Caretaker finds no job waiting upon return from cancer surgery

Employer failed to accommodate when it restructured position during her absence and told her to reapply

A non-profit housing corporation discriminated against a building caretaker when the owner didn’t hold her job when she took time off for a cancer operation, according to the Manitoba Human Rights Board of Adjudication.

A Vietnamese woman, L.H., came to Winnipeg in 2001 and lived in the Saigon Centre, a building for immigrants owned by the Vietnamese Non-Profit Housing Corporation. She began working at the building on Dec. 1, 2002, as a full-time caretaker. The job involved various cleaning and maintenance duties in the building in exchange for a reduced rent on her apartment. When she accepted the position, she agreed if she couldn’t do the job, they could lay her off.

On Dec. 17, 2003, L.H. gave the building manager a note from her doctor explaining she would be having cancer surgery on Jan. 8, 2004, and she would need to be off work for eight weeks for recovery. The manager told her that much time off was “not acceptable” and she claimed the building owner told her, “if you are sick you have to leave.” They asked her to sign either a confirmation of employment or a resignation but she refused. On the day before the operation L.H. met with the building manager and owner and she was told she could come back after the operation.

L.H. returned from the hospital 16 days after the surgery and discovered someone else was cleaning the building. This same person gave her a record of employment from the corporation which stated she was unable to work after Jan. 7, 2004, because of “illness or injury.”

Two months later, L.H. told the new building manager she would like to return to work since she was feeling better. The manager told her she didn’t need to come back and should apply for employment insurance. The caretaker position was posted on a bulletin board in the building as both a temporary and a permanent position. The building owner told her she could either apply again for the job or apply for disability.

After being denied the opportunity to resume her caretaker duties, the woman claimed she “felt tired and suicidal as a result of not being allowed to return to the job.” She continued to live with reduced rent until February 2005, when the manager refused to accept the reduced amount. She was given a notice of termination for non-payment of rent and subsequently moved out of the building.

The building owner said he knew of her operation but did not know what it was for until afterwards. He knew he had to accommodate L.H. by keeping her job open for a reasonable period of time. However, there were security problems in the building, which was located in an area of high crime. The owner testified the caretaker position was changing to a more security-oriented position and they were looking for someone to perform the cleaning task at a lower rate of pay than L.H.’s previous caretaker position.

Board adjudicator Lyle Smordin noted discrimination under the Human Rights Code could be found even if it wasn’t the primary reason for termination, such as the restructuring of the caretaker position, as long as “it is one of the factors that influenced the decision.”

Smordin also said cancer is considered a disability and must be accommodated. He found there was no formal paperwork indicating a change in L.H.’s employment so when she was not allowed to return it could be assumed she was fired. Since she was asked to reapply, it was evident her job was not left open and therefore the corporation failed to reasonably accommodate her recovery from the cancer operation.

”The job was posted and there was no proof of her resignation,” Smordin said. “As a result (she) must be considered to have been terminated.”

Smordin did find that while the building owner was guilty of discriminating against L.H., his lack of knowledge of the law and the building’s security issues contributed to the circumstances. He took into account that there were no previous complaints against the owner and he seemed genuinely sorry for L.H.’s situation.

“I am satisfied that (the employer) did not treat (L.H.) fairly, but that was likely prompted by its lack of understanding of the law,” Smordin said.

L.H. was awarded one month’s pay totalling $1,228.17 as compensation for dismissal and $3,000 in damages for “loss of self-respect.” The corporation was ordered to “post a suitable accommodation policy acceptable to the Human Rights Commission” in its buildings.

For more information see:

L.H. v. Vietnamese Non-Profit Housing Corporation (March 16, 2007), Manitoba Human Rights Board of Adjudication Decision, Lyle M. Smordin Adjudicator.

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