HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David McKee
Applicant
-and-
Imperial Irrigation Co. Ltd. and Peter Micha
Respondents
DECISION
Adjudicator: Mark Hart
Indexed as: McKee v. Imperial Irrigation
APPEARANCES BY
David McKee, Applicant ) Rita Odo, Representative
Imperial Irrigation Co. Ltd. and Peter Micha, ) Christopher Ashby, Counsel Respondents )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), dated May 25, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 31, 2006.
2The applicant alleges that he was terminated from his employment with the respondent company because of his disability for which he had claimed Workplace Safety and Insurance Board (“WSIB”) benefits, contrary to ss. 5(1) and 9 of the Code.
3The hearing in this matter was held on March 3, 2010 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in a highly expeditious manner. On consent of all parties, I took the lead in questioning the witnesses and heard from the applicant and the personal respondent.
Preliminary Issues
4At the outset of the hearing, the respondents raised two preliminary issues. First, the respondents took the position that the Application should be dismissed as a binding settlement had been reached by the parties in the Commission process. The evidence indicates that a settlement had been under discussion through the Commission, and Minutes of Settlement were prepared by the Commission and sent to the respondents for execution. While the respondents took the position that the settlement documents were prepared by the Commission on the applicant’s instructions, there is no actual evidence before me to that effect. In contrast, the applicant states that while he did discuss the potential settlement with the Commission in general terms, it was the Commission that drafted the settlement documents, which were not reviewed with him, and he was told to await receipt of these documents before making up his mind whether to agree to the settlement. In the end, while the respondents did sign the settlement documents, these documents were not signed by the applicant. In these circumstances, I found that no settlement had been concluded that was binding upon the applicant and accordingly denied the respondents’ request to dismiss the Application on this basis.
5Second, the respondents took the position that the Application should be dismissed pursuant to s. 45.1 of the Code, as an abuse of process or on the basis of issue estoppel as a result of the decisions of the WSIB, dated June 12, 2006 and July 6, 2006. After hearing submissions from the parties, I rendered the following oral decision at the hearing:
The respondents have made a request that this Application be dismissed under s. 45.1 of the Code, as an abuse of process or on the basis of issue estoppel, in light of the decisions of the WSIB, dated June 12, 2006 and July 6, 2006.
At the hearing, the applicant confirmed that he does not intend to pursue the WSIB proceedings any further, and as a result these decisions stand as final decisions rendered by the WSIB.
The substance of the Application at issue before me relates to the termination of the applicant’s employment in May 2006. The WSIB decision, dated June 12, 2006 expressly does not deal with the termination issue, which had arisen after the hearing had been held. As a result, I do not find that the applicant is prevented by the terms of this decision from pursuing this Application.
The July 6, 2006 decision does expressly address the termination of the applicant’s employment. This decision arises in the context of whether the applicant’s termination was in violation of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A (the “WSIA”). There are two aspects to this issue. The first aspect is whether the termination was in violation of the employer’s reinstatement obligation under the WSIA. Because the only ongoing restrictions related to the applicant’s back injury, which had already been found not to be a work-related or compensable injury under the WSIA, the reinstatement obligation under the WSIA did not apply and so no breach was found.
The second aspect of the decision was whether the termination was in retaliation for the applicant having filed a WSIB claim. In this context, the claims adjudicator needed to assess whether he could draw this inference based upon the prior termination on May 11, 2006. In making this assessment, the claims adjudicator found that the employer’s concerns about allowing someone with a back injury to work as a landscaper were legitimate and would expose the applicant to further injury. In my view, this statement was made solely in the context of assessing evidence to displace the inference of retaliation.
While the claims adjudicator does make statements that the applicant’s current back injury was preventing the applicant from safely performing his pre-injury duties and that the employer’s concerns were legitimate, there is no indication that the adjudicator considered the employer’s duty to accommodate under the Code. Nor would it have been within his jurisdiction to do so, as the applicant’s back injury had been determined not to be work-related or compensable under the WSIA. Accordingly, I do not find that the July 6, 2006 WSIB decision dealt with the substance of the Application as it relates to the issue of whether or not the termination of the applicant’s employment on May 16, 2006 constitutes discrimination because of disability on the basis that the employer failed to comply with the duty to accommodate under the Code.
The claims adjudicator’s decision does expressly address the allegation raised in the applicant’s complaint that his May 16, 2006 termination was in violation of the Code as a retaliation for filing a WSIB claim, and accordingly I dismiss this aspect of the Application pursuant to s. 45.1 of the Code.
The issue relating to whether the May 11, 2006 termination was in violation of the Code as being retaliation for filing a WSIB claim remains in issue. In this regard, I note the claims adjudicator’s decision that if the applicant was terminated because he was collecting evidence for the appeal hearing, then the employer would be in breach of its re-employment obligations.
As a result, the Application is dismissed in part as it relates to the allegation of retaliation in relation to the May 16, 2006 termination, but will proceed as it relates to the duty to accommodate allegation in relation to that termination and the retaliation allegation as it relates to the May 11, 2006 termination.
Background
6The respondent company carries on business as a manufacturer of equipment for water display. The personal respondent is the president of the respondent company.
7The applicant commenced his employment with the respondent company on October 6, 2003. The applicant’s regular duties for the respondent company included a variety of property maintenance and landscaping work, which involved the operation of various pieces of property maintenance equipment such as a lawn tractor, lawnmower, line trimmer, leaf blower and fertilizer spreader, as well as duties such as stone work, pouring concrete, installing railings, tree removal, climbing a ladder to trim bushes, installing edges into beds, and digging. In winter, the applicant also was required to operate a snowplow and salter.
8The applicant injured his right shoulder on June 17, 2005 while cutting down trees. The applicant filed a WSIB claim in relation to this injury, which was allowed.
9The applicant states that he then injured his back on July 7, 2005 while building a retaining wall. The circumstances surrounding this injury were disputed by the employer before the WSIB and were the subject of a hearing before a WSIB Appeals Resolution Officer on May 10, 2006. By decision, dated June 12, 2006, the WSIB found that proof of a work-related accident had not been established by the applicant to support his claim for benefits in relation to the back injury, and as such the applicant’s claim for WSIB benefits relating to the back injury was denied.
10The June 12, 2006 WSIB decision also addressed the respondent company’s offer of modified work that had been made as of November 20, 2005, and found that the light duties offered by the employer at that time were in keeping with the applicant’s medical restrictions and that the medical documentation did not support the applicant’s incapacity to work during the period from November 20, 2005 to March 6, 2006. As a result, the applicant was found not to be entitled to loss of earnings benefits for that period.
11There is no dispute that the applicant returned to work on modified duties on March 13, 2006.
12In April 2006, the respondent company was advised by the WSIB that it had received medical documentation indicating that the applicant’s shoulder injury had resolved. As a result, on April 18, 2006, the applicant was provided a letter from the respondent company stating that as modified work was no longer required, he was being returned to his regular duties. A dispute ensued over the nature of the applicant’s regular duties and what duties the applicant felt he could perform. Accordingly, by letter from the respondent company, dated April 19, 2006, the applicant was advised that he would remain on modified duties until at least after the WSIB hearing on May 10, 2006.
The May 11, 2006 Termination
13At the WSIB hearing on May 10, 2006, the applicant sought to introduce into evidence certain photographs in support of his claim. These photographs were produced by the applicant at the WSIB hearing and shown to the personal respondent and the Appeals Resolution Officer. Ultimately these photographs were not received or marked as exhibits to the WSIB hearing.
14The personal respondent took great exception to the fact that the applicant had taken these photographs without authorization and had produced them at the WSIB hearing. His evidence is that these photographs had been taken at the respondent company’s factory and warehouse and at its testing grounds. The personal respondent states that he asked the applicant to produce all of the photographs of these facilities and to provide him with the photographs and the negatives, which the applicant refused to do. The personal respondent states that his firm is inventing and constructing new equipment for the trade, and he felt that the conclusion could be drawn that the pictures could represent industrial espionage.
15At this hearing, the personal respondent testified that the pictures of the testing pond were the major concern for him. He states that the respondent company has new equipment being tested all the time, and its competitors would like to get their hands on what the company is doing.
16As a result, on May 11, 2006, the personal respondent issued a letter to the applicant terminating his employment immediately, on the basis that the taking of these photographs without authority was against company policy and grounds for immediate termination for cause.
17The applicant disputes the personal respondent’s evidence regarding the nature of the photographs he attempted to tender into evidence at the WSIB hearing. In this hearing, the applicant produced into evidence the pictures that he states were tendered at the May 10, 2006 WSIB hearing. The pictures of the respondent company’s testing pond were taken from the company’s catalogue. Other pictures demonstrate the work that the applicant states he was required to perform. None of these pictures represent any cause for concern in relation to industrial espionage or the disclosure of trade secrets. Indeed, the photographs tendered into evidence before me were reviewed by the personal respondent, and he did not articulate any objection. Rather, his evidence is that the pictures provided to me at this hearing do not represent the full extent of the photographs that the applicant produced at the WSIB hearing.
18Following the issuance of the May 11, 2006 letter, the personal respondent received correspondence from the WSIB, dated May 15, 2006 notifying him that the termination of the applicant for the reason stated in his letter was potentially a breach of the company’s re-employment obligation under the WSIA. The WSIB noted that if an employer terminates a worker within six months of re-employment, the employer is presumed to have breached its re-employment obligation, unless the employer can rebut this presumption by establishing that the termination was not caused in any part by the injury or the claim for WSIB benefits.
19After receiving this letter, the personal respondent rescinded the May 11, 2006 termination letter and issued a new termination letter, dated May 16, 2006, which will be addressed below.
20The issue for me under the Code is whether the applicant’s disability was a factor in the respondents’ decision to terminate his employment on May 11, 2006. Under s. 10 of the Code, “disability” is defined to include “an injury or disability for which benefits were claimed or received under the insurance plan established under the [WSIA]”.
21In this case, I find that the applicant was not terminated because of his disability within the meaning of the Code. Arguably, he was terminated because he sought to submit evidence in support of his claim for WSIB benefits at a hearing convened under the WSIA. If a termination of employment resulted from a person’s participation in proceedings under the Code or as a result of her or his efforts to claim and enforce Code rights, then that would be an issue within my jurisdiction pursuant to s. 8 of the Code. But here, the termination occurred following the applicant’s participation in a WSIB proceeding and in the context his attempt to claim and enforce his rights under the WSIA at the May 10, 2006 hearing, and were not related to a proceeding under the Code or the applicant’s Code rights.
22As a consequence, I do not find that there is any violation of the Code arising out of the May 11, 2006 termination of the applicant’s employment.
The May 16, 2006 Termination
23On May 16, 2006, the respondents issued a further letter to the applicant, this time informing him that his employment would be “discontinued on a permanent layoff for health and safety reasons”. The letter states that, since the applicant is not able to return to his pre-injury job duties without restrictions and since these restrictions were based on an injury that was not compensable under the WSIA, the respondents believed it would be “an even greater risk for [the applicant] to perform duties which could be potentially more harmful to [his] health and safety”.
24The evidence before me included WSIB forms prepared by the applicant’s physiotherapist, dated March 7 and 22, 2006. There was no dispute before me that these forms set out the applicant’s restrictions as at the time of termination. These forms indicate the following restrictions for the applicant: walking short distance only, with slow walk only and with support; standing as tolerated with right foot support; sitting for no more than 5 to 10 minutes; no lifting floor to waist; lifting waist to shoulder as tolerated; stair climbing at his own pace and only a single flight; no ladder climbing; no bending or twisting of lumbar spine; no exposure to vibrations from the operation of motorized equipment; no repetitive movement of lumbar spine, or reaching forwards or sideways; no reaching forwards below shoulder; and physical exertion as tolerated. The time required for complete recovery was indicated to be unknown.
25In April 2006, the applicant prepared a list of work duties that he believed that he was capable of performing within his restrictions. By the applicant’s own estimation, these duties represented approximately 40% of his pre-injury job. The personal respondent’s evidence was that he did not believe that the applicant could perform most of these duties due to his restrictions, but even if he could, these duties would only represent about 10% to 15% of the applicant’s regular duties.
26In my view, the applicant was overly optimistic about the range of duties that he was capable of performing within his restrictions. In this regard, I note that there was no evidence before me to indicate that the list prepared by the applicant had been approved by his physiotherapist or his doctor as being within his restrictions, nor was any such medical documentation provided to the respondents.
27A considerable amount of confusion has been caused in this case, as it has for many employers when similar workplace situations arise, as a result of the competing obligations under the Code and the WSIA. Under the WSIA, an employer only has a duty to accommodate an injury if it is work-related. Further, where an injury is work-related, the WSIB system of early and safe return to work provides an incentive to an employer to get an injured work back to work on modified duties as quickly as possible, even if the modified duties provided do not constitute truly productive or meaningful work for the employer.
28In contrast, under the Code, the duty to accommodate applies to any disability, whether or not it is work-related. However, the duty to accommodate under the Code ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
29The first issue under the Code is whether the applicant was capable of performing the essential duties of his regular position. Even on the basis of the applicant’s own evidence, it is clear that he was not able to do so. As stated above, his evidence is that he was only capable of performing about 40% of his regular duties or two days of work out of his regular five. As indicated above, I find that the applicant’s own assessment of what duties he was capable of performing was overly optimistic, such that the actual percentage of his regular duties that he would have been capable of performing was much lower than 40%.
30The evidence indicates that modified duties had been offered to the applicant since November 20, 2005 and that the applicant had actually worked on modified duties since March 13, 2006. The evidence before me is that at the time of the applicant’s termination, his prognosis for recovery was “unknown”.
31In these circumstances, I do not find that the respondents were required to continue to employ the applicant on modified duties indefinitely. As stated by the Supreme Court of Canada in Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561 at para. 18:
. . . 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 the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.
32In this case, I find that the applicant was only able to perform much less than 40% of his regular job duties with no prognosis for when this would change, and that the applicant’s inability to perform the large majority of his regular duties hampered excessively the proper operation of the respondent company’s business. The applicant was capable of performing only very limited duties with significant restrictions, and was unable to perform most of the core duties required of him in relation to the respondent company’s business.
33I also find that the respondent company did make efforts to accommodate the applicant’s injuries, but that he remained unable to work for the reasonably foreseeable future. By the time of termination, it had been almost six months since the applicant had been offered modified work that the WSIB found was within his restrictions and it had been two months since he was performing modified duties, and there was no medical evidence provided by the time of termination to indicate when this situation would change.
34As a result, in these circumstances, I find that the respondents did not violate the substantive aspect of the duty to accommodate under the Code by terminating the applicant’s employment on May 16, 2006.
35At the same time, in addition to the substantive aspect of the duty to accommodate, there is also a procedural aspect to this duty under the Code that requires an employer to take active steps to inquire into the duty to accommodate, including how duties could be altered to accommodate the employee’s needs or what alternative positions might be available that would meet an employee’s needs.
36In this case, there was an absence of evidence to indicate that the respondents had taken any active steps to consider their duty to accommodate under the Code. In particular, the termination letter, dated May 16, 2006 references the applicant’s inability to return to his original pre-injury job duties without restrictions and that any existing restrictions were based on the applicant’s back injury that was not compensable under the WSIA. In my view, this letter evinces a misunderstanding by the respondents that they were not required to accommodate a non-compensable injury, and indicates that at the time of termination, there was no active consideration as to whether the applicant’s restrictions could be accommodated under the Code.
37Notwithstanding the fact that I have found that, had proper steps been taken, the applicant’s restrictions could not have been accommodated within the meaning and extent of the duty under the Code, I nonetheless find that by failing to engage in any active inquiry, the respondents breached the procedural component of the duty to accommodate and thereby violated ss. 5(1) and 9 of the Code.
38In terms of the remedy to be awarded in light of this violation of the Code, I note that this is a procedural breach of the Code which in the circumstances of this case does not warrant a significant award of compensation. In my view, an award in the applicant’s favour of $2,000.00 for the violation of his rights under the Code is a fair and just resolution to this case.
39I note that at the hearing, the applicant acknowledged that he still owed the respondents the sum of $1,900.00 and that he was in agreement for this amount to be deducted from any award made in his favour.
40As a result, the respondents are ordered to pay the applicant the sum of $100.00.
Dated at Toronto, this 23rd day of July, 2010.
“Signed by”
Mark Hart
Vice-chair