'The worker showed an inconsistency in her behaviour, by her own admission, with a false accommodation request,' says lawyer
“In a human rights case, the onus is on the applicant to prove their case on a balance of probabilities that there was a violation of the [Human Rights Code] by the employer.”
So says Paulette Haynes, principal of Haynes Law Firm in Toronto, after the Ontario Human Rights Tribunal found that a fired worker’s discrimination claim had no credibility after the worker admitted to lying in an accommodation request.
The worker joined the Ontario Workplace Safety and Insurance Board (WSIB) in December 2019 as a senior change management consultant. The position was a temporary contract working on a specific project called the health services management project (HSM), which involved changing WSIB’s health management system used to register health care providers and make payments to stakeholders.
The HSM had three scheduled releases, with completion dates in June 2019, December 2019, and May 2020. The worker’s contract was set to end no later than Dec. 28, 2020, in case there were delays in the project.
During her initial interview, the worker indicated that she was interested in permanent employment with WSIB. She also reiterated her desire several times while working for WSIB, as other WSIB employees had started their careers as temporary or contract employees before securing a permanent position. Management acknowledged that they supported any contract employees in pursuing job opportunities with WSIB, but they made it clear that she had to apply to permanent position postings as they became available.
Work performance
In December 2019, the vice-president of WSIB’s health services division reviewed the worker’s performance with the worker’s manager. In late January 2020, the worker’s manager decided that the worker’s employment should be terminated due to performance concerns. She reviewed the worker’s performance a second time with the vice-president.
Around the same time in January, the worker learned that she was pregnant. She had prior health issues, so her doctor told her that her pregnancy was high-risk.
According to the worker, she informed her manager of her high-risk pregnancy, which she claimed changed their relationship. She felt her manager started interacting with her less and ignoring her. The manager denied that the worker told her the news or that she treated the worker any differently and there was no evidence that the worker told any of her friends or work colleagues.
On Jan. 29, the worker saw her doctor and was advised that she should limit her movements for several days and rest due to concerns with her pregnancy. The worker called her manager and requested accommodation through working from home for several days. However, she didn’t mention her pregnancy and instead said that her spouse wasn’t well, even though that wasn’t the case. The manager suggested she take some days off instead of working from home, which the worker characterized as a refusal to accommodate on the basis of her marital status.
The worker had a performance review on Feb. 2 in which she was rated “new to role” in every category” without accolades, although the worker later claimed that she was rated as “exceptional.”
Sex, marital status discrimination complaint
On Feb. 13, WSIB terminated the worker’s employment. The worker subsequently filed a human rights application alleging that WSIB discriminated against her on the basis of her pregnancy by firing her and also on the basis of marital status when it denied her request to work from home temporarily. The worker also claimed that she was lured to employment with WSIB with promises of permanent employment.
The tribunal noted that the worker had to prove three elements to establish prima facie discrimination – she had a protected characteristic under the Ontario Human Rights Code, she suffered a disadvantage or adverse impact, and her protected characteristic was a factor in the disadvantage or adverse impact.
The tribunal first addressed the worker’s claim that she had been lured by promises of permanent employment. While the worker expressed her desire for a permanent job and WSIB management offered support in searching for it, that wasn’t the same as “a legally binding commitment of permanent employment,” said the tribunal in finding WSIB made no such promises.
Management told the worker that they would support the worker’s search for a permanent position, but she had to apply for one, says Haynes.
“There was no clear evidence that [the worker] even applied for a permanent position,” she says. “Furthermore, the tribunal took the position that it was outside its jurisdiction - it doesn’t have jurisdiction to adjudicate complaints of general unfairness [outside of the Ontario Human Rights Code].”
Worker lacked credibility
With regards to whether the worker informed WSIB of her pregnancy, the tribunal found that the worker lacked credibility. Her manager and other WSIB executives consistently denied knowing about it and it wasn’t raised in the January 2020 discussion of terminating her employment, said the tribunal, adding that there was no evidence she told other work colleagues or friends.
In addition, when the worker requested accommodation by working from home, she said it was because of her spouse not being well and she didn’t mention her pregnancy – a “false accommodation” that suggested a “continued reluctance… to disclose her pregnancy,” the tribunal said, noting that information around a high-risk pregnancy was “very personal and private” and it was understandable that she would be reluctant to reveal it in the early stages.
In a human rights application, the onus is on the applicant to prove there was prima facie discrimination and, when there's conflicting evidence, the tribunal has to assess the credibility and reliability of the witnesses and the evidence, says Haynes.
“[WSIB’s] witnesses consistently said they had no knowledge of the worker’s pregnancy during the time that she was employed and their first notice of her being pregnant was when they were served with the application,” she says. “And the worker showed an inconsistency in her behaviour, by her own admission, with a false accommodation request - where there's conflicting evidence to determine reliability and credibility, the mere fact that [the worker] made a false statement like that is going to undermine her credibility and the reliability of her evidence.”
The worker’s credibility was also hurt by her characterization of her work performance as “exceptional” when her assessment was simply being new to her role, added the tribunal.
Pregnancy not a factor in termination
The tribunal determined that WSIB was unaware of the worker’s pregnancy and the decision to terminate her employment was made prior to her discovering that she was pregnant. As a result, the pregnancy couldn’t have been a factor in her termination, the tribunal said.
The tribunal also found that the worker’s request for accommodation with remote work was based on a falsehood and therefore had no basis in her marital status or any other protected ground. The worker’s application was dismissed.
In a case like this that came down to credibility, WSIB helped its cause by being candid and forthright about the evidence and even its own weaknesses, according to Haynes.
“The tribunal's role as trier of a human rights case is to assess the facts and the evidence before it and, if there’s conflicting evidence, to assess credibility and reliability,” she says. “There's nothing worth compromising one's credibility - if you made a mistake, fine, but don't lie about it as it ends up coming out.”
“That’s what happened in this case with the worker - it came out, and it worked to her peril in terms of the outcome.”
