 became untenable. This is the same day that the applicant states that she had an emotional breakdown at work.
57As summarized above the applicant and Ms. Sharma’s evidence about what happened on October 21, 2011 is completely contradictory. For the reasons that follow I accept the version of the events of October 21, 2011 as described by Ms. Sharma. I find that the applicant’s evidence with respect to the events of that day lacks both credibility and reliability. In contrast, I found Ms. Sharma’s evidence to be both reliable and credible and supported by a number of contemporaneous emails and documents.
58The information provided by the applicant in both her Application and witness statement was vague, referring only to “In October” that she had a breakdown at work and she was unable to identify a specific day on these documents.
59During the course of the hearing the applicant gave different versions of what specifically happened on October 21, 2011. She testified and maintained throughout her cross-examination that there had been no triggering event which had caused her to have an emotional breakdown at work. Yet, when the applicant cross-examined Ms. Sharma, she put to her that she had received a text-message from her son about the fact that she was losing the matrimonial home. She repeatedly asked Ms. Sharma “come on you remember you were right there when I got the text message”. No text message was produced in support of this allegation. Later on in her submissions to the Tribunal this was either a text message or a telephone call from her son; she could not recall which.
60Having considered the matter I find that these contradictions in the applicant’s version of events undermine both the credibility and the reliability of the applicant’s testimony. When during cross-examination counsel put to the applicant that there must have been a trigger to cause her emotional breakdown, the applicant was very adamant that there was none. When I asked her during closing argument why she had not testified about the text message or the telephone call she said she did not know why. Having considered the matter, I find that this was a significant change in the applicant’s version of events. It is improbable that the applicant would not recall in her testimony that she had received this text message or telephone call when she gave her evidence, especially because she was vigorously challenged on this issue. Further, I find that the applicant failed to provide me with a reasonable explanation as to why her version of the events changed the next day of hearing.
61In contrast Ms. Sharma gave her evidence in a straight forward and consistent matter. Despite the fact that she had not seen the email exchanges between the applicant and “Michael” for a number of months, she was able to provide oral evidence which was consistent with the documentary evidence later tendered into evidence. She could recall that the email exchanges had occurred in the morning and that the clients name was “Michael”. This is despite the fact that Ms. Sharma had not seen these emails for a number of months because she could no longer access these emails because they had been corrupted.
62The applicant denied sending any emails on October 21, 2011 to a client with respect to any costing issues. During her testimony the applicant testified that she had searched her emails, and that the email was in fact with respect to events that occurred earlier in the year. This is despite the fact that the respondent clearly identified that this email had been sent on October 21, 2011 in Ms. Sharma’s witness statement and that the applicant did in fact already have these emails in her possession which were easily searchable.
63When these emails were brought to the hearing, the applicant denied sending the 9:55 email. She accused the respondents of fabricating this email. It is only after reviewing the respondent’s Affidavit that she agreed that she sent the email. The fact that the applicant could not recall sending these emails has a negative impact on my assessment of the reliability of the applicant’s evidence with respect to the events of October 21, 2011. Her changing position on the issue of the email exchange also negatively affects my assessment of her credibility with respect to the events of October 21, 2011.
64I also find that the documentary evidence, the email exchanges, supports Ms. Sharma’s version of events that there was a dispute between her and the applicant on October 21, 2011 with respect to the costing issue. It is clear based on the email sent by “Michael” at 9:41 that there was sensitivity with respect to the issue of the cost allocation of the IT project. Further, the applicant’s 9:55 email in which she withdraws the request for the cost centre information is terse and provides no explanation to Michael for withdrawal of this request. When the applicant testified, in her reply evidence on this issue she stated that she did not believe that it was fair that Michael had to provide his cost centre information, a decision that she made on her own. However, this was not a decision that she could unilaterally make and was really outside of the scope of her duties.
65Further, Ms. Sharma documented the concerns with respect to these events in a Memo that she sent to Ms. McKechnie on October 25, 2011 who confirmed that she reviewed this document on that day. This internal correspondence supports Ms. Sharma’s version of the events of October 21, 2011, and is consistent with her testimony.
66I have considered the circumstances with respect to the email that Ms. Sharma sent to the applicant on October 27, 2011 which states in part, “… I also wanted to let you know that I’ve instructed Faitha to record your absence for Friday as sick day. I told her that you left around 10:30 am.” The Friday referred to in this email is October 21, 2011. When I asked Ms. Sharma why she instructed that this day be recorded as a sick day she stated that she did so because that is what the applicant told her to do when she left and she did not know that she could do otherwise. Based on Ms. Sharma’s testimony I find that she was a new and unexperienced manager who was not familiar with addressing performance and/or human resources issues and I accept that this is why she instructed that October 21 should be recorded as a sick day.
67Therefore, I accept, on a balance of probabilities, the evidence of Ms. Sharma that on October 21, 2011, the applicant sent a series of emails to Michael with respect to the costing of the IT project. When Ms. Sharma confronted the applicant about this issue, the applicant did not take responsibility for her mistake, and ultimately after accusing Ms. Sharma of being a poor supervisor she left work. I do not accept the applicant’s version of events of that day, including that she had a spontaneous breakdown at work, confided in Ms. Sharma about any disability and left work in an emotionally distraught state at the suggestion of Ms. Sharma.
68In these circumstances, I find that the entirety of the applicant’s testimony is undermined and I prefer the evidence of Ms. Sharma over that of the applicant’s any time that there is a conflict between their evidence.
69There are often a multitude of reasons why someone’s employment is terminated. Depending on the circumstances, these reasons may or may not be communicated to an employee at the time of termination. However, once an application is filed at the Tribunal, in which the employer’s motives are challenged on the basis that they were discriminatory, the employer has the ability to defend its decision and is not limited to the reasons provided to the employee at the time of termination. However, it is the Tribunal’s task to determine whether these reasons are a pretext to terminate an employee based on a prohibited ground.
70In this case, the parties agree that the applicant was told at the termination meeting that her employment was being terminated because of the auditor’s report that the four Client Support Analyst Positions should be eliminated. I note that it is accurate that all of these positions were in fact eliminated. However, the three other Client Support Analysts were not terminated and they were placed in other positions within the organization.
71I accept that the real reason that the applicant’s employment was terminated was because the respondent believed that the applicant had on-going performance issues and that she had difficulty getting along with her supervisor Ms. Sharma. The respondent did not communicate this reason to the applicant during the termination meeting, because it believed that it was kinder to tell her that the reason she was being terminated was that her position was being eliminated. Since the termination was not for cause, either reason would have required them to pay the applicant a severance package so they opted for the less hurtful reason, though it was not entirely the truth.
72It is clear apart from the October 25 Memo that there is no written performance issues that have been documented and that all of the applicant’s written performance appraisals are positive. However, my task is not to determine whether or not the respondent had just cause to terminate the applicant’s employment and whether or not a disciplinary and/or performance management program was initiated but whether the decision to terminate the applicant’s employment was based on the prohibited ground of disability.
73The applicant’s theory of the case is that apart from a few typographical errors she had no performance issues. However, I heard testimony from a number of employees, including Ms. Sharma, Mr. Mosquera and Ms. Meyers-Sinclair that the applicant demonstrated the same performance issues described by Ms. Sharma for a number of years. The applicant took the position that these allegations were fabricated by the respondents, in order to justify her termination from employment because people who have mental health disabilities are stigmatized. However, I do not accept that these allegations have been fabricated by the respondent in order to justify its actions. I find that the evidence of Mr. Mosquera, Ms. Meyers-Sinclair and Ms. Sharma accurately describe the on-going issues with respect to the applicant’s termination from employment.
74Further, I also find that to some extent the applicant’s evidence was not consistent with her Application and her witness statement, in that in those documents the applicant appeared to admit that she did indeed have some performance issues. She states that she met with Ms. Sharma in June 2011 because she “did not want her to think that her job performance was declining due to intentional acts on my part”. However, during her testimony with respect to alleged performance issues, at first she denied that she had any performance issues and eventually admitted that she noticed that she was making small typos in her work products in October 2011. During cross-examination on this point, she was evasive and would ask counsel to explain, “what do you mean by performance”, and that “performance could mean many different things.” I had to intervene and tell the applicant that she needed to explain this comment made in her Application and witness statement. The applicant maintained that all she was referring to were some “small typos”.
75I am satisfied, on a balance of probabilities that the applicant never disclosed to the respondent that she had a disability as she alleges on October 21, 2011 or any other date prior to its decision to terminate her employment. Further, the decision to terminate the applicant’s employment occurred before she went on her sick leave on November 8, 2011 and was therefore unrelated to that leave.
76I find therefore, that the applicant has not established on a balance of probabilities that the applicant’s termination from employment was motivated in whole or in part by the applicant’s disability.
Order
77The Application is dismissed.
Dated at Toronto, this 9th day of December, 2014.
“Signed by”
Geneviève Debané
Vice-chair