Employer must pay $20,000 to woman fired after breast cancer diagnosis

Employer claimed employee resigned to have operation and chemotherapy but employee said she just wanted some time off
|employmentlawtoday.com|Last Updated: 07/13/2010

An Ontario company that fired an employee after she informed it she had breast cancer has been ordered to pay $20,000 to the employee.

Elsa Torrejon, 51, was a leasing agent for Weston Property Management in Toronto. In December 2008, she told the couple who managed Weston that she would be undergoing a series of tests on a lump in her breast. Weston adjusted her hours so she could go through the testing.

On Jan. 30, 2009, Torrejon received bad news — the lump was cancerous and she would have to have a mastectomy. The operation was scheduled for Feb. 13.

Torrejon told her managers of the operation and said she would need time off for surgery and subsequent chemotherapy, but she wanted to work right up until the day before the operation. The mangers told her to give them her plans in writing.

The day after she submitted the letter, Torrejon sought a second opinion. She told her managers of her change of plans and said she would work until the new operation date. However, the managers told her she had submitted in writing that she was resigning as of Feb. 12 and that would be her last day. Weston had checked with the ministry of labour and had been told an employee’s resignation can’t be withdrawn, the managers said.

The single mother of two was shocked, as she hadn’t intended to resign and never used the word. She filed a human rights complaint, saying her employment had been terminated because of her cancer and resulting treatment.

The Ontario Human Rights Tribunal found there was no indication Torrejon had resigned and Weston was under the mistaken impression it could terminate someone who was taking indefinite leave for surgery and medical treatment. The tribunal ordered Weston to pay Torrejon $20,000 in damages and lost wages and to learn about the Ontario Human Rights Code.

“In this case the employer acknowledged she was ill, but I think they didn’t go further,” said Michelle Mulgrave, Torrejon’s lawyer, told CBC after the tribunal announced its decision. “If they had gone further they would have found out they had a responsibility under the code and they could have turned their minds to accommodate her disability.”

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