HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Piret Hurrell
Applicant
-and-
CANUSA-CPS, a division of Shawcor Ltd.
Respondent
DECISION
Adjudicator: Alan Whyte
Indexed as: Hurrell v. CANUSA-CPS
APPEARANCES
Piret Hurrell, Applicant ) Mel Rotman, Counsel
CANUSA-CPS, a division of ) Karen Sargeant, Counsel
Shawcor Ltd., Respondent )
1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), which alleges discrimination on the basis of disability in employment.
2A five-day hearing was held during which I heard evidence from the applicant, Cynthia Blakelock Turk and Gary Mostrey. Ms. Blakelock Turk is a WSIB consultant who was retained by the respondent to assist in the management of the applicant’s return to work and her WSIB claim. Mr. Mostrey is the Global Operations Manager for the respondent.
Background
3The respondent is a manufacturer of adhesive compounds which are utilized in the oil drilling and other industries to coat welded joints in order to protect against corrosion. The respondent is one of seven divisions of a global company, ShawCor Ltd.
4In Ontario, the respondent operates from two locations; one in Rexdale, where, among other things, the adhesive formulations are developed, and the other in Huntsville, which is the location where the applicant worked for approximately six years.
5The applicant was employed as an Engineering Assistant. A document which was prepared in January 2008 to describe the essential duties of that position listed those duties are as follows:
raw material substitution (20%)
product testing (20%)
making adhesive (20%)
testing of adhesive (20%)
testing of plastic backing (20%)
6The applicant and the respondent started their employment relationship on the basis of an employment contract dated October 10, 2002. The term of the contract was October 7, 2002 to January 31, 2003. The remuneration would be $1381.00 paid twice per month. The hours of work were 8:30 a.m. to 5 p.m. Monday to Friday, with a one hour lunch period. The contract permitted either party to terminate the employment arrangement by giving two weeks’ written notice of termination.
7Although it was apparently intended by the respondent that the applicant would be employed on the basis of renewed limited-term contracts, the above-mentioned employment contract was the only such document signed by the applicant during the course of her employment.
8The applicant worked as an assistant to an employee who was referred to as “M.J.” who was the Materials Analyst. M.J. reported to Doug Marshall who held the position of Engineering Manager and who was at all material times the applicant’s supervisor. M.J. was no longer employed by the respondent after August 2005, and was never replaced.
9On January 17, 2006, the applicant fell on ice in the respondent's parking lot and broke her hip. She was immediately hospitalized and underwent surgery in Sudbury. She did not return to work until August 8, 2006.
10On the day after the accident, Mr. Mostrey and Mr. Marshall visited the applicant in hospital. They expressed their concern for her well-being and advised her that the respondent would be responsible for maintaining her pay pending the receipt of WSIB benefits arising from the accident.
11In the weeks and months following the accident, while the applicant was recuperating from her surgery, the respondent purchased $500 of gift vouchers for Rogers Video and Swiss Chalet in order to assist her. In addition, the respondent engaged a housecleaner to clean the applicant's house while she was off work, at a cost of $486.
12The respondent paid the applicant her full salary until her WSIB benefits commenced (for which it was reimbursed by the WSIB). Thereafter, it topped up her WSIB benefits to full salary until the date of her return to work in August 2006. From that point in time, the respondent paid the applicant her full salary until March 23, 2007, after which she was paid for the actual number of hours that she worked.
13The applicant returned to work on the basis of what were referred to as “standard restrictions," meaning restrictions affecting the applicant's ability to walk, stand, sit, lift and climb stairs. In addition, she was restricted to working four hours per day. From her return to work date of August 8, 2006 until early January, 2007, the applicant typically worked four to five hours per day.
The Issues and the Evidence
14This case was litigated on the basis of a list of issues which were put forward by the applicant at the commencement of the hearing in response to the respondent’s request for particulars. I will review the evidence in accordance with that list of issues.
Issue 1 - Not being accommodated during return to work January to March 2007, and being compelled to work beyond physical abilities
15There was some concern on the part of both the applicant and the respondent by November 2006 about the fact that the applicant’s hours of work per day were not increasing. Ms. Blakelock Turk became involved on behalf of the respondent, contacted the claims adjudicator at the WSIB to determine what medical information was on file, and arranged a meeting which took place on December 6, 2006, involving the applicant, Mr. Marshall and herself. The purpose of this meeting was to discuss the progress of the applicant's return to work and the possibility of her increasing her hours of work.
16A transitional work program was developed which was ultimately documented by way of a letter dated December 15, 2006 to the applicant from Ms. Blakelock Turk. The letter described the accommodations that were to be made by the respondent in relation to the applicant's restrictions, which included the relocation of a computer to a ground-level laboratory, an offer of assistance from Mr. Marshall as needed, and a suggestion that the applicant alternate her tasks between sitting/walking/standing and stair climbing. The letter indicated that the program would start on January 10, 2007, and that the applicant would be paid for the hours worked and the remainder of the shift. Finally, the letter set out a graduated return to work schedule which anticipated an increase to a full eight-hour day by February 5, 2007. The applicant agreed that during the course of the December 6 meeting, she was advised that there was no medical information on file to indicate that she was required to work less than full-time hours due to her medical condition.
17With respect to the respondent’s commitment to paying the applicant's full salary during the course of the return to work program, Ms. Blakelock Turk indicated that, in her experience in working as a consultant for the respondent, the respondent would usually agree to pay the full salary during the return to work timeframe. She also said that if there was no medical documentation to support the employee’s inability to work full hours thereafter, the respondent might not be prepared to continue to pay the employee's full wage. She also stated that in some cases, the employee is paid partially by the respondent and partially by the WSIB, which supplements the income earned by the employee from the employer.
18In December, Ms. Blakelock Turk became aware of the fact that the applicant would be seeing her surgeon in Sudbury in early January 2007. Ms. Blakelock Turk suggested to the applicant that it would be useful if the surgeon was able to review the transitional work program (i.e. the letter of December 15, 2006) at the time of that appointment. The applicant indicated that she did not wish the letter to be provided to her surgeon as she wished to “focus on her injury”. This direction from the applicant was confirmed in the December 15 letter.
19Portions of the applicant's WSIB file were produced in evidence, including a memo dated December 20, 2006 from the applicant’s claims adjudicator. That memo indicates that if the applicant did not want to provide a copy of the return to work program to her surgeon, then that was her choice, but without any medical documentation to support her partial disability, the claims adjudicator would support a return to her full-time hours.
20On January 8, 2007, the applicant met with her surgeon to review the status of her hip injury from which she was recovering. The applicant did not discuss with her surgeon the graduated return to work program.
21During the month of January 2007, Ms. Blakelock Turk kept in touch with the WSIB claims adjudicator and monitored the progress of the applicant under the return to work program.
22On February 2, 2007, there was a chance meeting between the applicant, Ms. Blakelock Turk and Winona Hunter, the human resources manager for the respondent. Ms. Blakelock Turk produced notes taken at or immediately after this meeting. During this meeting, the applicant advised Ms. Blakelock Turk and Ms. Hunter that she was feeling fatigued and was having difficulty working the increased hours called for under the return to work program. Ms. Hunter offered to purchase an anti-fatigue mat for the applicant. The applicant advised that she would be seeing her specialist again at the end of February. Ms. Hunter advised the applicant that the respondent might end up paying only for the hours actually worked by the applicant, with WSIB paying for her lost time.
23After discussion among Ms. Blakelock Turk, Ms. Hunter and Mr. Mostrey, it was decided that the applicant’s return to work program would be extended for a further two-week period. That was communicated to the applicant by letter from Ms. Blakelock Turk dated February 7, 2007 which advised her that the return to work program had been extended for a two-week period during which the respondent agreed to pay the applicant's full wages. She was advised that she was expected to work her full hours as of February 5 and she was asked to record her hours on a weekly basis. Ms. Blakelock Turk explained that the purpose behind the two-week extension was to allow time for the applicant to secure medical documentation to support her working reduced hours, and also to allow the applicant additional time for work hardening.
24Ms. Blakelock Turk was in contact with the WSIB claims adjudicator on February 8, at which time she was advised that there was nothing on file at the WSIB to support the applicant working reduced hours.
25On February 14, Ms. Hunter advised the applicant that the WSIB did not have a report from her specialist appointment on January 8 and that she should follow up with her specialist to secure that report.
26Ms. Blakelock Turk communicated with the applicant again by letter dated February 20, 2007 in which she advised that the respondent had decided to extend her return to work program for an additional two-week period given that the applicant had recently been able to work about seven hours per day. She was encouraged to continue to attempt working her full shift and once again she was asked to record her own work. The letter went on to say that Ms. Blakelock Turk had been informed by the WSIB claims adjudicator that they did not have current medical information. The applicant was encouraged to ensure that her doctor/specialist was sending current medical information to the WSIB. The letter indicated that the respondent would pay the applicant's full wages during the two-week extension.
27On March 6, 2007, Ms. Blakelock Turk communicated with Ms. Hunter to indicate that she was not recommending the continuation of the payment of the applicant's full wages given that the WSIB had no medical information to support the applicant’s inability to work full-time hours.
28A meeting was held on March 20, 2007, involving Ms. Blakelock Turk, Mr. Marshall and the applicant. The applicant was advised that the transitional work program would end on March 23, 2007. The applicant was encouraged to work her full shift each day and to take at least a 30-minute lunch break. She was also asked to continue recording her hours worked and to provide that information to Mr. Marshall each week. The applicant was also advised that the respondent would only pay for the hours worked.
29A letter dated March 22, 2007 which confirmed the discussions at the March 20 meeting included the following statements:
I was informed on March 16, 2007 by Ms. Merrick, Claims Adjudicator, Workplace Safety and Insurance Board (WSIB) that currently there is no medical documentation on file to support reduced working hours. It is your responsibility to review this further with the WSIB.
There was also discussion at the March 20 meeting about the possibility of the applicant coming into work later in the mornings and staying longer at the end of the afternoon, which was apparently rejected by the applicant. Ms. Blakelock Turk also gave evidence that at this meeting, she advised the applicant that it was her responsibility to go to the WSIB to secure the payment of top-up benefits regarding any time that she lost as a result of working less than full-time hours.
30The applicant's evidence was that she was confused about the importance of the return to work plan and that it wasn't explained fully to her. At one point in her testimony, the applicant lay blame for the lack of medical documentation on her doctor, whom she indicated she had contacted with no success, although she later stated that she never asked her doctor for a note regarding her inability to work full-time hours. In cross-examination, she agreed that she did not come forward with any medical documentation for either the WSIB or the respondent to support her need to work reduced hours.
31It is clear to me that the applicant was very much aware of what she had to do in order to support her need to work reduced hours. An e-mail dated February 27, 2007 from the applicant to a friend, Donna Bird, was produced in evidence. Part of that e-mail is as follows: "Sometimes I wonder whether I should push for shorter hours as a result of my accident but the hassle of getting the medical backing turn me right off of the idea. It sure would be nice though.”
32A "contact report" dated February 14, 2007 authored by the applicant was produced in evidence. This document relates to a telephone conversation between a WSIB adjudicator and the applicant. In that document, the applicant states
I did not pursue any of my current ailments since I know that WSIB will not act on anything I say. All their decisions are subject to their doctor’s interpretation of reports after any medical appointments that I had.
33The applicant agreed in cross-examination that Mr. Marshall was accepting of whatever level of work she was able to do. She also agreed that there were no employment ramifications for her as a result of not working full-time hours, other than the fact that she was being paid for only the hours that she worked. In addition, she agreed that from the respondent's perspective, there were no other options available to accommodate her other than allowing her to work past 5 p.m., the usual endpoint of her shift.
34However, following the respondent’s decision to pay her only for the hours worked, the applicant made a number of complaints, both orally and in writing, to her supervisor, Mr. Marshall, Mr. Mostrey and Bill Buckley, the president of ShawCor. These complaints were all responded to by the respondent on the basis that the respondent was fulfilling its obligations to the applicant under both the Workplace Safety and Insurance Act and the Code.
35The respondent took steps to set up a conference call with the WSIB claims adjudicator because it was clear to the respondent at the end of March that the applicant was either not understanding the respondent's position regarding her pay, or was refusing to accept it. Ms. Blakelock Turk thought that this would be useful given that the applicant had alleged that she (Ms. Blakelock Turk) had provided inaccurate information to the WSIB. Ms. Blakelock Turk also felt that the fact that the WSIB would require some medical information from the applicant in order to pay her for whatever lost time she experienced as a result of working less than full-time hours for the respondent could be discussed.
36The applicant indicated that she would not participate in such a conference call as she prefers personal meetings. Accordingly, that call never took place.
37Mr. Mostrey gave evidence that he also had discussions with the applicant about the need for her to produce medical documentation to justify her working reduced hours, and that to the extent that she was working less than full-time hours, she could approach the WSIB to obtain benefits. He said that during the course of one of his discussions with the applicant, she indicated that she was frustrated with her doctors regarding their lack of provision of information. In response, he offered the services of Gary Brandon, Senior Corporate Health and Safety Manager, who would be able to contact her doctor and generally provide assistance to her. The applicant declined Mr. Mostrey's offer.
38Mr. Mostrey also confirmed the respondent’s offer to the applicant that she could, at her discretion, work beyond 5 p.m.. This offer was extended to her because she made numerous complaints of disturbed sleep and the respondent thought that it would be of assistance to her if she could come in later in the morning and work later in the afternoon. It appears from the evidence that while this offer was not rejected outright by the applicant, it was not embraced by her either, mainly because she had family commitments which did not permit her to stay much later than the usual endpoint of her shift, being 5 p.m..
39Despite the respondent’s many suggestions to the applicant that she provide medical documentation to the WSIB to support her working reduced hours, it appears that she did not do so at least up to a letter dated July 18, 2007 from the WSIB to the applicant, which states "It is noted that neither Dr. Therriault [the applicant's surgeon in Sudbury] nor Dr. Beaule [a specialist in Ottawa to whom the applicant was referred] has commented on your orthopaedic condition being the cause of your inability to work your full working hours".
40At one point in her evidence, the applicant suggested that she was not happy with the respondent’s assumption that she required reduced work hours. However, in cross-examination, she was shown a letter which was drafted by her to the WSIB (as if she was writing on behalf of the respondent) which stated in part:
Canusa acknowledges that this continues to affect her ability to put in full-time work hours. While we will not pay for hours not worked, we encourage her to leave when she becomes fatigued. She reported that as hours of work increased, she experienced increasing fatigue, pain and sleeping problems. It is the intention of Canusa CPS to work with her through her injury. This accommodation is acceptable to a minimum of 20 hours a week of work.
Issue 2 - Told no chance of promotion because couldn't do the hours, therefore dismissed by not being prepared to offer the Adhesive Chemist position
41As background to this issue, the respondent has a large laboratory at its Rexdale location which does all of the formulation work on the adhesives. The lead chemist at this location is a person referred to in the evidence as ”Alphonso” who was described as being highly qualified and very competent in his job.
42Mr. Mostrey gave evidence that in May 2008, the respondent expected to receive a large project which would last for a number of years. Alphonso was going to be assigned to this project and would therefore be lost to the respondent. It was therefore necessary for the respondent to recruit a new Adhesive Chemist.
43The applicant suggested in her evidence that it was an act of discrimination on the part of the respondent that she was not invited to apply for/offered the Adhesive Chemist position. However, she agreed in cross-examination that she would require a period of time to become qualified/competent in the Adhesive Chemist role. It was suggested to her that it would take as much as 10 to 15 years for her to become competent in the role; she did not expressly agree with that, but she did agree that if the respondent thought she would take 10 to 15 years, it would need to hire someone more quickly to replace Alphonso. Mr. Mostrey did in fact confirm that that was the respondent's view, although he was adamant that the applicant was simply not qualified for consideration for hire as the Adhesive Chemist.
Issue 3 - Changes in Employment Relationship
Contracts of Employment Being Offered
44As mentioned earlier in this Decision, the applicant commenced her employment relationship with the respondent on the basis of a limited-term contract which expired in January 2003. She worked without a contract for the rest of her employment with the respondent, although she was presented with two further contracts in June and July, 2007.
45Mr. Mostrey explained that as a result of changeover in the human resources department at the Rexdale location, the renewal of the contracts for contract employees such as the applicant fell between the cracks for a number of years. It was not until mid-2007 that he became aware that the applicant (as well as other employees at Huntsville) had not had their contracts renewed. He went on to explain that he had understood that contract employees would not be paid unless there was a current contract in place, and that was why he thought the contracts were being renewed on an ongoing basis.
46The applicant said that she received the first proposed contract around the end of June 2007. The term of this contract was stated to run from June 15 to December 15, 2007. The applicant objected to it mainly because it set out her remuneration on an hourly basis. She alleged that Mr. Marshall said to her that she had three options: to sign the contract, to return to full-time hours, or be terminated.
47When the applicant rejected the proposed contract, the respondent revised the document so as to remove the limited-term feature; i.e. a contract of indefinite duration was proposed. This contract continued to express her remuneration in terms of an hourly rate and was also rejected by the applicant.
48The evidence shows that the applicant suffered no disadvantage or damages as a result of having rejected the two proposed contracts. The respondent continued to deal with her as it had in the past, prior to her rejection of the two contracts.
Change from Salaried to Hourly Compensation
49One of the ways the applicant alleged that the respondent had discriminated against her was that her compensation was changed from a salaried basis to an hourly basis in March 2007. The applicant pointed to the fact that her original contract with the respondent had referred to her receiving two payments per month, not an hourly rate, as well as the fact that she had been paid her full wages by the respondent since her return to work in August 2006 despite the fact that she was working less than full-time hours. She took the position that the respondent was obligated to pay her full wages regardless of the number of hours that she worked in a particular day or week. It was pointed out to her in cross-examination that her rate of pay had not changed after the change was made in March 2007. Ultimately, she agreed that the real issue was not the change from salaried to hourly but rather the fact that she was not going to be paid her full wages regardless of what hours she in fact worked.
Change in Social Relationships
50This issue relates to the applicant's allegation that she was excluded from engineering department lunches. Her evidence was that prior to her injury in 2006, she would be asked, often by Mr. Marshall, to go out with other engineering department staff at the lunch hour. She alleges that that changed after her accident and that she was very rarely asked if she wanted to go out for lunch.
51In cross-examination, the applicant agreed that she was probably not able to go to lunch as often because her lunch break was not at noon, which is typically when the other engineering department staff would leave for lunch. The applicant took her lunch break later because she usually came in later in the morning than the other staff.
52Mr. Mostrey noted that the applicant's lunch break was only half an hour in length whereas other engineering department staff often took one or one and a quarter hours. This was especially so if they were working on a certain project which allowed some time in the middle of the project (i.e. around the lunch hour) for the employees to be away from the laboratory.
Exclusion from Departmental Meetings
53The applicant also alleged that following her accident she was excluded from engineering department meetings which occurred from time to time. In her evidence, she indicated that she didn't know if these meetings occurred, but she knew that she was not asked to attend. She said that the meetings that she did attend were not always about her projects and that it was not necessary for her to be at the meetings or portions of the meetings that did not relate to her projects.
Issue 4 – Continued Requests for Resignation/Offers of Termination
54The applicant alleged that she felt that the respondent wanted to get rid of her because it made a number of offers to enter into discussions regarding the termination of her employment. The first occurred during a meeting involving the applicant, Mr. Marshall and Mr. Mostrey, the date of which was not clearly established but was likely in April 2007. The applicant alleged that Mr. Mostrey made a comment such as "With your medical condition, you'd probably be happier not at work”.
55The applicant also referred to another meeting involving Mr. Marshall and Bob McIndoe, a human resources employee of the respondent, in early May 2007. She stated that she and Mr. McIndoe talked about a number of things, including the possibility of her leaving the respondent, but nothing came of it.
56The applicant also gave evidence that Mr. Mostrey offered her a termination package when she met with him in his office after the July employment agreement had been provided to her.
57The respondent's evidence on this issue was led through Mr. Mostrey who said that there were only three offers to discuss the applicant's possible departure from the respondent. The first was his letter to the applicant dated July 18, 2007, which was a response to a letter from the applicant to Mr. Marshall expressing her displeasure about a number of things. In Mr. Mostrey's letter, he stated that if the applicant did not wish to sign the July contract of employment and did not wish to continue to work at the respondent, she should let him know so that an exit strategy could be discussed.
58Mr. Mostrey referred to a meeting involving himself, Mr. Marshall and the applicant in April 2008, which will be referred to in more detail below but related in general to a concern that she raised about the possibility of a back injury. During this meeting, Mr. Mostrey raised the general idea of the applicant leaving the respondent as she seemed so unhappy in her employment.
59There was also reference made to a letter dated May 1, 2008 from the respondent and specifically Eric Breitkreutz, Executive HR Advisor of the respondent, as well as Mr. Mostrey, which was in response to a lengthy letter from the applicant to Bill Buckley, the president of ShawCor. In a section of that letter headed “Amicable Departure”, the authors discuss the possibility of the applicant leaving the respondent on the basis of a termination package. However, it is made very clear that the offer is not a termination of the applicant’s employment and that if she is not interested in the offer, her employment would continue and the respondent would continue to accommodate her.
60Mr. Mostrey’s evidence in relation to all of these discussions and offers was that it was his perception that the applicant was fundamentally unhappy in her employment with the respondent and that she might be interested in leaving that employment on the basis of a reasonable severance package. However, as soon as the applicant made it clear that she was not interested in leaving her employment, neither Mr. Mostrey or anyone else at the respondent pursued the issue with her.
Issue 5 – Harassment in March 2008
61The applicant's evidence on this issue was that in March 2008, Mr. Marshall insisted that the applicant record her time on a "minute by minute basis", including the recording of any time spent by her in non-work related activities. The applicant described this as a form of harassment and indicated that it forced her to focus on her pain and injury which she did not wish to do while at work.
62The form which Mr. Marshall initially developed to monitor the applicant's activities while at work was very detailed. When the applicant complained to Mr. Marshall about the form, he agreed to modify it to a form which the applicant ultimately found acceptable.
63The applicant conceded in cross-examination that when Mr. Marshall first approached her about the use of the forms, he explained to her that his request was based on the ergonomist report prepared by the WSIB in January 2008 and specifically, the recommendation that the parties continually evaluate the recommendations contained in the report to ensure that they were meeting desired outcomes. One of the recommendations was that the applicant use frequent breaks and “work blocking” in order to ease her pain while at work.
64The applicant was also directed in cross-examination to a large number of e-mails and memos which she wrote while at work which described her pain and difficulty in performing her work in great detail.
65One of these memos prepared by the applicant entitled “March 2008 contacts" described a contact between the applicant and her WSIB adjudicator in which the adjudicator confirmed to the applicant that the employer was entitled to have the applicant record the information about her work and non-work related activities, as the employer was responsible to monitor and ensure that all accommodations are in place.
Issue 6 – Removal from Premises
66In early 2008, the applicant was receiving physiotherapy treatment related to her hip injury. On April 18, 2008, the applicant sent an e-mail to Mr. Marshall, part of which reads as follows: "With my body mechanics training almost complete, I feel it necessary to keep you informed of my condition. Due to my hip condition, the physiotherapist feels that I’m a back injury waiting to happen".
67The applicant indicated that on the next business day (April 21), she was called to a meeting with Mr. Marshall and Mr. Mostrey and told that she had to leave work for health and safety reasons. She was also told that she had to get medical certification to confirm that she was able to work safely, and that she would be provided assistance in removing her personal belongings. She provided the required medical certification and returned to work on or about April 23. Her lost time was paid by the WSIB.
68In cross-examination, the applicant said that she was attempting to convey to the respondent the risk associated with her then-current medical condition. She conceded that it was reasonable for the respondent to request medical certification from her to confirm that she was not at risk.
69Mr. Mostrey said that the respondent was very concerned about the applicant's e-mail and the suggestion that the applicant was at risk in continuing to work at the plant. He said that as a precaution for all concerned, the respondent needed medical certification from the applicant to confirm that she was able to continue to work at the plant safely. He denied that there was any mention of the removal of personal belongings at the meeting with the applicant on April 21, and said that the respondent did not intend the meeting and its requirement for medical certification to represent the ending of the employment relationship with the applicant.
Issue 7 - Respondent fails to seek up-to-date medical information and relies on WSIB medical information
70Some of the evidence related to this issue has been described in relation to the previous issues. In general, the applicant alleged that the respondent failed in its duty to accommodate her by not asking for up-to-date medical information and by unreasonably relying on the medical information provided to the WSIB. She said that she understood that this was the respondent's approach as a result of comments made to her by Ms. Blakelock Turk.
71Ms. Blakelock Turk's evidence was that as the applicant had an ongoing WSIB claim, it was natural that she would maintain ongoing contact with the WSIB regarding the medical information on hand at the WSIB, especially with regard to the issue of whether or not the applicant's medical condition required that she work reduced hours. Furthermore, when it became clear to Ms. Blakelock Turk that there was no such medical documentation, and given the fact that the applicant was working less than full-time hours, she felt that the applicant might be able to make a claim to the WSIB for benefits for the lost time. Obviously, medical documentation to support the fact that the hip injury was causing the reduced hours would be required for such claim.
72Mr. Mostrey’s evidence on this issue was that the respondent felt that the WSIB, given its medical and other similar resources, was better positioned than the respondent to assess the medical documentation related to the applicant's medical condition.
Issue 8 - Further Accommodation
Provision of Assistance/Helper
73The applicant said that from time to time, some of the tasks that she was required to perform involved lifting and other physical activity that was difficult or impossible for her to perform because of her hip injury. She stated that in April 2008, she asked Mr. Marshall for assistance or a helper to assist her with these physical tasks. She stated that his response was that she should see how it goes, but that she had difficulty getting the help she needed. However, she also stated that eventually she did receive that help. She also acknowledged that she knew that it was her responsibility to ask for help.
Office Move
74The applicant's office was located upstairs while the laboratory was downstairs. The applicant initially indicated that she had asked Mr. Marshall in July 2007 to move her office downstairs so that she would not have to go up and down stairs as often, although she stated later in cross-examination that she had not made such a request. She also referred to a similar request in January 2008, which she agreed in cross-examination was responded to immediately by the respondent. This was confirmed by the January 2008 WSIB ergonomist report which referenced the respondent’s past and present offer to relocate her office downstairs. Ultimately, her office was relocated after the ergonomist visit but before the ergonomist report was released.
Issue 9 - Refusal to Fully Implement WSIB Ergonomist Report
75An ergonomist from the WSIB attended at the Huntsville plant on January 17, 2008 and met with the applicant, Mr. Marshall and Ms. Blakelock Turk. A complete assessment of the workplace and the applicant's work duties was performed. A report was prepared by the ergonomist in early February which made a number of recommendations.
76A letter dated May 27, 2008 to the WSIB from Ms. Blakelock Turk was entered into evidence. This letter describes the status of the ergonomist recommendations and indicates that all of the recommendations have been implemented or are ongoing, with the exception of the provision of a "dump assist mechanism". With respect to this recommendation, the letter indicated that the applicant was to ask for assistance, and if no assistance was available, she was not to perform the task. The applicant did not seriously dispute the contents of this letter. Nor did she provide any evidence that the respondent had ever taken the position that it could not afford to implement the ergonomist report’s recommendations.
Issue 10 – NPRI Training
77Although this issue was not originally on the list of particulars provided by the applicant, as a result of discussion at the commencement of the hearing it was added as an issue. For approximately two weeks each year, the applicant prepared a NPRI report to a regulatory authority with respect to certain aspects of the respondent's operation. At some point that was not clearly identified in the evidence, it came to the applicant's attention that there was a half-day seminar in Toronto to update the attendees on what was new related to the NPRI reporting. She said that she spoke to Mr. Marshall about going to the seminar and told him that she would not be able to drive to Toronto and back in the same day because of the pain in her hip. She alleged that Mr. Marshall said something to the effect that the respondent was not prepared to have her stay in Toronto for a week for a half-day seminar.
78As Mr. Marshall did not give evidence, this allegation was responded to by Mr. Mostrey. He indicated that in his view, it would have been appropriate for the applicant to have stayed overnight in Toronto in order to allow her to attend the half-day seminar.
Analysis and Decision
79The initial onus is on the applicant, on the balance of probabilities, to make out a prima facie case of discrimination or harassment contrary to the Code. Once that case is established, the onus shifts to the respondent to provide a non-discriminatory explanation for the conduct or decision in question. If the respondent is able to rebut the prima facie case, the onus returns to the applicant to establish that the respondent’s explanation is faulty or a pretext masking the discriminatory ground.
80In my view, the applicant did not make out a prima facie case of discrimination or harassment contrary to the Code on a number of the issues reviewed above. On others, she did so, and on those issues, it is necessary to examine the respondent's evidence in order to determine whether, on a balance of probabilities, the applicant has proven a violation of one or more provisions of the Code.
81As pointed out by the respondent in argument, it is not the role of the Tribunal to decide whether or not the respondent has engaged in "human resources best practices" or has breached employment law. The jurisdiction of the Tribunal is limited to the determination of whether a violation of the Code has been proven, and if it is so satisfied, to provide an appropriate remedy.
Issue 1 – Alleged Failure to Accommodate between January to March 2007
82A graduated return to work program was put in place for the applicant in December 2006 and was to commence in early January 2007. The program was specifically tailored to the applicant and her work restrictions and was developed with her input. The applicant’s progress under the program was monitored by the company and specifically by Ms. Hunter and Ms. Blakelock Turk. Based on the evidence, I find their approach was one of helpfulness and offers of assistance were made on a regular basis to the applicant. There is no reason to believe that the respondent and its representatives were anything other than genuine in their efforts to accommodate the applicant.
83In contrast, I have a number of concerns about the applicant's apparent lack of cooperation in the accommodation process. First, it would have been very helpful for the applicant's surgeon to review the graduated work program during her visit to that surgeon on January 8, 2007, however, that offer was refused by the applicant for reasons that are less than satisfactory. Second, when the applicant raised with the respondent that she was having difficulties with her doctors, the respondent offered the services of its Senior Corporate Health and Safety Manager to assist her, yet that offer was also refused. Third, when the respondent attempted to set up a conference call with the WSIB adjudicator to try to resolve a number of the applicant’s concerns, the applicant refused to participate in such a call for reasons that are unsatisfactory. Fourth, it was made abundantly clear to the applicant that if she wished to or was required to work less than full-time hours, she needed to provide medical information regarding that restriction to the WSIB. She never did so yet continued to work at a reduced level and made complaints to the respondent that she was being forced to work beyond her abilities. When the respondent indicated that it did not have any other way of accommodating her other than by allowing her to come in late and work late, the applicant proposed no other options to solve the problem.
84Based on the evidence, it is apparent that the real issue for the applicant appears to have been the respondent's decision in March 2007 to pay her only for the actual hours worked by her. It was at that point that the relationship between the applicant and respondent became more difficult in that the applicant made a series of complaints to various representatives of the respondent over the ensuing months. What is confusing to me is that in the reply argument, the applicant’s counsel indicated that the respondent’s failure to pay full-time hours after March 2007 was not being put forward as a basis for a claim of discrimination, yet much of the evidence at this hearing related to that issue. Even if this had been put forward as a claim of discrimination, I would not have found it to be such as it is clear under the law that an employer is only required to pay an employee whom it is accommodating for the actual work performed by the employee.
85In summary, I find that the applicant did not prove a failure to accommodate on the part of the respondent relating to the January to March 2007 timeframe. This conclusion is corroborated by the applicant's evidence in cross-examination related to a meeting involving the applicant, Mr. Marshall and Mr. Mostrey on July 18, 2007, where the applicant conceded that other than allowing her to come in late and work late, the respondent had no other options available to it to accommodate her.
Issue 2 - Denial of Promotion
86The applicant has not made out a prima facie case of discrimination regarding this issue. She led no evidence to suggest that the respondent’s failure to consider her for the Adhesive Chemist position had anything to do with her disability, as opposed to her obvious lack of qualifications for this job.
Issue 3 - Changes in Employment Relationship
Contracts of Employment
87The applicant made out a prima facie case of discrimination on this issue based on the timing of the presentation of the two contracts (June and July 2007) which is the same timeframe in which the applicant was raising a number of complaints to the respondent about the alleged failure to respond to her need for accommodation.
88However, I accept the respondent's evidence that the only reason that these contracts were being presented in this timeframe was that there had been some administrative problems in the respondent's Rexdale office which had caused a significant delay in getting those contracts renewed from 2003 forward.
89The applicant has not shown the respondent’s defence to be inaccurate or a pretext. Further, once the applicant made it clear that she was not prepared to sign the contracts, the respondent did not press the issue with her. She did not suffer any adverse consequences as a result of failing to sign contracts.
90This is an example of an issue where the respondent may not have followed "employment law best practices" but that does not automatically translate into a finding of discrimination or harassment under the Code.
Change from Salaried to Hourly Status
91As mentioned above, the applicant conceded in cross-examination that it was not so much the change in status from salaried to hourly status that was of concern to her, but rather, it was the respondent's refusal to pay her for full-time hours when she was working less than full-time hours. Accordingly, I find that the applicant has failed to prove this issue.
Change in Social Relationships
92I find that the respondent has provided a satisfactory, non-discriminatory explanation for any change in the frequency with which the applicant was asked to go to engineering department lunches following her accident. In the timeframe in question, the applicant was arriving late in the mornings and thus was not taking her lunch right at 12 noon, which is when the engineering department personnel would typically leave for lunch. It follows naturally that it would become known in the workplace that the applicant was simply not available to leave at the time everyone else was leaving for lunch. Again, the applicant has not put forth any evidence to rebut the respondent’s defence.
93Nor has the applicant has not made out a prima facie case with respect to the alleged exclusion from departmental meetings. She was not even able to establish that departmental meetings to which she was not invited were held.
Requests for Resignation
94I accept Mr. Mostrey’s evidence that the three overtures were made to the applicant exclusively because it was very apparent to the respondent that the applicant was quite unhappy in her work situation, as evidenced by her numerous oral and written complaints to various levels of management in the respondent company. Each of the overtures made to the applicant were in response to written communications from the applicant.
95This issue needs to be assessed in light of the other evidence that demonstrates that the respondent was making ongoing efforts to accommodate the applicant following her workplace injury. In addition, at least one of the overtures made to the applicant was made in exactly the same timeframe (July 2007) as the respondent was offering an employment contract to the applicant, which is obviously an action consistent with maintaining the employment relationship as opposed to severing it. Furthermore, once the applicant made it clear that she was not interested in pursuing an exit strategy, the respondent did not pursue the issue and continued to deal with the applicant as it had before any discussion about an exit strategy.
96Consequently, I find that no breach of the Code has been demonstrated in respect of this allegation.
Issue 5 – Harassment in March 2008
97In my view, the respondent has provided a satisfactory explanation as to why it required the applicant to record her time engaged in both work and non-work activities during the course of her workday. The underlying rationale for the monitoring was the recommendation in the WSIB ergonomist report that the parties continue to monitor and evaluate the actions taken by them to accommodate the applicant. This was confirmed to the applicant by the WSIB adjudicator as being appropriate.
98It is clear that the first form that Mr. Marshall developed for the monitoring was overly detailed. However, the evidence shows that as soon as the applicant complained about that, Mr. Marshall and the applicant worked together to modify the form such that it was acceptable to both of them.
99The monitoring of the applicant’s activities during the workday was legitimate in the circumstances, following the recommendation in the WSIB ergonomist report that the respondent continue to monitor and evaluate the status of the various accommodations that were put in place.
100I therefore find that the respondent's monitoring activities did not constitute harassment contrary to the Code.
Issue 6 – Removal from Premises
101I find that the respondent's version of this issue is more plausible than the applicant’s. The applicant's e-mail of April 18 introduced the risk of the applicant incurring a further workplace injury to her back which, to the respondent's knowledge, was not related to her previous hip injury. It clearly put the respondent on notice of this risk such that the respondent was required to react. I find that its reaction was measured and appropriate, in that it required proper medical certification from the applicant before it would allow her to return to work.
102I reject the applicant's evidence that she was offered assistance regarding the removal of her personal belongings. That is simply not consistent with either the contents of the respondent's letter to the applicant dated April 21, or Mr. Mostrey’s evidence given at the hearing.
103Accordingly, I find that this allegation is not a violation of the Code.
Issue 7 - Failure to seek current medical information and relying upon WSIB medical information
104This issue is highly related to the first issue and accordingly all of the evidence will not be reviewed in detail. Suffice to say that I find that the respondent's direction to the applicant to provide certain medical information to the WSIB, as opposed to the respondent, to not be an act of discrimination. In fact, in my view, it was a reasonable course of action in the circumstances.
105As a result of the applicant's refusal to have the graduated return to work plan reviewed by her surgeon in January 2007, it was reasonable for the respondent, and in particular, Ms. Blakelock Turk, to conclude that the applicant had some concern about information passing between the respondent and her physicians. In any case, the applicant had an outstanding WSIB claim which involved considerable contact with the claims adjudicator. While some employers would have insisted on the medical documentation related to an employee’s alleged restriction coming to them directly, I cannot find that in the circumstances existing in this case it was discriminatory for the respondent to insist that the medical information be provided to the WSIB.
106Furthermore, as argued by the respondent, it did not require the medical information related to the ability of the applicant to work reduced hours, because it was prepared to allow the applicant to work whatever hours she was able to work. Rather, the medical information would be required by the WSIB in assessing any claim made by the applicant for "top up" benefits.
107In any case, the applicant’s e-mail referred to above demonstrates that the applicant, for whatever reason, was not prepared to make the effort to secure the medical information required by the employer, whether it was to be provided to the WSIB or the employer.
Issue 8 - Further Accommodation Not Provided
Provision of Assistance/Helper
108I find that the applicant received the assistance that she required. Some specific evidence was given about the provision of a helper for the preparation of certain physically demanding batches; I find that the respondent instructed the applicant to not proceed with the preparation of those batches if assistance was not available. She has not proven this allegation on a balance of probabilities.
Office Move
109I find that the applicant has not proven a prima facie case of discrimination with respect to this issue. The evidence shows that as soon as the applicant made a request to move her office downstairs in January 2008, the respondent proceeded to do so.
Issue 9 - Refusal to Fully Implement WSIB Ergonomist Report
110The applicant did not prove a prima facie case with respect to this issue. There was no evidence led by her which suggested that the respondent ever took the position that it could not afford to implement the recommendations of the ergonomist report. In any event, the evidence shows that the respondent did implement all of the recommendations contained in that report in a timely fashion, with the exception of one issue where the respondent directed the applicant to not proceed with the work if the assistance that she required was not available.
Issue 10 – NPRI Training
111In all the circumstances of this case, which demonstrate that both the respondent and Mr. Marshall personally went to considerable lengths to accommodate the applicant over a significant period of time, I am not able to conclude that any remarks made by Mr. Marshall regarding the applicant's attendance in Toronto for the NPRI training constitute discrimination or harassment contrary to the Code.
Conclusion
112For all of the above reasons, I find that none of the allegations made by the applicant have been proven on a balance of probabilities. The Application is therefore dismissed.
Dated at Toronto, this 8^th^ day of September, 2010.
“Signed by”
Alan Whyte
Member