HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anthony Colella
Applicant
-and-
Toronto Catholic District School Board
Respondent
-and-
Canadian Union of Public Employees, Local 1280
Intervenor
DECISION
Adjudicator: Kaye Joachim
Indexed as: Colella v. Toronto Catholic District School Board
AppearanceS BY
Anthony Colella, Applicant ) Self-represented
Toronto Catholic District School Board, ) John W. Woon, Counsel Respondent )
Canadian Union of Public Employees, Local 1280, ) Risa Pancer, Counsel Intervenor )
1This Application was received on June 29, 2009, under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant filed a complaint with the Ontario Human Rights Commission on November 1, 2007, alleging discrimination in employment on the basis of disability. The applicant works for the organizational respondent as a caretaker. As a result of work-related injuries, the applicant has medical restrictions concerning his right leg, right shoulder, back and left leg.
3In Interim Decision 2010 HRTO 678, the subject matter of the original complaint was significantly narrowed. This Decision addresses the remaining allegations:
on April 10, 2007 the applicant was deducted a full sick day when he was away for less than three hours;
in the summer of 2007 the applicant was assigned work that violated his medical restrictions;
the respondent failed to resinstate his dental benefits while he was on a medical leave of absence.
Sick Leave
4There is no dispute that, when the applicant reported that he was leaving work early on April 10, 2007, he missed less than three hours of work. In accordance with the collective agreement, he should not have lost any sick time for such a short absence. The applicant did lose a full sick day.
5Once the applicant filed a grievance the respondent acknowledged the error in June 2007. As a result of administrative delay the sick day was not returned until February 2008. The respondent could not identify a specific reason for the error other than the normal day to day delays which occur in processing the time sheets of 9,000 employees. The applicant seeks no remedy with respect to this incident and did not appear to be pursuing this incident as a breach of his rights under the Code. Nonetheless, for the sake of completeness, I confirm that there is nothing in the above incident which amounts to a breach of the Code.
Accommodation
6The respondent is a school board with a sophisticated return to work program for injured workers. When workers requiring accommodation return to work, a meeting is arranged with the worker, a union representative and respondent staff to discuss the worker’s accommodation needs. That was done in the applicant’s case.
7Following a return to work in March 2004, the applicant met with the Supervisor, the Head Caretaker, the Vice Principal and the respondent’s Benefits and WSIB Officer. After reviewing the Functional Abilities form they identified the applicant’s restrictions and assigned a set of modified work duties to the applicant (including no above shoulder activity or requirement to clean at low levels). The applicant was advised that he had the flexibility to take breaks as required and to work at his own pace. The medical restrictions and modified duties were confirmed in writing. One of the taks that the applicant was permitted was wiping lockers. A similar meeting was held on December 5, 2006 and the same restrictions and work duties were confirmed.
8In late June 2007 the new Principal directed the Head Caretaker to assign the applicant to clean all the lockers at his school location. The Head Caretaker conveyed this assignment to the applicant. The applicant met with the Principal and advised that he thought the work would be too difficult for him. He did not specifically state that the work was outside his restrictions. The Principal advised him to do the best he could.
9The applicant did perform the task of cleaning/wiping the lockers as best he could during the summer. He testified that he had to increase his medication during this time and that he felt he should not have been assigned this task at all. First, cleaning (not wiping) lockers exceeded the medical restriction of no overhead work and no low level cleaning. Second, it was not as flexible as his year round work, as it was the same type of work, instead of the varied routine cleaning during the school year.
10In late July 2007, the respondent asked for an updated functional abilities form and attempted to set up a meeting with the applicant to update his work duties and medical restrictions for the new school year.
11The applicant obtained the updated From on August 17, 2007. There was no specific restriction or mention of difficulties doing work on the lockers. On August 20, 2007 the applicant advised the return to work officer that he had concerns about cleaning lockers and that he should not be assigned this work. At this point the applicant was advised he did not need to clean any more lockers and that they would meet to discuss work duties and restrictions.
12As a result of the worker’s unavailability, the meeting did not take place until October 10, 2007. The applicant’s medical restrictions were again confirmed (new vertigo related restrictions were added) and specific modified duties were confirmed. It appears that the worker has not since been assigned to clean (as opposed to wipe) lockers.
13I conclude that there has been no breach of the Code arising from the summer 2007 work assignment.
14I agree with the applicant that there is a difference between cleaning the lockers (which required above shoulder activity and low level work, both of which were outside his medical restrictions) and wiping lockers (within reach) which was specifically listed as a modified duty within his restrictions. The applicant quite properly advised the Principal of his concern. The Principal advised him to do his best, which was not a direction to violate his restrictions. The applicant followed instructions and did his best. I note as well that the applicant took five weeks of vacation during the summer and therefore was involved in cleaning/wiping lockers for only a very brief time. When the applicant clearly expressed his inability to continue to work on the lockers the task was removed. In these circumstances, while the assignment to clean the school lockers was not technically within the strict terms of the applicant’s medical restrictions, the Principal’s qualification to “do his best” essentially authorized the applicant to work at his own pace and within his own restrictions.
15I note that the process of monitoring and reassessing the applicant’s modifications is an ongoing one, that the parties in this case have been working co-operatively for several years and that the accommodation of the applicant has enabled him to continue working. The Code does not require a standard of perfection, and every technical violation of a medical restriction will not necessarily amount to a finding of a breach of the Code.
Dental Benefits
16The respondent’s dental plan is not compulsory. Initially the applicant was not a member of the plan because he chose not to pay the premiums as he was covered by the spouse’s dental plan. When on an unpaid leave of absence, workers are offered an opportunity to continue to pay benefit premiums or permit them to lapse. If a worker permitted them to lapse, they were not entitled to register for benefits until they returned from their leave.
17In 2004, the Collective Agreement changed and the employer assumed payment of 100% of the premiums. The applicant was invited to enroll in the plan but did not take any steps to do so until January 2007. He asserts that as a result of not being enrolled prior to January 2007 he lost approximately $1,200 in dental fees that he could have claimed had he been registered. He asserts that once the payment obligation ceased, he ought to have been automatically registered in the plan.
18In my view, the applicant’s non-registration in the plan was directly related to his failure to take steps to enroll and not due to his disability or to the fact that he was on disability-related leave. This is not a violation of the Code.
19The Application is dismissed.
Dated at Toronto, this 12th day of November, 2010.
“Signed by”
Kaye Joachim
Member