Tuesday, January 18, 2011

Clennon v. Toronto East General Hospital : A Case Comment

Basic Facts:

Mrs. Clennon was trained as a mid-wife and registered nurse in England. In 1981 she was recruited from England by the Toronto East General Hospital to join their birthing unit. She commenced employment with Toronto East General Hospital in Janury 1981. By all accounts Mrs. Clennon was an exceptional and highly regarded nurse with considerable experience and expertise in the obstetrial area. In 2002 the hospital managment approached her to take up the position of Manager for the birthing centre. They were fully aware that she lacked some of the skills necessary for the job but were satisfied that with proper coaching she could pick them up and they promissed to do just that. Mrs. Clennon took up the position in 2002 and was terminated on July 5th, 2005 without cause. Mrs. Clennon was 59 years of age at the time of her dismissal. She was offered 18 months severance on the condition that she sign a release denying that her rights under the Ontario Human Rights Code were violated by the hospital. Mrs. Clennon refused to sign this release and as a result did not receive the 18 months severance. The hospital did, however, pay her severance and termination pay of some $36,000 under the Employment Standards Act. Mrs. Clennon was subsequently replaced by a younger worker - Claudette Manhue - whom she had previously beat out in the job competition for Manager in 2002. Some time after Clennon's dismissal and Manhue's hiring the hospital dispensed with one of the two nursing manager positions which they had when Mrs. Clennon was manager and Ms. Manhue was given enhanced responsibilities and increased pay. The monetary saving to the hospital was considerable since each nursing manager was paid roughly $80,000 compared to the $90,000 paid Ms. Manhue.

Thrust of human rights

Mrs. Clennon brougth a human rights complaint to the Ontario Human Rights Commission alleging that she was dismissed on account of her age contrary to the Ontario Human Rights Code. She was fired without cause. Her replacement - Claudette Manhue was 16 years younger.

Toronto East General Hospital's

Although the hospital purported to terminate Ms. Clennon's employment without cause and paid her severance and termination pay under the Employment Standards Act, their defence to her allegation of the Code violation was that she was fired for poor work performance. The hospital presented a book of documents with a litany of alleged complaints by various nurses and individuals - none of whom were called as witnesses by the hospital. The hospital called two witnesses - Natalie Cournooyea - Director of Nursing and Mr. Milton Obrodovich - Vice-President of Patient Care. The gist of the poor perforamance evidence was that a litatny of complaints were brought to the attention of the Director and she decided to terminate Mrs. Clennon's services. Unfortunately, Ms. Cournoyea appears to have mislead the Vice-President - whose authorization was necesary for the dismissal - by informing him that she had taken all steps to help her improve her performance before deciding on termination pursuant to the hospital's own policies.

Mrs. Clennon's testimony:

Mrs. Clennon was very consistent in her evidence in both denying the alleged poor performance allegations and in the fact that they were never communicated to her as being issues that put her job in jeapordy. The Tribunal's following finding of fact on this point is very telling:

"I have found that none of the specific incidents
relied upon to support the applicant's termination
were specifically raised with her as performance
issues. The Director admittedly never brought home
to the applicant that her failure to address performance
deficiencies could jeapordize her continued employment
at the hospital."

Tribunal Ruling:

The Tribunal went on to rule that Toronto East General Hospital had violated the Ontario Human Rights Code in effecting Mrs. Clennon's dismissal but somehow the Tribunal concluded that the hospital had succeeded in establishing a non-discriminatory motive for the dismissal - Mrs.Clennon's poor work performance. The Tribunal ruled that the Code violation resulted from the hospital's failure to provide Mrs. Clennon with an opportunity to improve her performance pursuant to their policy. Having found this limited violation of the Code the Tribunal reasnoned that reinstatement was not a viable remedy in the circumstances. The Tribunal found as a fact that Mrs. Cournoyea uttered the following two age aniums statements to Mrs. Clennon prior to the dismissal: 1. "Why don't you retire ?" 2.
"Why don't you consider retiring ? your husband is retired and it would be good to be retired with him."

Reconsideration sought
and denied by Tribunal:

Mrs. Clennon sought reconsideration of this decision. The challenge was based on amongst other grounds the fact that the Tribunal had effectively relied on pure hearsay evidence in finding that the employer had established a non-discriminatory motive for her dismissal. The Tribunal summarily dismissed her application. This is what the Tribunal wrote on this point:

"Evidence is hearsay evidence when a third party
relates what was told to her in an attempt to assert
the truth of the statement made. In the instant
case, the respondent was not proferring the 360-degree
assessment and other performance-related information
in order to establish the truth of the statements made
therein. Rather, ths information was put forward in
support of the Director's evidence that she relied on
these performance-related issues as the explanation for
her termination decision, and that the applicant's age
was not a factor. The relevant issue for me was why did
the Director make the decision to terminate the
applicant's employment and was her age a factor in that
decision, and the Director provided direct evidence on
that issue."

The following quote fromt the Tribunal's reconsideration decision calls into question the soundness of the Tribunal's reasoning and analysis:

"...the fact that some performance concerns were not
raised with the applicant by the Director does not
necessarily mean that the Director didn't nonetheless
have these concerns. Indeed, upon an exhaustive review
of the evidence in my Decision, it was my determination
that while the Director did not raise some of the specific
performance concerns with the applicant, she nonetheless
was concerned about the applicant's performance and that
was the reason she made the decision to terminate."

Analysis and commentary:

Our higher courts have consistently characterized human rights legislation as quasi-constitutional. This quasi-constitutional status is rendered illusory if we allow inferior tribunals like the Ontario Human Rights Tribunal to undermine the clear and positive legislative intent of the legislation. It is one thing to provide inferior tribunals like the Ontario Human Rights Tribunal with flexibility and latitude to make rules and to effectively govern their proceedings - but such tribuanls must always do so in accordance with law. Established legal principles in employment law such as the need to bring home to a worker that their conduct is wanting is not a trivial matter. The ability to effectively challenge an allegation of poor performance is effectively denied where the employer calls no viva voce evidence. A proper application of the law calls for an adverse inference being drawn against the party in control of evidence who fails to call it. The individuals who authored the various documents making up the poor performance evidence were employees of the hospital. They ought to have been called and subjected to cross-examination. This decision is not only patently unreasonable but it is also perverse.

Note: This piece is written for the sole purpose of sharing views and ideas on an issue of public importance - namely - human rights.

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