Grant v. Manitoba Telecom Services Inc.

Grant v. Manitoba Telecom Services Inc.
Collection
Canadian Human Rights Tribunal
Date
2012-04-26
Neutral citation
2012 CHRT 10
Decision-maker(s)
Marchildon, Sophie
Decision type
Decision
Decision status
Interim
Grounds
Disability
Decision Content
Between:
Heather Lynn Grant
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Manitoba Telecom Services Inc.
Respondent
Decision
Member: Sophie Marchildon
Date: April 26, 2012
Citation: 2012 CHRT 10
Table of Contents
I............. Complaint and Background. 1
II........... Facts. 1
III......... Law and Analysis. 6
A. The Complainant has established a prima facie case of discrimination. 6
B. The Respondent has not established that the prima facie discriminatory conduct did not occur as alleged or was non-discriminatory. 15
IV......... Remedies. 33
V........... Order 39
I. Complaint and Background [1] The Complainant, Ms. Heather Lynn Grant, filed a complaint with the Canadian Human Rights Commission (the Commission) on January 10, 2008. The Complainant alleged that her employer, Manitoba Telecom Services Inc. (the Respondent or MTS), engaged in a discriminatory practice within the meaning of section 7 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the CHRA) when it decided to terminate her employment, choosing to retain a more junior employee, based on the Complainant’s negative performance appraisals. The Complainant alleges that the negative comments in the performance appraisals were linked to her disability, type II diabetes. After reviewing its report and submissions in response to the report, the Commission decided, pursuant to section 41(1) of the CHRA, to deal only with the alleged termination of employment, including the Complainant’s February 2006 and January 2007 performance assessments. On December 30, 2009, pursuant to section 44(3)(a) of the CHRA, the Commission requested that the Canadian Human Rights Tribunal (the Tribunal) inquire into the complaint.
[2] The Commission did not participate at the hearing that took place on November 1, 2 and 5, 2010 and on February 7 to 11, 2011.
II. Facts [3] After having carefully reviewed all of the submissions and evidence provided by the parties, including the Agreed Statement of Facts, my findings of fact are as follows.
[4] The Complainant was employed by MTS for 26 years until she was laid off on February 19, 2007.
[5] From 2001 to February 19, 2007, the Complainant worked for MTS as a Regional Account Support Representative (RASR). From 2003 to the date of her termination on February 19, 2007, the Complainant worked under the supervision of Ann Ukrainec. During that last period, her performance was formally evaluated by the Respondent (per Ms. Ukrainec) on an annual or semi-annual basis using a document called Partnering for Performance and Results (PP&R or Performance Appraisal). PP&Rs are used by the Respondent as a means of evaluating and recording the performance of MTS employees. Year round, an employee’s immediate supervisor could add comments to the document.
[6] During her years of service at MTS, the Complainant was a member of the Telecommunications Employees Association of Manitoba (the Union or TEAM) and was governed by a collective bargaining agreement negotiated by TEAM and MTS (the Collective Agreement).
[7] On August 19, 2005, the Complainant was diagnosed with high blood sugar levels by her physician, Dr. Barry Van Jaarsveld of the Bethesda Hospital in Steinbach, Manitoba. Subsequently, around September 2005, the Complainant was diagnosed with type II diabetes.
[8] The 2008 Canadian Diabetes Association Clinical Practice Guidelines define diabetes as a fasting blood sugar greater or equal to 7.0 mmol/L or casual plasma glucose greater or equal to 11.1 mmol/L and, symptoms of diabetes or two-hour plasma glucose in a 75mg oral glucose tolerance test greater or equal to 11.1 mmol/L. Blood sugars are measured as instant values, present at a precise moment in time, and as average values measured over an approximate 90-day period of time. Instant values are measured in a laboratory on a venous sample. Capillary blood sugar values are taken by patients on a home blood glucose monitor. The glycosylated hemoglobin or HbA1C test provides information about blood sugars over the previous three-month period of time. Symptoms of elevated blood sugars include, but are not limited to: thirst, increased hunger, frequent urination, urinary tract infections, recurring yeast infections, blurred vision, frequent urination at night, weight loss, dry mouth, malaise, poor healing, infection, fatigue, altered mental status including agitation, unexplained irritability, inattention, extreme lethargy or confusion. Many symptoms are related to glucose loss in urine. Though the threshold for urine glucose secretion varies, on average blood sugar levels of glucose over 12 mmol/L are associated with urine glucose loss and symptoms of hyperglycemia. Blood sugar levels can be brought into the normal range by a combination of the following treatments: following a diabetic diet, weight loss to ideal body weight, following a regular exercise program, adherence to oral medication or prescribed insulin, and changing lifestyle to reduce stressors. Blood sugar levels can sometimes spike with the influence of illness, infection or stress even if the condition is well managed. These spikes will not automatically show up on a 90 days test, such as an HbA1C.
[9] On September 26 and on October 13, 18 and 24, 2005, the Complainant again visited her physician, Dr. Van Jaarsveld. After the October 24, 2005 visit, Dr. Van Jaarsveld advised the Respondent in writing that the Complainant was unable to work from October 25 until November 30, 2005 for medical reasons. Dr. Van Jaarsveld mentioned that the Complainant was a newly diagnosed diabetic and that, due to stress she was experiencing at work, she was unable to control her blood sugar levels. He added that there was a possibility for an extension of that time-off period.
[10] From October 25 to November 30, 2005, the Complainant took a health leave from her employment with the Respondent. The Respondent hired an independent Return to Work Coordinator, Des Hathaway, to assist the Complainant in returning to work by serving as a liaison between the Complainant, her doctor and the Respondent, both during her time off and after she returned to work. Des Hathaway was in regular communication with the Complainant, the Complainant’s doctor, and the Respondent (per Ms. Ukrainec). On December 29, 2005, Des Hathaway prepared a brief one page report for the Respondent wherein he stated Dr. Van Jaarsveld’s opinion that the Complainant is capable of returning to work without restriction; at full capacity at the present time; and, without special needs or accommodations to support her recovery and safe return to work. On November 30, 2005, Des Hathaway wrote to Ann Ukrainec stating that the Complainant was returning to work on December 1; however, due to her medical condition and the condition being uncontrollable, if she were to return to the same situation she left, there would be a high risk of her condition worsening again.
[11] The Complainant returned to work on December 1, 2005.
[12] On March 14, 2006, Dr. Van Jaarsveld wrote again to the Respondent to communicate that he understood the Complainant was under a lot of stress in her workplace environment. He mentioned that it did not appear that the workload was affecting her condition. Dr. Van Jaarsveld wrote that stress was a serious trigger for her illness and strongly recommended transferring the Complainant to Brandon headquarters so that she could be close to her family and her friends to have a strong support network.
[13] Although a transfer to Brandon headquarters was not granted at first by her supervisor, Ann Ukrainec, once the Complainant received the support of her union, the transfer was approved. Ann Ukrainec signed off on the Complainant’s transfer to Brandon with the condition that the Complainant address potential issues of conflict in a manner that enables her to successfully support Sales Staff within a challenging team environment.
[14] Around April 13, 2006, the Complainant was transferred from Steinbach to Brandon; both cities are in Manitoba. Despite the transfer, the Complainant remained working under the supervision of Ann Ukrainec.
[15] In 2005 and 2006, the Complainant received negative and critical comments in her PP&Rs from her supervisor, Ann Ukrainec.
[16] On October 2, 2006, the Respondent announced a major downsizing initiative. As part of the downsizing initiative, the Respondent offered TEAM employees a Voluntary Retirement Incentive Program (VRIP). The VRIP allowed employees the option of resigning their position in return for compensation.
[17] Seventy-seven TEAM employees voluntarily offered to take the VRIP and 73 offers were accepted by the Respondent.
[18] After the VRIP initiative, due to market pressures, the Respondent decided it needed to continue to reduce its Manitoba workforce. An additional 35 positions in the Corporate Sales Department were targeted for lay-off by MTS. Senior management within the Corporate Sales Department were tasked with determining how it would reduce the number of employees in the Department. For RASR positions, it was determined that up to three positions could be eliminated without detrimentally impacting service to customers. The Brandon region was oversubscribed, and had two employees working as RASRs: the Complainant and Sharon Horner. MTS decided that one of the two would be laid-off.
[19] Article 26.03.1 of the Collective Agreement addresses how an employee in a multi-incumbent position is to be selected for lay-off:
“In the case of multi-incumbent positions, where there are no differences between incumbents on the basis of skill, ability, performance, qualifications, and headquarters, the junior incumbent, according to Net Credited Service (NCS) date shall be laid off first.”
[20] In the Agreed Statement of Facts provided by the parties, it states that article 26.03.1 of the Collective Agreement calls for a comparison of the skill, ability, performance, qualifications and headquarters of employees in multi-incumbent positions. A selection committee (lay-off committee) composed of non-union members, Brian Arnal, Vice-President, Sales, and Larry Goerzen, Director, Sales, was charged with selecting employees for layoff. The lay-off committee proceeded in reviewing the Complainant’s personal file, including performance appraisals and did the same for Sharon Horner. They compared both incumbents’ skills, abilities, qualifications and performance. They also interviewed their respective immediate manager, which in the case of the Complainant was Ann Ukrainec. The lay-off committee chose to lay-off the Complainant and to retain Sharon Horner, although the Complainant was the more senior employee. The basis of the lay-off committee’s decision was that Sharon Horner’s performance was superior to that of the Complainant.
[21] Upon the lay-off committee’s conclusion, Don Rooney (Director of Labour Relations), requested that Martin Shelest, who then worked in MTS’ Human Resources Department, conduct an independent comparison of the Complainant and Ms. Horner without speaking to anyone. Mr. Shelest completed the review and informed Don Rooney that he was of the opinion that based on the criteria outlined in article 26.03.1 of the Collective Agreement, the Complainant should be laid off before Ms. Horner.
[22] On February 28, 2007, TEAM filed a grievance on the Complainant’s behalf alleging that MTS breached article 26 of the Collective Agreement. The substance of the grievance was that the Complainant was improperly laid off in that she had greater skills, abilities and qualifications than at least one other employee who was not laid off and who held an equivalent position as the Complainant.
[23] TEAM referred the grievance to an arbitration hearing. The grievance was withdrawn at the pre-hearing stage without prejudice to the Complainant’s rights under the CHRA.
III. Law and Analysis [24] At the outset of this analysis, it bears mentioning that, during the hearing in this case, numerous objections were made by the Respondent and several from the Complainant. Some were dealt with in writing, others viva voce on record at the hearing and others were taken under reserve. The objections under reserve were all examined and the ones that are determinative on the outcome of this case are individually addressed in the analysis of this decision. Other objections that are not determinative on the outcome of this decision have been examined according to the probative value of the evidence that entered under reserve and will not be individually dealt with in the decision. Nevertheless, all objections were noted and taken into consideration in weighing the evidence submitted.
A. The Complainant has established a prima facie case of discrimination [25] The complainant in a proceeding before the Tribunal must establish a prima facie case of discrimination. A prima facie case is “...one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent” (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 at para. 28). In establishing a prima facie case, it is not necessary that discriminatory considerations be the sole reason for the actions in issue. It is sufficient that the discrimination be but one basis for the employer’s actions or decisions (see Holden v. Canadian National Railway Co. (1990), 112 N.R. 395 (F.C.A.); and, Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569). However, allegations made by a complainant have to be credible in order to support a conclusion that a prima facie case exists (see Dhanjal v. Canada (Human Rights Commission) (1997), 139 FTR 37 (F.C.)). In Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029 at para. 38481 (CHRT), the Tribunal stated:
“Discrimination is not a practice which one would expect to see displayed overtly; in fact, there are rarely cases where one can show by direct evidence that discrimination is purposely practiced.”
[26] A tribunal should therefore consider all circumstances to determine if there exists a “subtle scent of discrimination”. The jurisprudence recognizes the difficulty in proving allegations of discrimination by way of direct evidence.
[27] To make a decision in this first step, the Tribunal must limit itself to analyzing only the testimonial and documentary evidence filed by the Complainant. It must disregard the evidence submitted by the Respondent (see Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22 [Lincoln]). Fundamentally, however, the Complainant in this case must establish a link between her disability and the employer’s decision to terminate her employment (see Roopnarine v. Bank of Montreal, 2010 CHRT 5 at para. 49).
[28] According to the Complainant, the symptoms of her disability negatively affected her performance at work. Although aware of her disability, the Respondent negatively assessed her performance in her PP&Rs without considering the effects of her disability on her performance. As her PP&Rs were used to compare her performance with that of another employee for the purpose of determining who would be laid-off, the Complainant alleges that her disability was a factor in the Respondent’s decision to refuse to continue to employ her. The Complainant also alleges that she was specifically targeted for lay-off because of her disability. In this regard, she claims that the Respondent has a history of targeting disabled employees for lay-off; and, therefore, her lay-off based on performance was a pretext for discrimination. On this basis, the Complainant alleges that the Respondent has breached section 7 of the CHRA. This section provides:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
[29] The Complainant lives with a condition, type II diabetes. Disability is included amongst the prohibited grounds of discrimination set out in section 3 of the CHRA, and is defined in section 25 as “any previous or existing mental or physical disability”. Being a physical disability, diabetes is encompassed by the definition of disability in the CHRA. In the present case, the fact that the Complainant has a disability was not disputed. Rather, the issue at hand is about establishing a nexus between the Complainant’s disability and her lay-off. In other words, was the Complainant’s disability a factor that influenced the outcome of the Respondent’s decision to lay her off?
[30] When the VRIP was completed, the employer still wanted to further downsize its workforce and proceeded with a layoff process designed to eliminate a position in Brandon where the Complainant was working after she was transferred. Two employees, the Complainant and Sharon Horner, occupied RASR positions, one of which was targeted for lay off.
[31] To decide who would be laid off in Brandon, the employer considered both the incumbents’ PP&Rs to establish if there was a difference between the performances of the two incumbents. The Complainant had negative comments in her 2005 and 2006 PP&Rs, which negatively impacted the assessment of the Complainant’s performance for the purpose of determining who would be laid off.
[32] According to the Complainant, before the diagnosis of her diabetic condition, her PP&Rs were positive and the negative comments found in her 2005 and 2006 PP&Rs are linked to her disability. The Complainant’s physician reports contained in the Agreed Statement of Facts mention that she was having difficulty controlling her blood glucose levels due to stress, which resulted in a health leave from October 25 until November 30, 2005. Later, on March 16, 2006, the same treating physician, Dr. Van Jaarsveld, wrote that stress was a serious trigger for the Complainant’s illness and that she was experiencing stress in her workplace, especially with her boss. The two medical reports mention the negative effects of stress on the Complainant’s disability and correspond to the same period when the negative PP&Rs were written. The argument made by the Respondent that the physician was not called as a witness before the Tribunal, therefore no weight should be placed on the medical reports, has no merit since the reports were incorporated in the Agreed Statement of Facts and the March 16, 2006 report also formed the basis for the Complainant’s transfer to Brandon.
[33] Lori D. Berard, Registered Nurse, (Nurse manager, Winnipeg Regional Health Authority, Health Sciences Centre Winnipeg, Diabetes research Group, Appointed staff, University of Manitoba, Department of Medicine Section of Endocrinology) provided expert testimony before the Tribunal concerning her view of the Complainant’s health and the impact it had on her performance at work. Ms. Berard prepared a report at the Complainant’s request for the purpose of these proceedings that mentions:
It is well understood that the onset of diabetes is not immediate and drastic. Type 2 diabetes is often present for 6-9 years before the diagnosis is made.
The diagnosis of type II diabetes can cause stress, anxiety, anger, guilt and fear. Patients can go through the stages of loss (Denial and isolation; Anger: Bargaining: Depression and Acceptance) while being encouraged to make healthy lifestyle changes, monitor blood glucose levels and begin taking medication. As reference in the Psychological Aspects of Diabetes Chapter Canadian Diabetes Association Clinical Practice guidelines 2008: “significant behavioral demands and challenging psychological factors affect nearly all aspects of diabetes management and subsequent diabetes control. Psychological issues related to the diagnosis and/or self care demands may present anywhere on a continuum from impairment in quality of life clinically depressive and/or anxiety disorders. Symptoms associated with dealing with a chronic illness- “The Vicious Symptom Cycle” from Living a Healthy Life with Chronic conditions include; Disease-tense muscles-pain-stress/anxiety-difficult emotions-depression-fatigue-(….) Impact factors: Stress can contribute to elevated blood glucose levels. Unhealthy lifestyle choices such as obesity, improper eating habits and lack of activity can lead to increasing blood glucose levels”.
[34] According to Ms. Berard, the Complainant has made significant efforts to improve her health to the point of becoming a very healthy individual. However, the expert stated that stress can contribute to elevated blood sugar levels. She mentioned that:
It is documented in medical records that the Complainant was experiencing stress during the initial phase post diagnosis of diabetes and having difficulty controlling her glucose levels which resulted in a leave of absence end of 2005.
[35] Ms. Berard examined the Complainant’s PP&R from 2005 and made the following comments:
Appear to have lost focus on the task at hand, difficulty with relationships and work ethics could be consistent with altered mental status with uncontrolled diabetes and the stress of diabetes.
[36] Ms. Berard also analyzed the Complainant’s 2006 PP&R:
Appears to be regaining some initiative to the job at hand-continues to have difficulty with being harsh and crewd (sic) which requires improvement and identification that seems to have mood swings that take her to a few good days to wanting isolation. While it appears her diabetes is well managed by this time it is possible that she is having difficulty coping and symptoms of depression.
[37] There are at least three points in time where results showed that the Complainant’s blood glucose levels were measured to be above 12 mmol/L (high): on August 19 2005, September 7, 2005 and September 26, 2005. There is an HbA1C test, taken October 13, 2005, that indicates that the Complainant had average elevated blood sugars over a three month time period (July 2005 to October 2005). There are also indications that the Complainant had some elevated blood sugar levels and uncontrolled type II diabetes as of November 30, 2005 even if she was diagnosed previously and, was undergoing treatment. Moreover, Ms. Berard mentioned in her testimony that even if an HbA1C is normal, it does not mean that there was not any daily changes in the blood glucose levels because spikes in a given day will not show up on that type of test.
[38] I find that both the treating physician, who examined and was following the Complainant’s progress, and the expert, Lori Berard, established that the Complainant was under stress which affected her blood sugar levels. Lori Berard stated that symptoms of elevated blood sugar levels include fatigue, altered mental status including agitation, unexplained irritability, inattention, extreme lethargy or confusion. I find that the expert was able to show a nexus more probable than not between stress at work impacting the Complainant’s blood sugar levels and the Complainant’s negative behaviour described in the 2005 and 2006 PP&Rs.
[39] At the time when the Complainant was on sick leave on the advice of her Doctor, Ann Ukrainec wrote in the Complainant’s 2005 PP&R:
in the year end review target: not met: Communication within Steinbach team is still an issue and differences have not been brought out as Heather is finding it difficult as she sees no problem. One on one sessions with the account managers did not continue through last quarter as requested by immediate manager which only delays issues that need to be addressed.
[40] On March 8, 2006, the Complainant spoke with Ann Ukrainec in an attempt to address her performance issues and followed up the conversation with suggested changes to her PP&Rs in an email to her supervisor. The Complainant expressed that the PP&R comments should be changed to reflect her health issues. The email also states that any lack of communication with her immediate team was due to her illness and in following her doctor’s instructions that she reduce stress to improve her health. Ann Ukrainec, added only the following comment concerning the Complainant that addresses the one on one sessions, which was placed at page 9 of 9 of the 2005 PP&R without any other explanation:
Heather was away on a health leave from Oct 25th to Dec 2nd. In the beginning of 2005 Heather had a huge desire to make a move and to work in another area that she felt would help her grow and keep her busy. This lasted until mid summer and then a deterioration of Heather’s overall outlook has changed to a dislike and shut down of her communication with her immediate team. Finds it difficult to communicate to her immediate team does not want to be in conflict of any kind to share her inner feelings to help others understand what is going on with the changes team is seeing in her.
[41] This statement is consistent with how the Complainant described her interactions with people following her doctor’s recommendation that she avoid stressful situations, such as conflict of any kind to share her inner feelings. This is also consistent with how the Complainant described the effects of her condition following her diagnosis and the reasons why she needed time off from work.
[42] For the purpose of determining whether there was a nexus between the Complainant’s disability and her assessed performance at work, I did not make my findings on the basis of some of the arguments made by the Complainant relating to alleged states of depression, medication and menstrual cycle for two reasons: these facts were in dispute and I did not have sufficient evidence before me to make a finding on them. I made my findings regarding the nexus between the disability and the documented performance in the Complainant’s Performance Appraisals on the basis of two main pieces of evidence:
(1) Dr. Van Jaarsveld’s medical reports corroborating the information tendered by the Complainant’s expert witness about stress having a negative impact on controlling blood sugar levels;
(2) Ms. Lori Berard’s testimony, which was credible, especially given the fact that she did not make any absolute statements such as always and never, but rather she used terms like “may have caused or consistent with”. She was cautious and objective and appeared to possess an extensive knowledge, not only about the disability and its treatments, but on the day to day challenges faced by persons with type II diabetes. In addition, she has expertise in training people to face these challenges. The evidence adduced by the Complainant has established that it is more probable than not that at the time the Complainant received her bad performance appraisals, she was experiencing stress in the workplace, which aggravated her diabetic condition, resulting in performance issues.
[43] Given the above, I find that the Complainant’s disability, type II diabetes, was at least one of the factors that contributed to her receiving negative comments in her 2005 and 2006 PP&Rs. The manager, in writing comments in the PP&Rs, did not take into account the effect of the Complainant’s disability on her performance. The 2005 and 2006 PP&Rs were used by the Respondent to compare the performance of the Complainant and Sharon Horner for the purposes of determining who would be laid off.
[44] With regard to the Complainant’s allegation that she was specifically targeted for lay-off because of her disability, she contends that after her transfer to Brandon, Ann Ukrainec was keeping track of her. To that effect, the Complainant refers to the fact that Ann Ukrainec wrote a report regarding the Complainant’s negative performance and submitted it to Don Rooney on November 9, 2006. The report was requested by Larry Goerzen, just after the Respondent had announced it would be reducing staff and just after the time limit for accepting the voluntary retirement incentive package had expired. The email gives a summary of Ann Ukrainec’s perspective of the Complainant’s history of bad performance and communication problems. While this report may indicate that the Complainant was being targeted for layoff because of her performance, there is no indication in the report that her disability was the reason she was being targeted. If anything, the report again supports the allegation that the Respondent did not take into account the effect of the Complainant’s disability on her performance.
[45] The Complainant also relies on the testimony of Larry Trach (Business Manager for TEAM) to support her allegation that she was specifically targeted for lay-off because of her disability. Mr. Trach testified that it was the first time in MTS’s history that it preceded with lay-offs after successfully meeting its staff reduction goals through a VRIP. According to Mr. Trach, it was bad faith to proceed with lay-offs, because the union convinced some of the employees who were close to retirement to use the VRIP to save jobs for younger employees. In the end, an additional nine TEAM members were laid off, including the Complainant. As a result, Mr. Trach claims that TEAM felt betrayed. While proceeding with the lay-offs after the VRIP may have been viewed by TEAM as being in bad faith, there is no sufficient indication in Mr. Trach’s testimony that the Complainant was targeted for lay-off because of her disability. Rather, the bad faith conduct Mr. Trach refers to seems to be related to the labour relations between the union and the employer, as opposed to discriminatory conduct on behalf of the employer.
[46] Mr. Trach also testified that, in determining who would be laid off between the Complainant and Ms. Horner, it was the first time MTS compared the skill, ability, performance, qualifications, and headquarters of incumbents. According to Mr. Trach, MTS’ usual practice was to just lay-off the junior employee. Article 26.03.1 specifically provides for laying off the more junior incumbent. However, as the parties stated in the Agreed Statement of Facts, that is provided there are no differences between the incumbents on the basis of skill, ability, performance, qualifications, and headquarters. In this case, the employer found that there was a difference between the performance of the two incumbents chosen for lay-off. Without more, I fail to see how the employer targeted the Complainant for lay-off because of her disability simply by not choosing the more junior incumbent.
[47] Finally, the Complainant contends that following its downsizing initiative, MTS hired 39 additional sales personnel. The Complainant contends that the Respondent was training employees in the company as new RASRs about a month after she was laid-off; and, she contends she was not recalled pursuant to the recall provision in the Collective Agreement. However, aside from making this allegation, and without limiting the type of evidence the Complainant could have led, little information was provided on the nature of the 39 hires, except that the Respondent hired them to work outside Manitoba; whether the Complainant should have been recalled; whether other employees were recalled; or, most importantly, how discrimination factored into the employer’s decision. Again, without a discriminatory element, this seems to be a labour relations issue between the union and the employer, as opposed to discriminatory conduct. As a result, I find I do not have sufficient evidence before me to substantiate this allegation at the prima facie stage.
[48] Based on the above, the Complainant has not established a prima facie case that she was targeted for lay-off because of her disability or that the Respondent’s decision to lay-off employees was a pretext for discrimination. However, on a prima facie basis, the Complainant has established that her disability had an effect on her performance at work and that the Respondent, although aware of her disability, did not consider the effects of her disability in negatively reviewing her performance. As the Complainant’s performance and Performance Appraisals formed the basis of the Respondent’s decision to lay her off, there is a nexus between the Complainant’s disability and the loss of her employment. Therefore, the Complainant has established a prima facie case of discrimination pursuant to section 7(a) of the CHRA as it appears that her disability was a factor in the Respondent’s decision to refuse to continue to employ her.
B. The Respondent has not established that the prima facie discriminatory conduct did not occur as alleged or was non-discriminatory [49] Once a prima facie case is established, the Respondent has an opportunity to demonstrate that the alleged discrimination did not occur as alleged or was not a discriminatory practice under the CHRA (see Maillet v. Canada (Attorney General), 2005 CHRT 48 at para. 4; and, section 15 of the CHRA).
[50] The Respondent’s position is that the prima facie discriminatory conduct did not occur as alleged. The Respondent contends that the symptoms associated with the Complainant’s disability did not affect her work performance or her PP&Rs. According to the Respondent, the Complainant’s PP&Rs show a history of performance issues at work that are unrelated to the symptoms of her diabetic condition. As a result, the Respondent contends it fairly assessed the Complainant in the lay-off process and was justified in laying-off the Complainant based on the superior performance record of the other incumbent considered for lay-off.
Expert evidence
[51] The Respondent contends that the Complainant’s symptoms relating to her disability did not have an impact on her performance. In support of this contention and to respond to the Complainant’s expert evidence on type II diabetes and its symptoms provided by Ms. Berard, the Respondent brought forward Dr. Elizabeth Salamon, M.D., F.R.C.P. (C), endocrinologist.
[52] Dr. Salamon stated that blood sugars vary throughout the day, in everyone. Diabetes is not diagnosed unless blood sugar is over 11.2 mmol/L. Dr. Salamon stated that these normal variations in blood sugar levels are not known to cause the type of symptoms attributed in the Complainant’s case.
[53] Dr. Salamon agreed on the general information provided by Ms. Berard on diabetes. However, in her report prepared on behalf of the Respondent for the purpose of this hearing, she states that mood swings, attitude issues and poor work ethics are not symptoms of elevated blood sugars. According to Dr. Salamon, although blood sugar levels can be normalized within minutes, different symptoms may take hours to days to resolve. Dr. Salamon wrote: “Once blood sugars have stabilized into the normal range there are often no symptoms of hyperglycemia. Blood sugars consistently in the normal range should not cause symptoms of hyperglycemia”.
[54] According to Dr. Salamon, the provided medical record starts from Ms. Grant’s emergency room visit subsequent to the physician’s office visits starting in September 2005. There is no information about her condition prior to this time. Dr. Salamon stated that based on the provided medical record, it is not possible to determine if the Complainant had symptoms of diabetes prior to her diagnosis. Dr. Salamon mentions the Complainant may have had symptoms in September and possibly in August 2005. She also mentions in her report that the Complainant was most likely asymptomatic part of October, November, and December 2005. Dr. Salamon finds there are elevated blood sugar levels in September 2005 - above 12; an HbA1C in October 2005 was elevated, suggesting that there were elevated blood sugars for three months prior. Another HbA1C by January 6, 2006 was normal at 6.2 % suggesting that most of the blood sugars in the three month period prior to January were normal. Dr. Salamon also mentions the Complainant’s self-reported blood sugars were in the normal or near normal range by January 12, 2006 as stated in the record and reiterated by Ms. Berard.
[55] On the possibility of the Complainant having spikes in her blood sugar levels, Dr. Salamon mentions in her second report (Following a line of questioning by the Complainant to her expert, an objection had been made that some of the questions were not in the expert’s report. The Complainant’s expert testimony was adjourned, remaining under oath. The Complainant provided an amended report and Dr. Salamon reviewed that amended report and provided her answers in a second report prior to her testimony and prior to the cross-examination of the Complainant’s expert): “My review of Ms. Grant’s medical record shows no “spikes” of blood glucose levels. Though on presentation to the emergency room she was found to have an elevated blood sugar, that sugar is the highest on the record provided”.
[56] Dr. Salamon testified that an employer can accommodate an employee with diabetes: ‟by allowing time off to see a physician and other health care team appointments, ensure an opportunity to take regular meal breaks, and limit shift work if possible or at the very least provide a reasonable rotation of shift hours”. Dr. Salamon also mentions: ‟when possible, not having the diabetic work unexpected overtime hours where possible, and when possible allow the diabetic to live where outside work and family supports are available if they are deemed to be helpful. These actions would help anyone improve blood sugar levels. At the request of the patient and her physician, MTS did arrange a transfer of her to another office where she would be closer to family supports”.
[57] According to Dr. Salomon, people with type II diabetes can accomplish anything and, she listed numerous names of known people such as athletes, singers, entertainers, politicians and she listed professions such as doctors, teachers, and lawyers. She mentions they all perform their jobs well. These answers on how people live with type II diabetes and the hardship they might face are not convincing. I understand the point she is trying to make, that having diabetes does not stop an individual from living life fully; however, she did not suggest she knew these people or their medical files. Even though the people she referred to can do many things, we have no information on what happened when they were diagnosed, how they manage stress and its impacts on their condition. Even the Complainant was going to work so anyone could say she has type II diabetes, but continues to work. I find that Dr. Salamon’s conclusions regarding how people live with type II diabetes and the hardships they might face are unconvincing and ignore the individual differences between people copping with a diabetic condition. Dr. Salamon even admitted that all things in diabetes are individualized. These types of answers also do not address the psychological or social impacts that type II diabetes may have on a person with that condition.
[58] After reviewing the Complainant’s PP&Rs, Dr. Salamon denied any link between the Complainant’s performance at work and the symptoms of type II diabetes. Dr. Salamon finds the Complainant to have extremely good control of her blood sugar levels. She notes Dr. Van Jaarsveld describing the Complainant as a ‟well controlled diabetic”. On the other hand, she expresses different views than Dr. Van Jaarsveld about the impacts of stress on the Complainant’s condition because she did not find any specific mention about the symptoms in the report. Dr. Salamon admitted she reviewed the medical documentation provided but did not discuss with Dr. Van Jaarsveld about the reports or the Complainant`s condition. Dr. Salamon b