A Port Moody dental office worker has won the right to be heard at B.C.'s human rights tribunal on a decision as to whether she was discriminated against on the basis of her mental health concerns.
Danielle Lee Myles will be able to press her case that claims she should have been accommodated by her employer Nima Eslami Inc., Rocky Point Dental and 123 Dentist Inc.
A decision released by tribunal chair Emily Ohler on April 5 denied the dental company's claim to have the matter dismissed.
Ohler said it didn't mean the worker had proven her case, only that there was enough credibility for the complaint to proceed.
"My decision to allow the complaint to proceed only means the respondents have not provided sufficient evidence at this stage to justify dismissing the complaint without a hearing. It does not mean Ms. Myles will necessarily be successful at a hearing," the ruling notes.
In laying out the background, the chair notes that Myles and the dental office offer differing stories about what led to her firing, and more evidence will have to be provided by both sides during a tribunal hearing.
According to Myles, who worked as a receptionist, her panic attacks and anxiety were related to "bullying and harassing at her work," and she provided evidence that she had retained a diagnosis from both her doctor and WorksafeBC.
However, the dental office states that she never raised the issue during her employment nor used her mental health concerns to justify absences and lateness to work.
"To the extent that Ms. Myles provided any explanation at all for her attendance, it appears she raised various issues unrelated to her disability, including relationship problems with her partner, the flu and having a bad night," her employer told the tribunal chair.
Matters came to a head in February 2019, according to information in the decision, when her supervisor wrote Myles a formal letter about her attendance and advised the employee that further missed days would be grounds for dismissal.
The letter indicated she had poor work attendance and passed off work to other staff members. Myles signed the letter, the dental office claims.
But Myles noted that the following day, she "experienced eczema that her doctor said was related to anxiety."
On July 10, 2019, Myles' supervisor asked her for a meeting — and planned to provide her with another performance letter — but Myles left and didn't return.
That day, she saw a doctor and received a note that said she needed two to three days off work. She went to her mother’s house and asked her to text message the supervisor and notify her that she had a doctor’s note.
In her visit with the doctor, Myles said she never had depression or anxiety prior to this job and was experiencing panic attacks about once a month. The doctor agreed they could be related to "stressors at work" and the two discussed medication for panic attacks.
The following week the supervisor text messaged Myles and noted that she hadn't heard from her and had not attended any of her scheduled shifts.
Myles said she did not respond "because she was not capable of working during this period and the supervisor had told her that she was 'being fired regardless of [her] providing a doctor’s note.'”
"The respondents say at no point did Ms. Myles tell them that she had anxiety or that she had panic attacks. She never advised she had a disability that was contributing to her poor attendance," the ruling states.
In August, Myles filed a claim to WorkSafeBC for bullying and harassment by the supervisor, which was accepted.
In a psychologist's assessment provided to the hearing, Myles was diagnosed Sept. 10, 2019, with "adjustment disorder with mixed anxiety and depressed mood, in partial remission," and that she met "full criteria for this diagnosis" and for perhaps up to two months after she was fired.
In her decision, Ohler noted that Myles' complaint could constitute a breach of the human rights code code because she had a disability requiring time off work to seek medical care.
"While the timing of the diagnosis may be in question, there is some evidence that Ms. Myles had anxiety or anxiety symptoms and/or adjustment disorder while she was working for the respondents and that she required medical care. I am not persuaded that Ms. Myles has no reasonable prospect of proving that she had a disability at the relevant time."
As to whether Myles should have told the employer about her anxiety, the claim states the employee believed the employer had a duty to inquire, especially as they knew she had a doctor's note at the time of the firing.
Ohler agreed that "in some cases the responsibility shifts to the employer to ask an employee if they need accommodation even if the employee has not explicitly disclosed a disability or requested accommodation."
Following Ohler's denial of the employer's claim to dismiss, the case will proceed to the human rights tribunal to allow for further evidence to be provided by both parties, after which time a decision will be rendered.