HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Eugenijus Duliunas
Applicant
-and-
York-Med Systems Inc.
Respondent
DECISION
Adjudicator: Faisal Bhabha
Indexed as: Duliunas v. York-Med Systems
APPEARANCES
Eugenijus Duliunas, Applicant ) On his own behalf
York-Med Systems Inc., Respondent ) David Conn, Counsel
INTRODUCTION
1The applicant filed an Application with the Tribunal under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), alleging discrimination in employment on the basis of disability, stemming from the conditions of his return from a medical leave of absence and leading to the termination of his employment. The respondent denied that discriminatory considerations formed any part of its conduct in respect of the applicant.
2The hearing took place on September 28 and October 6, 2009. The applicant testified on his own behalf and called no further witnesses. The respondent called as witnesses two of its employees, Merwyn Correa, a senior manager, and Linda Paniccia, human resources director.
3For the reasons that follow, I find that the respondent failed to properly return the applicant to work from a disability-related absence, and then terminated the applicant’s employment because of factors related to his disability.
THE EVIDENCE
4The following is based on the testimony of the witnesses and the documents admitted by the parties before and during the hearing. Material inconsistencies and contradictions in the evidence are noted where appropriate.
The Parties
5The applicant holds a Bachelor’s degree in Computer Science and a diploma in computer programming. He began working as a technical service representative with the respondent company in January 2003. Prior to that, the applicant was a partner in Canada General Inc., a company that was acquired by the respondent company in 2003.
6The applicant’s position involved providing technical support to York-Med customers throughout Ontario, both by telephone and in person. While it is clear that technical support sometimes involved travel to customer locations, there was conflict in the evidence about whether this was an essential requirement of the job. The applicant maintained that, prior to his medical leave, he was almost never required to travel by motor vehicle.
7The applicant’s supervisor was Merwyn Correa, who, at the material times, was a manager in the Production Department. Linda Paniccia was the director of Human Resources and, as such, was the key player in managing the applicant’s medical leave and return to work. Both Mr. Correa and Ms. Paniccia reported to the company president, John Flint.
The Applicant’s Disability and Medical Leave
8In March 2006, the applicant went off work on a one-month disability-related leave, during which he was diagnosed with depression and anxiety. There is no dispute that he was accommodated and received full pay during his absence. He returned to work gradually and continued to receive outpatient treatment.
9In March 2007, the applicant again went off work on a medical leave of absence related to his depression and anxiety. He alleges that the respondent breached the Code by failing to return him to full-time work, failing to accommodate him, reducing his pay and ultimately terminating him in October 2008.
10For the first two months of the applicant’s absence, he received full pay and was not required to submit any medical documentation. At the end of May 2007, the applicant was put on the company’s short-term disability (“STD”) program, whereby he applied for and received Employment Insurance, which the respondent topped up to 95 per cent of the applicant’s salary.
11The applicant’s STD ended on or around July 22, 2007. It is unclear what steps were taken by either party for the applicant to access long-term disability (“LTD”) through the group plan administered by Empire Life. What is clear is that for several months the applicant received no income. This fact came to the respondent’s attention in or around October 2007, and led to the involvement of the human resources director, Linda Paniccia. On December 5, 2007, Empire Life approved the applicant’s claim and he was retroactively paid a lump sum for the period covering July 22, 2007 through October 21, 2007.
12There appears to have been further issues with respect to LTD benefits and the applicant received no additional pay until February 2008, when Empire Life made a further retroactive lump sum payment covering the period October 22, 2007 through February 21, 2008.
Return to Work
13The applicant returned to work on February 28, 2008, on a part-time basis. The circumstances surrounding his return are largely disputed. It is worth reviewing the key incidents and communications precipitating and following the applicant’s return because these form the basis of his allegations of discrimination, and will be central to the application of the Code to the facts of this case.
14The applicant’s evidence was that he was approved to return to full-time employment on February 1, 2008. In support of this, he relied on a letter, dated December 17, 2007, signed by his physician Dr. Jorge Soni. Dr. Soni did not testify at the hearing. The letter contains few details, stating only that the applicant “may return to work Full Time as of February 1, 2008.”
15The applicant alleged that he personally provided a copy of the letter to Ms. Paniccia. He was unable to specify when or where he delivered it to her, and under cross-examination he could recall only that “it was snowy outside”. The respondent denied having received the letter. Ms. Paniccia testified that the first she learned of the letter was when she spoke with the applicant on the phone sometime during the third or fourth week of January 2008, when the applicant read her the content of the letter. I accept Ms. Paniccia’s evidence on this point.
16It is therefore clear that, by the end of January 2008, the respondent was aware that the applicant was requesting to return to full-time employment with the apparent support of his physician.
17In an email dated February 6, 2008, Ms. Paniccia wrote to the applicant’s physician to request additional information with respect to the applicant’s return to work. She asked him four questions addressing: (1) his ability to handle high pressure; (2) his ability to drive; (3) his level of concentration and memory; and (4) the extent to which his eagerness to return to work was motivated by financial considerations caused by the LTD delays.
18In a response dated February 14, 2008, Dr. Soni responded to each of Ms. Paniccia’s questions. He recommended that the applicant return to work “on a part time basis starting with two days the first week and then working three days the following weeks.” He advised that the applicant would not be able to drive for “the next several months”. He said that the applicant’s concentration and memory were not “an area we need to be concerned about at the present time”, and that frustration over LTD delays were just “part of the reason” for the applicant’s request to return to work.
19In oral evidence, the applicant testified that he had asked Dr. Soni to change his recommendation from immediate full-time return, contained in the December 17, 2007 letter, to a graduated return in the February 14, 2008 letter, because the applicant believed that a gradual return to work was mandated under the respondent’s disability accommodation policy. He testified that while he felt ready to return full-time with some modifications, he was prepared to cooperate in a gradual return if that was what was required to comply with the workplace policy. He testified that his intention was to ramp up to full-time hours within a few weeks.
20On February 20, 2008, the applicant and Ms. Paniccia spoke on the phone about the applicant’s return to work. In that conversation, Ms. Paniccia advised the applicant that he would return to a new position, part-time hours, and a reduction in pay, commensurate with the pay level for the new position. The applicant was being moved from a Level 2 Technical Services position to a Level 1 Help Desk position, with a corresponding salary reduction of $20,000 annually. The applicant was told he could return to work two days a week, and was offered Thursdays and Fridays.
21On February 25, 2008, Ms. Paniccia sent a letter to the applicant confirming the terms of his return to work. The next day, the applicant sent an email to Ms. Paniccia detailing his objection to his re-assignment and pay cut. He went on to emphasize his desire to return to the duties he was performing prior to his medical leave, which he claimed involved driving “less then [sic] approximately 10%” of his time. The applicant did not specifically object to the idea of a gradual return to work.
22On February 27, 2008, Ms. Paniccia responded to the applicant. She repeated Dr. Soni’s opinion that the applicant return on a part-time basis starting with two days a week and then moving to three days, and also the applicant’s inability to operate a motor vehicle for several months. She went on to take the position that the company could not accommodate the applicant in his former position due to his inability to drive, reminding him that the company had already made modifications to his position following his illness the previous year. The letter concluded as follows:
In order to accommodate your restrictions and to take into account changes in the workplace that were implemented during your absence, York-Med is offering you a Helpdesk Specialist position in the Support Department. Your salary will be $45,000.00 per annum, the top salary range for this position. The position will commence on Thursday, February 28, 2008 and, in keeping with your doctor’s instructions, we will start you at two days per week (Thursday and Friday).
23In oral evidence, Ms. Paniccia explained that the decision with respect to the terms of the applicant’s return to work was made in consultation between herself, Mr. Correa, and John Flint, the company president, who did not testify. After reviewing the report and subsequent correspondence from Dr. Soni, Ms. Paniccia testified that they were still not satisfied with the sufficiency of the information Dr. Soni provided. She testified that they were concerned about putting the applicant back in his position given that he had already taken medical leave twice while working that job. They believed that his medical issues might have been related to, or exacerbated by, the pressures of work. Ms. Paniccia testified that they were looking for reassurances from Dr. Soni to the contrary, but did not receive an adequate explanation.
24Mr. Correa described the applicant’s original position in the Production Department as having two main functions: the first involves troubleshooting customer systems and networks, including travelling to customer locations across Ontario to fix problems. The second aspect deals with receiving calls that are referred from the Support Department help desk dealing with networks and systems. He explained that some of those calls could be addressed remotely, while some would need on-site field service work. He testified that all Production Department staff needed to be available to travel to customer locations and that the mode of travel is to drive. The applicant’s annual salary as a Level 2 technical service representative was $65,000.
25As a result of their ongoing concerns about the applicant’s health, Ms. Paniccia, Mr. Correa and Mr. Flint met to determine what would be the best position for the applicant. They decided that he would be better-suited to the Support Department, given that it is a larger group, is less stressful, and was a location where the company was focusing its energies on quality service. Ms. Paniccia testified that they recognized this move would require a change in the applicant’s job designation, and a concomitant change in salary. She stated that he would be placed in the top salary bracket for Level 1 Support Department staff, at $45,000 annually.
26Ms. Paniccia testified that Mr. Flint instructed her to seek legal advice on how to change the applicant’s position. She was advised to prepare a new contract or, in the very least, to document in written correspondence that a new offer was being made. That is the background to her correspondence of February 25 and 27, 2008, cited above.
27On February 28, 2008, the applicant returned to work. It appears he assumed the duties of his new position, reporting for work on Thursdays and Fridays each week.
28On April 2, 2008, he wrote to Ms. Paniccia again objecting to the revised terms of his employment, emphasizing that he did not agree with his transfer to a new department or the reduction in his pay, and maintained his view that operating a vehicle was not an essential duty of his original job. He asked some questions about his disability benefits and explained that he was having financial difficulties. Finally, he indicated that he would be seeking his physician’s authorization to return to full-time hours “as soon as possible”.
29On April 11, 2008, the applicant met with Ms. Paniccia and Mr. Correa, who explained to him that his old position was not available and that the company needed him in Support. Ms. Paniccia also explained to the applicant that if his primary concern was financial, he was actually doing better working part-time than full-time based on the combination of earnings and LTD payments. The benefit payable under the LTD plan was based on his pre-leave salary, which was considerably higher than his post-leave salary. According to the insurer’s calculations, which Ms. Paniccia cited to the applicant, he was earning a gross income of $53,000 while working part-time and receiving LTD benefits, whereas if he returned to full-time hours, his gross salary would have been $45,000. Ms. Paniccia testified that the applicant seemed satisfied with the answers he received in the meeting.
30Ms. Paniccia testified that around the end of May 2008, she spoke with Empire Life and became aware that the insurer was planning on terminating the applicant’s LTD benefits at the end of June 2008. She further testified that she spoke with the applicant about it on May 30, 2008, and that he seemed upset about it. Ms. Paniccia testified that she felt Empire Life was pressuring the applicant to return to full-time work, and she did not personally believe he was ready for it. She also testified that it was her understanding at this time the applicant’s physician did not feel the applicant was ready for full-time hours.
31The applicant alleged that on June 3, 2008, he sent an email to Ms. Paniccia again requesting a meeting to discuss his full-time return to work, and also to resolve his ongoing concerns about his position and pay. The respondent denied that any such email was received; the document the applicant introduced into evidence, a print-out of the email, suggests the correspondence was sent only to himself and to his wife.
32On June 24, 2008, Kathleen Corbett of Empire Life sent an email to Ms. Paniccia confirming that she had spoken with Dr. Soni, who recommended a return-to-work schedule for the applicant beginning with an increase to three days per week for the first two weeks of June, four days per week for the next two weeks, and then full-time hours beginning on June 30, 2008. Based on that conclusion, Empire Life closed the applicant’s LTD file and ceased paying benefits effective June 30, 2008.
33The respondent never implemented a gradual return to full-time hours. In an email dated July 21, 2008, Ms. Paniccia confirmed to the insurer that “Richard is still working 2 days/week and I have not received any other instructions from Richard or his physician to modify this schedule.” Yet, around the same time, Ms. Paniccia testified that she received an email from the applicant again requesting an increase in hours. She testified that this was the first time she understood the applicant to be requesting a return to full-time hours.
34Ms. Paniccia spoke with Mr. Flint in August 2008 and they decided to offer to increase the applicant’s hours to three days a week.
35On or about August 27, 2008, Ms. Paniccia spoke by phone with the applicant and advised him that he would be allowed to return to work three days a week, but she warned that he would be monitored for attendance and consistent hours of work. Apparently, the applicant had been flexing his hours, combining his lunch and breaks at 4 p.m. so he could leave one hour early. The applicant testified that this arrangement accommodated the bus schedule, upon which he was dependent since he was not yet fit to drive. Ms. Paniccia told the applicant this was not acceptable, and that he was expected to work 9 a.m. to 5 p.m., with normal breaks and lunch. Regarding the applicant’s attendance, Ms. Paniccia took the position that the applicant’s record had been spotty since his partial return to work. The applicant claimed that his absences were due to doctor’s appointments and had all been pre-authorized.
36There was considerable conflict in the evidence regarding these attendance issues. What is clear is that the applicant had been working flexible hours and missing time for medical appointments on the belief that he was authorized to do so. Meanwhile, the respondent had for some time been concerned about the applicant’s attendance, but failed to bring any issues to the applicant’s attention. In her evidence, Ms. Paniccia testified that while the issues were serious—in fact, she asserted, serious enough to justify termination—she was trying to accommodate the applicant and give him space. She tried not to put pressure on him and therefore did not wish to bring anything to his attention until the point when it was absolutely necessary. As a result, none of the respondent’s issues were addressed from the beginning of February until the end of August 2008.
Termination of Employment
37On September 2, 2008, the applicant sent Ms. Paniccia an email seeking to “clarify” his position with respect to his attendance record, essentially emphasizing the points he had made to her in their telephone conversation the previous week. He went on to renew his request to return to full-time hours, citing Dr. Soni’s endorsement of a full return to work.
38In an email dated September 4, 2008, Ms. Paniccia responded by refusing the applicant’s request for full-time work. She stated: “We have accommodated your return to work with a modification in position, reduced hours and corresponding salary, and under the current circumstances we cannot increase you to fulltime status. Despite this, I did agree to increase your hours to a 3 day work week with a review.” She went on to propose the alternative of moving the applicant to a contract status, which would enable the respondent to pay him $200 a day for the same work, which might, it was suggested, have tax advantages for the applicant. In testimony, Ms. Paniccia stated that the contract idea was floated with the applicant because he had seemed interested in pursuing other work opportunities outside his employment with the respondent.
39On September 10, 2008, the applicant responded in detail to Ms. Paniccia’s email. He continued to dispute the concerns raised about his hours and attendance. He stated that he was not interested in contract work. Finally, he emphasized that he was seeking an immediate return to full-time hours, accusing the respondent of failing to return him on the basis of “incorrect observations”, causing him financial hardship.
40On September 17, 2008, Ms. Paniccia responded to the applicant, stating: “To address your request for increased days, we’ve attached a new employment contract which sets out the terms of your employment.” The new employment contract was dated September 15, 2008, and provided that the applicant would be employed as a Support Representative in the Support Department with an annual salary of $45,000, working Tuesday to Friday, and that his salary would be pro-rated for the 4-day work week. After 30 days, the contract provided the parties would discuss the possibility of a 5-day work week. The contract provided that the applicant would be entitled to three weeks’ vacation, and would work 9 a.m. to 5 p.m., with a 30-minute unpaid lunch break.
41On October 3, 2008, the applicant wrote to Ms. Paniccia indicating that he was not agreeable with the terms. A meeting was arranged with her and Mr. Correa to discuss the applicant’s concerns. Ms. Paniccia testified that in the meeting, the applicant objected only to the three weeks’ vacation, given his entitlement had recently been increased to four weeks. The respondent agreed to amend the contract. The applicant said he would speak to his wife and would get back to them.
42On October 10, 2008, the applicant signed the contract, but made amendments to it and did not advise the respondent of his changes. In an email dated October 12, 2008, Ms. Paniccia advised the applicant that his changes were not satisfactory. She told him the terms of contact are “standard” and non-negotiable.
43On October 13, 2008, the applicant wrote that he would not sign the contract as drafted because he did not agree with its contents. Specifically, he objected to the fact that the new contract did not guarantee a return to full-time work, provided only three weeks of vacation (which the respondent conceded should have been four weeks) and contained language to the effect that he was agreeing to enter into a new contract. The applicant maintained this was false, and changed it to state that he was only signing the new contract “to permit me to go back to working full-time.”
44On October 15, 2008, the applicant met with Ms. Paniccia and Mr. Correa and was told that his employment was being terminated due to his refusal to sign the new contract.
45Prior to the meeting, Ms. Paniccia testified she consulted with the president, Mr. Flint. She said that Mr. Flint was upset that the applicant was not agreeable to the respondent’s terms. Ms. Paniccia considered it dishonest that the applicant had made changes to the document without informing her. She testified that Mr. Flint told her he was frustrated that there remained disagreement about issues fundamental to the employment relationship. On that basis, a decision was made to terminate the applicant’s employment.
RELEVANT FACTUAL FINDINGS
46There are numerous factual disputes in the evidence, not all of which are relevant or material to the issues before me. The key disputes concern: (1) the applicant’s fitness to return to full-time work and the timing of his return; (2) the availability and suitability of returning the applicant to his original job as a technical service representative or a reasonable alternative; and (3) the handling of the applicant’s LTD claim.
47My general assessment of the respondent’s witnesses is that they both presented their evidence in an honest, clear and straightforward manner. My findings with respect to their actions and mindset does not amount to an impression that they were being dishonest in their testimony. However, I do conclude that they lacked an informed understanding of their legal obligations and consequently executed a misdirected plan with respect to the applicant’s return to work.
48My assessment of the applicant’s credibility is that he presented his evidence in a manner that was at times inconsistent or imprecise, but that on the whole was credible. My assessment of the credibility of the applicant's evidence is based on the surrounding circumstances, including consideration of the logic of his assertions in view of other facts that are clearly established. For that reason, I have discounted some of the applicant's weaker allegations.
Applicant’s illness and fitness to return
49The applicant’s position is that he was deemed fit to return to work on a full-time basis in February 2008, based on Dr. Soni’s letter dated December 17, 2007. The respondent’s position is that the applicant was unclear about when he would be prepared for full-time work and that Dr. Soni’s recommendations were imprecise and ever-changing.
50The respondent maintained that it did not become aware of the December 17, 2007 letter until late January 2008, and that Dr. Soni’s responses to the respondent’s follow-up questions were unhelpful. Ms. Paniccia testified that as late as June 2008, the applicant was telling her that Dr. Soni did not support his return to full-time hours. Yet, at the same time, the insurer had ascertained from Dr. Soni that the applicant was fit to return to full-time hours effective June 30, 2008. According to the respondent, the applicant did not express a clear desire and preparedness to return to full-time hours until late July 2008.
51The applicant maintained that any inconsistency in his communications with the respondent was due to his attempts to conform to his understanding of company policy regarding returning to work, which mandated an incremental return. After his previous leave, he had returned to work gradually over eight weeks without a problem and expected the same again. He explained that Dr. Soni modified his December 2007 recommendation that the applicant return to full-time work on February 1, 2008, with his subsequent recommendation in his February 14, 2008 letter for a gradual return, because the applicant asked him to do so in compliance with the respondent’s return-to-work policy. Dr. Soni did not testify and I therefore did not hear direct evidence from him.
52What is clear is that at least by the end of June 2008, the applicant was fit to return to full-time hours and the respondent knew or ought to have known this to be the case on the basis of the information available at the time.
Availability and suitability of the pre-illness position
53There was much conflicting evidence about the factors that led the respondent to determine that it could not return the applicant to his pre-illness position. Some of the factors claimed were based on business considerations, and others were more personal to the applicant.
54The evidence called by the respondent focused on workplace changes that occurred while the applicant was away that are alleged to have affected the applicant’s return to work. Mr. Correa testified that in October 2007, the company re-structured the Production Department. Of the six technical specialists (including the applicant), two were moved to the Support Department to offer higher quality service on the telephone support side, while the Production Department re-focused on field service. An ability to drive became an essential qualification for the technical specialist position in Production.
55Then, in January 2008, the respondent lost a sizable contract representing about 30% of its revenue. Mr. Correa testified that this was unforeseen and caused significant changes for the company. Two of the remaining technical specialists left the company and were not replaced. Thus, when the applicant phoned Mr. Correa in January 2008 to discuss his return to work, he was one of only two remaining technical specialists in the Production Department. I accept as credible the claim that an ability to operate a motor vehicle became an essential job qualification for a position in the Production Department.
56Mr. Correa, Mr. Flint and Ms. Paniccia determined that the applicant was no longer needed in Production, and that his inability to operate a motor vehicle disqualified him from that position. However, I also find that assumptions and concerns about the applicant’s mental health, based on his 2006 and 2007 episodes and unrelated to his inability to drive for a few months, caused the respondent to question whether the applicant was capable of handling the pressure of a technical specialist position.
57On cross-examination, Mr. Correa confirmed that the two technical specialists who were deployed to the Support Department in October 2007 were given “lateral” transfers, meaning that they moved into a “specialist” position in the Support Department, thus maintaining their Level 2 salary. Mr. Correa admitted on cross-examination that a lateral move for the applicant would have been to a Level 2 Help Desk position, which paid the same salary as a Level 2 position in the Production Department. The applicant was the only member of the Production Department who was not given the opportunity to either keep his position or make a lateral move as part of the workplace changes that occurred in late 2007 and early 2008.
58Ms. Paniccia asserted that the company could not afford to keep the applicant at his pre-disability salary level because of losses to business unrelated to the applicant’s disability. There was no corroborating evidence and I do not find this claim to be credible. Two others in the applicant’s position were laterally moved to a Level 2 Support position, while only the applicant was moved to a Level 1 position. The respondent’s evidence confirmed that the applicant was equally if not better qualified than at least one of these other individuals. The only apparent explanation for the difference in treatment is rooted in negative perceptions (and speculation) about the applicant’s ability to perform. I therefore find that the respondent’s approach to returning the applicant to work was wrought more by its concern over what Ms. Paniccia called “too many unknowns” about the applicant’s future health than by legitimate business interests.
Handling of the applicant’s LTD claim
59The applicant received full pay from the respondent for the month of March 2007. He then received 15 weeks of Employment Insurance, topped up to 95 percent of his salary by the respondent. When that ended on July 20, 2007, the applicant applied for LTD benefits through the respondent’s insurance policy with Empire Life. Ms. Paniccia admitted on cross-examination that the process was not ideal. The applicant was the company’s first LTD applicant, and there were communication mix-ups.
60Ultimately, the applicant received full LTD benefits for the period July 20, 2007 to June 30, 2008. On cross-examination he conceded that he understood it was Empire Life that was responsible for paying the benefit, not the respondent. The essence of his allegations against the respondent is that Ms. Paniccia failed to adequately assist in making the claim to Empire Life.
61The evidence is clear that he suffered hardship and inconvenience as a result of the delays in processing the application. However, there was no suggestion, and the evidence would fail to support a claim, that the respondent deliberately obstructed the applicant’s LTD application.
62I further find that, at least a part of the mixed messages the respondents claimed to have received, in terms of the applicant’s fitness to return to work, was related to financial factors. It is also apparent that, at times, the respondent assumed a financial motivation linked to hardship caused by LTD delays when the applicant raised issues about his hours and pay.
ISSUES
63The issues for me to determine, in the light of the factual findings and upon analysis of the facts and the law, are as follows:
Was the applicant reasonably accommodated, within the meaning of section 11, in returning from his medical leave in February 2008?
Was the applicant’s employment discriminatorily terminated, within the meaning of section 5, in October 2008?
If the answer to (1) or (2) above is yes, what is the appropriate remedy?
ANALYSIS AND DECISION
64In this section, I apply the facts to the law and explain my conclusion that the respondent breached the applicant’s rights under the Code, and provide a remedial order.
Relevant Code provisions
65The following provisions of the Code are relevant to my determination of the issues in this case:
[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.
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member 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.
- (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.
(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.
Duty to accommodate
66There is no question the respondent accommodated the applicant’s first mental health episode in 2006 without issue. There is also no question the respondent accommodated the applicant in granting him a medical leave with pay and ensured a position for him upon his return. The allegations with respect to the duty to accommodate concern the alleged obstruction of his LTD claim, the refusal to return him to full-time employment, and the allegation that the respondent failed to return the applicant to his pre-illness position and that it has failed to demonstrate good reason for the transfer to a lower-level position. Specifically, the applicant argued that the respondent failed to justify the “demotion”.
67The applicant’s return to work was fraught with complications, not entirely of the respondent’s doing. The applicant’s medical documentation lacked detail and his communications with the respondent were, at times, confusing. The applicant first requested a full-time return to work for February 2008, but later sought part-time hours and a gradual return. His doctor’s notes similarly changed. However, what is clear is that by the beginning of July 2008, there was a clear consensus that the applicant was fit to return to full-time duties. He made explicit requests supported by medical documentation. The respondent never contested the veracity of the medical reports or sought an independent expert opinion. The insurer terminated the applicant’s LTD benefits at the end of June on the basis of Dr. Soni’s opinion that the applicant was fit to return. Everybody except the respondent seemed to be in agreement that the applicant was ready to resume full-time work.
68In response to questions about why the applicant was only working two days per week, Ms. Paniccia testified that company policy mandated a gradual return to work, usually over eight weeks. The evidence was clear that the process worked well for both the applicant and the respondent in 2007 when the applicant had a similar disability-related absence. Yet, there was no satisfactory explanation given for why, four months after his return, the applicant was still only working two days per week with no prospect of full-time hours. The inescapable conclusion is that the respondent failed to follow its own policy, and made assumptions about the applicant’s ability to perform in the workplace.
69My finding that the respondent failed to follow its own policy does not mean I am making any findings as to the respondent’s return-to-work policy itself. Ms. Paniccia conceded in her testimony that this case was the first time an employee had gone on a long-term disability leave, and the company had no prior experience dealing with such situations. The policy was presented to the applicant as a plan, not an option. Ms. Paniccia testified that Mr. Flint felt “very strongly” that a gradual return to work was “in everybody’s best interest for both the employee and the employer.” The applicant accepted that and tried his best to conform to it, and in fact relied on it in trying to secure his return to work. It is not clear that an accommodation policy that stipulates mandatory steps rather than taking into consideration the individual factors in any given case would be found to be in accord with the Code.
70In any event, the applicant tailored his requests, and Dr. Soni tailored his recommendations, to the respondent’s return-to-work policy in an attempt to facilitate the applicant’s return to full-time hours. By the end of June 2008, there was no reasonable basis for the respondent to refuse this. Its refusal, in the face of all the surrounding circumstances, amounted to a breach of the Code.
71In addition to refusing to return the applicant to full-time work, the respondent also imposed conditions on the applicant’s employment that frustrated his return to work. The respondent decided not only that the applicant was not yet fit to return to full-time duties, but also that a change in the applicant’s job was necessary. He was moved to a Level 1 Help Desk position, which came with a $20,000 reduction in pay, from $65,000 to $45,000. While the applicant worked the new position beginning in February 2008, he explicitly objected to it on numerous occasions between February and September 2008.
72A change in positions or a reduction in pay as part of accommodating a disabled worker is not automatically considered discriminatory. In fact, oftentimes accommodation requires tailoring a position to the employee’s needs. See Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) (“Hydro-Québec”), 2008 SCC 43, [2008] 2 S.C.R. 561, at para. 17. However, where such a move is imposed rather than negotiated, it will warrant scrutiny.
73It is clear from the evidence that significant changes in the company while the applicant was away gave rise to re-structuring. However, I have found as a matter of fact that the applicant was the only member of the Production Department who was not given the opportunity to either keep his position or make a lateral move. There was little evidence to support a plausible undue hardship defence. While I do not accept that the decision to change the applicant’s position was taken on the basis of entirely legitimate considerations, I likewise do not accept the applicant’s argument that it amounted to punishment for his having gone on disability leave. The respondent was misguided, not malicious.
74Looking at the evidence on the whole, I conclude that the respondent made some good faith efforts to accommodate the applicant. However, the respondent ran afoul of the Code in drawing assumptions about the applicant’s ability to perform in the workplace based on non-expert opinion and stereotypes. Notwithstanding expert reports to the contrary, Ms. Paniccia did not believe the applicant could withstand the pressures of his job and worried that his performance would be unreliable.
75It is well-established that the duty to accommodate contains both a procedural and substantive component. It is almost always necessary to communicate with an employee about accommodation. The purpose of such a discussion is to ascertain the employee’s needs and to explore collaboratively how the needs can be met, short of undue hardship. This can be described as the procedural duty to accommodate, a violation of which can amount to a breach of the Code. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.) at paras. 106-108; McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 at paras. 29-31.
76The respondent breached the procedural duty to accommodate when its managers decided what the best position for the applicant would be without meaningfully involving him in that decision or giving proper consideration to his views. They decided on a position that would appear to be, and was in fact, effectively a demotion. Re-structuring of the company provided the respondent with the opportunity, not the need, to unilaterally change the terms of the applicant’s employment contract at a time when he was most vulnerable. The respondent then conditioned the applicant’s return to full-time work on his acceptance of the new terms.
77The decision to re-assign the applicant also breached the substantive duty to accommodate. I am persuaded that mistaken assumptions and stereotypes were a factor, if not a significant factor, in the decision to move the applicant out of Production into a lower level Support position. The episodic nature of the applicant’s disability was a source of concern for the respondent, which seemed intent on securing “assurances” about the applicant’s future good health. The lack of clarity in some of the applicant's medical documentation also contributed to some reasonable doubt. The proper response would have been to ask more questions and seek more information, rather than to draw false conclusions that ran contrary to the bulk of the available information at the time. Such assumptions, and the obstacles they erect, are precisely what the Code is designed to eliminate.
78Employers necessarily assume some risk of uncertainty when it comes to the future health of their staff. The nature of many disabilities is that they can be episodic, meaning that the worker’s needs may change over time, and as a result, so do responsibilities for employers. The Supreme Court of Canada has clarified the undue hardship test in such circumstances. In Hydro-Quebec, supra, at para. 18, the Court held:
Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.
79There is no evidence to suggest the applicant’s disability approached the circumstances described by the Supreme Court in the Hydro-Quebec case. That the applicant was ill and then better and then ill again may have created some uncertainties for the respondent. However, the desire to manage uncertainties was no justification for imposing discriminatory conditions on the applicant’s return to work.
Termination
80The respondent's behaviour in terminating the applicant's employment flowed naturally from the events that preceded it; namely, the applicant's return from a prolonged absence amid apparently unresolvable disputes about the terms of employment. In proceeding on the basis that it was legitimate to impose new employment terms on the applicant as a condition of his return to work, the respondent presented the applicant with the choice to either accept the new terms or risk termination.
81It is clear the respondent was growing increasingly impatient with the applicant for asking for his old job back. It became such a concern to the respondent (who, in fairness, genuinely believed it was legitimate to impose a new contract on the applicant) that in August 2008, the president decided to link an incremental increase in hours with close monitoring of attendance and performance.
82A few words about the attendance issue are, at this time, warranted. The evidence was clear that the applicant was not an absentee employee. Ms. Paniccia testified that the applicant’s attendance in June was fine. In July, there were “two or three” missed days, but Ms. Paniccia testified that she never discussed it with him. The applicant testified that his absences were all medically related. Ms. Paniccia stated that she “assumed there were reasons, things he was working on.” She testified that she “was giving him room and accommodating that”, admitting that the first time any attendance or performance issues were raised was around the second or third week in August, when, acting on instructions from the president, she offered to increase the applicant’s hours from two to three days a week. Linking his return to work with performance management, Ms. Paniccia told the applicant that he would be monitored for “full attendance” and consistent hours of work. It is clear on the evidence that once the matter was raised with the applicant, his attendance and hours of work were no longer an issue.
83I find the respondent’s timing to be suspect. For more than six months, the respondent did nothing to enforce what it claims were mandatory hours of work. Then, just as it was preparing to increase the applicant’s hours on the condition that he sign a new contract, the attendance issues were raised. It was not on its face discriminatory for the respondent to attempt to manage the applicant’s attendance. But, given the absence of any coaching or corrective action over several months, to the extent that the applicant’s alleged non-compliance with the company’s hours of work policy was used as a stick to coerce him into signing a new contract, coupled with the carrot of increased hours, this amounted to a breach of the Code.
84By the beginning of September 2008, the applicant was perceived as a significant problem by management. After his email of September 2, 2008, again explicitly asking about full-time hours and seeking an increase to his pre-disability salary, Ms. Paniccia testified that management were at a loss: “We weren’t sure we had agreement on anything, the position, the hours… everything seemed to be up for debate.”
85The truth of the matter is that there had never been an “agreement” to change the applicant’s job. The applicant had tried to co-operate with the respondent’s return-to-work conditions, but never conceded that those conditions were correct or just. What the respondent was actually exasperated about was the applicant’s refusal to accept the terms it incorrectly believed it could impose on the applicant.
86The final straw came when the applicant returned the new contract signed, but with key changes, which made clear the applicant was still not agreeable to the new terms of employment. Ms. Paniccia testified that the president, Mr. Flint, was upset that the applicant was not agreeable and consequently a decision was made to terminate his employment.
87In the circumstances, I have no trouble finding that decision to be discriminatory. It was not unreasonable for the applicant to refuse to the sign the new contract. He had never been meaningfully consulted about it, was being asked to accept a 30% pay reduction based on suspect explanations, and was still not guaranteed a return to full-time hours despite the fact that, for at least three months, his physician and LTD provider had been of the view that he was ready. There was no justification for the respondent to continue to attach conditions to the applicant’s return to full-time hours once his fitness was clearly established.
88Finally, with respect to the alleged obstruction by the respondent of the applicant’s LTD claim, as I have found, while there were several mix-ups that resulted in some hardship for the applicant, I do not find that the respondent’s conduct in that regard gave rise to any breaches of the Code.
REMEDY
89Section 45.2 of the Code sets out the Tribunal’s remedial powers:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
90The Code is remedial, not punitive. Remedial orders should provide victims of discrimination with access to fair and effective remedies that are tailored to the facts of the case: Osvald v. Videocomm Technologies, 2010 HRTO 770, at para. 58.
91The applicant seeks lost income, monetary compensation and remedies designed to promote future compliance with the Code on the part of the respondent.
Compensation for Lost Income
92At the age of 50, the applicant testified it was difficult to look for work in his field after his termination. After some time, he went back to school. He wanted to obtain the certifications to do computer work in his field. He testified that he did not apply for any jobs because, in his words, he did not qualify for any of them. He believed it was necessary to obtain the certifications to be able to apply for comparable positions to what he had held with the respondent company.
93The applicant testified that he worked a little on the side, doing renovations with a friend, but that they did not earn much money. The applicant owns property and had to sell one of them at the worst time in the market, though he continues to receive income from two investment properties.
94The respondent took the position that the applicant had failed to demonstrate a clear wage loss, had failed to mitigate, and did not adduce any medical evidence to support his assertions regarding the effects of the termination.
95I am inclined to agree with the respondent. The applicant did not adequately establish the wage loss claim he makes, and admitted to not having mitigated his damages. The retraining he obtained was supported by government funding. It is also clear that from the time he went off on disability leave until June 30, 2008, when he was receiving STD and LTD benefits, he suffered no wage loss.
96I do conclude, however, that from the beginning of July 2008 to the date of termination, the applicant was entitled to be working full-time at his pre-disability salary level. There is evidence that he earned some income from his renovations work during this time. He is therefore entitled to the difference between what he would have earned based on his pre-disability salary and what he was in fact paid, minus any mitigation.
97I do not find there is any basis for lost wages damages following the termination of the applicant’s employment due to his failure to look for alternative employment.
Monetary Compensation for Discrimination
98The applicant testified that he felt frustrated from struggling for months to return to work after receiving medical treatment for depression and anxiety. He testified that the termination of his employment had a profound impact, not just financially, but also emotionally and socially. He said he became withdrawn, did not see friends, and suffered from the stigma of unemployment. He stated that his children belittled him and did not respect him. He felt like a failure for not having a job and for being unable to earn an income.
99I have found that the respondent was not motivated by ill-will and made some genuine efforts to accommodate the applicant, despite its failings, which culminated in a discriminatory termination of employment. While I do not find the respondent acted maliciously, it did behave in a high-handed manner, prolonging an uncomfortable situation during which the applicant’s situation was particularly precarious.
100I accept the applicant’s testimony about the impact on his self-esteem caused by the discriminatory return-to-work process, which extended over eight months. It was apparent throughout the hearing that the applicant’s sense of identity, dignity and self-respect were impacted by the respondent’s discriminatory conduct. He suffered first the stigma of a demotion, coupled with the financial hardship, followed by the humiliation of a discriminatory termination of employment. The discrimination clearly undermined the applicant’s pride in his professional identity and, as a person recently diagnosed with mental illness, exacerbated the stigma of his condition.
101In all of the circumstances, I consider an award of $15,000 to be appropriate compensation for the discriminatory treatment. This amount is consistent with awards in other failure to accommodate and termination of employment cases in which there is evidence of significant personal impact.
Future Compliance Remedies
102It is clear that the corporate respondent would benefit from a remedy promoting future compliance with the Code. Never before had the company’s LTD policy been used. Management struggled to uphold its legal obligations while tending to the company’s business needs during a challenging period.
103I have no doubt that the respondent is well aware that its policies and practices can be improved. Part of the benefit of working towards improvement and future compliance with the Code lies in the process itself of reflecting on past practices and considering implementing policy reform. Training and raising awareness are two important objectives of future compliance remedies, and are appropriate in this case.
ORDER
104For the reasons above, I order as follows:
The applicant is entitled to compensation for wage loss calculated as the difference between his actual pay between July 1, 2008 and October 15, 2008 and what he would have earned had he been working full-time hours based on an annual salary of $65,000, minus any mitigation wages earned. Within 14 days of the date of this Decision, the applicant is directed to produce to the respondent and file with the Tribunal a sworn affidavit and any relevant supporting documents (T4, income tax return, etc.) detailing his employment earnings between July 1 and October 15, 2008.
The applicant is entitled to compensation for discrimination in the amount of $15,000.
Within 90 days of the date of this Decision, the respondent shall, at its own expense, hire a human rights consultant to provide a mandatory human rights training program about human rights and, in particular, the duty to accommodate, for all staff and managers. Within 10 days of completing the training, the respondent shall confirm in writing to the applicant, signed by the consultant, that this training has been completed.
The applicant is entitled to pre-judgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), on the amounts set out at 1. and 2., from the date he filed the Application, April 9, 2009, to the date of this Decision.
The applicant is also entitled to post-judgment interest in accordance with the CJA on any accumulated principal and interest from the date that is 60 days after the date of this Decision.
Dated at Toronto, this 22^nd^ day of June, 2010.
“Signed by”
Faisal Bhabha
Vice-chair