A recent decision by the Human Rights Tribunal of Ontario indicates that the premature issuance of a Record of Employment (“ROE”) can be fatal to an employer’s defence to a discrimination complaint irrespective of whether the employee in question has fully cooperated in the accommodation process.
In Gonneau v. Denninger1, Christa Gonneau (the “Applicant”), a hair stylist employed by Silvia Denninger (the “Respondent”), filed an application under the Ontario Human Rights Code2 alleging discrimination on the grounds of pregnancy. In July 2008, the Applicant discovered that she was pregnant and informed the Respondent shortly thereafter. Unfortunately, the Applicant began experiencing increasingly severe nausea as a result of her pregnancy, which prevented her from carrying out her duties as a hair stylist.
On July 19, 2008, the Applicant left a message on the answering machine at the Respondent’s hair salon indicating that she would not be able to work that day because she was ill. The Applicant further stated that she would call back on July 22, 2008, the next day that she was scheduled to work. The Applicant did not phone again on July 22, 2008 as promised. On July 23, 2008, the Respondent phoned the Applicant to follow-up and was informed that the Applicant was still sick and, consequently, unable to report to work. The Respondent told the Applicant to remain at home and requested a doctor’s note confirming that the Applicant was unable to work.
On August 14, 2008, the Applicant came to the salon and presented the Respondent with a medical note stating that she was off work due to ‘medical reasons.’ However, the note was dated July 28, 2008, and covered only the period between July 19, 2008 and July 27, 2008. The Respondent accepted the note but requested a second note for the Respondent’s absences beyond July 27, 2008.
By late August, the Applicant’s condition had improved to a point where she felt she was capable of returning to work. Despite several attempts to make contact with the Respondent, the Applicant was unsuccessful. On September 6, 2008, the two spoke very briefly but the issue of the Applicant’s return to work was never raised. Two days later, on September 8, 2008, the Respondent completed an ROE indicating that the Applicant would not be returning to work. Upon receiving the ROE, the Applicant assumed that she had been fired and, as a result, filed an application with the Tribunal alleging discrimination and claiming monetary compensation.
In her response, the Respondent submitted that the notation on the ROE, which stated that the Applicant would not be returning, was marked in error. According to the Respondent, the expected date of recall box on the ROE should have been marked “unknown” as opposed to “not returning.” Furthermore, the Respondent argued that the reason for issuing the ROE was so that the Applicant would be able to receive employment insurance benefits. Finally, the Respondent indicated that the Applicant’s position at the salon was still available if she wanted to return to work.
The Applicant, however, testified that she interpreted the ROE to mean that she had been fired and that she did not feel that she could return after “all that had happened.”
In rendering its decision, the Tribunal noted that the Applicant had a duty to assist and cooperate in the accommodation process and that an employer is not required to continue to accommodate indefinitely in the absence of information to establish that the accommodation is required. In light of the Respondent’s request for further medical information and the Applicant’s lack of cooperation, the Tribunal held that the Applicant had only partially fulfilled her obligations as part of the accommodation process.
However, the Tribunal added that while the Applicant failed to keep the Respondent informed about her continuing need for accommodation, the Respondent also failed to seek clarification before issuing the ROE. The Tribunal found that there was no logical reason to issue an ROE at that time, at least not without first communicating with the Applicant to clarify her status. In the Tribunal’s opinion, since the ROE indicated that the Applicant would not be returning to work, the ROE effectively indicated that the employment relationship had ended. While this may have been an error, it was an error that was not corrected. Consequently, the Tribunal held that the Respondent had, in fact, discriminated against the Applicant by issuing the ROE.
Notably, despite the Tribunal’s findings of discrimination, the Applicant’s failure to keep the Respondent informed of her medical situation was heavily considered and even reflected in the Tribunal’s award.
This decision highlights the increasingly high expectations that the Tribunal has of employers with regards to the accommodation process. At the very least, it should serve as a reminder to all employers of the importance of carefully documenting each step in the accommodation process and continuously following-up with employees who have identified a need for accommodation so to ensure that decisions with respect to that particular employee are not made in the absence of updated medical information. Finally, employer’s ought to be mindful of the fact that an employee’s lack of cooperation in the accommodation process does not necessarily absolve the employer from its obligations to accommodate.