Williams v. Hudson’s Bay Company/Zellers, 2009 HRTO 2168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Natasha Williams

Applicant

-and-

Hudson’s Bay Company/Zellers Inc., Brian Harrison and Derek Sampath

Respondents

decision

Adjudicator: Brian Cook

Date: December 14, 2009

Citation: 2009 HRTO 2168

Indexed as: Williams v. Hudson’s Bay Company/Zellers

APPEARANCES:

Natasha Williams, Applicant ) Glen Morrison, representative

Hudson’s Bay Company/Zellers Inc., )

Brian Harrison and ) Catherine Peters, counsel

Derek Sampath, Respondents )

1This Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Application alleges discrimination in employment on the grounds of pregnancy and disability.

2All parties appeared at the hearing and were represented. Stephen Moses, a representative of CAW Local 1000, the bargaining agent for the applicant, was also present at the hearing and provided evidence about his involvement in the circumstances giving rise to the Application.

3At the outset of the hearing, there was a discussion about how the hearing would proceed. I suggested that a possible approach would be for me to primarily lead the questioning of the witnesses. I made it clear that this was only a suggestion and that the hearing could equally well proceed according to the more traditional adversarial model. After consultation, the parties agreed to proceed in the manner I suggested. At the end of my questioning, the representatives reviewed their notes to ensure that all important areas had been covered and that all relevant questions, including any cross-examination questions, had been asked.

4My questioning pertained primarily to evidence relevant to the determination of whether or not there had been discrimination on the grounds of pregnancy and/or disability. I advised the applicant’s representative, Mr. Morrison, that I did not intend to ask the applicant questions relevant to the assessment of what damages would be appropriate if I did find that there had been discrimination. Mr. Morrison was invited to adduce any evidence relevant to damages. Except to the extent discussed below, he did not do so.

Introduction

5The applicant, Natasha Williams, started her employment with the corporate respondent in August 1998. In October or November 2007 she suffered a work-related low back injury. She was provided with modified work. In March 2008, the applicant was approximately two months pregnant and advised her employer accordingly. She alleges that her employer did not provide adequate pregnancy-related accommodations. She took an early maternity leave in July 2008. At the time of the hearing, her maternity leave was drawing to a close. She is still an employee.

6I must determine if the applicant experienced discrimination in employment on the grounds of disability and/or pregnancy.

Decision

7For the reasons set out below, I conclude that the applicant’s Code-protected rights were infringed. I find that subsequent to late May 2008, the applicant required accommodation in respect to the medical restriction of prolonged standing. While the applicant contributed to the breakdown of the accommodation process, the respondents were also responsible. I conclude that the applicant is entitled to monetary compensation for the loss of earnings she experienced after July 23, 2008, and compensation in the amount of $2,000 for injury to dignity, feelings and self-respect.

Background Facts

8At the time of the low back injury, the applicant was working in the split case department. Workers in the split case department pick orders for specific stores. The items are stored in cartons on shelves and are placed into plastic tote boxes. The boxes are then placed on a conveyor system. They are conveyed to the shipping department and then sent out to stores.

9In late October or early November 2007, the applicant was lifting a box from a top shelf. The contents of the box fell out and she suffered a low back injury. A claim was filed with the Workplace Safety and Insurance Board (“WSIB”) and it was allowed. The applicant continued working with reduced hours while attending physiotherapy. By March 16, 2008, she had returned to full-time hours in the split case department as physiotherapy was no longer required. On March 17, 2008, the applicant brought her employer a note from Dr. Strasberg, her family doctor, advising that the applicant was in the first trimester of a pregnancy.

10After the low back injury, the applicant was assigned to a different department. In March 2008, she asked to return to the split case department. She testified that the reason for this was that the supervisor in the other department told her that modified work in that department might not be available on a continuing basis.

11The applicant testified that she continued to experience intermittent low back pain. She attributed the pain to her low back injury and to her pregnancy. She was required to stand all day to do her job and she felt that it was necessary to sit from time to time to rest her back. She testified that she sat on a plastic tote on these occasions. However, she was concerned that this might not be safe as the tote lids were not strong and she was worried that a lid might collapse. She became increasingly concerned as her pregnancy continued. The applicant testified that her supervisor, Brian Harrison, was aware that she was sitting on the tote boxes and that he did not say anything about it.

12Mr. Harrison testified that he was not aware that the applicant was sitting on tote boxes and he would have told her not to do so if he had known because it was unsafe. On this point, I accept the applicant’s evidence that she sat on tote boxes from time to time. It seems more probable than not that her supervisor would have noticed this at some time.

13On or about May 27, 2008, the applicant decided that it would be safer to sit on a chair instead of the totes. She went to an office and took a wheeled desk chair and started to push it across the warehouse floor to bring it to her workstation. Mr. Harrison noticed this and told her it was not safe to be pushing the chair across the floor because it was uneven and she could trip. Mr. Harrison spoke to Derek Sampath about the situation.

14Mr. Sampath works in the Human Resources department and is responsible for developing return to work plans for injured workers. On May 27, 2008, Mr. Sampath convened a meeting with the applicant, another Human Resources officer, and a representative from the union. The applicant asked that Mr. Moses be allowed to attend the meeting as she felt that he was a more sympathetic union representative but he was not available and did not attend the meeting.

15At the meeting, the applicant was told that it was not safe to have a chair at her workstation. The workstation features a conveyor line and shelves with a space of about four to six feet between. There was concern that the chair could block the space between the line and the shelves in the event of an emergency. Mr. Sampath and Mr. Harrison testified that the Fire Marshal and the Health and Safety Branch of the Ministry of Labour have filed orders regarding similar issues in the past. They further testified that the union representative who was at the meeting agreed that the chair was a safety concern.

16The applicant testified that she did not believe that there was a safety issue with respect to the chair. She testified that her plan was to push the chair under the line when it was not in use so that it would not block the way. She testified that the union representative did not express an opinion.

17The employer’s representatives at the meeting proposed an alternative to the chair at the workstation. The applicant was advised that she could go to the First Aid room if she needed to sit and rest. There was some dispute about how far away the First Aid room was. The witnesses for the respondents indicated that it was quite close to the applicant’s workstation. The applicant indicated that it was a few minutes’ walk away.

18At the meeting, the applicant indicated that this was not a satisfactory solution because work would pile up on the conveyor if she was away from her workstation. Mr. Harrison testified that this would not be a problem although he agreed that the applicant indicated that she felt it would be a problem.

19The applicant continued to do the same job and did not sit to rest.

20In March 2008, at the time that the applicant returned to the split case department after her low back injury, a Return To Work Plan was developed. The accommodation/restrictions were listed as follows:

Standing 15 – 30 minutes

Lifting from floor to waist; 5 kgs

Ladder climbing 4- 6 steps

Restrictions to bending/twisting repetitive movement lower spine

No heavy lifting or repetitive bending.

21As Mr. Morrison pointed out on several occasions, the work in the split case department did not comply with the restriction of “standing 15 – 30 minutes” because the applicant had to stand to do the job. There is no dispute that the job could not be done while sitting.

22The respondents submit that while this is true, the applicant had asked to return to work in the split case department and did not raise a concern about prolonged standing from March 2008, when she returned to the department, until the chair incident in May 2008.

23In June 2008, the applicant’s case was referred to Canadian Benefits Management Limited (“CBML”). CBML is a company that provides employers with assistance in managing employee disability and sickness issues. It is an independent company that has a contract with the corporate respondent. The corporate respondent uses CBML to help manage cases of employees where the disability is not work-related. If the matter is work-related, it is dealt with by the WSIB. CBML is not a respondent in this Application.

24When a case is referred to CBML, all medical information about the employee is sent to CBML and not to the employer. CBML then determines whether the employee requires modified work and, if so, what restrictions/accommodations are necessary. A consequence of this arrangement is that the employer does not directly receive any medical information about the employee. It only receives the opinion of CBML. CBML characterizes its determinations as “adjudications”. Employees are advised that there is a right of appeal to CBML of any adverse decision. Mr. Sampath testified that the employer will usually provide ongoing accommodation to an employee even if CBML determines that accommodation is not necessary and even if the employee does not appeal.

25In this case, although the matter started with a work-related low back injury, by June 2008, the applicant was not receiving any active treatment for that injury and there were no benefits payable by the WSIB, so the WSIB claim was considered to be “inactive”. As a result, it was determined that any accommodation issues should be referred to CBML.

26The CBML “adjudicator” made a decision on June 23, 2008. The decision was communicated by email to the employer:

Decision:

The medical information received to date does not support this employee’s need for modified duties at work. Therefore the request for modified duties is denied.

There is no indication that the employee is receiving treatment for a medical condition.

27The email goes on to note that the information from the applicant’s family doctor was that the applicant required ongoing modified work with restrictions that included:

Needs to sit when tired

Standing: As tolerated

Lifting, lowering from floor to waist level: maximum 20 pounds

Lifting, lowering from waist to shoulder level: 10 pounds or less

Carrying: 10 pounds or less

No repetitive bending

Needs chair at her station to sit when needed

28The email concluded:

The employee should either return to work immediately with medical clearance or provide additional medical information to appeal our decision.

The employee has until 17 July 2008 to appeal our decision. We have closed this file, however, if an appeal is received by the deadline, we will review and update you and the employee accordingly.

29Mr. Sampath interpreted the CBML decision to mean that while the applicant’s doctor had indicated that the applicant required ongoing restrictions, the CBML adjudicator did not agree that there was a need for ongoing restrictions. He indicated that he did not know what information CBML might have relied on in coming to this conclusion but he confirmed that CBML would only have had the medical information that the applicant provided from her doctor. This information was sent only to CBML and not to the employer.

30Mr. Sampath testified that despite the CBML decision, the employer continued to offer the applicant modified duties which consisted of continuing to work in the split case department. He acknowledged that the full restrictions recommended by the applicant’s family doctor were not accommodated because she was required to stand to do the job and was only permitted to sit in the first aid room and was not provided with a chair at her work station. The accommodations were that she was assigned to lighter packing jobs. She was aware that she could ask for assistance from other workers if she needed to do any heavy lifting.

31On July 9, a meeting was convened with a representative from the employer’s Human Resources department, Mr. Harrison and Mr. Moses and the applicant. The CBML decision was communicated to the applicant and it was agreed that Mr. Moses would contact CBML to clarify the situation.

32Mr. Moses testified that he did call CBML after the meeting. He was concerned because he felt that the fact that the applicant was asking for accommodation because of her pregnancy had been overlooked. However, CBML did not change its view. An appeal was not filed with CBML.

33Mr. Moses testified that the union had a general concern about the CBML process. This case triggered a “policy grievance” that was eventually resolved but it did not directly impact the applicant’s situation. The policy grievance concerned CBML’s practice of overruling medical information from employees’ doctors.

34On July 11, two days after the July 9 meeting, the applicant had a dispute with Mr. Harrison concerning the work that she was doing on the line. The job involved cartons of shampoo and chocolate. The cartons had to be pushed along the conveyor to the work station. The applicant then had to take bottles of shampoo and packages of chocolate out of the cartons and put them into various tote boxes. The applicant asked Mr. Harrison for lighter work and he refused.

35In testimony Mr. Harrison confirmed that he had refused the applicant’s request for lighter work because he did not think that the work she was doing was heavy. He noted that the applicant was only required to lift individual bottles of shampoo. The applicant testified that the problem was that while the individual bottles were not heavy, a carton of bottles was heavy. She testified that she was required to push several cartons of shampoo along the line at once in order to do the job efficiently. Mr. Harrison testified that in his view, the applicant could have pushed only one or two cartons at a time. He did not agree that working in this way would cause the applicant to get behind in her work.

36The applicant was upset after her request for lighter work was refused. She asked Mr. Moses to come to speak to her. Mr. Moses testified that when he arrived, the applicant was very upset and emotional. He took her to the first aid room and tried to help her to calm down. In his testimony, Mr. Harrison agreed that the applicant was upset but he attributed this primarily to a dispute that had arisen earlier in the day between a co-worker and the applicant. Mr. Moses talked to Mr. Harrison and asked if it would be all right for the applicant to remain in the first aid department until the end of her shift. Mr. Harrison agreed.

37Mr. Harrison and Mr. Moses reviewed the job that the applicant had been doing. Mr. Harrison testified that Mr. Moses agreed with him that the job was suitable. Mr. Moses testified that he did not say that the job was suitable. He instead told Mr. Harrison that the applicant deserved more compassion because she was pregnant.

38The applicant testified that she talked to Mr. Moses about the possibility of a grievance while they were in the first aid room and that Mr. Moses advised her not to go that route because it could be stressful. Mr. Moses testified that there was no discussion about a grievance on July 11, 2008, although there was a general concern that triggered the policy grievance.

39July 11, 2008 was a Friday. On Monday, July 14, the applicant called in sick. On July 15, she spoke to Mr. Harrison and asked for a leave of absence for medical reasons, which was granted. On July 18, the applicant saw Dr. Strasberg, her family doctor, who provided a note which reads:

Ms. Williams is pregnant. Her blood pressure has been seen to be high at her obstetrician’s office. She has swelling of her feet at the end of day and back and abdominal pain. She requires light duty as outlined in my report dated June 15, 2008. If she does not get light duties, I will not be able to be responsible if her pregnancy becomes at risk. I am advising you of this now please give light duties.

40The applicant brought the July 18, 2008 note to the workplace on Monday, July 21. The employer did not receive the June 15, 2008 report mentioned by Dr. Strasberg. Mr. Sampath indicated that it was probably sent to CBML and was likely the medical information considered at the time of the June 23, 2008 decision that concluded that the applicant did not require modified work.

41It therefore appears that medical confirmation that the applicant required further accommodation was provided on or about June 15, 2008, but because of the arrangement between CBML and corporate respondent, that information was not available to Mr. Sampath. He was not aware of this until he received the July 21, 2008 report from Dr. Strasberg which reiterated the need for accommodation.

42When the report was received, a meeting was convened involving Mr. Sampath, Mr. Harrison, Mr. Moses, and the applicant. The applicant was offered work in the “non-conveyable department” and she reported to this job on July 23. She worked for part of the day and then spoke to Mr. Moses after which she went home.

43The non-conveyable department job involved assisting with unloading at the receiving department. A portable conveyor is brought into the truck and product is loaded on the conveyor. The applicant was required to help guide the product on the line to ensure that it did not fall off. This was a job that is always part of the unloading process and was not created only for the applicant. Mr. Sampath testified that he understood that the applicant would be able to sit to do at least part of this job. However, the applicant testified that she could not sit to do the job and she could not sit to rest because the product was always coming on the conveyor. Mr. Moses testified that he was familiar with this job. He indicated that the question of whether it is possible to sit while doing the job depends on the stage of unloading. When the truck is still mostly full, the line extends off the end of the truck and it is necessary to stand to guide the product. When the truck is less full, the line extends into the interior of the truck. It is then possible to sit in the truck to guide the materials on their way out of the truck.

44There is a note from Dr. Strasberg dated July 22, 2008. It reads:

Ms. Williams is suffering from stress and anxiety related to work and I have advised her to stop working until baby born October 18, 2008.

45Mr. Sampath testified that the employer did not receive this note until July 24, 2008.

46The applicant did not return to work after July 23. Her status was that she was on an early maternity leave without pay. She applied for and received sick benefits from the Employment Insurance Commission. She was then entitled to maternity leave employment insurance benefits after the birth of her child in October 2008. At the time of the hearing, those benefits were drawing to a close. The applicant’s intention is to return to work except that there is an ongoing work disruption.

47The applicant testified that the stress and anxiety symptoms referred to in Dr. Strasberg’s note of July 22, 2008 resolved when she was not at work and did not require any treatment. She testified that apart from the issues raised in the Application, her pregnancy was medically uneventful.

Submissions

48On behalf of the applicant, Mr. Morrison submitted that the issue in this case is whether the respondents accommodated the applicant’s disability and pregnancy to the point of undue hardship. He argued that in this case the applicant’s pregnancy was a disability. In his view, the applicant was not accommodated. Mr. Morrison noted that the April 2008 Return to Work Plan clearly identified prolonged standing as a restriction. The split case department job cannot be done while sitting and Mr. Morrison argues that it follows that the applicant was not accommodated to the point of undue hardship.

49Mr. Morrison noted that the applicant was told that it was up to her to advise if she needed further accommodation. She tried to provide her own accommodation by bringing the chair to the workstation but she was not allowed to use it.

50Mr. Morrison suggested that the respondents must refute each of the allegations set out in the Application and suggested that if the allegations are not refuted, they should be deemed to be true. In his view, the respondents have not refuted the allegations.

51Mr. Morrison submitted that the applicant is entitled to damages. He noted that in the Application Form, the applicant claimed $20,000 for “discrimination because of her pregnancy, disability and the reimbursement of her Legal Fees.”

52He added that the applicant should also be entitled to the top up of the employment insurance benefits she would have received through the employer’s Short Term Absence policy if it had been accepted that she was not able to work.

53On behalf of the employer, Ms. Peters submitted that the issue in this case is whether the applicant was accommodated. The respondents are not arguing that they could not have accommodated because to do so would cause undue hardship. Rather, the respondents submit that the applicant was accommodated.

54Ms. Peters acknowledged that this case raises accommodation issues with respect to both disability and pregnancy. She did not agree that pregnancy is a disability but acknowledged that pregnancy can result in a need for accommodation.

55Ms. Peters noted that the initial work-related low back injury appears to have essentially resolved by about March 2008. After that, any accommodation issues seem to relate to pregnancy. Ms. Peters submitted that there is no evidence of any medical restrictions in this case until the July 18, 2008 note from Dr. Strasberg. She conceded that CBML may have had earlier information from Dr. Strasberg but if so, Mr. Sampath and Mr. Harrison were not aware of it.

56Ms. Peters submitted that it was the applicant who asked to come back to the split case department after her back injury. She was aware of the job requirements, including the fact that the job requires prolonged standing, and assured the employer that she felt capable of doing the job. Moreover, she had a responsibility to tell the employer if there was a need for any further accommodation. Ms. Peters submitted that no request for accommodation was made from March 2008 until the chair incident in May, 2008. The evidence from Mr. Sampath was that any further accommodation request would have been dealt with appropriately.

57Ms. Peters submitted that the chair solution that the applicant devised was not acceptable because of legitimate safety concerns. In her view, the alternative arrangement of allowing the applicant to sit in the first aid room was a reasonable and appropriate accommodation.

58Ms. Peters submitted that the respondents did not discriminate on the grounds of disability or pregnancy and adequately accommodated any restrictions that were legitimately apparent.

59In the alternative, Ms. Peters argued that if I were to find that there was a Code infringement, the damages proposed by Mr. Morrison were not appropriate. She submitted that the original Application did not make any claim for loss of earnings or with respect to the loss of the employment insurance top up benefit and that it would be unfair to consider compensation for this loss. She noted that the Code does not give the Tribunal authority to award legal costs as claimed in the original Application.

Conclusions

60The sections of the Code that apply to the issues before me are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

10(1) In Part I and in this Part,

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device

(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

61The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3, 1999 CanLII 652 (“Meiorin”) at paras. 62-68. The Supreme Court has emphasized that the procedural component requires an individualized investigation of accommodation measures and assessment of the employee’s needs:

62Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated. Apart from individual testing to determine whether the person has the aptitude or qualification that is necessary to perform the work, the possibility that there may be different ways to perform the job while still accomplishing the employer’s legitimate work-related purpose should be considered in appropriate cases. (Meiorin, para. 64)

63The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. A recent decision of this Tribunal has explained that “the duty to accommodate involves the obligation to consider the possibility of appropriate alternative employment or redefined responsibilities”, Grzesiak v. DOT Benefits, 2008 HRTO 206 at para 98. It is the employer who bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin, supra.

64At the same time, accommodation is a collaborative process. The employee must co-operate in the process and provide as much information as possible to facilitate the search for reasonable accommodation (see Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; Wall v. The Lippé Group, 2008 HRTO 50; Mellon v. Canada (Human Resources Development), [2006] C.H.R.D. No. 2.)

65In my view, the evidence establishes that the applicant had a need for accommodation in employment. Initially, she had a low back disability that required accommodation. Subsequently, the need for accommodation was related primarily to pregnancy, although there may also have been some residual impairment from the low back injury.

66The respondents do not dispute that the applicant requested accommodation in relation to disability and/or pregnancy. The respondents submit that the need for accommodation was accepted and that reasonable accommodation was provided, notwithstanding the determination by CBML that accommodation was not necessary.

67Prior to “the chair incident” in late May 2008 when the applicant tried to bring a chair to the workstation, it appears that the applicant was able to do the essential duties of the work assigned in the split case department with the accommodation that she avoid heavy lifting, and she did not request additional accommodation.

68It is true that even before May 2008, the split case job exceeded the medical restrictions that had been recognized in the functional ability information provided by Dr. Strasberg because the restrictions included prolonged standing and the job required prolonged standing. However, it is well-recognized that accommodation is a mutual undertaking, involving the employer, the worker, and union if the workplace is organized. While the employer has a general obligation to offer work that is within medical restrictions, the fact that a job does not meet all of the medical restrictions does not necessarily mean that the employer has failed to accommodate. The employer offered the applicant duties that it believed met her restrictions and, up to late May 2008, had no reason to think that the accommodation was not appropriate. In the absence of identification by the worker that the job assigned is not suitable or that further accommodation is required, and if the worker is capable of performing the essential duties of the job, the employer has not necessarily failed to accommodate.

69The chair incident was in effect identification by the applicant that she was having problems doing the essential duties of the job without further accommodation. The accommodation that she requested was to be allowed to periodically sit at her work in order to rest her back. It was also a request that she be allowed to do so in a way that was safe because sitting on the tote boxes was not safe because of her pregnancy and related weight gain.

70That need for additional accommodation to allow the applicant to sit safely during the day was not earlier identified in the functional abilities information and was specifically reiterated by Dr. Strasberg in her report of June 15, 2008. This report was submitted to CBML and not directly to the employer. However, this occurred because of the arrangements that the corporate respondent has made with CBML. There may be sound reasons for these arrangements, including the fact that they create a confidentiality screen with respect to medical information about employees. However, for the purposes of this decision it is my view that medical information about restrictions and accommodation that was submitted to CBML as agent of the corporate respondent must be taken to have been submitted to the corporate respondent.

71At the same time, it is clear that after the chair incident, the request for additional accommodation to allow the applicant to sit safely during the day was not ignored or dismissed. She was permitted to sit in the first aid room as required and the safety-related reasons why she could not have a chair at her workstation were explained.

72Under section 17(2) of the Code, health and safety concerns are important considerations with respect to accommodation. If an employee requires accommodation in order to do the essential duties of the job, the employer is obligated to provide the accommodation unless to do so would result in undue hardship. Undue hardship may result if the requested accommodation would create health and safety issues, either for the person requesting the accommodation or for others. However, undue hardship is not established merely by asserting a health and safety concern.

73In assessing the health and safety implications of a requested accommodation, the test that should be applied is not absolute safety, but rather reasonable safety. (See British Columbia (Supt. of Motor Vehicles) v. British Columbia (Council of Human Rights) (“Grismer”), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868.)

74For the health and safety concern to amount to undue hardship, the concern must be genuine and significant enough that it outweighs the benefits of the requested accommodation. As noted in the Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate:

Health and safety risks will amount to undue hardship if the degree of risk that remains after the accommodation has been made outweighs the benefits of enhancing equality for persons with disabilities.

75In this case, I accept that there was a safety concern about having a chair at the workstation. If the chair blocked an exit, there could be serious safety consequences, especially in an emergency or blackout. However, the applicant’s evidence is that she intended to push the chair under the line when it was not in use. This would have significantly reduced the safety concerns. Any concern that the applicant might fail to push the chair under the line could be dealt with separately and that concern alone does not seem to be sufficient to rule out the requested accommodation. Moreover, the photographs of the work area that were submitted by the respondents show that the lanes between the shelves and the conveyor line are not always kept clear. The photos showed totes on the floor in the lane.

76I further note that there may have been alternatives to the chair that would have provided accommodation at the workstation. For example, the applicant testified that a stool, which would have presented a lesser safety concern, might have sufficed as she could have leaned against a pillar while sitting on the stool. This option or other options that might have been developed to allow the applicant to rest at the workstation were not explored.

77The only option that was made available to the applicant was sitting in the first aid room. This option involved walking to the first aid room. I accept the applicant’s evidence that this option would likely cause the work at her station to back up more than would have been the case if she could have sat at the workstation. As well, this option would necessarily draw increased attention to the applicant’s disability.

78While accommodation under the Code does not have to result in a perfect solution, it should involve a process that best reconciles the various competing interests and factors to provide a solution that minimizes inconvenience and hardship and also recognizes the dignity of the accommodated person

79I conclude that the failure to properly address the applicant’s need for accommodation in regards to the prolonged standing restriction subsequent to the chair incident represents an infringement of the Code. Although the employer made efforts to accommodate her restrictions, it did not fully explore options that would have enabled the applicant to fulfill the essential duties of her job without prolonged standing.

80At the same time, it appears to me that the applicant bears some responsibility for the way the accommodation issue was dealt with. Instead of making the unilateral decision to bring a chair to the work station, things might have worked out better if she had told Mr. Harrison and Mr. Sampath that she required a chair. Nevertheless, the chair incident should have clearly identified the need for further accommodation and the responsibility for responding to an accommodation request rests with the employer.

81After the chair incident, the applicant was informed that CBML had determined that she did not require any accommodation. I accept the evidence of Mr. Sampath that the employer was prepared to continue to provide accommodation notwithstanding the opinion of CBML and that the applicant was accommodated, with the possible exception of the sitting accommodation, as discussed above. However, it is understandable that the applicant’s perception of the sincerity of the employer’s commitment to continuing the accommodation process might have been undermined by the seemingly contradictory information that CBML, the employer’s agent, had determined that accommodation was not necessary.

82The applicant continued with the split case department job but two days after the meeting at which she was told about the CBML decision, she had a dispute with Mr. Harrison about the assigned work and he refused to give her lighter work. The applicant was very upset after this discussion and subsequently called in sick and received medical advice that she remain off work because stress was adversely affecting her pregnancy.

83There was then a further attempt at accommodation with the offer of the non-conveyable department job. While there is evidence that it is possible to sit while doing some of the aspects of this job, this seems to depend on the particular set up. I accept the applicant’s evidence that she was not able to sit for the relatively short time that she did the job. Based on the information in Dr. Strasberg’s reports, I also accept that the applicant was experiencing stress and that it was necessary for her to stop working.

84The applicant testified that the stress resolved after she stopped working. However, she decided to stay off work rather than risking stress associated with the ongoing accommodation process. There were good reasons for this decision, including the advice from her family doctor and the difficulties and frustrations that she had experienced in the accommodation process and in particular, the accommodation of the restriction of no prolonged standing.

85On the basis of the available evidence, it is my view that the difficulties that the applicant experienced in trying to assert her need for accommodation of the prolonged standing restriction were more probably than not a factor that contributed significantly to the stress and anxiety that the applicant was experiencing, and that caused Dr. Strasberg to recommend that she remain off work.

86I conclude that the respondents did not meet the duty to accommodate in this case. In particular, I find that they failed to fully explore all options that would have enabled the applicant to fulfill the essential duties of her job without prolonged standing. While the applicant was accommodated by work that was lighter than her regular job, after May 2008, the accommodation was not sufficient as it failed to adequately recognize the restriction of no prolonged standing. By June 2008, the need for further accommodation was clearly identified by the applicant’s doctor. This information was not received directly by those who were responsible for responding to the accommodation needs because the doctor’s note was sent to CBML. However, CBML is the respondent employer’s agent, and the reasons that the information was not directly received have to do with how the employer respondent has structured its affairs and are certainly not the fault of the applicant. When further medical information was received in July, the applicant was still not provided with work that accommodated the sitting requirement.

87I find that these events cumulatively resulted in an infringement of the applicant’s rights under the Code.

Remedy

88In the Application, the applicant asked for a financial remedy in the amount of $20,000 as “redress for the discrimination because of her pregnancy, disability and the reimbursement of the Legal Fees.”

89I find that the applicant is entitled to monetary compensation for the infringement. I have found that the employer did not fulfil its duty to accommodate in the period from May to July 2008 and that this contributed significantly to the fact that the applicant stopped work in July 2008. There is no evidence to indicate that, but for the infringement, the applicant would have been unable to continue working up to the date in October 2008 that she gave birth. I find that the applicant is entitled to financial compensation equivalent to the earnings she would have earned from July 23, 2008, when she left work, to the date in October 2008 that she gave birth. The applicant is reminded of her obligation to inform the Employment Insurance Commission of this award.

90As this amount cannot be quantified on the basis of the evidence now available, I remain seized in the event that there is an issue concerning the amount of this award.

91An award of monetary compensation for injury to dignity, feelings and self-respect includes recognition of the inherent value of the right to be free from discrimination and the experience of victimization. The Divisional Court, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), held that the following are among the factors the Tribunal should consider when awarding general damages: humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the applicant; the experience of victimization; the vulnerability of the applicant; and the seriousness of the offensive treatment.

92As noted earlier in this Decision, the applicant’s evidence was limited to the issue of whether her Code-protected rights had been infringed. Apart from the brief medical notes from Dr. Strasberg, the applicant provided no further evidence about the consequences of the infringement. She testified that she was experiencing stress and anxiety in July 2008, and I have accepted her evidence on this point. However, she also testified that the stress and anxiety resolved after she was no longer in the workplace. An applicant is required to prove her damages. In this case, there is no evidence to suggest that the applicant experienced significant injury to dignity, feelings and self-respect as a result of the infringement. However, I accept that she experienced some injury to dignity, feelings and self-respect at least in regard to the chair incident in May 2008 and the subsequent difficulties she experienced in trying to assert the need for accommodation in respect of the prolonged standing restriction. I find that the applicant is entitled to financial compensation in the amount of $2,000 for injury to dignity, feelings and self-respect.

93The Tribunal does not have authority to award compensation for legal costs: Dunn v. United Transportation Union, Local 104, 2008 HRTO 405; MacDonald v. Downtown Health Club for Women, 2009 HRTO 1647.

ORDER

94The corporate respondent is directed to pay the applicant the earnings she would have earned between July 23, 2008, when she stopped work, and the date in October 2008 when she gave birth. I remain seized in the event that there is any dispute concerning the amount of money this represents.

95The corporate respondent is also directed to pay the applicant compensation for injury to the applicant’s dignity, feelings and self-respect in the amount of $2,000.