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Harassment and Discrimination Complaints Against Clublink Dismissed by Human Rights Tribunal

On May 3, 2011 the Ontario Human Rights Tribunal dismissed a human rights complaint against Clublink, lodged by a former employee.  Jayson Rider represented the employer in this matter.

The applicant was a former employee at the Caledon Woods Golf Course who alleged harassment and discrimination on the basis of disability.  She joined Clublink as a summer employee following her second year of University, and worked in the food and beverage department of the Club where her duties included serving beverages, setting up the dining facility, and clearing up after meals.  Early in the summer she suffered injuries to her back, shoulder, and neck after her beverage cart was struck from behind by a member’s golf cart.  She was off work for a several weeks, during which time her Supervisor made a number of phone calls to her, to determine whether her doctor had completed a Functional Abilities Form, and whether she could resume her duties.  The applicant claimed in part that these repeated phone calls created undue pressure to return to work.

The applicant returned to work on modified duties, which largely included polishing silverware and rolling them in napkins for the dining facility.  The Supervisor referred to her on several occasions as the “Queen of Cutlery”, to which the applicant took offense, and alleged harassment on the basis of disability.  The applicant also claimed that the employer failed to accommodate her disability by not providing her with a chair while she performed these duties.

The applicant was not re-hired to work at the golf course for the following summer, and she complained that this was because of the time she missed during the previous summer, which would constitute further discrimination on the basis of disability.

Ultimately, the Tribunal agreed with Clublink that each of these claims were without merit.  First, it held that the Supervisor’s repeated phone calls following up with the applicant and encouraging her to return to work on modified duties constituted neither undue pressure to return, nor discrimination on the basis of disability.

Secondly, the Tribunal found that the employer had not failed in its duty to accommodate the applicant’s disability.  The applicant did not ask for a chair, and provided no compelling reason why she could not have done so, or alternatively, obtained a chair on her own.  Further, the Tribunal decided that there was no medical evidence that the applicant’s restrictions continued throughout the summer, or that any alleged failure to accommodate led to ongoing problems.

Thirdly, the Tribunal rejected the harassment complaint with regard to the “Queen of Cutlery” comment.  It was decided that the perceived teasing did not rise to the level of discrimination on the basis of disability.  The term was not used in relation to the applicant’s disability, and therefore could not be a violation of the Human Rights Code.

Finally, the Tribunal agreed with the employer that its refusal to rehire the applicant for the following season was not discriminatory.  The employer was genuinely annoyed with the applicant’s last-minute withdrawals from two shifts she promised to work for the Club in the early autumn, and the applicant had a disciplinary record for improper use of her personal cell phone, and consuming alcohol with a club member while on duty.

The Tribunal dismissed each of the applicant’s allegations of Human Rights Code violations against Clublink.  The employer was able to secure a favourable outcome in this case in part by complying with principles of the human rights regime in Ontario, and managing its operation accordingly.

The lawyers at Crawford Chondon & Partners LLP have the expertise and experience to assist your workplace’s human rights compliance, and help defend you in the case of a human rights complaint made against you by an employee.

Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.