By Lewis Waring, Paralegal, Student-at-Law, Editor, First Reference Inc.
In Nowicki v Labourer’s International Union of North America (LIUNA) Local 1059 (“Nowicki”), the Human Rights Tribunal of Ontario found that an employer’s offer of retirement, although it was an explicit attempt to remove an employee from her office, was not discriminatory under the Human Rights Code (“Code“) because it was not based upon her age or a disability. This finding was significant because the employee did in fact have a history of suffering from a disability, namely, depression. Also, the finding in Nowicki is significant because her age, being in her sixties at the time, was not relevant to the employer’s decision to offer her an early retirement. Instead, the employer’s decision to offer the employee early retirement was based solely on financial reasons arising from the fact that the employer had overextended its budget. In this sense, the employer’s motivation in offering early retirement was not to remove an older employee with a disability, but instead to save money.
The employer in Nowicki was Labourer’s International Union of North America (“LIUNA”) Local 1059, a labour union. The employee, Irena Nowicki, had been employed by LIUNA as a Business Representative and Organizer for the non-construction sector. Although she paid union dues, she was not subject to a collective agreement. Her duties included the negotiation of agreements for members, the pursuance of grievance, the conducting of site visits, and the organization of meetings and employee groups for union representation. Ms. Nowicki worked for the employer for 20 years until she was dismissed by LIUNA by being forced to retire on May 31, 2016.
Throughout most of her employment period, the employee had maintained a good relationship with LIUNA. However, Ms. Nowicki’s relationship with her supervisor, Jim McKinnon, had deteriorated in 2010. At that time, her supervisor had become unhappy with her due to a perception that she had failed to secure enough votes for him in an election and her rejection of his consequent request that she contribute funds to the mailing of a campaign flyer.
Beginning in early 2015, the employee and employer engaged in a series of negotiations on when and how Ms. Nowicki would retire. In their first discussion, the employee had stated that she intended to retire the following year. Although this would prevent her from obtaining her full pension, her decision to retire in 2016 arose from the fact that she would have achieved eligibility for the receipt of $5,000 per month upon retirement at that time. That is, retiring in 2016 at the age of 62 allowed her to meet her financial goals for retirement and so, in her opinion, working for a longer period of time, although it would result in her obtaining additional compensation, was not necessary.
In their second discussion, the employee and employer discussed the hiring of another employee to replace Ms. Nowicki. This discussion was collaborative and the parties agreed that the employer should hire a replacement on a part-time basis while the employee continued to work before retirement. This replacement would then become full-time upon Ms. Nowicki’s retirement, having gained experience and thus satisfying the needs of the members which depend upon the Business Representative for their negotiation of collective agreements.
On July 29, 2015, the employer hired a replacement full-time and planned to allow for a five-to-six month overlap during which Ms. Nowicki could provide training. The employee later claimed that she was not aware of this plan but she did not send a response to the employer’s email or question his decision to hire a replacement full-time instead of part-time as they had discussed. Furthermore, the employee had in fact assisted to some extent in the hiring process by forwarding resumes.
On July 30, 2105, the employer sent an email including Ms. Nowicki which stated that the employee would be retiring “in the new year” and that he had hired a replacement. The employee did not respond to this email because she believed that her retirement could only be in June, July or August.
Written notice of retirement
On August 31, 2015, Ms. Nowicki sent the employer a written notice of her retirement on May 31, 2016. She stated that she sought retirement due to a number of life circumstances, including a medical circumstance of her family, as well as financial circumstances. Her motivation for sending this notice of retirement was due to responding to the employer’s statement that she would be retiring in the new year, that is before she had intended to retire.
Negotiating the employee’s retirement
In response to the employee’s notice of retirement, the employer sent an email on that same day which claimed that the employee had not requested to retire later in 2016 and stated that it would like her to retire on January 1, 2016, and offered to compensate her if she was willing to retire on that date. The employee claimed to be surprised by this offer as she felt she had not discussed her retirement previously with the employer.
On September 9, 2015, Ms. Nowicki was called to a meeting with the employer during which it asked her to sign a Memorandum of Agreement. This agreement stated that the employee would not report to work as of January 2, 2016, and that the employer would pay her wages for the period from January 2, 2016 to January 31, 2016. The employee refused this offer, preferring to be paid until May 31, 2016.
On September 23, 2015, the employer made Ms. Nowicki another offer which she refused. On October 19, 2015, she made a counter-offer and on October 20, 2015, the employer responded by making another offer which increased the amount of financial compensation offered for her to retire at the end of January 2016. Ms. Nowicki rejected this offer as well and the negotiations ceased, creating an atmosphere of tension in the office.
The employer’s medical leave
On October 29, 2015, the employee’s supervisor began a heated argument in the office related to a disagreement over the handling of a client. The supervisor raised his voice and accused Ms. Nowicki of making him look “stupid,” eventually grabbing her doorframe and stating in an intimidating and sarcastic voice that he was going to do whatever he wants in the office. In response, the employee finished her work and left the workplace to attend a walk-in clinic, which wrote her a medical note that advised her to take medical rest for the remainder of the day. On that date, the employee began a medical leave.
On October 30, 2015, Ms. Nowicki’s family doctor provided her with a medical note that stated she was “totally disabled” due to “workplace stress” and would return to work on November 20, 2015. On November 2, 2015, the employer sent a letter that acknowledged the medical leave and stated that she had failed to respond to emails since taking leave, that another employee would take over her workload throughout the leave, and that he would provide a record of employment. At this point, the employee stopped communicating with the employer.
Soon after, Ms. Nowicki’s leave turned into a short-term disability. On November 26, 2015, she obtained another medical note which stated that she was totally disabled and would remain disabled until January 6, 2016. On January 6, 2016, she sent another note that stated she remained disabled and would not attend work until February 8, 2016. On February 9, 2016, the employee sent another medical note which stated that she remained totally disabled and would return to work on March 14, 2016. On March 16, 2016, the employee submitted another note which stated that she remained totally disabled and would return to work on April 18, 2016.
When delivering this most recent note, the employee ran into her supervisor and informed him that she was intending to return to work in April as she could not afford to retire. In response, the employer offered her another early retirement compensation package which she did not accept. On March 18, 2016, the employer sent a letter that acknowledged her leave and again offered to compensate her for early retirement.
The employee’s dismissal
On April 18, 2016, Ms. Nowicki returned to work. On that same date, the employer dismissed her and repeated an earlier offer, which she refused. The employee and employer continued to make offers to each other, none of which were accepted. On April 27, 2016, the employer sent the employee $21,286.20 in severance pay and wages. On June 7, 2016, the employer issued a record of employment that acknowledged this “lump sum” payment of wages and severance.
On June 14, 2016, Ms. Nowicki filed a claim with the Workplace Safety Insurance Board (“WSIB”) for Traumatic Mental Stress due to the altercation she had experienced with her supervisor on October 29, 2015, in which he had grabbed the doorframe and behaved aggressively. The WSIB rejected her claim and rejected it again on reconsideration. The employee did not appeal the WSIB’s rejection but did later file another claim for chronic mental stress in June 2018. In that later claim, she attached another medical note, dated May 4, 2016, which stated that the employee had major depressive disorder “entirely due to workplace stress” due to “the difficult nature of her employer”. Also attached was a Psychological Consultation Initial Report dated August 23, 2018, that diagnosed her with post-traumatic stress disorder, adjustment disorder and somatic symptom disorder. On November 17, 2018, WSIB denied her claim for chronic mental stress, stating that her claim was based on the interpersonal conflict between a worker and her supervisor, which was not generally considered to be a substantial work-related stressor and is a “typical feature of normal employment.” WSIB further stated that none of the behaviour documented was considered to be “egregious, abusive or harassing.”
The employee’s claim in Nowicki was rejected because she had not submitted sufficient medical evidence to suggest she suffered from a disability. The doctor’s notes which the employee submitted did not prove that the employee suffered from major depressive disorder or any other psychological condition because that doctor was not a psychologist or psychiatrist. Ms. Nowicki’s claim was also declined due to the fact that WSIB had rejected her claims on two occasions, both of which occurred after October 29, 2015, the date of her altercation with her supervisor.
Finally, WSIB found that none of the interactions between the employee and her employer after she had rejected his attempts to convince her to retire early were discriminatory. Instead, the employer’s frustration and dedication to convincing Ms. Nowicki to retire early were based on financial reasons, namely, that the employer had fired an employee full-time to replace her on January 1, 2016, and had thus overextended its budget. The altercation and atmosphere of tension between Ms. Nowicki and her supervisor were thus the product of a work-related dispute and not due to her retirement or any perceived or actual disability.
Overall, the HRTO found that the dynamic between Ms. Nowicki and her employer was an attempt to raise early retirement incentives for its employees, which is not discrimination because of age under the Code. Accordingly, the HRTO rejected Ms. Nowicki’s claim of discrimination because the employer’s reason for dismissing her was not related to discrimination against her due to her age or any disability.
Furthermore, Ms. Nowicki had failed to co-operate with the employer’s attempts to accommodate a disability which it perceived her to have. The employer had attempted consistently to communicate with the employee on a number of occasions about her medical leave and had offered her assistance on January 8, 2016.