A restaurant owner in Owen Sound, Ont., has been ordered to pay more than $15,000 to a former server after threatening to fire her if she attended a medical appointment and then terminating her employment the next day.
The Ontario Human Rights Tribunal found Peninsula Grill and its sole proprietor discriminated against the worker, who has Cerebral Palsy, when they refused to accommodate her request to attend a morning medical appointment on May 30, 2018. The employer fired her on May 29, 2018, before waiting to see whether she would show up for her scheduled shift the following day.
Worker disclosed disability at hiring
The worker applied for a server position at the restaurant in February 2018. During her job interview, she told the owner and his spouse she has Cerebral Palsy and could not work more than 25 to 30 hours biweekly because her legs or hands would “give out” if she worked longer hours.
The employer told her they were looking for a part-time server to work between 25 and 30 hours biweekly and hired her. The employer did not request medical documentation or create a formal accommodation plan regarding maximum hours or shift lengths.
Hours exceeded stated limits
During her first month, the worker was scheduled for fewer than 30 hours biweekly. Her hours increased slightly in subsequent months to 35 hours in some periods.
From April 22 to May 4, 2018, she worked 56.5 hours. From May 6 to 19, 2018, she worked 38.75 hours. When her hours increased, she experienced pain and cramping in her legs and her hands would go numb to the point she would drop items.
In mid to late April 2018, she told the owner’s spouse she could not keep working so many hours. When she spoke to the owner about working fewer hours due to her disability, he told her she “should be working 100 hours per week” and to “shut up and go away,” according to her sworn affidavit.
The owner subsequently reduced her hours during the period from May 6 to 19, 2018.
Text message exchange preceded firing
The worker was originally scheduled to work May 29, 2018, with May 30 scheduled as a day off. She requested to change her day off to take May 29 off and work May 30 instead. The employer approved this change.
After subsequent shift changes, she was scheduled to work from 9 a.m. to 1 p.m. on May 30. She had scheduled a medical appointment for that morning.
On May 28, 2018, at 6:22 p.m., she texted the owner’s spouse to inform her she had a medical appointment on May 30 and a co-worker had agreed to cover 9 a.m. to 11 a.m. so she could attend.
The owner responded by text at 6:38 p.m.: “You specifically changed your day off with [co-worker] from Wednesday to Tuesday because you were seeing your boyfriend. If you had an appointment you shouldn’t of changed your day off if you don’t show up you are fired.”
The worker replied that the appointment was originally scheduled for 11 a.m. and stated: “u cant if it’s a doctors appt.”
The owner responded: “Yes I can fire you for any reason u haven’t been there 3 months not only that u originally had wed off don’t take me for a fool. Besides you were the next person to be fired anyway with your work attitude with customers.”
Employment ended on scheduled day off
The next day, on May 29, 2018, which was the worker’s scheduled day off, a co-worker contacted her and told her the owner had asked her to collect the restaurant’s shirts. The co-worker said the owner had stated, “so I guess she quit.”
The worker did not return to work and did not contact the employer. She received her final pay stub for the period from May 20 to June 2, 2018.
Tribunal found discrimination and accommodation failures
The respondents did not file a response and did not participate in the tribunal’s process. In June 2020, the tribunal found them in default and deemed them to have accepted all allegations in the application.
The tribunal found the worker’s disability was a factor in her not being permitted to change a shift to attend a medical appointment and in her termination. The tribunal also found the employer failed to accommodate her disability when scheduling her to work more than 30 hours biweekly during two pay periods in April and May 2018.
“When [the owner] told [the worker] that she would be fired if she failed to show up for her shift in order to go to her medical appointment, the respondents violated the Code,” the tribunal stated.
The tribunal acknowledged the text messages sent by the worker were disrespectful and may have been a factor in the decision to fire her. However, it noted that even where other factors contribute to termination, a prima facie case of discrimination can be established as long as the protected ground was a factor.
Damages awarded
The worker had requested $25,000 in general damages from the restaurant, an additional $15,000 from the owner personally, and $4,515 in lost wages plus $860 in tips.
The tribunal awarded $15,000 in compensation for injury to dignity, feelings and self-respect, plus $407.68 in lost wages. The tribunal found the amounts requested were duplicative and excessive, noting no rationale was provided for separate awards from the restaurant and owner.
In determining the remedy, the tribunal considered the worker was employed for approximately four months and worked part-time. It also noted she contributed to the situation by requesting to work on May 30 when she had been scheduled for that day off, and either scheduled her medical appointment at the last minute or forgot about it when requesting the shift change.
For lost wages, the tribunal determined the worker was entitled to two weeks of salary during a notice period, considering her disrespectful text messages were likely a factor in termination.
The tribunal ordered pre-judgment interest at two per cent per annum from the application date of March 6, 2019. Post-judgment interest will be payable if amounts remain unpaid 90 days from the decision date of Nov. 6, 2025.
More details available in our sister publication HR Law Canada here.
