Ontario worker's back pain becomes pain for employer

An Ontario retail company discriminated against a worker when it dismissed her before an upcoming busy season after the worker requested she only work one shift per week due to back pain, the Ontario Human Rights Tribunal has ruled.

Stitch Counts Embroidery is an Ontario company running seasonal pop-up stores from August to January each year. The company hired Sarah Trowsdale in December 2017 to work at its store in London, Ont. — called “Lazy One” — until the store closed in January 2018. It rehired Trowsdale when Lazy One opened again in August 2018, with the expectation she would work there until the following January.

When Trowsdale began working at the store, she was receiving benefits under the Ontario Disability Support Program due to back pain. Stitch Counts was aware of this, but it didn’t know the details of her disability.

Trowsdale and other staff and the store agreed that standing all day could lead to sore knees and backs, so they asked the store manager to buy a stool. However, the manager directed them not to use the stool when customers or the owner of the store were present.

Stitch Counts had a policy that employees were responsible for finding their own replacement if they wanted to change a shift or couldn’t make it into work. In addition, any shift changes had to be approved by the manager. The shift schedule was posted at the beginning of each month and Trowsdale usually worked one weekday evening shift plus one weekend day, but Stitch Counts hired her to be available for any shift.

In early October 2018, Trowsdale switched shifts with co-workers so she could take a week off. The store manager contacted her and reminded her that she wasn’t authorized to make unilateral changes without her approval. Trowsdale claimed she wasn’t aware of this — the approval requirement was in the 2017/2018 store manual, but it had been removed for the following year.

Accommodation request
Around the same time, Trowsdale’s back pain worsened. She started visiting a physiotherapist, but things didn’t improve. On Nov. 2, she requested a reduction in her shifts so she could get “her back issues sorted out.” She said she would find someone to cover her shifts or work them herself for the rest of November, but she wouldn’t be able to work more than one shift per week in December.

The manager replied that one shift per week in December might not work, as it was a busy month for business and there were only four employees in total — two of which were students who could only work evenings and weekends — and usually two or three worked at the story on any given day and Trowsdale had been hired to work any shifts as necessary, including at least one weekday evening shift and one weekend day per week. The manager said she would get back to Trowsdale “in a day or two.”

Three days later, the manager noticed that Trowsdale had no shifts scheduled for that week. She needed someone to work that Saturday and asked Trowsdale if she was available. Trowsdale responded that she was “dealing with a family situation” and would be out of town that week. She said she had covered her shifts so the store “would not be in a bind during this time.”

The manager explained that she had recently started splitting Saturday shifts and if she had known about Trowsdale’s absence, she would have distributed the shifts more evenly. Trowsdale said her absence was on short notice and had been unaware of the scheduling change. She also apologized and said she “physically cannot handle working multiple days a week at this time. I understand if you must let me go due to my availability.” She expressed hope that she could still work at Lazy One despite her “injury which limits my abilities.”

Termination for health reasons
On Nov. 6, the store manager emailed Trowsdale to say that with the needs of the store for the upcoming holiday season, having Trowsdale work only one day per week was “not going to be beneficial to me or the store.” As a result, she terminated Trowsdale’s employment and sent her a Record of Employment (ROE) stating that the reason was that she had quit for health reasons. Stitch Counts hired some more staff, but some worked few shifts and some of Trowsdale’s shifts went to existing employees.

Trowsdale asked the manager to change the reason on the ROE, but the manager replied that “in all fairness the reason you were terminated is because of health reasons and being able to fulfill the requirements as per what you were hired for which was open availability.”

Trowsdale filed a human rights complaint alleging discrimination based on disability in her employment and arguing that she was terminated because she requested accommodation for her back injury.

The tribunal found that the store manager took the position that having “open availability” — for which Trowsdale was hired and the manager considered to be an essential requirement of the job — included the ability to work more than one shift per week. However, Trowsdale indicated that she was flexible of which shift she worked during the week and at no point before her request did the company indicate that being able to work more than one shift per week was a requirement due to the nature of the business, said the tribunal.

The tribunal also found that there was no evidence that Stitch Counts took any steps to determine whether its business needs could be met short of undue hardship while keeping Trowsdale employed for one shift per week, noting that existing staff took over some of her shifts.

“There is no indication [the store manager] asked whether other staff were interested in taking on additional shifts,” said the tribunal, adding that because some new staff only worked a few shifts while existing employees took over some of Trowsdale’s shifts, it might have been less hardship to accommodate Trowsdale with one shift per week.

After Stitch Counts raised the issue of unapproved shift changes at the hearing, the tribunal added that Trowsdale had indicated she wasn’t aware of the policy and had explained that she didn’t intend to leave the store in a bind and would follow the policy going forward. This issue didn’t justify dismissal and the manager didn’t mention it to Trowsdale as a cause for dismissal, said the tribunal.

The tribunal determined that Trowsdale’s disability was a factor in the termination of her employment, contrary to the Ontario Human Rights Code. Stitch Count was ordered to pay Trowsdale $15,000 in damages for injury to her dignity, feelings and self-respect. The company was also required to implement a human rights policy consistent with the Ontario Human Rights Commission’s Guidelines on Developing Human Rights Policies and Procedures and have its store managers complete human rights training.

For more information, see:

• Trowsdale v. Stitch Counts Embroidery Ltd dba Lazy One, 2020 HRTO 13 (Ont. Human Rights Trib.).