Yeats v. Commissionaires Great Lakes, 2010 HRTO 906

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather Yeats

Applicant

-and-

Commissionaires (Great Lakes) formerly Highpoint Security

and Ronald David

Respondents

decision

Adjudicator: Ailsa Jane Wiggins

Date: April 26, 2010

Citation: 2010 HRTO 906

Indexed as: Yeats v. Commissionaires Great Lakes

AppearanceS BY

Heather Yeats, Applicant ) James Yeats, Representative

Commissionaires Great Lakes ) Phillip Day, Representative

(formerly Highpoint Security), )

and Ronald A. P. David, Respondents )

INTRODUCTION

1This Decision deals with an Application filed on March 1, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint (the “Complaint”) was filed with the Ontario Human Rights Commission on March 22, 2006 and abandoned upon filing this Application with the Tribunal.

2The applicant describes herself as a person with Type 2 insulin dependent diabetes and alleges that she was discriminated against in her employment because of disability contrary to section 5 of the Code and subjected to reprisal contrary to section 8 of the Code.

3The respondents agree that the applicant is a person with a disability as defined by the Code.

4The respondents maintain that despite the applicant’s lack of co-operation in the accommodation process, they met their duty to accommodate her up to the point of undue hardship.

5At the time of the Complaint the corporate respondent was Highpoint Security, but it ceased to operate in November of 2007 and Commissionaires (Great Lakes) assumed all responsibility for the affairs of Highpoint Security. The individual respondent who had been the President and Chief Executive Officer of Highpoint Security became Accounts Manager with Commissionaires (Great Lakes).

6A one day hearing was held on September 28, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules that section 53(5) applications proceed in a fair, just and expeditious manner.

7The applicant was represented by her husband, James Yeats, and the corporate and individual respondents were represented by Commissionaires (Great Lakes)’s human resources manager, Phillip Day.

8There were only two witnesses, the applicant and the individual respondent. On consent of the parties, I took an active role in questioning the applicant and the individual respondent. After I had completed my questioning of the applicant and individual respondent, Mr. Yeats had the opportunity to ask any additional questions.

9This Complaint was the third human rights complaint filed by the applicant against Highpoint Security and the individual respondent. The two previous complaints were dealt with at the Ontario Human Rights Commission, one was settled and the other was withdrawn by the applicant.

SUMMARY OF EVIDENCE AND FINDINGS

10On or about August 26, 2001, the applicant started work at an auto parts plant as a security guard with Russell Security Services, Highpoint Security’s predecessor security services supplier. When Highpoint Security took over the provision of security services at the auto parts plant in August 2004, the applicant became an employee of Highpoint Security.

FEBRUARY AND MARCH ABSENCES DUE TO WEATHER

11On February 17, 2006 the applicant booked off work due to a severe snow storm.

12The individual respondent wrote to the applicant on February 24, 2006 concerning the difficulty the company was having accommodating her numerous absences from work, both due to illness and for other reasons. He questioned the need for her book off work so frequently and asked that she take her work schedule more seriously and consider the gravity of the situation when she books off.

13The applicant responded by letter dated March 8, 2006 alleging in effect that the individual respondent was using her absence on February 17, 2006 due to the snow storm as an excuse to threaten her with discipline for innocent absenteeism due to her disabilities.

14On March 15, 2006, another winter storm and mechanical problems with her vehicle caused the applicant to book off work for a few days after being stranded in her car and having to walk home. She remained off work due to illness.

ABSENCE DUE TO ILLNESS

15The applicant provided her employer with a doctor’s note dated March 17, 2006 stating that she was “totally disabled” as a result of an infection and that the estimated time until she could return to work was four days. The applicant remained off work until March 28, 2006. Her continued absence was supported by further notes from her doctor.

16The applicant wrote to Highpoint Security on March 28, 2006 accusing it of singling her out and requiring her to prove the legitimacy of any absence from work. She wrote that she interpreted Highpoint Security’s letter of February 24, 2006 as meaning that it was going to stop accommodating her disabilities.

17On March 29, 2006, her supervisor sent her home thinking that she looked unwell and believing her to be on prescription painkillers that might have affected her fitness to work. The same day the applicant wrote to Highpoint Security complaining that she had been “relieved of duties until further notice” by her supervisor after having been cleared to return to work by her doctor. She interpreted being sent home on March 29, 2006 as discipline for her disabilities.

18Highpoint Security wrote to the applicant on April 8, 2006, and attached a letter to her doctor also dated April 8, 2006. Highpoint told the applicant that she could not function while in severe pain or under the influence of prescription pain killers. Highpoint suggested she speak to her doctor about a reduction in her hours of work and asked that her doctor’s note regarding her to return to work state clearly that she was fit to return to full duty. The letter to the applicant’s doctor stated that modified duties were not available at her current work site but that she could do the foot patrols at her own pace and eat at intervals that accommodated her needs. Highpoint also requested the doctor to indicate clearly when the applicant could return to work, and if she could not return to “full duty”, what were her medical restrictions. In his testimony the individual respondent explained that at the time he wrote the letter, Highpoint assumed that the reason that the applicant had an issue with foot patrols was because she needed to eat at set intervals.

19In a letter to Highpoint Security dated April 11, 2006, the applicant complained about the April 8, 2006 letter to her doctor and indicated that she interpreted the letter to mean that Highpoint Security would not offer workplace accommodations.

20The applicant wrote to Highpoint Security again on April 19, 2006, after receiving its April 8, 2009 letter to her. The applicant objected to Highpoint’s letters of April 8, 2006, to her and to her doctor, and requested that Highpoint discontinue harassing her as a result of her medical disabilities.

21The applicant developed a foot infection in late April and remained absent from work. A note from her doctor dated April 25, 2006 stated that she was totally disabled and that she “hopefully will return to work next week, but will need at least a week without foot patrol until she is able to wear her steel-toed boots again.”

22On May 1, 2006, Highpoint Security’s scheduling manager telephoned the applicant to advise her that as safety shoes were a requirement at the auto parts plant she could not work there, but that they could accommodate her and offer her shifts at other sites. The applicant refused the offer of work at other sites and said she would contact Highpoint Security when her foot had healed.

23On May 3, 2006, Highpoint Security wrote to the applicant reminding her that foot patrol was one of the primary duties required at the auto plant and that it could not remove that duty from her job. Highpoint stated that logistically and financially it could not accommodate her by sending in a second officer to do her foot patrol. Highpoint reiterated its earlier offer of a position in Barrie or Alliston where foot patrols would not be required. Highpoint stated that if the applicant was unwilling to accept the accommodation offered she could remain “off the schedule” until she was “able to return to full duty”.

24The applicant’s estimated return to work date passed and the applicant did not return to work or contact the company about returning to work. The applicant’s supervisor contacted her to ask if she should be put on the schedule for the week of May 22, 2006. The applicant responded that she believed that her employment had been terminated. The individual respondent wrote to the applicant on May 19, 2006 saying that the company had no idea why she thought she had been dismissed and that her supervisor had contacted her because her medical leave (based on her doctor’s note of April 25, 2006) had expired two weeks earlier. The individual respondent wrote that it was the applicant’s obligation to contact the company when she was “able and ready to return to work” and if they did not hear from her by June 2, 2006, they would treat it as a resignation.

25The applicant responded by letter dated May 24, 2006 saying that she had not resigned, rather that she had been relieved of her duties since March 29, 2006, despite three medical certificates releasing her back to work. She attached a May 24, 2006 doctor’s note saying that: “She still has a toe infection and needs to remain off work as she is not yet ready to wear steel–toed boots.”

26On May 30, 2006, Highpoint Security’s lawyers wrote to the applicant indicating that Highpoint was prepared to work with the applicant to resolve the issues between them. They asked that she complete a functional abilities form if she wanted to return to her position. The form would allow the parties to understand what duties the applicant could and could not perform. The individual respondent testified that Highpoint’s lawyers did not receive a completed form or indeed any response from the applicant to their letter.

27The applicant provided Highpoint Security with a doctor’s note dated June 7, 2006 simply stating: “this patient still not able to work for medical reasons, will notify when she is able to return.” However, the applicant in written submissions and oral testimony suggested that she could have returned to work immediately with accommodation. The applicant alleges that the doctor’s note indicated that she remained on indefinite medical leave because she informed her doctor that the respondent was refusing workplace accommodations.

28According to the applicant she suggested two methods of accommodation which were rejected by Highpoint Security. The first was to have the day supervisor conduct one foot patrol prior to the applicant’s shift and the night guard conduct another foot patrol at the beginning of his/her shift. According to the applicant, that would involve no financial hardship for Highpoint Security and just a minor inconvenience to the client’s auto plant security personnel. The second was the use of steel-toed foot wear caps which the applicant testified are readily available from safety footwear suppliers and available at the auto plant for visitors who do not have the proper foot wear. The applicant claims that neither of these accommodations was considered by Highpoint Security.

29The applicant did not introduce any evidence to indicate that she advised the individual respondent of the existence of toe caps in June of 2006 or suggested them as a possible accommodation at the time.

30In his testimony, the individual respondent stated that in June 2006 he was not aware of the existence of toe caps and that had he known they were available he would have considered them as a method of accommodating the applicant.

31The individual respondent testified that accommodating the applicant by having others do her foot patrol, one of the primary duties of her job at the auto plant, was not possible for financial and business reasons. Instead, on at least two occasions, Highpoint Security offered the applicant a temporary position at another location where foot patrols were not required. The applicant rejected it because she did not want a longer commute. The evidence indicated that the applicant’s desire to remain at the auto parts plant meant that the details of this offer of accommodation were not fleshed out and the applicant remained at home waiting until she was fit to return to her position at the auto parts plant.

32By letter dated July 12, 2007, Highpoint Security advised the applicant that it had lost the contract to provide security services at the auto parts plant effective July 30, 2007 and it gave the name of the successor security services provider in the event that the applicant wanted to seek alternative employment with the successor. The letter stated that Highpoint was not terminating her employment but that she could no longer work for them at that location. Highpoint asked her to contact them by no later than July 30, 2007.

33The applicant wrote to Highpoint Security on July 24, 2007 stating that since she had not been provided with accommodation at the auto parts plant, which she alleged could have been easily provided, she believed her employment with Highpoint had been terminated. She does not recall getting a response to her letter of July 24, 2007.

CURRENT STATUS

34Apart from two days, March 28 and 29, 2006, the applicant has been off work since March 15, 2006 and has had minimal contact with the respondents. She testified that she believed that her employment with Highpoint had been terminated in June 2006 when it refused her request to accommodate her at the auto parts plant, and that had she been accommodated by Highpoint Security at the auto parts plant she would have had “successor rights” and been given a position with the new security services provider at the auto parts plant.

35While the applicant testified that she believed that her employment was terminated in June 2007, she did not start looking for another job until September of 2007, after the Highpoint Security lost the contract to provide security services at the auto parts plant. She looked for alternate employment close to her home from September 2007 to September 2008. In September 2008 she stopped looking for work for personal reasons. She was not working at the time of the hearing.

THE HUMAN RIGHTS COMPLAINT AND THE SCOPE OF THE APPLICATION

36The applicant filed the Complaint which underlies this Application on March 22, 2006. She states in the Complaint that the last incident occurred on February 24, 2006, the letter of February 24, 2006 described above. The Complaint was not amended. Most of the alleged incidents of discrimination referred to above occurred after her Complaint was filed.

37The transitional provisions of the Code are intended to deal with the subject matter of complaints filed with the Commission prior to June 30, 2008. While the Transitional Rules contemplate that parties may make a request to amend the Application, the Code provisions prevail. Amendments which alter the subject matter of the original complaint will be denied: Berger v. Toronto (City), 2010 HRTO 142.

38While the Complaint was not formally amended to include the post February 24, 2006 allegations, the materials filed by the respondents in response to the Application and the oral evidence given at the hearing suggest that Highpoint Security and the individual respondent were aware of these allegations during the Commission process. In addition, the respondents did not challenge the inclusion of the post February 24, 2006 allegations either prior to or at the hearing.

39Therefore, in my view, the subject matter of the Complaint before the Commission includes the post February 24, 2006 allegations, notwithstanding the fact that the Complaint was not formally amended to include them.

THE CORPORATE RESPONDENT

40Commissionaires (Great Lakes) wrote to the Tribunal on March 18, 2009 stating that Highpoint Security “ceased to exist in November 2007. At that time, Commissionaires (Great Lakes) assumed all responsibility for the business and legislative affairs of Highpoint Security.” No further explanation was given at the hearing concerning how Commissionaires (Great Lakes) came to be “responsible” for Highpoint Security. In any event Commissionaires (Great Lakes) assumed the role of successor corporate respondent without challenge.

ISSES

41The issues I must decide in the Application are: (i) was the applicant subjected to harassment because of her request for disability related accommodation: (ii) did the respondents meet their duty to accommodate the applicant’s disability up to the point of undue hardship; (iii) was the applicant subjected to reprisal; and (iv) if harassment, discrimination and/or reprisal occurred, what is the appropriate remedy?

Decision

42For the reasons that follow, I find that the applicant was not subjected to harassment because of disability related accommodation, that she failed to fulfill her responsibilities in the accommodation process, that she was unable to perform the essential duties of her job at the auto parts plant location, that the employer offered her appropriate accommodation which she declined and that she was not subjected to reprisal.

43Despite these findings I note that the employer’s response to the applicant’s situation was not ideal. The applicant and the individual respondent have a history of animosity. They did not communicate effectively at the critical times and responsibility for that rests with both the applicant and the individual respondent.

44In my view, Highpoint Security’s letter of February 24, 2006 did not constitute harassment on the basis of disability. The letter did express the employer’s concern about the applicant’s absences, both disability and non-disability related, but its prime focus was her February 17, 2006 absence due to winter road conditions. The letter concluded by saying that if the “book offs” continue they would “need to sit down together and work out a solution”. It is indeed unfortunate that they did not do so.

45I find that Highpoint Security’s requests for information, including additional medical information, were made in an attempt to gather information for the accommodation process and were reasonable in the circumstances. The requests were not made to harass the applicant or as a reprisal for filing the current or previous human rights complaints.

46The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (Meiorin), (1999) 35 C.H.R.R. D/257, 1999 CanLII 652 (S.C.C.).

47The procedural aspect of the duty to accommodate requires an individualized investigation of accommodation measures and assessment of the employee’s needs.

48Employers and employees with disabilities have a shared responsibility for making the accommodation process a success. Employers’ duties in the accommodation process include accepting requests for accommodation in good faith, requesting only the information required to consider possible methods of accommodation and taking an active role in ensuring that possible solutions are examined. Employees must cooperate in obtaining the necessary medical information, make their needs known, preferably in writing, in order that the person responsible for accommodation can consider possible accommodations, participate in discussions about solutions and work with the employer on an ongoing basis to manage the accommodation process.

49The applicant suggested that Highpoint Security did not meet its duty to accommodate her because it did not offer her the option of doing her foot patrols with toe caps rather than steel toed boots. Had toe caps met applicable safety requirements, the use of toe caps would have been a simple and inexpensive way of accommodating the applicant.

50I find it more likely than not that Highpoint Security did not investigate the use of toe caps because the applicant did not suggest it to them at the time and they were not aware of the existence of toe caps. In my view the fact that the use of toe caps was not investigated at the time is reflective of the applicant’s lack of participation in the accommodation process at the critical time.

51In the circumstances, on the balance of probabilities, I am not satisfied that the applicant fulfilled her responsibilities in the accommodation process. She was not an active participant in the process. When asked on May 30, 2006 to complete a functional abilities form she did not do so. A week later she provided a doctor’s note simply stating that she was still not able to work for medical reasons. It appeared from the evidence more likely that she chose to stay at home until Highpoint Security offered her the exact form of accommodation that she requested or until she was able to return to work at the auto parts plant without accommodation.

52The substantive aspect of the duty to accommodate involves an analysis of the reasonableness of the accommodation offered. Accommodation in the workplace may mean adapting the work to the needs of the applicant so that she can perform the essential duties of the position. In a case where a person with a disability is incapable of performing the duties of the job as currently designed, accommodation may involve permitting disability related absences, providing an assistive device, re-organizing the way the work is done, assigning some of the employee’s job duties to other employees, transferring the employee to another location, position, etc.

53There was no dispute that Highpoint Security offered the applicant shifts at other locations where she would not have to do foot patrols. The applicant would not accept any of those positions because they would involve a longer commute. She also believed that the hours would be different and the rates lower but no evidence was introduced to support or deny that. The evidence indicated that the applicant’s refusal to work anywhere other than the auto parts plant meant that the details of this offer of accommodation were not fleshed out.

54The respondent is required to accommodate the needs of the person, not the applicant’s preferences, desires, or wants. Jeffrey v. Dofasco Inc., 2004 HRTO 5, upheld by the Divisional Court, Ontario (Human Rights Comm.) v Dofasco Inc. (No. 2) 2007 CanLII 41275 (Ont. Div. Ct.).

55The applicant’s conduct must be considered in determining whether the duty to accommodate has been fulfilled. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the applicant has a duty to assist in the implementation of the proposal. If the applicant fails to take reasonable steps and causes the proposal to fail, the complaint will be dismissed. The applicant is also required to accept reasonable accommodation and the employer's duty is discharged if a proposal that would be reasonable in all the circumstances is turned down: Central Okanagan School Dist. No. 23 v. Renaud (1992), 16 C.H.R.R. D/425, 1992 CanLII 81 (S.C.C.).

56I find that the employer fulfilled its responsibilities to accommodate the applicant. An offer of appropriate accommodation, although not the form of accommodation sought, was made to the applicant and was rejected by her. The applicant apparently believed that she was entitled to be accommodated at the auto parts plant work location and did not have to consider any other forms of appropriate accommodation suggested by her employer. Accommodation in the pre-disability job is not always possible. Temporary alternative work, a security guard position at another location where foot patrols were not required, was in my view an appropriate accommodation. While these positions would have involved longer commutes, it was intended as a temporary accommodation and in my view the additional time required to commute to the other locations was not unreasonable.

57Foot patrol was an essential duty of the applicant’s job at the auto parts plant. Even her doctor appears to have recognized that she could not return to work at the auto parts plant until she could wear the steel toed boots required to do foot patrols. The applicant testified that her foot patrols could have been assigned to others.

58In Hydro-Quebec v. Syndicat des employees de techniques professionnelles et de bureau d’Hydro Quebec, section local 2000, 2008 SCC 43, the Supreme Court of Canada noted that an employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

59The duty to accommodate does not require an employer to assign the essential duties of an employee with a disability to other employees or to hire another employee to perform them in the employee’s place.

ORDER

60For all of these reasons the Application is dismissed.