North Bay, Ont., woman was discriminated against when she was fired, tribunal rules

The manager of a Tim Hortons in North Bay was wrong to fire a long-term employee because of her physical limitations, the Human Rights Tribunal of Ontario has ruled.

The tribunal awarded the woman more than $35,000, including $20,000 for “injury to her dignity, feelings and self-respect.”

The woman was 61 when she was let go in November 2017. She had worked at the restaurant for 18 years. She appealed to the tribunal, alleging “discrimination because of disability and/or age contrary to the Human Rights Code,” according to the transcript of the proceeding.

In response, the employer argued that her physical limitations had gotten to the point she could no longer perform basic duties. Under the law, employers are required to accommodate people with disabilities only “up to the point of undue hardship.”

The tribunal hearing was held in August 2022 and the decision was released earlier this month.

Problems began when the woman developed serious shoulder and knee pain in 2016.

“These medical conditions … were causing her physical limitations at work,” the transcript said.

As a frontline employee, the woman’s tasks included working in the drive-thru, front counter, making soup and sandwiches, cleaning, sweeping, restocking items and checking washrooms.

“The parties agree that during her employment, the applicant reported to the respondent that she had some medical concerns that restricted her from performing some of the tasks,” the transcript said.

“The respondent provided accommodations to the applicant based on these reported medical concerns, by permitting her to withdraw from particular tasks.”

In addition to physical limitations, the woman could no longer prepare sandwiches because she was allergic to the gloves employees had to wear while making them.

“The applicant was removed from stocking duties that required climbing a ladder after she reported in 2016 that climbing the top portion of the ladder caused her vertigo,” the transcript said.

“The applicant was removed from sweeping and mopping duties after she reported that it caused her shoulder pain. At some point, the respondent also withdrew the applicant from drive-thru and coffee/beverage duties. The parties now dispute whether she could perform these duties.”

As a result, her duties were limited to greeting customers, working the front counter cash, “finalizing transactions, some stocking, some cleaning, bathroom checks and filling fridges.”

She told her supervisor she could no longer fill fridges because it caused her shoulder pain. At that point, her employer told her she needed a doctor’s note.

The note, dated Nov. 2, 2017, stated: “This patient has limitations in bending, twisting, of shoulders, neck and knees. She cannot kneel or bend to reach and lift items that are below the waist. She can work at waist level. She cannot lift above her head. She may require breaks and to work at her own pace.”

When she showed it to her manager the next day, she was terminated.

“The general manager acknowledged receipt of the doctor’s notes,” the transcript said.

“He testified that in his judgment, she could not do the job anymore because there were not enough tasks that she could do to fill the day. He testified that she could not serve coffee and could not work in the drive-thru, which he says were essential tasks.”

However, the tribunal ruled that the fact she was dismissed the same day she showed them the doctor’s note was “highly relevant” to the woman’s case.

'ACCOMMODATION DIALOGUE'

That’s because under Ontario law, employers are required to have “accommodation dialogue” with employees with physical limitations.

“The respondent did not request information about the applicant’s prognosis, whether her medical needs and restrictions were permanent in nature as they related to her ability to perform her work duties, and/or the anticipated duration of her medical needs and restrictions,” the transcript said.

“The respondent did not provide the applicant’s physician with a description of the essential duties of the applicant’s job to request her further input on what accommodation could be provided to allow the applicant to perform those duties. The applicant’s physician testified that she would normally expect to receive a form from an employer to assist her with requests for workplace accommodation.”

If the employer had made those inquiries, the tribunal said it could have assessed whether the limitations were permanent and whether there were duties she could perform in the interim.

The woman had knee replacement surgery in 2018 and shoulder surgery in 2019.

“With further information that was available at that time, the parties would have been able to give consideration to what reasonable accommodation could have been provided to the applicant, perhaps on a temporary basis, within the factual matrix before them,” the tribunal said.

Letting her go the same day they received the doctor’s note is evidence that the employer “failed to consider what accommodation options there were.”

In other words, the employer had to assess whether there were solutions available to accommodate the employee “up to the point of undue hardship” before making a decision to terminate their employment.

The woman sought $25,000 “for injury to dignity, feelings and self-respect,” and the tribunal awarded $20,000. She was also awarded $15,290.40 in lost wages, covering from the day she was fired until the day she had knee replacement surgery.