In its findings regarding discrimination against an employee on the part of Highpoint Management Inc., the Human Rights Tribunal of Ontario has fined the Kingston-based property developer and management company $27,545.93.
Highpoint Management Inc. and Highpoint Developments Inc. are both owned by Nina and Imy Maloo and operate rental accommodations and cleaning services for students living in downtown Kingston. The applicant to the Human Rights Tribunal was a former employee who was hired by Highpoint Management as a part-time cleaner in February of 2016. The former employee asserted her employment was unlawfully terminated, and alleged discrimination with respect to employment on the basis of disability, contrary to the Human Rights Code. The case was heard on Tuesday, Mar. 5, 2019.
According to documentation from the Human Rights Tribunal, the applicant had expressed at the time of her hiring that she had “tummy issues,” as well as the need to attend related and unrelated medical appointments. The applicant expressed that those needs, along with her needs to occasionally attend family court, would require some flexibility in her scheduling. At the time, the applicant was suffering from a gastrointestinal condition that had yet to be diagnosed as diverticulitis, a serious condition which eventually required the applicant to undergo surgery in January, 2017.
Although the two parties – the applicant and Highpoint Management and Developments Inc. – disputed whether or not the applicant had disclosed she has a gastrointestinal condition when she interviewed for the cleaning position, Adjudicator Jacek Janczur found that the person responsible for hiring the applicant was made aware of applicant’s medical issues, and was well aware of the issues at the time of termination. That termination came after months of the applicant working for Highpoint, and months of the applicant’s medical condition developing.
“During the time that the applicant was employed by the respondents she was undergoing dietary testing, blood tests, colonoscopies and biopsies in an attempt to diagnose her condition. During this period she was admitted to hospital around five times,” the decision of the Human Rights Tribunal reads.
While working for Highpoint, the applicant’s assigned work partner quit and was never replaced. On top of that, the applicant’s symptoms worsened as time went on, resulting in the applicant occasionally calling in sick or arriving late for work. Her condition was such that she would experience a sudden need to relieve her bowels.
“If this took place while she was at work, she would use the washroom in the place that she was working or a public washroom nearby if necessary. The amount of time the applicant might take in the washroom was unpredictable. If this took a long time she adjusted the time that she recorded as worked on her timesheets,” according to the judgement documentation from the Human Rights Tribunal. Additionally, the applicant provided medical notes confirming she had been ill in July of 2016.
By October 13, 2016, the applicant’s gastrointestinal issues brought her into hospital again, this time at the Emergency department where her husband had driven her due to her extreme cramping. She was placed on intravenous antibiotics and underwent a CT scan which led to her diagnosis with diverticulitis.
At that point, the applicant was provided with a note certifying this event and stating that she could return to work without restrictions on October 17, 2016. The applicant sent her supervisor a message by text advising of what was happening as well a photograph of herself in hospital. Her supervisor responded by texting back: ‘Just take care of yourself.’
However, later that day, the applicant received another text message from her supervisor informing her that she could pick up her termination papers. Despite the supervisor noting that she “didn’t want to do it this way,” the applicant had been fired while in hospital.
According to the supervisor, the decision to terminate the applicant had been made a week prior but not communicated to the applicant. The decision was made by Nina Maloo, and the supervisor had agreed with the decision, despite the applicant having received no formal warnings or indication her job might be in jeopardy.
Adjudicator Janczur took particular note of the information noted in the ‘comments section’ of the Record of Employment (ROE) that the applicant received after being terminated.
“The ROE indicated that she had been dismissed. In the Comments section of the ROE, Karen Wyatt (“Wyatt”), the respondents’ bookkeeper wrote: “unreliable – inability to work scheduled hours – often not providing adequate notice if she was going to be late for her shift or of illness [emphasis added],” the Tribunal decision reads.
Those comments led to an Employment Insurance (EI) investigation after the applicant applied for EI, and which she was eventually granted.
In the end, Adjudicator Janczur found that Highpoint Management breached the Human Rights Code when they terminated the applicant’s employment.
“The applicant was terminated for absences, many of which were disability related. There can be no question that her disability, a protected ground under the Code, was a factor in her termination. The applicant said that around eighty percent of her absences were related to her disability and the respondents did not meaningfully challenge this in cross-examination of the applicant nor did they keep records as to why she was absent,” Janczur said in the decision.
“In any event, the respondents were aware of the applicant’s disability before her admission to hospital, when they claim the decision was made, and I find that by that time the applicant’s need for accommodation was well apparent.”
Based on the applicant’s ROE, the Tribunal determined the applicant’s average weekly pay was $280.33 and fined Highpoint Management and Highpoint Developments Inc. $5,045.93 for the 18 weeks of lost wages between the time of the applicant’s termination and the time she was awarded EI.
Furthermore, Janczur decided that the applicant’s claims of ‘general damages for injury to dignity, feelings and self-respect’ were founded, and granted the applicant’s request for $22,500 in general damages.
“I find that the manner in which the applicant was terminated was cruel and punitive. She was hospitalized for a serious and painful condition and the difficulty of that episode in her life was compounded by being told that she had lost her job,” Janczur said in the decision.
“Loss of employment is almost always a shocking and traumatic event for an individual. In this case, it would have been compounded by the fact that the applicant was a valued employee who had every reason to believe that she was doing a good job and had no reason to suspect that her employment was in jeopardy.”
Highpoint Management Inc. and Highpoint Developments Inc. will pay the applicant post-judgment interest at a rate of two per cent on any amounts outstanding commencing 30 days from the date of the decision (Tuesday, Mar. 5, 2019).