Kendjel v. Strategic Mapping Inc., 2016 HRTO 524

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joan Kendjel Applicant

-and-

Strategic Mapping Inc. Respondent

DECISION

Adjudicator: Brian Cook Date: April 21, 2016 Citation: 2016 HRTO 524 Indexed as: Kendjel v. Strategic Mapping Inc.

APPEARANCES

Joan Kendjel, Applicant Self-represented

Strategic Mapping Inc., Respondent Bram Granovsky, Representative

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

The hearing

2The Application was heard on April 15, 2016. The applicant appeared and represented herself. The respondent was represented by Bram Granovsky, the president and CEO of the respondent’s company. In addition to evidence from Mr. Granovsky, the respondent called two witnesses – Jordan Brock, who is the vice-president of sales, and Roni Pinhasov, the controller. The applicant had indicated that she wished to call three witnesses. Mr. Granovsky objected to the applicant’s witnesses, arguing that he had not had sufficient notice that the applicant intended to call them. Two of the applicant’s witnesses were present at the hearing. One of them is a friend of the applicant. The applicant clarified that the purpose of this witness was to say that the applicant had frequently stayed late at work and then did not do so. The respondent indicated that this was not in dispute. I determined that it was not necessary to hear from this witness.

3The second witness is Amanda Lunau, a past employee of the respondent. The applicant had provided a witness statement in regard to Ms. Lunau in a timely fashion, although she may not have explicitly identified her as a witness. The respondent included this statement when it filed its hearing documents. I determined that this witness’s evidence was relevant to the issues in the Application and that the respondent had advanced notice of the nature of her evidence.

4The third potential witness lives in Vancouver. The name of this witness was not disclosed until the hearing and it was not clear what her evidence would be. I did not hear from this witness.

Background

5The respondent develops and sells systems for public transit authorities. The respondent’s company has grown in size over the past several years and currently has about 25 employees. The applicant was hired in December 2009 as an administrative assistant to the vice-president and later became executive assistant to the president, while maintaining the administrative assistant position.

6The applicant’s starting salary was $47,000 per year. This was increased to $52,000 in June 2010, after about six months on the job. Following a review in September 2011, she received another raise, to $58,000. She also received a bonus in 2010 and 2011. She was not given a raise in 2012 and did not receive a bonus except for a small amount that was given to her by the controller because of a time when she had to wait two hours for a courier.

7On November 15, 2012, the applicant was moving a heavy box at work. The box slipped and she suffered three fractures to her right wrist. Mr. Granovsky drove her to a hospital where her arm was casted. The applicant testified that the doctor at the hospital told her she should stay off work for eight weeks and gave her a note to that effect. However, the Workplace Safety and Insurance Board (WSIB) determined that she was capable of returning to work after four weeks. For some period of time, the WSIB was paying the applicant partial loss of earnings benefits and the employer was paying her a reduced salary. The parties were not entirely clear why this happened and whether it was because the applicant was working at reduced hours or because she was not performing all of her duties. The applicant’s experience was that she was paid erratically and not given an adequate explanation. Mr. Granovsky testified that the company did not have experience in managing WSIB claims and that the respondent did not receive clear information or advice from the WSIB about what the WSIB was doing or what the respondent was required to do. The applicant eventually resumed her regular duties and received her full pay.

8About eight weeks after the injury, the cast was removed and the applicant was prescribed a wrist brace. The applicant testified that she wore the brace all the time at work for about two months and then began to use it only at the end of the day and at home, and later only occasionally if she had to use her wrist more than usual. Mr. Granovsky and Mr. Brock recalled the applicant wearing a wrist brace for some months after the injury but testified that after that they never saw her use the brace.

9The applicant attended physiotherapy for about three months after she returned to work.

The applicant’s hours of work and work attitude

10The parties agree that for at least the first two years of her employment, the applicant worked considerable overtime hours. While Mr. Granovsky testified that the applicant was not required to work overtime as a condition of her employment, he agreed that her job duties often could not be completed in a forty hour work week. He testified that a part-time bookkeeper was eventually hired and that this relieved the applicant of some of her job duties. None of the witnesses was clear when the bookkeeper was hired but it appears that it was likely in 2012 and before the applicant’s wrist injury. Ms. Lunau, who appeared at the hearing as a witness, was also hired in 2012 and she also took over some of the applicant’s duties.

11The parties agree that the applicant stopped working overtime hours but they do not agree when this occurred. The applicant testified that it occurred after her wrist injury and because of that injury. She testified that after eight hours of work her wrist was painful and that this is why she stopped working overtime hours. She testified that she had previously worked from 7 in the morning to 7 in the evening but that after the injury she worked from 9 to 5 and rarely worked any overtime hours.

12Mr. Granovsky testified that the applicant began to stop working overtime hours following her performance review in September 2011. At that time, her salary was increased from $52,000 to $58,000. The parties agree that Mr. Granovsky informed her that she should not expect any more significant raises because he felt that her salary was competitive and commensurate with her job duties. The applicant did not agree with this assessment. The parties agree that the applicant told Mr. Granovsky that even with the pay raise she felt underpaid and undervalued.

13According to Mr. Granovsky and Mr. Brock, the applicant’s attitude changed significantly after this. She began to be generally more negative and also no longer worked overtime hours.

14Ms. Lanau testified that she was hired in the fall of 2012, before the applicant’s wrist injury. She said she was hired because the company had secured a major contract and she mostly worked on that, but she also took over some of the applicant’s job duties. She left this employment in the spring or summer of 2013, to take another job. Ms. Lanau testified that when she started working in the fall of 2012, the applicant was almost always there before Ms. Lanau arrived for work and usually stayed after Ms. Lanau left. Ms. Lanau herself usually worked from 9 to 5. She said she did not feel under pressure to work overtime hours. Ms. Lanau testified that after the applicant returned to work following her wrist injury, the applicant generally worked from 9 to 5.

15Ms. Lanau testified that the applicant was well-liked in the office and had a sort of “office mom” role.

16Mr. Pinhasov was hired in November 2013. He is the controller and is responsible for financial management. He testified that he was aware that the applicant had injured her wrist at work at some point but that from the time he started he was unaware that the applicant had any continuing wrist symptoms.

17Mr. Pinhasov worked closely with the applicant who was responsible for administering some of the financial systems, and in particular in regard to invoices. He testified that when he started it was apparent to him that the applicant “hated the company and everyone in the company”. He testified that she was expressing negativity among other staff which was creating morale problems.

18Mr. Pinhasov testified that he discovered significant invoicing errors which he believed the applicant was responsible for. One of these involved an invoice for $11,000 that not been sent. He testified that he discovered other invoices amounting to several thousands of dollars that the applicant had not sent. It was his opinion that these errors were so serious that the applicant’s employment should have been terminated for cause. However, she stayed on in her employment until April 30, 2014, and was then terminated on a not for cause basis.

19The applicant did not agree that the unsent invoices were her fault. She testified that she was often told to not send invoices. The applicant submitted that if the allegations about her job performance, attitude issues, and costly errors were true, she should have been performance managed. She notes that the respondent has not produced any documents to show that the alleged errors and concerns during her employment were brought to her attention. The respondent concedes that performance issues are not documented and that performance management was not documented. However, Mr. Granovsky testified that he spoke to the applicant on several occasions about these issues.

The applicant’s disability

20The applicant believes that she was fired because, following her wrist injury, she had ongoing wrist pain and could no longer work overtime hours. The respondent submits that the applicant fully recovered from the wrist injury and that even if she did not, there is no evidence of any disability that interfered with the applicant’s ability to do her job and no evidence that she ever asked for any accommodation.

21The respondent further submits that the applicant was not required to work overtime hours. Some employees work overtime hours and some do not.

22The applicant agreed that neither Mr. Granovsky or anyone else suggested that she should be working longer hours in the period after her injury She testified that Mr. Granovsky frequently said that he would “like to have the old Joan back” or words to that effect She believes that he was referencing the applicant as she was before the injury when she worked overtime hours. I note, however, that the comment could also be consistent with the respondent’s view that the applicant’s attitude towards her work changed significantly.

23The applicant concedes that there is no medical evidence to substantiate any ongoing disability in the period starting a few months after the injury.. She said that she does not have a family doctor and visits a walk-in clinic if she requires medical attention. She agreed that she did not see a doctor about her wrist after the cast was removed. She had some continuing physiotherapy for a few months but did not subsequently return for more treatment. She testified that she uses naturopathic remedies but has not consulted a health care professional about these treatments.

24The applicant testified that she was able to resume all of her full duties, which included shipping and receiving work that required some heavy lifting. The respondent agrees that the applicant sometimes had to lift heavy items. However, the respondent does not agree with the applicant that the applicant was required to lift up to 50 pounds over her shoulder level. Mr. Granovsky testified that the applicant would only lift up to 30 pounds and not over shoulder level. The applicant testified that she suffered a recurrence of her wrist injury as a result of lifting a heavy box and that as a result, a wrist bone or bones protruded. However, she agrees that she did not report this problem or seek any medical attention for it.

Analysis and conclusions

25The issue in this Application is whether the applicant had a disability that was a factor in the respondent’s decision to terminate the applicant’s employment.

“Disability” is defined in section 10 of the Code:

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997

26To establish that the termination of her employment was discriminatory, the applicant does not need to show that a disability was the only reason for the termination, only that it was a factor. However, the applicant has the onus to establish that she had a disability that was a factor in the termination. The issue is decided on a balance of probabilities, so the question I must determine is whether the applicant has established that it is more probable than not that she had a disability that was a factor in the respondent’s decision to terminate her employment.

27Having considered the available evidence, I conclude that the applicant has not established that it is more probable than not that she had a disability that was a factor in the respondent’s decision to terminate her employment.

28First, it is not completely clear that the applicant had a continuing disability. The applicant’s evidence is that she had some continuing discomfort and then developed a bone deformity. Assuming, without deciding, that this is true, the applicant agrees that she did not tell her employer that she had any continuing problems as a result of the wrist injury. While the applicant indicated that she continued to use the brace, she indicated that after a period she only did this occasionally and at the end of the day. None of the other witnesses recalled seeing the applicant use a brace except in the first few months after she returned to work.

29The applicant agreed that she never asked for any accommodation related to any ongoing wrist condition. She was given assistance when heavy lifting was required but it seems that this assistance was also generally given before the injury. The applicant suggested that the fact that she was given assistance shows that it was understood that she had a continuing wrist problem. However, it is difficult to accept this since the applicant agrees that she never said she had a continuing wrist problem or asked for any change in her duties.

30It therefore appears to me that if the applicant had an ongoing disability, the respondent was not aware of it.

31It does appear that the applicant reduced her hours by not working overtime hours as she previously had. It further appears that this likely started after the applicant returned to work after the injury. Ms. Lanau testified that when she first started working for the respondent the applicant generally worked long hours and that she did not do this after the injury. I found Ms. Lanau to be a credible witness and the respondent did not challenge her credibility, and I accept her evidence on this point.

32I do not accept that the applicant stopped working longer hours after the 2011 performance review. However, as noted, the parties agree that the applicant was not satisfied with the results of that review. It is very possible that the fact that the applicant felt undervalued and underpaid, and that she was told that this would not change in the future may very well have caused her to view her employment with her employer differently and in a less positive light. This may have caused her to decide to reduce the amount of overtime she worked however, as indicated above, I am satisfied that it is more probable than not that the decision to no longer work overtime hours at all started only after she came back following the injury.

33It seems to me that for at least the first few months after she returned to work, the respondent would reasonably have understood that the fact that the applicant was no longer working overtime was at least partly related to her ongoing wrist symptoms. However, as I have found that after that period there is no evidence that the respondent knew or ought to have known that the applicant had continuing symptoms, it could not have reasonably supposed that the fact that the applicant continued to not work overtime hours was related to her wrist.

34According to Mr. Granovsky, he was indifferent about the applicant’s hours and whether or not she worked overtime. I think it would be unusual for an employer to have no opinion about such a thing, but I cannot see how, at least after the first three or four months after she returned to work, Mr. Granovsky could have known that the reason for the applicant’s reduced hours was related to her wrist injury.

35I further find that the applicant has not established that the fact that she no longer worked overtime hours, regardless of the cause for this, was a factor in the decision to terminate her employment.

36Mr. Pinhasov testified that he discovered significant errors in invoicing. The applicant agreed that invoicing was part of her job duties although she does not agree that the particular errors were her fault. However, she does not allege that the reason for the unjust accusation that the errors were her fault was discrimination contrary to the Code.

37The fact that the respondent believed that the applicant had made significant errors seems to me to provide a non-discriminatory explanation for the decision to terminate her employment. The question of whether the respondent was wrong in its belief that the applicant was responsible for the errors might be relevant in an unjust dismissal action but is not relevant in this Application.

38In addition, the respondent’s evidence is that the applicant became increasingly negative about her employment and her employer. I accept the evidence of the respondent’s witnesses on this point and I find that this provides another non-discriminatory explanation for the decision to terminate the applicant’s employment.

39For these reasons, I find that the applicant has not established that it is more probable than not that disability was a factor in the decision to terminate her employment and the Application is dismissed on that basis.