HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohan Rambarran
Applicant
-and-
Doelken Woodtape Ltd.
Respondent
DECISION
Adjudicator: Alan Whyte
Indexed as: Rambarran v. Doelken Woodtape
APPEARANCES
Mohan Rambarran, Applicant ) Glen Morrison, Representative
Doelken Woodtape Ltd., Respondent ) Michael Horvat, Counsel )
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 in employment on the ground of disability.
2The applicant was a production worker with the respondent for 10 years. His employment was terminated in November 2008 for what he alleges were discriminatory reasons. The respondent says that his termination was not discriminatory and that it was based on the fact that the applicant was exaggerating the duration and severity of his ankle injury in order to remain in a modified duties position, and also, the fact that he failed to provide satisfactory medical evidence to substantiate the nature and extent of his injury.
Preliminary Matters
3The Application originally named Pat Kohulal, the applicant’s supervisor, and Christine Procter, the Human Resources Manager of the respondent. At the hearing, which was held over two days, these two individuals were removed as personal respondents on the consent of the parties.
4The parties brought to my attention at the commencement of the hearing the existence of a wrongful dismissal action in the Superior Court of Justice between the applicant and the respondent. The respondent advised that it was not taking the position that this Application was barred by section 34(11) of the Code, and accordingly the hearing proceeded.
The Issues
5Although certain other issues were raised during the course of the hearing, I find that the issues to be determined are as follows:
a) whether the applicant was disabled within the meaning of the Code;
b) whether the alleged failure on the part of the respondent to provide a chair or other device so that the applicant could maintain his left ankle above waist height for a two-week period in May 2008 constitutes a failure to accommodate;
c) whether the suspension without pay which was imposed by the respondent on the applicant on September 15, 2008, was discriminatory;
d) whether the termination of the applicant's employment by the respondent on November 25, 2008, was discriminatory,
e) generally, whether the respondent failed to accommodate the applicant to the point of undue hardship.
Factual Background
6The applicant was hired by the respondent on July 6, 1988. He was employed as an extrusion operator in the production area of the respondent, which manufactures plastic and ABS edging for laminated surfaces such as cabinets. He worked without incident, meaning without discipline or without sustaining a workplace injury, until April 2008.
7On April 23, 2008, the applicant slipped while he was descending a ladder which was leaning against the extrusion machine for which he was responsible. He strained his left ankle, and immediately reported the accident to his supervisor, Mr. Kohulan. An accident report was prepared by Mr. Kohulan and the applicant attended a local hospital to receive treatment.
8Although the respondent encouraged the applicant to report for work the next day, he was not physically able to do so, and remained off work for a period of about two weeks in order to recuperate.
9The applicant provided the first of several functional abilities forms (“FAFs”) to the respondent dated April 24, 2008 which indicated that he was unable to perform any work and that he would be absent from work for 8 to 14 days.
10Ms. Procter questioned the doctor's opinion that the applicant was unable to perform any work, given that the company had a number of sedentary tasks available for employees who work on modified duties. Accordingly, she sent a fax and treatment memorandum to the applicant's family physician, Dr. Parris, on April 30, requesting that he complete the treatment memorandum and that he provide a detailed medical explanation as to why the applicant was unable to perform any work given the nature of his injury.
11The applicant returned to work on May 6, bearing a further FAF dated May 5. That document indicated, among other things, that the applicant required that his swollen left ankle be elevated above waist level for a period of 8 to 14 days.
12There is no dispute between the parties that at the time of his return to work, the applicant was taken to the Quality Control office and provided a workspace in the form of a table and two chairs. His work was sedentary in nature and the applicant took no issue with the work that was provided to him as an accommodation. However, his evidence was that he did not have a chair which met the above mentioned restriction, such that he was not able to get his left ankle above waist level.
13Ms. Procter's evidence on this point was that he was provided both fixed and adjustable chairs and she was quite certain that the applicant would have been able to adjust the height of the pneumatic chair.
14A dispute which appeared in the evidence was the issue of the extent to which the applicant complained about the fact that he was not able to get his left ankle above waist level. The applicant said that he complained to Drew Thorne, the Quality Control manager; Robert, who was described as the Health and Safety manager; and Ms. Procter. He said that both Mr. Thorne and Robert told him in response to these complaints that he should "make himself comfortable". He also said that Ms. Procter ignored his complaints.
15Ms. Procter's evidence on this point was that she did not receive any complaints directly from the applicant about this issue, and neither did she hear of any complaints from the manager in the Quality Control area. Further, she said that if any such complaint was made to the Health and Safety manager, who was a manager with 20 years experience, she was confident that it would have been dealt with on the spot.
16Part of Ms. Procter's role is to manage any modified duties/accommodation cases in the plant. In this case, she required of the applicant that he provide medical evidence (typically in the form of a FAF) every two weeks. She indicated that the applicant was cooperative in providing such information and that typically he provided it to the respondent on a timely basis. Consequently, there were a number of FAF forms authored by Dr. Parris, which were provided to the respondent over the months of May to September 2008. Generally speaking, these forms reflected the applicant's need for some form of modified work, usually in terms of restricted setting, standing, walking or lifting.
17Following the applicant's return to work on May 6, he attended for work regularly and consistently, without any absence other than a three-week vacation in late August and early September, up to September 10, 2008. During this time he was provided modified work by the respondent in accordance with his medical restrictions as reflected in the FAF forms supplied by him to the respondent.
18Based on some research that Ms. Procter performed on the internet, she understood that the usual healing time for an injury such as that suffered by the applicant was four to eight weeks. Consequently, in the summer months of 2008, she started to become concerned about the duration of the modified work being sought by the applicant. In terms of documentation that she had available to her, she received a copy of a "Health Professionals Progress Report" dated June 9, 2008 as completed by Dr. Parris, which stated that a referral had been made by him to Dr. Heller, an orthopaedic surgeon. She also learned from a FAF form dated June 26, 2008 that the applicant had a specialist appointment (presumably with Dr. Heller as he was the only specialist referred to in the documents and the oral evidence) on July 21, 2008.
19Ms. Procter testified that she met with the applicant on June 27 or 28 at which time she expressed her concern to him about the confusing and inconsistent FAF forms that she was receiving from him and his doctors. She also indicated that she wished to obtain a copy of any report that was produced by the specialist arising out of the July 21 appointment. She did not indicate whether the applicant was resistant or compliant.
20On July 7, 2008, she provided an "Employers Progress Report" dated July 7, 2008 to the WSIB, on which she noted that she was having difficulty getting reasonable medical information, and she requested medical third party input. She testified that she never received a copy of any documentation from Dr. Heller's assessment of the applicant from either the WSIB or the applicant, despite specific requests to both. She received on December 2, 2008 (after the decision to suspend without pay and to terminate the applicant’s employment) a copy of a "medical imaging consultation" arising out of a hospital visit by the applicant on November 6, 2008.
21By August, the respondent, in particular Ms. Procter, was concerned about the length of time over which the applicant's modified work timeframe was extending, to the extent that the respondent decided to commission a private investigator in order to conduct surveillance of the applicant. As substantiation for this decision, Ms. Procter said that the company received information from a witness who indicated that he had observed the applicant pumping gas into his car without any apparent problem or medical aid, whereas the applicant had been using crutches initially after the accident while at work, and then later, a cane. Sometimes the applicant also wore an ankle brace which was plastic and was worn outside his pants. The company also had another employee situation in the same general timeframe which involved that employee suffering a more severe injury than that of the applicant, but recovering sooner.
22Ms. Procter acknowledged that individual medical conditions may account for some differences, however, the applicant's modified work timeframe had by now extended well beyond the eight-week point and she was not aware of any particular complications affecting his recovery. She said that the company's goal in every case was to return the employee to his pre-injury position, and she pointed out that the applicant’s regular position was available for him to return to.
23The private investigation firm engaged by the respondent was Mustang Investigations ("Mustang"). Mustang conducted surveillance of the applicant on two separate occasions; over two days in the first instance and one day in the second instance. On August 12, 2008, the applicant was observed as he left the plant at the end of a shift at 3:30 PM. This surveillance showed that he was walking with the assistance of a single crutch from the plant to his car in the parking lot. He then proceeded to a gas station where he fuelled his vehicle (including walking to the kiosk to pay for the gas) without the assistance of the crutch. He then went to a mall where he was observed both entering and exiting the mall, walking without a crutch and using a normal stride and gait, after which he returned home.
24On August 13, the applicant was observed walking to his vehicle from the plant with the aid of a crutch. He was also observed arriving at his residence by car, exiting the car carrying some small items, and proceeding into his residence, walking without a visible limp and without a crutch.
25The applicant was on vacation from August 18 to September 10. During part of the vacation, he flew to Jamaica with his family. His return flight landed in Toronto on September 9 and Mustang conducted surveillance of some of his activities at the airport on that date. Specifically, the applicant was observed pushing an airport luggage cart loaded with luggage, walking without any apparent discomfort and without the use of any visible medical aids. After walking through the terminal in this fashion, he loaded the luggage into a van which was parked outside the terminal. He entered and exited the van three times, apparently to adjust the luggage in the van and to allow other people traveling with him to enter the vehicle. He also stood by the van for a number of minutes while he conversed with other people involved in his travel. The applicant then traveled in the van to his residence where the luggage was unloaded, following which the applicant swept his porch. Throughout these various manoeuvres, there was no evidence of the use of a medical aid and there was no visible discomfort or difficulty in walking being experienced by the applicant.
26The applicant returned to work on September 10, 2008, bearing a FAF form dated September 10, which outlined certain restrictions which were very similar to those in the FAF provided by the applicant shortly before his departure on vacation.
27On September 15, a meeting was held with the applicant at which the company representatives were Ms. Procter, Mr. Thorne and Mr. Masys, the Plant Manager. The purpose of the meeting was to confront the applicant with the results of the surveillance conducted by Mustang and to secure an explanation from the applicant with respect to the apparent discrepancy between his physical condition while at work versus his physical condition outside of work.
28Mr. Thorne maintained written notes of the September 15 meeting, a copy of which were entered into evidence. The applicant had only his recollection to rely on in terms of the contents of the meeting. Wherever there was conflict between the applicant's evidence and Ms. Procter's evidence (which was corroborated by Mr. Thorne’s notes), I prefer the latter.
29The meeting started with Ms. Procter outlining the purpose of the meeting, during which she indicated that surveillance had been conducted on the applicant. Portions of the video surveillance taken by Mustang were played for the applicant to see (as they were during the course of the hearing). The applicant's explanation as to why he wasn't using a crutch outside of the plant on August 12 and 13 was that a specialist had told him not to use the crutch in general, but to use it at work because his leg “dipped” at times. With respect to the surveillance conducted at the airport, the applicant indicated that he saw a "bush doctor" in Jamaica while on vacation, and that he provided treatment that improved the applicant's condition. When Ms. Procter asked for a report from this doctor, the applicant indicated that he would not be able to provide such a report.
30At the end of the meeting, Ms. Procter indicated that the respondent would be forwarding the surveillance information to WSIB and that it would be disputing the applicant's claim. She reiterated that the applicant’s injury had extended well beyond the expected recovery time of up to eight weeks. Ms. Procter went on to indicate that the respondent was suspending the applicant indefinitely without pay pending the ongoing investigation with the WSIB. She indicated that his claim for ongoing benefits would be disputed because the respondent did not feel that the medical evidence or the applicant's behaviour supported an ongoing injury. She also stated that if the applicant had further medical evidence to support this claim, he should feel free to submit it to the respondent for review.
31The respondent sent a letter dated September 16, 2008 to the applicant which indicated that the respondent had concerns regarding the validity of the applicant's request for ongoing modified duties arising from the April 23 injury. The letter confirmed that the respondent had provided the surveillance information to the WSIB. The letter went on to indicate that if a determination was made that the applicant was misrepresenting his injury and "collecting a benefit that causes hardship to the company", then further disciplinary action would be taken up to and including termination of employment. The letter confirmed that the applicant had been advised that he was suspended without pay indefinitely until the respondent received a ruling from the WSIB on his claim.
32The applicant did not provide any further medical information to the respondent prior to the termination of his employment on November 25, 2008.
33Ms. Procter testified as to the respondent's reasoning for deferring to the WSIB regarding the question of whether or not the applicant was misrepresenting his medical condition. She said that as the WSIB had all of the relevant medical information, including, but not limited to, the report arising out of the applicant's specialist appointment in the summer as well as possibly other medical information supplied by the applicant’s physician, it was more appropriate that the WSIB, as opposed to the respondent, decide the issue of misrepresentation. She also suggested that the WSIB could bring to bear its own adjudicative expertise to the case. She further pointed out that the applicant had requested that she not contact his physician directly following her direct contact with Dr. Parris on April 30, mentioned above.
34Ms. Procter's evidence was that she thought the WSIB would provide a ruling on the validity of the applicant's claim in a timely fashion. However, the WSIB adjudicator did not return Ms. Procter’s calls to him in October and November. Finally, Ms. Procter sent a fax to him on November 18 requesting an update on the matter. Ultimately, she said that she was able to speak to the adjudicator who advised her that a determination had been made by the WSIB that the applicant had misrepresented his injury, and further, that he had not received any further medical information to support the applicant's ongoing requirement for modified work. Ms. Procter provided a copy of her November 18 fax with handwritten notes made by her to corroborate her evidence as to what the adjudicator told her the conclusion of the WSIB was.
35Ms. Procter reported the information that she received from the WSIB adjudicator to the Plant Manager and the President of the respondent. She said that Mr. Masys said to her that if there was no further medical information provided by the applicant, then there was nothing further to discuss. Ms. Procter described herself as a resource person for the respondent and stated that the final decision to terminate the applicant's employment was that of the President and the Plant Manager. She was not present when the decision was made.
36On November 25, 2008, a letter was sent by the respondent to the applicant advising him that his employment was terminated effective the first day of his indefinite suspension without pay, being September 16. The letter indicated that the respondent had concluded its investigation regarding his absence and return to work following an alleged injury that occurred in the workplace.
37The letter stated that the respondent
has determined that you misrepresented your workplace injury, improperly secured and received benefits arising from your actions, incurring a loss to the company, and failed to submit medical documentation that supported any ongoing need for accommodation arising from your alleged medical condition and recovery.
Ms. Procter explained in her evidence that the loss incurred by the company referred to in the letter was based on the fact that the applicant had been paid his (higher) regular salary while performing modified duties.
38The applicant submitted as evidence a letter dated March 4, 2009 from the WSIB to Ms. Procter. This letter apparently represents the formal response of the WSIB to the respondent’s submission of the surveillance evidence to it and the request for determination as to whether or not the applicant had misrepresented his condition. After noting that there was no medical information on file to support the requirements of the use of the crutch, the letter advises that the WSIB has decided that the evidence provided is not sufficient to determine that the worker misrepresented his level of impairment, and in particular, the applicant was still symptomatic as of November 25, 2008 (the date of the applicant's termination of employment).
39A letter from the WSIB addressed to the applicant dated March 6, 2009 was entered into evidence, which arose out of the applicant's request for a Non Economic Loss award. That letter advised that based on the medical information, a permanent impairment had not been established (a finding which is required in order to support such an award) and that the applicant had reached maximum medical recovery with no ongoing restrictions for his left ankle.
Analysis and decision
40It is clear from the Tribunal's jurisprudence that the onus is on the applicant to prove the necessary elements of his claim that the respondent violated the Code on a balance of probabilities. Once the applicant has presented his case which gives rise to a prima facie case of discrimination, then the onus is on the respondent to present a reasonable non-discriminatory explanation for its actions, or to otherwise demonstrate that it has not violated the Code.
41Turning to the issues outlined above, I find that the applicant was "disabled" within the meaning of the Code. This was not seriously disputed by the respondent.
42Regarding the applicant's claim that he was not accommodated with respect to the requirement that his ankle be elevated above waist height for a two-week period, I find that he has not proven that allegation on the balance of probabilities. I accept the evidence of Ms. Procter that she did not receive any complaints either directly or indirectly from the applicant with respect to the issue. There is no real reason to believe that the applicant would not have been able to get his ankle above waist height by placing it on one of the chairs provided by the respondent in his work area. In any event, even the applicant's evidence to some extent indicated that the respondent’s representatives, Mr. Thorne and Robert, did not object to the applicant's request and that they in fact advised him that he should get comfortable.
43The main issue(s) to be decided in this case relates to the suspension without pay and ultimate termination of employment in the fall of 2008. The applicant called sufficient evidence to raise a prima facie case of discrimination on the basis of disability. Thus, the real question is whether or not the respondent has called sufficient evidence to convince me, on a balance of probabilities, that the applicant’s disability played no part in its decision to suspend and terminate the applicant.
44In order to decide this question, it is necessary and appropriate to take into account all of the evidence led by the respondent regarding its response to the applicant's claim for accommodation as a result of the ankle injury sustained by him in April 2008. It was not seriously disputed by the applicant that the respondent provided appropriate modified work to him, in accordance with the restrictions set out in the various FAF forms provided by the applicant, between May and September 2008. The only exception to that was the issue dealt with above regarding the alleged failure to accommodate for a two-week period in May 2008.
45The evidence that I received from Ms. Procter, the person at the respondent responsible for accommodation and the provision of modified work, convinces me that the company has a responsible approach to such issues and that it genuinely believes in the provision of suitable modified work, in accordance with properly documented medical restrictions, to its injured workers. There was no sense in the evidence that the company shirked from its legal duties in that regard, either generally or in relation to the applicant. Quite properly, the respondent insisted that the applicant provide on a consistent basis up-to-date medical information documenting his restrictions relating to his claim for modified work.
46Once the applicant's need for modified work extended beyond what the respondent understood to be the normal or average recovery time for an injury such as that sustained by the applicant, the respondent, through Ms. Procter, made more specific requests and inquiries about the applicant's medical condition. Ms. Procter did not receive any medical information which would suggest that there were any particular complications with the applicant’s injury which would support his need for modified work beyond the eight week point.
47When Ms. Procter did not receive a satisfactory explanation from the applicant as to why his injury was taking so long to heal, and when Ms. Procter did not receive any medical information arising out of the applicant's specialist appointment in July 2008, a determination was made by the respondent that some extra inquiry in the form of surveillance by a private investigator was required in this case. While the parties who are the subject of such surveillance are naturally unhappy and suspicious of that type of evidence in legal proceedings, there was no objection made by the applicant in this case to the receipt of such evidence, and in fact it was agreed that there was no need to call the person or persons who conducted the surveillance in order for its results to be entered into evidence at this hearing.
48Having received the results of the surveillance in both written and video form, the respondent then sat down with the applicant to review those results with him and to secure from him a reasonable explanation as to the discrepancy between his conduct while at work versus his conduct away from work. I should add that having had the benefit of viewing the video at the hearing, it was quite apparent to me that there was such a discrepancy.
49The respondent’s representatives at the September 15 meeting made it clear to the applicant that they were concerned about the above-mentioned discrepancy and, in my view, they provided an adequate opportunity for the applicant to provide an explanation to them regarding the discrepancy. However, I find that the applicant’s responses in that regard to be less than substantial. With respect to the applicant’s statement that his specialist advised him to use the crutch at work because his leg "dipped" at times, I note that there was no medical evidence put forward by the applicant to either the respondent after the September 15 meeting, or to me at this hearing, to support such a claim.
50The WSIB stated in its March 2, 2009 letter that there was nothing in their files to support the use of a crutch. Consequently, I am satisfied it was only the applicant who decided to use a crutch at work. In any case, the applicant's statement as to the medical advice that he received does not make sense on its face, because presumably the crutch would be required to be used as much away from work as at work.
51With respect to the applicant's statement at the September 15 meeting that he received medical treatment from a “bush doctor” in Jamaica during his vacation, that evidence does not sit well with the restrictions described in the September 10 FAF form which the applicant brought with him when he returned to work from his vacation. In any event, and taking into account that it would likely have been impossible for the applicant to secure a medical report from the “bush doctor” following the September 15 meeting, the applicant apparently did not make any effort to secure medical evidence from his Canadian physicians (as by this time he was receiving treatment for the ankle injury from both Dr. Parris and the specialist that he saw in the summer), which would have explained why he required modified work following his apparently successful treatment in Jamaica.
52The applicant knew full and well that the company had an issue regarding this, yet he took no steps to provide a medical explanation to the respondent, despite being advised at the end of the September 15 meeting that it was open to him to provide further medical evidence to the respondent for its consideration (during his indefinite suspension without pay while the WSIB investigation took place). This inaction on the part of the applicant suggests to me that there was no valid medical explanation for the discrepancy which had been put to him by respondent for explanation. The applicant’s inaction is particularly puzzling when he was on notice as a result of the respondent’s September 16 letter that his employment was in jeopardy at that point in time.
53I accept that the respondent’s deferral to the WSIB as to whether or not the applicant had been misrepresenting his medical condition was reasonable in the circumstances. Although typically an employer will be obligated to conduct its own investigation as to whether or not there has been employee misconduct, in the circumstances of this case the WSIB was in a better position to make that determination than the respondent. Ms. Procter had not been able to secure a copy of the report arising from the applicant's visit to the specialist in the summer from either the applicant or the WSIB. The applicant had advised Ms. Procter to not contact his physicians directly and thus she was left in the position where she did not have all the necessary information to determine the misrepresentation issue.
54I have considered two points which caused me some concern about the evidence led by the respondent at this hearing. The first is the discrepancy between Ms. Procter's evidence about the result of the WSIB investigation into the misrepresentation issue (which was to the effect that the WSIB had determined that misrepresentation existed), and the March 4, 2009 letter from WSIB to the respondent which states the opposite. On balance, I am satisfied that in fact there was telephone contact between Ms. Procter and the WSIB adjudicator after her fax to the adjudicator dated November 18 and before the termination of the applicant's employment on November 25, 2008. I found Ms. Procter to be a credible witness and her evidence was corroborated by notes which she stated were taken by her at the time of her telephone discussion with the adjudicator.
55Furthermore, there is sufficient evidence for me to find that the company had in fact been making efforts through October and November 2008 to determine the status of the WSIB investigation into the misrepresentation issue. This is not a situation where the employer suspended the employee without pay pending the outcome of an outside investigation, and then ignored the status of that investigation for a lengthy period of time. In this case, the respondent was diligent in following up with WSIB in an effort to determine the outcome of its investigation. I am not able to determine why the WSIB apparently reversed its position on the misrepresentation issue from the fall of 2008 to the spring of 2009; however, is not necessary for me to make a finding on that issue, so long as I am satisfied that the information available to the company at the time that it decided to terminate the applicant's employment was that the WSIB had decided that the applicant had misrepresented his medical condition.
56The second concern that I had about the respondent's evidence was that the decision-makers, the respondent's President and Plant Manager, were not called as witnesses. These were the people who apparently made the ultimate decision to terminate the applicant's employment. However, taking into account my finding with respect to Ms. Procter's credibility above, the fact that I am convinced that the respondent approaches its accommodation/modified duties obligations in a serious way, and the fact that the respondent had received no medical evidence or contact of any nature from the applicant following the September 15 meeting, leads me to the conclusion that the respondent has proven on a balance of probabilities that the applicant’s disability did not play any part in its decision to terminate his employment.
57The applicant argued at the conclusion of the hearing that the respondent did not meet its procedural obligation in relation to the accommodation of the applicant because it did not meet with him to “shape” the accommodation to be provided to him. In my view, this submission is not consistent with the evidence, which demonstrated that there was regular contact between the applicant and Ms. Procter in the form of meetings at which time the applicant provided the FAF forms to Ms. Procter, and Ms. Procter responded to such forms by arranging for the continuation of the modified work which was performed on a continuous basis by the applicant between May and September 2008. Furthermore, Ms. Procter's evidence was that there was a meeting between her and the applicant in late June 2008 at which time, at minimum, there was discussion between them about what in her view was inconsistent medical information on the FAF forms, as well as her request for a report arising out of the specialist appointment in July.
58The applicant also argued that he was not required by his physician or the WSIB to use a crutch or a cane or to wear a brace, and he did so as a matter of prudence and to guard against further injury to his ankle while at work. I note that this submission is contrary to what the applicant advised the respondent that the September 15 meeting, which was to the effect that he had been advised by his specialist to use a crutch at work. In any event, whether the applicant's use of a crutch/cane at work was recommended by his physician or not, this submission does not explain why he was using such devices only while at work.
59The applicant also raised in argument the question of modified hours, and suggested that the respondent had failed in its obligation to provide modified hours. I note that this issue was not contained in the applicant's Application, nor was it identified as an issue at the beginning of the hearing. In any case, there was no oral evidence led from the applicant regarding this issue at the hearing. I note that some of the FAF forms do contain a recommendation by the physician that the applicant be provided modified hours, however, there was no evidence that the applicant ever complained to the respondent that he was not being provided modified hours. In fact, the evidence was that the applicant worked full/regular hours between May and September, 2008. Also relevant is that the applicant's evidence was that he did not miss any work between May and September, other than the three weeks of vacation in late August and early September.
60I agree with the respondent's submission that there is sufficient reason to believe that the applicant had an interest in prolonging the time frame over which he would be performing modified duties, given that such work was less taxing than the duties associated with his regular position, he was able to sit down while performing the modified duties, he was permitted to work at his own pace, and he was only required to work straight days as opposed to the rotational schedule associated with his regular position.
61It is worth mentioning that despite the fact that the respondent took the position with the applicant that his employment was terminated for cause, it is not necessary for me to determine that issue in order to decide this case. All I need be satisfied of is that the respondent’s decision to suspend without pay and terminate the applicant’s employment in the fall of 2008 was not motivated even in part by discriminatory considerations. I am so satisfied.
62Finally, with respect to the last issue to be addressed, I find that the respondent accommodated the applicant consistent with its obligations under the Code, and that the question of undue hardship does not arise.
63For these reasons, the Application is dismissed.
Dated at Toronto this 7th day of April, 2010.
“Signed by”
Alan Whyte
Member