Khanna v. Multimatic Inc., 2010 HRTO 1899

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anil Khanna

Applicant

-and-

Multimatic Inc., Dave Armstrong, Paul Clitheroe and Scott Worden

Respondents

decision

Adjudicator: Kaye Joachim

Date: September 20, 2010

Citation: 2010 HRTO 1899

Indexed as: Khanna v. Multimatic Inc.

Appearances

Anil Khanna, Applicant ) Self-represented

Multimatic Inc., Dave Armstrong, ) Gregory McGinnis, Counsel

Paul Clitheroe and Scott )

Worden, Respondents )

1This is an Application filed June 25, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The original complaint was filed with the Ontario Human Rights Commission on June 11, 2008. In that complaint the applicant alleged discrimination with respect to employment on the basis of disability.

2The hearing in this matter was held on May 10, 2010. I heard the evidence of the applicant, two of the applicant’s coworkers, the Departmental Manager, the Group Human Resources Manager and the Director of Human Resources.

3The corporate respondent Multimatic Inc. is an automotive systems provider. The Multimatic Manufacturing division (“Multimatic Mfg.”) where the applicant was employed, operated a production facility in Concord and another in Acton.

4The applicant is a tool and die maker who was employed by the respondent since 1998. He experienced a work-related right wrist injury in November 2001. Beginning in September 2003 he began experiencing left hand/arm difficulties. The applicant’s family doctor recommended that he avoid heavy lifting and repetitive lifting of the left hand.

5Initially, the corporate respondent, working with the Workplace Safety and Insurance Board (“WSIB”), attempted to return the applicant to return to his previous position as a tool and die maker. Gradually, however, it became evident that the nature of the applicant’s injuries made that goal unlikely.

6At some point the corporate respondent accepted that the applicant was not medically capable of returning to the position of tool and die maker. Paul Clitheroe, the department manager of the Press/Tool Room, in consultation with the Human Resources department, rearranged the duties of the lead hands and put together a bundle of tasks to permit the applicant to remain working in the Press/Tool Room, without any loss of pay. The applicant’s duties included data entry, ordering supplies and driving on an as needed basis.

7Since 2007, as a result in the downturn of the automotive industry, the corporate respondent has terminated the employment of 750 employees. The Press/Tool Room of Multimatic Mfg. in Concord began experiencing lay-offs in July 2007 when two toolmakers were laid off. In February 2008 four employees in the Press/Tool Room, including the applicant were temporarily laid off. In March 2008, 34 Press/Tool room employees, including five toolmakers, the applicant and the departmental manager were terminated. Two more toolmakers were terminated in June and August 2008. The remaining Press/Tool Room employees were moved to the Acton plant, along with some of the pressing equipment.

8The applicant was subsequently enrolled in a Labour Market Re-entry Program with the WSIB from August 2008 to August 2010.

Scope of the Application

9The applicant attempted to argue that the respondents’ failure to properly accommodate his right wrist injury caused him to overuse his left arm thus resulting in the second injury. It is not within my authority to determine the cause of the applicant’s injuries. I also ruled at the start of the hearing that the allegations relating to failure to accommodate the applicant between November 2001 and September 2003 were out of time and that the delay in raising this alleged failure to accommodate was not made in good faith.

10In a statement of additional facts, the applicant alleged that the employer had lied to the WSIB. I also held that this additional allegation did not fall within the scope of the Application.

11In a document presented for the first time at the hearing, the applicant attempted to identify additional incidents and occasions in which coworkers and the department manager were rude to him or harassed him because of his disability. I ruled that only the specific allegations raised in the original complaint would be considered.

12Thus, the allegations falling within the scope of the transitional Application are these:

• That the corporate respondent failed to accommodate his bilateral hand restrictions by assigning him work duties contrary to his medical restriction and by keeping him deliberately idle and under worked;

• That the applicant was denied overtime opportunities because of his disability;

• That the applicant was harassed by his departmental manager, Paul Clitheroe because of his disability;

• That the applicant was harassed by coworkers and the corporate respondent failed to take adequate steps to prevent or address the harassment;

• That the applicant’s employment was terminated in March 2008 because of his disabilities.

Accommodation

13The onus rests on the applicant to establish a breach of section 5 of the Code. In this case, there is no dispute between the parties that the applicant’s work-related injuries in 2001 and 2003 constitute a disability within the meaning of the Code and that the corporate respondent was under an obligation to accommodate his restrictions arising from those work-related injuries.

14Paul Clitheroe, the departmental manager, testified that he worked with the information provided by the WSIB about the nature of the applicant’s restrictions and attempted to comply with them. He denied assigning the applicant any duties outside the applicant’s medical restrictions. He also testified that the applicant never objected to any of his work duties on the basis that they were outside his medical restrictions.

15Mr. Clitheroe’s evidence with respect to the nature of the applicant’s medical restrictions is confirmed by the medical evidence submitted by the parties.

16The applicant’s time sheets demonstrate that from September to December 2003 the applicant was still doing some tool and die work using the presses. Mr. Clitheroe testified that because of the applicant’s bilateral arm restrictions he was assigned to work with an apprentice who was responsible for the heavy aspects of that work. The applicant disputes this. I prefer the evidence of Mr. Clitheroe on this point as it is consistent with the evidence that the employer worked closely with the applicant and the WSIB for year to provide work within the applicant’s restrictions.

17The applicant alleges that the continued assignment to him of pressing duties from September 2003 to December 2003 and the first aid report of November 2003 demonstrates that he was being assigned duties outside his work restrictions and amounts to a failure to accommodate. I disagree. September 2003 is the date the WSIB has identified in its records as the onset of the left hand injury. However, it is not necessarily the date that the applicant was conclusively determined to be incapable of doing any pressing work. The duty to accommodate is a process which evolves over time. In this case, the three participants in the process (the WSIB, the employer and the worker) attempted to return the applicant to his pre-disability duties if possible. I accept Mr. Clitheroe’s evidence that he did not assign any pressing duties to the applicant after it had been determined that such duties were beyond the applicant’s medical restrictions.

18Therefore, I do not accept that the fact that the applicant was assigned some press room duties from September 2003 to December 2003 demonstrates the corporate respondent failed to accommodate the applicant’s disability-related needs.

19The applicant testified that he was assigned driving duties from time to time, despite the fact that Mr. Clitheroe knew he was on medications which might make it unsafe for him to drive. However, the applicant’s own evidence was that he had not submitted a medical note restricting him from driving. I am not satisfied that the applicant has established that his disability prevented him from driving and therefore, the assignment, from time to time of driving duties was not a failure to accommodate a disability-related need.

20The applicant testified that none of the job tasks assigned by the corporate respondents were suitable for him from 2004 until he was laid off in 2008. He points to his ongoing complaints of pain to the company nurse, his medical practitioners and the WSIB as evidence that these the bundle of job tasks assigned to him were not within his restrictions and therefore not a suitable accommodation.

21Self-reported pain is not necessarily determinative that the assigned job tasks are not suitable. Mr. Clitheroe’s evidence, which was not contradicted, is that the applicant did not raise any concerns directly with the employer that the job tasks were not suitable. The medical evidence submitted to the employer and the WSIB established that the work was within the applicant’s medical restrictions.

22I conclude that the medical information provided to the employer indicated that the bundle of tasks including data entry, maintaining inventory and occasional driving were within the applicant’s medical restrictions.

23The applicant also asserted that the corporate respondent failed to accommodate him appropriately by providing him with sufficient work. He testified that he believed he was being kept deliberately idle. The applicant testified that he often felt underutilized at work and bored which caused him considerable stress and undermined his feeling of self-worth. Two co-workers testified on his behalf that they perceived that the applicant was provided with too little work and was bored and stressed.

24Mr. Clitheroe’s evidence was not inconsistent with the applicant’s on this point. He testified that the applicant’s duties barely filled the applicant’s time for a full eight hour shift. However, I am not satisfied that the respondents’ efforts to provide alternative suitable employment, while not particularly challenging for the applicant, fell short of their obligation to accommodate the applicant.

Overtime

25At the same time that the applicant claimed that he was underutilized, he also alleged that the applicant failed to provide him with a fair opportunity to claim overtime hours. Mr. Clitheroe testified that given the fact that the job tasks he had cobbled together for the applicant barely comprised a full shift of work, there was little opportunity for overtime for the applicant in the tool room. While there was overtime work available to tool and die makers, the applicant was not capable of performing that work. Once the downsizing of the Multimatic manufacturing department began, there were more administrative duties involved and the applicant was given the overtime at that point.

26I find that the applicant has not established that he was denied overtime opportunities because of his disability.

Comments by Departmental Manager

27The alleged harassment by Mr. Clitheroe included a comment on June 15, 2007, to the effect “am I disturbing your sleep?” Mr. Clitheroe acknowledges that on one occasion he made this comment when he perceived the applicant with his head apparently resting on the computer. At the hearing Mr. Clitheroe acknowledged that he realized that he had made an incorrect assumption that the applicant was sleeping, and that in fact, when he came closer he saw that the applicant’s head was bent and that he was holding his hand, apparently in some discomfort.

28That comment, while insensitive and inappropriate does not, in and of itself amount to harassment by Mr. Clitheroe. I will consider whether the comment, in context with other allegations, demonstrates a pattern of unwelcome conduct.

29The applicant testified that on October 4, 2007, Mr. Clitheroe made a reference implying that the applicant would be laid off. Mr. Clitheroe’s evidence was that the corporate respondent was going through a period of downsizing from 2007 and 2008 and he had several discussions with the applicant about that. In the course of discussing his own future, he indicated that he was starting to look for other work and asked the applicant what he intended to do. Mr. Clitheroe testified that he suggested that the applicant should consider work outside of tool and die and talk to the WSIB. In my view, this conversation does not imply or suggest a threat or intention to lay the applicant off because of his disability, but was ordinary workplace discussion about their futures in the midst of a large downsizing.

30The third example of alleged harassment occurred on October 10, 2007 when Mr. Clitheroe told a co-worker to “show the applicant the door.” Mr. Clitheroe did not deny that he may have made the statement, as a way to indicate that he wished the applicant to leave the room. He testified that there were three work stations in his office, one for himself, one of the applicant and one for the lead hands. When he needed to speak to a worker in private, he would often use an expression such as “go powder your nose” to mean that he would like the applicant to leave. I note that the applicant’s notes indicate that Mr. Clitheroe used this expression several times. I do not accept that these expressions amount to a form of harassment, either taken alone, or together with the above comments.

Comments by Coworkers

31The applicant alleged that he was harassed by coworkers and the corporate respondent failed to take adequate steps to prevent or address the harassment. Mr. Clitheroe acknowledged that there appeared to be an “underlying vibe” from the lead hands in the tool room to the effect that the applicant was not pulling his weight, but he conveyed the message that the applicant had a legitimate WSIB injury and need for accommodation.

32On March 24, 2006, the applicant found a note on his toolbox with the term “milkman” implying he was taking advantage of the company. He showed the note to Mr. Clitheroe. Neither Mr. Clitheroe, the applicant or the lead hands could recognize the handwriting. Mr. Clitheroe attempted to match the handwriting by a review of the time sheets, but was unable to do so. He decided he could not take any disciplinary action at that time. He spoke to the Human Resources department who sent someone from the department to the tool and die staff meeting to speak about harassment. The applicant’s witness confirmed that this meeting took place and that the corporate respondent’s position was that it amounted to harassment to make fun of workers with injuries.

33I find that this single incident (even with a background “vibe”) did not create a poisoned work environment for the applicant, because the corporate respondent clearly indicated that it would not tolerate such conduct by its attempt to discover the culprit and the staff meeting to reinforce the corporate policy against harassment.

34A further incident occurred, almost two years later. On February 29, 2008 someone put a label on the recycling bin saying “Anil is a waste of space.” As will be discussed below, this was during the final shut down while workers were being laid off on a daily basis. That same day, four employees, including the applicant were temporarily laid off due to a shortage of work. By March 14, 2008, 34 employees of the Press/Tool room, including the applicant and Mr. Clitheroe, were terminated.

35In this context, Mr. Clitheroe testified that he did not see any purpose in attempting to investigate who had placed the sign on the recycling bin or taking any action. Undoubtedly this failure to act was, from the applicant’s perspective, insensitive. The label was an attempt to mock or demean the applicant for carrying a restricted workload. Apprehensible at any other time, the employer would be expected to take prompt action, such as that taken in 2006, including investigating potential culprits and taking steps to convey that this attitude by coworkers would not be tolerated. However, in the unique circumstances of the impending shut down, the employer‘s failure to conduct an investigation into the incident when the entire department was about to be shut down should not be interpreted as a condonation of the incident. While convening a staff meeting to address the impropriety of the label would have been the sensible and sensitive response, the failure to do so does not amount to the breach of the Code in these circumstances

Termination of Employment

36On March 14, 2008 the applicant’s employment was terminated. As discussed above, he was one of 34 employees of the Press/Tool Room including five toolmakers, and the departmental manager whose employment was terminated at that time. The corporate respondent asserts that it selected individuals for lay-off based on skills, abilities, qualifications, past performance and length of service. The respondents’ position is that applicant was selected for lay-off because the bundle of tasks that he was able to do did not survive the closing of the Concord Press/Tool room, and that the applicant could no longer work on the specific tools that were transferred from the Concord plant to the Acton plant.

37The applicant believes that he was selected for termination because of his medical restrictions. He notes that one of his former colleagues, who also reported a work-related injury, was laid off six months later. However, the second witness called by the applicant, who had never made a work-related injury claim, was also laid off. I am not satisfied that the applicant’s suspicions or the lay-off of one colleague who also had work-related medical restrictions is sufficient to raise an inference that disabilities or work-related injuries played a role in the selection.

38In cases of mass termination where selection of employees for termination is made based on subjective criteria (rather than on seniority) a bias against workers with medical restrictions has the potential to impact on the selection process. However, mere speculation of the potential of that bias is insufficient to establish a prima facie case of discrimination. I conclude that the applicant has failed to establish that his medical restrictions played a role in the termination of his employment. I note that the workers who were kept on were capable of working on the tools which had been transferred to the Acton plant.

39The Application is dismissed.