Akram v. National Steel Car, 2010 HRTO 570

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Asif Akram

Applicant

-and-

National Steel Car Limited

Respondent

DECISION

Adjudicator: David Muir

Date: March 16, 2010

Citation: 2010 HRTO 570

Indexed as: Akram v. National Steel Car

AppearanceS BY

Asif Akram, Applicant ) Self -represented

National Steel Car Limited, ) Larry Culver, Counsel

Respondent )

1This is an Application filed on June 18, 2009 under section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing was held in Toronto on February 3, 2010 in accordance with the expectations set out in the Tribunal’s Rules for Transitional Applications. I heard from the applicant and Mr. Bruckner for the respondent. An interpreter was present to assist Mr. Akram in understanding and responding to questions in the hearing, but after consultation with Mr. Akram, it was determined that simultaneous translation of the entire proceeding was not required.

3When he filed this Application, the applicant had named an individual respondent. That individual is no longer employed by the respondent and could not be located. The applicant agreed that the individual respondent had never been served with this Application. Accordingly, I ordered that the individual be removed from the Application and the style of cause amended accordingly.

4The applicant alleges that he was discriminated against in employment on the basis of disability. The applicant was injured on the job on December 13, 2004 – a soft tissue injury to his right shoulder. The applicant worked through the discomfort for the rest of that day and returned to work on December 14. After about an hour he felt unable to go on due to pain in his right shoulder and arm. He attended at the respondent’s medical centre and was provided with a pass outlining his restrictions pending any further information. A WSIB claim was filed and although the respondent employer questioned whether or not the injury could have been sustained at work, the claim was accepted. The applicant was unable to return to his pre-injury duties for more then three months. During that time he was provided with alternative work. On March 29, the applicant left the workplace and did not return.

5The allegations, as framed in the human rights complaint underlying this Application, are that the employer failed to appropriately accommodate his injury and required the applicant to do work that was inconsistent with his restrictions. The applicant stated at the hearing that this may have occurred on three or four occasions between December 14, 2004 and March 29, 2005. However, at the hearing it also became clear that at the heart of this dispute was the applicant’s belief that light duty work was distributed unfairly and one task that he was assigned was demeaning and given to him to do because of his race, colour, ethnic origin and place of origin.

6There is no dispute that when he complained of pain in his right shoulder and arm, he went to the medical department and was assessed. Based on that assessment he was put on light duties for three days with restrictions on the use of his right arm and shoulder. The note, dated December 14 listed his restrictions as follows – no pushing pulling or repetitive movement of upper back, front chest right hand and wrist.

7The applicant stated that despite these restrictions when he returned to his department he was assigned by his supervisor to work with a broom which required him to use both hands. The applicant testified that he did this work for the balance of his shift – for up to six hours. The applicant testified that the requirement to use the broom caused significant pain in his shoulder and arm. On December 15, the applicant testified that he could not move his arm and his hand was swollen and numb. The applicant saw his family doctor and then informed the employer that he would not be able to come in to work that day.

8The following day, December 16, the applicant returned to work and may have been asked to do some clean up work including sweeping for a short period of time but for much of the day he was assigned to the tool room. The applicant agrees that tool room work was within his restrictions. The applicant also agrees that the work assigned to him over the next three months was also within his restrictions, with the exception of one day in mid-January when he was asked do some sweeping again, for about an hour. There were no ill affects of being required to perform sweeping on this occasion.

9March 29, 2005 was the applicant’s last day of work. He testified that he believed that he had been assigned to what he described as “garbage” work that day because of his race, colour, ethnic origin and place of origin. He testified that the work could include sweeping but when he raised the issue of sweeping was told that he was not required to sweep. Otherwise the work was within his restrictions and the applicant testified that he was prepared to do it until he was told by a work colleague that he did not have to do that kind of work and that he should refuse to do it. The applicant refused to do the work and stated that he felt that the light duty work was not being fairly assigned. The applicant alleged that there was another worker with similar restrictions who was assigned to work in the mail room that day. Other than this assertion there is no evidence of the circumstances of this other worker.

10The applicant agreed that he had been assigned a variety of different kinds of work in his three months away from his pre-injury duties. He agreed that he had worked at various tasks: in the tool room; the mail room; and for several weeks he had painted and worked as a helper. He agreed that he had only been asked to do cleaning (i.e., sweeping) on a couple of occasions and if you include the work assigned on March 29 three or perhaps four occasions. He agreed that but for sweeping, the cleaning and recycling work did not cause him any difficulty and was within his restrictions. A significant issue for him was that as part of this task he was assigned on March 29, he may be required to pick up Kleenex tissues used by other workers. He agreed that when he expressed concern about doing so for health and safety reasons he was provided with gloves. Nonetheless he felt that this work was inappropriate and he refused to do it.

11The evidence of Mr. Bruckner was that the respondent has a sophisticated scheme to accommodate injured workers and given the nature of the work undertaken by the respondent there are often a number of injured workers to accommodate. He testified that there were a number of light duty jobs identified in the collective agreement that were exempt from the job posting requirements. The workplace parties had created these exemptions in order to afford the employer maximum flexibility in accommodating injured workers. These “light duty” jobs are assigned based on a number of factors including the need to accommodate other employees and the availability of work amongst other contingencies. Although Mr. Bruckner made it clear that he did not know why the applicant had been moved from the painting work he had been doing to this new job, it was possible that the painting work had simply finished and there was a need to find something for Mr. Akram to do that was within his restrictions. Mr. Bruckner also testified that the work assigned to the applicant on March 29 was part of a recycling initiative just started by the respondent. So while there was garbage to deal with as part of the work, its ultimate aim was to reduce waste and re-use and re-cycle the by products of the production process, wherever possible. It was an important task for the respondent and, for a couple of reasons, not “garbage” work, according to Mr. Bruckner. First, it was seen as a revenue generating activity as the recyclable material could in some instances be sold or re-used; and, secondly the initiative was intended to reduce the amount of waste generated in this workplace reducing costs as well as fulfilling corporate responsibility goals. This initiative continues to this day and is still performed by workers requiring light duties to accommodate workplace injuries and other impairments.

12The applicant also testified that when he attended the medical centre on March 29, the staff there refused to attend to him because of his race, colour, ethnic origin and place of origin. He also testified that he believes he heard one of the staff there refer to him as an alien. The medical records of the respondent indicate that the applicant attended that day and described his concerns, an assessment was done and the applicant was given two Tylenol #2. None of the medical staff employed at the time were available to the respondent to give evidence.

Analysis

13The application is dismissed. My reasons follow.

14There is no evidence that the way the applicant was treated by any of the respondent’s employees was informed in any way by his race, colour, place of origin or ethnic origin. I find that the applicant has exaggerated somewhat the treatment he did receive. For example, his claim is that on March 29 medical staff “refused me” - they did no assessment and sent him away. The applicant evidently feels that his complaints of pain on March 29 were treated with some scepticism and that more should have been done for him. Perhaps this is so. However, the medical record made at the time indicates that staff did an assessment and could find nothing wrong with the applicant and sent him back to his work with Tylenol. To accept the applicant’s assertion would require my concluding that the medical record was fabricated. This seems unlikely. It is more likely that the medical staff was somewhat sceptical of his complaints of pain and would not give him what he wanted - a pass to go home. It is not discrimination to decline to accept every complaint at face value or to fail to comply with every request. I also note that the applicant was known in the medical centre and had visited there on several occasions, he had received appropriate responses on his other visits – it seems unlikely that the staff there would suddenly be influenced by these other irrelevant considerations when dealing with him on this one occasion. As regards the allegations that he was referred to as an alien – the evidence of the applicant falls well short of establishing that such a thing was in fact said or if said was a reference to him.

15The issue at the heart of this case, the employer assigning the applicant to do what he described as garbage work does not raise any human rights issues. It is clear that the work was within his restrictions and there is absolutely no evidence that the decision to assign the work to him on that day was informed in any way by any of the prohibited grounds relied upon by the applicant. The applicant acknowledged that he had done many other kinds of work while being accommodated and his only dispute with the respondent’s evidence with respect to this work is that they believed the applicant had been assigned to the task and performed it on March 28; the applicant insisted that he was only assigned this duty on March 29. The decision to assign the applicant to this work at that time was likely a function of a number of factors, none of which had anything to do with the applicant’s race, colour, ethnic origin and place of origin. He may not have liked the work or may have considered it demeaning however as the applicant acknowledged the employer has a right to assign work. There is no reason to not accept the respondent’s evidence that this kind of work is regularly assigned to workers on light duties and is being performed by injured workers to this day.

16As regards the claim that the applicant was often asked to work outside of his restrictions, there is no evidence that this is the case. To begin with, the only occasion when he was required to perform the task for any length of time was on the 14th of December. In addition, there is no medical information that would clearly indicate to the employer that sweeping was outside of his restrictions. It is not clear that sweeping would necessarily be contra-indicated by the restrictions that were placed on the applicant, although I do accept his evidence of the consequences for him of the sweeping work he did do on December 14. However, I also note that the applicant testified that he likely told his doctor at the December 15th visit that he felt that his symptoms were being aggravated by sweeping work, but despite this there was no indication from his physician that he should avoid the task on the FAE submitted on December 22 or in any other correspondence with the respondent employer. I also note that after December 16, the applicant was asked to do sweeping once in mid-January for a brief period of time and suffered no ill effect, and then again on March 29 when he said he should avoid it and this request was accommodated.

17For all of these reasons the Application is dismissed.