Sternberg v. Brian Greer’s Tin Ceilings Walls and Unique Metal Work, 2009 HRTO 177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Burkhard Sternberg

Applicant

-and-

Brian Greer’s Tin Ceilings Walls and Unique Metal Work

and Brian Greer

Respondents

Case resolution conference decision

Adjudicator: Kaye Joachim

Date: February 19, 2009

Citation: 2009 HRTO 177

Indexed as: Sternberg v. Brian Greer’s Tin Ceilings Walls and Unique Metal Work

1This is an Application filed July 11, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission on April 26, 2007 and abandoned upon filing this Application with the Tribunal.

2This hearing was conducted on January 14, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner given they are often based on complaints, like this one, which are more than a year old by the time they reach the Tribunal.

Determinative Issues

Did the applicant have a disability within the meaning of the Code?

3On May 15, 2006 the applicant experienced a left shoulder injury due to lifting at work and made a claim for Workplace Safety and Insurance Board (WSIB) benefits. This is a disability within the meaning of section 10(1)(e) of the Code which defines “disability” as “an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997” (WSIA).

Did the respondents fail to provide available modified work?

4The organizational respondent, Brian Greer’s Tin Ceilings Walls and Unique Metal Work, is a sole proprietorship operated by the personal respondent, Brian Greer (the respondents). The business consists of cutting, packing and shipping metal. The applicant was hired on May 6, 2005 as a general labourer. At the time of his injury, he was assigned to pack metal for shipping, but he also had experience in bending and cutting metal, had operated the tow motor and performed various odd jobs.

5The medical evidence establishes that the applicant was fit to return to work in August 2006 with the limitations not to engage in repetitive overhead work, pushing, pulling, grasping or gripping with the left hand for a period of three months, followed by a gradual return to full activities.

6The respondents advised the WSIB that, as a small operator, no modified duties were available and the WSIB continued to pay benefits for loss of earnings.

7The respondents did not provide any evidence that the applicant’s restrictions or the work available were considered when making this decision. The respondents conceded that there may have been a few hours light work here or there from August 2006 to December 2006 for which the applicant could have been called in, but did not believe it was worth the applicant’s while to attend for such short periods of time.

8I find that the respondents have not satisfied their duty to search for suitable modified work from August 2006. At the same time, I accept that there were limited hours of “light work” available during the period from August 2006 to January 2007.

Was the applicant’s disability a factor in the respondents’ decision to terminate the applicant’s employment in January 2007?

9On January 12, 2007, the applicant was assessed as fit to return to his regular duties. The respondents testified as a result of a slow down in business, there was no work available for the applicant in January 2007 when he was fit to return to regular duties.

10I reject the respondents’ testimony that there was no work available for the applicant in January 2007 for the following reasons.

11The WSIB contacted the respondents several times between May 2006 and January 2007 to advise of obligations under the WSIA and to arrange the applicant’s return to work. The WSIB employees noted a summary of these conversations in the file. Some of these conversations are quoted below:

October 20, 2006

Talked to Brian Greer, AE [accident employer]. He is “very nervous” about taking worker back. He is afraid worker will reinjure himself.

December 14, 2006

The A/E, Mr. Greer, returned the NCM’s call He stated that business is very slow and people hired before the IW [injured worker] have worked only 2-3 days in the last few weeks and that he himself, is dong the packing, which the IW had been doing. He also informed the NCM that, depending on business, the company may be closed the week the IW is able to return. He requested more information re: this situation and the NCM stated she would have the CA call him tomorrow, to discuss the situation.

Dec 2006

Spoke with Brian Greer AE. Work is slow but he may be able to call the worker in for “a day here and there.” He asked me to have the worker call him to discuss further.

IW called back. He is happy to go back to work. He will call B. Greer to arrange.

January 9, 2007

Call IW. He reports he talked to AE on Dec 29 and said that he could RTW (return to work). AE said he has no work but expected things to pick up soon and he would call him when they did.

January 12, 2007

IW called in. He reports he talking with Brian, AE who could not commit to a time when he could RTW. He said “maybe tomorrow, maybe next week.”

January 17, 2007

I spoke with Brian Greer, AE. I advised him that worker was fit to return to his regular job. He understood. He also advised there was no work available for worker. I confirmed that AE had not hired anyone to do worker’s job and he said he had not.

January 25, 2007

The AE would not sign a RTW [return to work] agreement yesterday noting that he wanted a written assurance of the worker’s fitness for his pre-injury duties.

12The personal respondent denied making the October 20, 2006 statement, although he did not dispute the accuracy of the other statements. The WSIB provided a statement from the caseworker who confirmed the October 20, 2006 conversation. I prefer the evidence of the caseworker over the personal respondent’s, in light of the undisputed accuracy of the other statements.

13The respondents also confirmed that a new worker was hired a few days after the applicant was injured and that this worker continued to work full-time in January 2007. The personal respondent testified that this worker was primarily cutting metal rather than packing metal, which was the applicant’s job. This employee was not called as a witness although I specifically invited the respondents to do so and I am prepared to drawn an adverse inference from that fact. The respondents’ business records do not show a noticeable decrease in hours of work amongst the employees from January 2006 to January 2007. On the basis of all the evidence, I am satisfied the new employee effectively replaced the applicant which accounts for the “lack of work” in January 2007.

14In December 2006 the respondents contacted the Office of the Employer Advisor and learned that, as a construction employer, it was not obliged to re-employ the applicant under the WSIA. The employer was unaware that he was also under an obligation under the Code to accommodate a disability-related absence, unless to do so would cause undue hardship.

15I find that the respondents refused to take the applicant back to work based on a belief there was no obligation to accommodate the worker’s disability related absence, concerns about re-employing an injured worker, and having replaced the applicant with another employee during the applicant’s disability-related leave. This amounts to a breach of section 5(1) of the Code.

What is the appropriate remedy?

16I find that the applicant did not experience any loss of income from the respondents’ failure to provide him with suitable alternative work from August 2006 to January 2007, as he was in receipt of WSIB benefits during that time and the limited number of hours of light work did not justify the employer calling him in.

17I find that the applicant is entitled to lost wages for 26 weeks from January 12, 2007, when he was assessed as fit to return to regular duties, until the beginning of July 2007, when the applicant ceased looking for work and decided to start his own business. The applicant earned $21,011.10 from May 6, 2005 to May 15, 2006 (53 weeks) which indicates an average gross weekly income of $396.43 ($21,011.10 divided by 53). The applicant’s lost wages therefore amount to $9,514.32 ($396.43 x 26 weeks).

18I find that the applicant is entitled to an award of damages for the frustration and insult he suffered in being denied an opportunity to return to work because of his disability. In all of the circumstances, I find that an award of $5,000.00 in general damages is appropriate.

Order

19The respondents are ordered to pay to the applicant:

a) the sum of $9,514.32 representing the period of lost wages from January 12, 2007 to June 29, 2007 less applicable statutory deductions;

b) the sum of $5,000.00 for general damages for breach of the Code; and

c) post-judgment interest on all of the above at the applicable rate under the Courts of Justice Act commencing thirty days from the date of this Order.