COURT FILE NO.: 07-CV-345294PD2
DATE: 20120424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROXANNE KING
Plaintiff
– and –
THE REGIONAL MUNICIPALITY OF PEEL
Defendant
In person
Ann Dinnert, for the Defendant
HEARD: February 27, 28, 29; March 1, 2, 3, 2012
C.J. BROWN J.
REASONS FOR DECISION
[1] The plaintiff, Roxanne King (“Ms. King”), worked for the Malton Village Long Term Care Home operated by the Regional Municipality of Peel (“Peel”), as a Scheduling Assistant from July 31, 2006 to May 28, 2007, earning $38,695.00 per annum, plus benefits. On May 28, 2007, her employment was terminated. She was paid two weeks salary, plus benefits, in lieu of notice.
[2] The plaintiff claims that she was terminated without notice and without cause. She further claims that she was discriminated against and that her human rights were breached. She claims damages in the amount of $750,000.00 for wrongful termination, discrimination, aggravated and special damages.
[3] The defendant states that the plaintiff’s employment was terminated after several warnings about poor performance. However, she was not terminated for cause, but was terminated with pay in lieu of notice of two weeks, plus benefits.
Issues
[4] The issues in this trial are as follows:
(1) Was the plaintiff wrongfully terminated;
(2) Was the employer entitled to terminate the plaintiff’s employment;
(3) Is the plaintiff entitled to damages arising from her termination;
(4) Were the plaintiff’s human rights breached?
Was the plaintiff wrongfully terminated?
[5] The plaintiff was hired on July 31, 2006 as a Scheduling Assistant at the Malton Village Long Term Care Home operated by Peel. In this position, the plaintiff was responsible for staff schedules to provide staff coverage for all departments of the Long Term Care Centre, to ensure that there was sufficient staffing to look after the needs of the long term care residents. As well, her responsibilities, as described in the materials produced, also included providing support for general clerical and computer services under the direction of the Administrative Services Supervisor, Phyllis Gilbert. In respect to scheduling, Ms. Gilbert testified that it was the responsibility of the plaintiff to contact the staff to determine their availability before scheduling them for shifts, to ensure that all floors and departments at the nursing home were always properly staffed. She was to create the schedule and to ensure that it was posted. The employees of the Long Term Care Home included union employees of the Ontario Nursing Association and C.U.P.E. The evidence indicates that the plaintiff’s position, which was in the Administrative Department, was non-union.
[6] The letter of employment offering the plaintiff a position, which was dated July 13, 2006, included, as terms and conditions of her employment, the following, which are relevant to this action.
The first six months of your employment constitutes your probationary period during which the Region will assess your abilities to perform the duties of the position and to comply with the Region’s practices, policies and requirements.
While we do not anticipate that the situation will arise, should the Region ever terminate your employment for any reason other than cause, any entitlements will be limited to those outlined in Ontario’s Employment Standards Act.
[7] The plaintiff signed the letter, acknowledging her acceptance.
[8] The plaintiff takes the position that she was unfairly terminated after the end of her probationary period of six months, which had, in fact, been extended by an additional three months to May 7, 2007, and had expired approximately three weeks prior to her termination. The plaintiff alleges that the Municipality failed to provide proper training; that they blamed errors on her that were not errors or that were the errors of others; and that her supervisor breached the Ontario Human Rights Code, more particularly, that she was discriminated against on the basis of her place of origin.
Training
[9] The plaintiff submits that, throughout her entire probationary period of nine months, she was not provided proper training to permit her to do her job. She further states that she was to receive additional training during her extended probationary period, but was denied the opportunity.
[10] The plaintiff stated that she was not properly trained throughout her service. She testified that her supervisor, Ms. Gilbert, was too busy to train her and delegated the task to the Director of Nursing, Angela Archer, particularly with respect to scheduling. This was denied by Ms. Gilbert, who testified that she provided the plaintiff with training throughout her extended probationary period, and facilitated additional training for the plaintiff with others to ensure that the plaintiff was performing her job and was provided with all necessary training to do so. Ms. Gilbert denied that she had delegated any scheduling training to Angela Archer, who was the Director of Nursing and had her own significant responsibilities. Ms. Archer also testified that she had not been involved with, nor was she supposed to be involved with Ms. King’s training. Based on the evidence, I do not accept Ms. King’s position that she was not properly, or at all, trained for the job during her probationary period. I find that training and supervision were provided to her throughout her performance.
[11] It was the evidence of the plaintiff that the probationary period was extended an additional three months because the defendant had not had sufficient time to train her previously. Witnesses for the defendant, including the supervisor, Phyllis Gilbert, and the Human Resources Facilitator, Melanie Calhoun, testified that this was not the reason for the extension, and that she had been provided training throughout her probationary period. They testified that the probationary period was extended to afford the plaintiff additional time to show that she could perform her duties, as her performance was, in some respects, adequate, but in other respects continued to be the subject of complaints. Her performance was described as “borderline”. Ms. Calhoun testified that such an extension was often given in such “borderline” performance cases. I prefer the defendant’s evidence in this regard.
Performance Issues
[12] The plaintiff submits that throughout the probationary period, she performed to the best of her ability, but that her supervisor accused her, unfairly and without basis of, among other things, errors in her scheduling, failure to fulfill her duties, and her communication with staff. She admitted that she may have made some errors in the beginning few months, but stated that she made no errors after December 6, 2007. The evidence produced at trial documented performance issues on the part of the plaintiff which she attempted to improve, and performance issues attributed to her which she testified were not caused by her, but were caused by others. The plaintiff produced some documentation, as well as handwritten notes, to dispute the list of reasons set forth by her supervisor for her termination and to substantiate that some of these alleged errors were untrue and others were caused by other staff.
[13] The documentary evidence of issues regarding her performance were produced in evidence by the defendant and include, among other things, notes regarding a meeting of November 22, 2006, notes dated November 30, 2006, notes of performance objectives for February 7 to May 7, 2007, notes dated February 7, 2007, notes of February 13, 2007 with respect to extension of the probationary period and issues to be dealt with, and a document entitled “Issues with respect to Roxanne King” dated May 18, 2007, prepared by Phyllis Gilbert, enumerating the reasons that Ms. Gilbert felt that the plaintiff’s services should be terminated.
[14] The major issues included ongoing scheduling mistakes, overbooking and underbooking of staff, poor communication skills, particularly in her interaction with the hourly staff, and a general lack of professionalism and office etiquette, rudeness and failure to follow directions. The defendant also noted a tendency on the part of the plaintiff to attribute any booking and scheduling errors to the co-workers and other staff. The majority of the evidence involved these issues, and it is those that I will deal with.
[15] The plaintiff produced a significant amount of evidence to refute the performance issues raised by the defendants. The plaintiff testified that she made few scheduling errors, and none after December 6, 2006. She testified that issues of scheduling, attributed to her, were actually the errors of others. She further testified that some issues were fabricated by her supervisor, Phyllis Gilbert. She produced the scheduling lists, which she indicated were those lists from which she worked. Her evidence was that these schedules attested to the fact that she had fulfilled her duties properly and had confirmed that the employees were called and available for service.
[16] The plaintiff denied in her testimony in chief that any errors attributed to her by the defendant were hers, but in cross-examination when confronted with documentation including emails in which she had acknowledged and apologized for some of the errors attributed to her which had occurred, admitted that there had been some errors.
[17] In cross-examination, the plaintiff’s answers were evasive and defensive. There were questions she did not want to answer as she stated she did not have any notes or documents of what had occurred. In contrast, all of the defendant’s witnesses’ evidence was given in a straightforward, forthright manner. Where evidence of the plaintiff and defendant differed, regarding the performance issues and errors made, I prefer the defendant’s evidence.
[18] There were numerous documents produced by the defendant regarding meetings which were held to discuss issues raised by supervisors of various departments regarding the plaintiff’s performance and scheduling errors, as well as complaints received from their staff regarding the treatment they received by the plaintiff. The plaintiff’s evidence was that most of these meetings did not happen or the Minutes produced by the defendant were fabricated. In cross-examination, when asked about the alleged fabrication, she stated that Minutes of the meetings did not match her notes and, where there was such a discrepancy, she stated “who is right and who is wrong”. I prefer the evidence of the defendant and the Minutes of meetings kept in the ordinary course of business.
[19] The evidence of the defendant included the grievance form filed by CUPE regarding Roxanne King and scheduling errors, which stated “employer continues to make scheduling errors further to December 20 Labour Management meeting” and a list of grievances filed by the national representative of CUPE Local 966 dated April 26, 2007, listing nine errors of overbooking or blocks of work incorrectly offered to staff. The plaintiff adduced evidence to establish that two of these grievances were found to be without merit. However, there were seven grievances remaining which were accurate and which were found to be booking errors. The witnesses for the defendant testified that the overbooking and underbooking caused disruption on the floors of the Long Term Care Home, when there were not sufficient staff booked to take care of all of the residents, cost the Home money when there were overbookings and employees who were not needed appeared for work and, as well, gave rise to grievances such as those indicated above.
[20] There was also evidence of employees who had called in because they were overbooked or were booked for schedules that they could not do because of other employment. The employees indicated that they had made their availability clear to the plaintiff, but had nevertheless been booked by the plaintiff at times when they were not available. The plaintiff denied this as well. She testified that the booking errors were not hers, because they were either not errors or were the fault of others.
[21] The defendant provided evidence with respect to a Mandatory In-Service Session which was scheduled for May 17, 2007. Phyllis Gilbert described the Mandatory In-Service Session as an educational training program which all staff were required to attend annually. The training session was conducted in-house, in two sessions, morning and afternoon. She explained that the staff must be scheduled such that part of the staff could be scheduled for the training session in the morning and part in the afternoon. It was necessary also to ensure that there was sufficient staffing in the Long Term Care Home such that all residents would be taken care of in both the morning and the afternoon, with sufficient staff on all floors to look after the residents’ needs. This required that the Scheduling Assistant, Roxanne King, notify all staff, ensure that they were available for training in the morning or afternoon and that there was sufficient other staff to take care of the Long Term Care residents during each of the In-service Training Sessions.
[22] Ms. Gilbert testified that she used the planning for and scheduling of the In-Service Training Session as an additional opportunity for the plaintiff to demonstrate her ability to perform the required tasks. She stated that during the period of preparation for the In-Service meetings, she checked with the plaintiff to determine that all preparations necessary for the smooth running of the In-Service Training Sessions were being accomplished, including scheduling of the staff for both training sessions and ensuring that there was sufficient staff to care for the residents in the morning and afternoon, and to ensure that all staff were being properly called and notified of their scheduled times for the training session and for work. She was advised by the plaintiff that this was happening.
[23] Phyllis Gilbert testified that the Friday prior to the Training Sessions, calls began to be received from staff, including casual staff, regarding the times that they were scheduled for their attendance at the Mandatory In-Service Training Sessions. There were certain staff who did not know what their schedules were, and others who had been scheduled for times that they were not available. Both Ms. Gilbert and Angela Archer, the Director of Nursing, testified that, on the day of the In-Service Training Sessions, there was what they called “chaos”. The Long Term Care floors were short staffed and there was no staff to feed those in the dementia unit. Ms. Archer testified that she had to go into both the morning and afternoon In-service Sessions to take some staff out in order to properly staff the floors to take care of the residents. She testified that about twelve or thirteen staff were unable to attend the training session at all that year as a result of the improper booking schedules and the underbooking of nursing staff for the residents’ care, although it was an annual mandatory educational session. There were transcribed voicemails from staff, Nadine Sitarin and Natalie Grosset, produced with respect to this issue, which evidenced errors in booking regarding their schedules.
[24] The defendant states that it was as a result of this final scheduling issue that it was determined that Ms. King was not able to properly do her job.
[25] It was the evidence of the plaintiff that she had contacted all staff, had done the scheduling properly, and if there were any issues, they were not her fault, but were the fault of others.
[26] With respect to the issue of Mandatory In-service Training scheduling issues, the plaintiff blamed the scheduling errors on both her supervisor, Ms. Gilbert, and on another staff member, Nicole Rodney, for not having gotten the information to her in time to do her calling and scheduling. Again, she took no responsibility for the problems which arose at the In-Service meeting.
[27] It is clear that throughout the entire probationary period, the plaintiff attempted to fulfill her responsibilities, but, to the end, continued to struggle. While the plaintiff maintained throughout that she did not make errors, the evidence indicated that, in fact, significant errors were made and continued to be made on an ongoing basis. The plaintiff clearly admitted, particularly in cross-examination, that there were some errors made at the beginning, but that there were no errors made after December of 2006. Those errors which were made thereafter, she either denied or attributed to others.
[28] The defendant’s evidence indicates that the plaintiff’s performance was, in part, good and, in part, problematic, and for this reason, because the performance was “borderline” as stated by Ms. Gilbert, and Melanie Calhoun, the Human Resources Facilitator, her probationary period was extended. I accept this evidence. Ms. Gilbert also stated that in meetings with other supervisors of the other departments, the supervisors indicated that there were ongoing problems with scheduling in their departments which resulted in staff complaints, and overstaffing and/or understaffing on floors, all of which had a significant impact on unionized staff, the care given to the long term care residents and the smooth functioning generally of the Home.
[29] Given the evidence in respect to booking and scheduling errors, and the testimony with respect thereto, I prefer the evidence of the defendant in this regard and find that there were booking and scheduling errors which caused significant disruption and cost to the Long Term Care Home.
[30] With respect to the performance issues, I find, based on all of the evidence and the testimony, that there was sufficient evidence to terminate Ms. King’s employment for poor performance. However, in the end, Ms. King was not terminated for cause, namely poor performance. Rather, she was terminated by her employer following her probationary period, without cause with pay in lieu of notice.
Was the Municipality Entitled to Terminate the Employment
[31] While the supervisor, Ms. Gilbert, submitted to her superior a list of issues dated May 18, 2007 enumerating why she believed that Ms. King’s services should be terminated, in the end, in consultation with the Administrative staff, Human Resources and the Legal Department, it was determined that the plaintiff would be terminated without cause, and given pay in lieu of notice. This is what was done.
[32] An employer may terminate the employment contract at any time, on a without cause basis, by giving the employee notice or pay in lieu of the contractual notice. I note, with respect to clause 10 of the plaintiff’s employment contract, signed by the plaintiff that, upon termination, she was entitled to notice or pay in lieu of notice as set forth in the Ontario Employment Standards Act. The evidence indicates that, in addition to her entitlement pursuant to the Ontario Employment Standards Act, namely one week of pay in lieu of notice based on the period of time that she was employed, she was given an additional one week by the defendant, for a total of two weeks pay in lieu of notice.
Is the Plaintiff Entitled to Damages Arising from the Termination
[33] I also take into consideration whether the two weeks pay in lieu of notice can be considered reasonable notice. In determining reasonable notice, there can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment having regard to the experience, training and qualifications of the servant: Bardal v. Globe and Mail Ltd. 1960 CanLII 294 (ON SC), [1960] O.J. No. 149. The “Bardal factors” for determining reasonable notice are well accepted and continue to be applicable considerations.
[34] The plaintiff was young at the time of her termination, only thirty-four years of age. The plaintiff was employed with the Municipality for ten months at the time of her termination. Her position as Scheduling Assistant was clerical, for which the defendant submits that she would have been able to find other employment. There was no evidence one way or another with respect to the availability of such employment. While the plaintiff testified that she was told by the defendant at the time of her termination that she would never be able to work in Peel or for the Municipality again, there is no evidence upon which this Court can find that she is unable to work or to find work in Peel, and no evidence to establish that she has been precluded from applying for or obtaining employment with the Municipality. Indeed, there was no evidence of positions she applied for or held either with the Municipality or elsewhere after her termination. Based on all of the evidence and the factors to be considered in determining the reasonableness of notice, I find that the two weeks given to the plaintiff was reasonable notice in all of the circumstances.
[35] Ms. King claims that she is entitled to damages, not only for wrongful dismissal, but for the financial position in which she and her husband were placed following her termination. She provided evidence of financial difficulties which arose in 2011 in support of this claim, as well as some bills which were received in 2011. I find this evidence to be too remote, and too far removed from the termination of employment, which occurred over four years before, in May of 2007. I have already found that she was not wrongfully terminated and, accordingly, she is not entitled to damages in this regard. Therefore, she is also not entitled to damages for any financial difficulties arising from her termination, which I would find, in any event, cannot be established on any evidence produced by the plaintiff to have been caused by the termination.
The Human Rights Complaint: Were the Plaintiff’s Human Rights Breached?
[36] The plaintiff alleges that her supervisor, Phyllis Gilbert, abused and discriminated against her. More particularly, she claims that Phyllis Gilbert breached Section 5 of the Ontario Human Rights Code, discriminating against her on the basis of her place of origin, namely, Newfoundland and her Newfoundland accent. She alleged this as the basis of discrimination. She states that Ms. Gilbert found her communication skills to be poor, accusing her of communicating poorly with staff, and attributed this to her Newfoundland accent. She states that this was a cause of her termination and was in breach of her human rights. She further states that four days prior to her termination she advised the defendant that she had filed a Human Rights Complaint against the defendant. She claims that this was a cause of her termination. Finally, she also states that she had advised Ms. Gilbert on May 25 that she was three months pregnant, and that this was a cause of her termination. All of this is denied by the defendant. The defendant’s position is that the Human Rights Complaint is based solely on credibility, the plaintiff’s assertions and testimony, as well as the Human Rights Complaint filed and some notes which she adduced.
[37] The evidence produced by the plaintiff in support of her claim that there were breaches of the Human Rights Code was not consistent. The evidence which she adduced indicates that she first complained internally of bullying, harassment and abuse on May 21, 2007, seven days prior to her termination. On that day, she forwarded an email to Ms. Gilbert’s supervisor, Wendy Beatty, the Human Rights Facilitor, Melanie Calhoun and Carolyn Clubine stating that she had been the subject of bullying, harassment and abuse in the workplace by Phyllis Gilbert since the start of her employment. This was her first complaint. She advised the recipients that she had filed a Human Rights’ Compliant against Ms. Gilbert for her strong, abusive words and actions towards the plaintiff. She also stated that she had filed a complaint with the Ontario Labour Board, alleging that “some of the actions taken by Ms. Gilbert go against the Employment Standards Act.” There was no evidence adduced at trial, nor any testimony with respect to the Ontario Labour Board complaint and, accordingly, I do not deal with that alleged complaint, as it was not an issue at trial.
[38] With respect to the complaint of bullying and harassment, she stated in cross-examination that she defined the bullying as Ms. Gilbert using her power and authority to report booking and scheduling errors made by someone else, blaming them on Ms. King. She defined the alleged harassment and abuse as Ms. Gilbert telling her she had a communication problem attributed to her accent. She testified that although she told Ms. Gilbert that she had no accent, Ms. Gilbert continued to say that there was a communication problem with the hourly staff. It is the evidence of the defendant that there was never any indication of this claim regarding an accent until her Human Rights’ Complaint was filed on May 28th. While it is clear that one of the enumerated performance issues which had been identified early in the plaintiff’s probationary period was communication with staff, this communication problem, as identified, was not due to an accent, but rather was due to the tone and manner in which the plaintiff addressed other staff, which resulted in complaints of her being unprofessional, demeaning or abusive/bullying to the other staff.
[39] With respect to the complaint, the witnesses called by the plaintiff, who were all supervisors at the Malton Village Long Term Care Home, including Ben Sutton, Ina Reynolds and Debra Bodnar, testified with respect to their responses to the allegation of discrimination on the basis of place of origin on the part of Ms. Gilbert, as follows.
[40] Mr. Sutton testified that he was surprised and offended when he learned of the human rights complaint against Ms. Gilbert as “she is the first to speak out about equality.” Ina Reynolds testified that she was shocked by the allegations as Ms. Gilbert “is one of the nicest women, who always wants to do the right thing.” She described the workplace as one of wide cultural diversity. Ms. Bodner found the allegations to be outrageous as the workplace is very multicultural and she has never heard any derogatory comments.
[41] The witnesses described Ms. Gilbert as concerned about equity and equitable treatment of the staff, as one of the nicest persons, who always wants to do the right thing for staff and for residents, and as a long time employee who served as a resource and a “go-to” person. As submitted by the defendant in closing, Ms. Gilbert is a person of colour and with an accent.
[42] It is the alleged discrimination that is the basis of her Human Rights Complaint. I find the plaintiff’s evidence to be inconsistent and contradictory in this regard. The Human Rights Complaint, filed with the Human Rights Commission, is dated May 28, 2007. While she stated in her email of May 21, that she had already filed a complaint with the Human Rights Commission, she did not specify the details of that complaint other than to say in that email that she was being bullied, harassed and abused by Phyllis Gilbert. In her cross-examination she conceded that she did not receive the Human Rights package containing the form with which she could make a complaint until the day of her termination, May 28. The evidence indicates that the Human Rights Complaint was dated May 28 and was received by the Human Rights Commission on June 6. The documentary evidence indicates that the Human Rights Complaint form was first received and completed by the plaintiff on May 28 and received by the Commission on June 6. The plaintiff testified that she subsequently withdrew the complaint and commenced this action. The Human Rights Complaint states that she was told by her supervisor that she had a communications problem with the front line staff due to her Newfoundland accent. There is no evidence to indicate that she had ever brought this to anyone’s attention prior to the Human Rights Complaint.
[43] The defendant testified that there had been no evidence adduced of any allegations concerning her “accent” until August of 2010, following commencement of this action, when the plaintiff produced her documentation. The documentation included a handwritten note made by the plaintiff which made reference to comments about her accent. I note that the Human Rights Complaint was dated May 28 but, in her email of May 29, she only raised the issue of lack of supervision and her pregnancy as being reasons for her termination. I do not find the plaintiff’s evidence to be forthright or consistent regarding the complaint. The plaintiff has failed to provide sufficient evidence for this Court to conclude that there was a breach of the Ontario Human Rights Code with respect to discrimination on the basis of her place of origin.
[44] With respect to the plaintiff’s claim that her termination was due to the fact that she advised her supervisor of her pregnancy on May 25, 2007, three days before her termination. the supervisor, Phyllis Gilbert, denies that she was ever advised prior to termination of the plaintiff’s pregnancy, or that this was a reason for her termination. Nevertheless, this was stated in an email from Roxanne King to Carolyn Clubine and Wendy Beatty dated May 29, the day after her termination. She attributed her termination to one or both of the following:
her lack of supervision, coaching and support over the past ten months and
her pregnancy.
[45] Nothing with respect to this was raised by her in her termination meeting.
Based on the evidence of the plaintiff, which was inconsistent with the testimony of her witnesses, and based on her documentation produced which was inconsistent regarding her claims of human rights breaches, I do not find any cogent evidence to support the plaintiff’s claims of discrimination and breaches of the Human Rights Code.
Conclusion
[46] Based on all of the foregoing, I find that the plaintiff was not, as she alleges, terminated for cause, but was terminated without cause, and provided reasonable pay in lieu of notice. I further find that there is no sufficient evidence to establish a breach of the Ontario Human Rights Code with respect to the plaintiff. I therefore dismiss the plaintiff’s claim.
Costs
[47] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.
C.J. Brown J.
Released: April 24, 2012
COURT FILE NO.: 07-CV-345294PD2
DATE: 20120424
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROXANNE KING
Plaintiff
– and –
THE REGIONAL MUNICIPALITY OF PEEL
Defendant
REASONS FOR JUDGMENT
C.J. Brown, J.
Released: April 24, 2012