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Rollick v. 1526597 Ontario Inc.: “heavy handed and unjustifiable conduct”

The recent Human Rights decision of Rollick v. 1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533, addresses what the Tribunal characterized as “heavy handed and unjustifiable” conduct on the part of the employer, when dealing with an employee with a disability.

The applicant, Sabrina Rollick, filed a human rights complaint alleging discrimination based on disability. The respondent did not file a response. A hearing was held in the respondent’s absence.

Background

The Tribunal accepted into evidence the applicant’s witness statement. The statement indicated that the applicant was a single mother who had begun working for Tim Horton’s at their Thunder Bay location as a cashier/store front employee in September of 2009. In December of 2010 the applicant suffered a non-work related injury that caused her to be off work until April of 2011. At that time, due to her injury, she requested accommodation from her employer. When the applicant initially conveyed her request to the Franchise owner, Kevin Matson, she was told the responsibilities of her job had now changed and that she was expected to “wash and bus tables, as well as clean bathrooms.”

The applicant informed the respondent of her work-related restrictions and limitations that required her to not carry anything heavy. The applicant stated that at this point she was terminated.[1]

The applicant contacted Tim Horton’s head office and explained the situation and the franchise owner’s “lack of accommodation”. Head office reinstated the applicant and she began working with a modified work schedule.

Over the next month, the applicant missed some workdays as a result of her disability, but indicated that each time she had informed her workplace prior to her shift, and had followed up with medical notes.

Termination

In May of 2011, the applicant was called into the office by the Franchise owner, Mr. Matson, and was told, “ You can take me to head office, labour board or human rights but your services are no longer needed here!” When the Franchise owner complained about her absences, the applicant again reminded him that her absences were disability related, and that there were no unexplained absences as she had always called in ahead of time. The respondent indicated that there had been complaints against the applicant, yet when asked for proof, the applicant was told by the respondent, “we have a file and it is all in your file.”

When questioned as to why the respondent was breaking the Tim Horton’s policy of three written warnings prior to being terminated, his only response was that everything was in her employee file.[2]

As the applicant had recently returned to work, she was ineligible for employment insurance benefits. In addition, the applicant’s Record of Employment confirmed the reason for issuing the ROE as “Dismissal”.[3] As a single mother, the applicant indicated this was a particularly stressful time for her financially. She indicated that she now suffered from high blood pressure, as well as increased “emotional and financial stress” since the incident. In addition, her statement added that she had a difficult time finding another job, and suspected her former employer may have had something to do with the fact that she was not receiving any job offers. The applicant found employment in October of 2013.[4]

Was the applicant’s disability a factor at the time of her termination?

The Tribunal stated, “…the reality for the applicant was the perception of the employer that she was disabled, and might have functional limitations, perceived or real. The health of the applicant, in the context of the workplace, was in fact well known and exhibited by her actual limitations and need for reduced hours.”[5]

The Tribunal found, on a balance of probabilities, the respondent’s decision to terminate the applicant’s employment in the manner she described appeared to be primarily, if not exclusively, based upon her disability…. and that “complaints” were merely a “veiled attempt” to justify the termination.[6]

Further, the Tribunal found the conduct of the respondent to be “heavy handed and unjustifiable”. The Tribunal added that the evidence suggested that the respondent found the applicant to be an inconvenience and, ultimately, expendable.[7]

The respondent was ordered to pay the applicant $15,000.00 for injury to dignity, feelings and self-respect and $27,378.15 as compensation for lost wages. Rollick v. 1526597 Ontario Inc. underscores the value of regular human rights training for all employees as well as owners, and the bottom line that the Human Rights Code has remedies should the “Code” be breached.


[1] Rollick v. 1526597 Ontario Inc. o/a Tim Horton’s Store No. 2533 2014 HRTO 337

[2] Ibid., para. 4

[3] Ibid. para. 4

[4] Ibid. para. 4

[5] Ibid. para. 13

[6] Ibid. para. 18

[7]Ibid. Para. 27

Note: Following this decision, the respondents filed a Request for a Reconsideration. The reconsideration was granted September 24, 2014. Please read the most recent Interim Decision dealing with this matter.

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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