Ellis v. General Motors of Canada Ltd., 2011 HRTO 1453

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aubrey Ellis

Applicant

-and-

General Motors of Canada Ltd.

Respondent

DECISION

Adjudicator: David Shannon

Date: August 3, 2011

Citation: 2011 HRTO 1453

Indexed as: Ellis v. General Motors of Canada Ltd.

APPEARANCES BY

Aubrey Ellis, Applicant ) Self-represented

General Motors of Canada Ltd., Respondent ) Greg Bullen, Counsel

INTRODUCTION

1This is an Application dated June 8, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O, c. H.19, as amended (the “Code”). The underlying complaint in this matter was filed with the Ontario Human Rights Commission on October 21, 2004, and abandoned upon filing this Application.

2The Application alleges discrimination in employment based on failure to appropriately accommodate a disability arising out of a workplace injury suffered by the applicant in 2001. Following his injury, the applicant participated in an accommodation process which resulted in his placement in a permanent position. He alleges, however, that this position soon proved beyond his functional limitations and that the respondent’s efforts to accommodate his disability from this point onwards fell short of its obligations under the Code. He alleges that eventually he was forced to retire because he could no longer continue in the position in which he had been placed and that this effectively amounted to constructive dismissal on the basis of disability.

3The respondent denies the allegations and takes the position that it fulfilled its obligations under the Code to provide accommodation.

LEGAL ISSUES & PRINCIPLES

4The issues to be determined in this Decision are

i. Does the Applicant have a “disability” within the meaning of the Code?

ii. If so, did the Respondent appropriately accommodate the applicant’s disability?

5“Disability” is defined in section 10 of the Code to include “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury....” There was no dispute in the present case that the Applicant’s workplace injury resulted in a “disability” within the meaning of the Code.

6Section 17 of the Code requires a respondent employer to accommodate an applicant’s disability, as it relates to performing essential employment duties, to the point of undue hardship. The duty to accommodate includes both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (S.C.C.), [1999] 3 S.C.R. 3 (“Meiorin”), at paras. 62-68. The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin.

SUMMARY OF EVIDENCE AND FINDINGS

Was there a disability?

7There was no dispute that the applicant suffered a workplace injury in 2001, as a result of which he developed a disability within the meaning of the Code. After his injury, the applicant developed bilateral ankle and foot pain symptoms. These symptoms were aggravated by excessive walking or prolonged standing. Also, x-rays showed degenerative change of both ankle joints as well as degenerative change of the midtarsal joints of both feet.

8The applicant indicated that while he was unable to sustain standing work day-in, day-out for years at a time, he was able to work positions where he was able to sit for periods of time.

The First Accommodation Process: post-injury search and placement

9By way of general background, the respondent states that the applicant worked at the Oshawa Car Plant, where there are approximately 5,500 employees. The respondent also employs a significant number of disabled workers at its Oshawa facilities, and has staff dedicated to placing these individuals in suitable positions. At any given time there are approximately 1,450 individuals employed at the Car Plant whose disabilities are of such a degree as to require physical restrictions.

10The respondent submits that it exercised great efforts in locating positions that the applicant would be capable of performing. After his injury and prior to being permanently placed, the applicant was either on layoff or worked in a number of temporary positions of a remedial nature. These temporary positions, known as “containment jobs,” are temporary in the sense that the positions exist as a means to resolve deficiencies in production processes, and could accommodate the applicant’s physical restrictions.

11On October 28, 2002, following an agreement between the applicant, his union representative and management personnel with the respondent, the applicant was placed on the Wet Deck Sander job. The job was viewed by all parties to the agreement, including the applicant, to be within the applicant’s physical capabilities, as there would have been opportunity for periods of rest in addition to those that were scheduled.

The Second Accommodation Process: search after placement in the Wet Deck Sander position

12The applicant submitted that in late 2002, the job “involved too much walking and standing” and that the job “was not suitable.” He subsequently agreed, as part of a mediated agreement through the WSIB, to keep working in the Wet Deck Sander job while a search for a more suitable job was performed. As a result of his view at the time, the respondent agreed to conduct a job search to determine whether there was a more suitable job within the Oshawa Car Plant.

13On December 19, 2002, the respondent, with the assistance of WSIB Ergonomist, reviewed suitable jobs in the Oshawa Car Plant within the applicant’s seniority. There were also a number of other meetings and communications between the applicant and the respondent in respect of a job search. Given the nature of assembly line work, virtually all jobs at the respondent plant are stand-up jobs. The Wet Deck Sander job was thought to be the most suitable job for the applicant.

14As part of this job search, the applicant identified the Group Leader position for the group that included the Wet Deck Sander position as a job that he believed that he was capable of performing within his restrictions. This position was not considered by the respondent to be suitable for the applicant based upon the fact that the Group Leader may be called upon to perform any of the jobs within the group, including the Wet Deck Sander position which the applicant says is not suitable. However, while the applicant was experiencing difficulty performing the duties of the Wet Deck Sander position on a prolonged and continuous basis, I find that the applicant would have been capable of performing the duties of the Wet Deck Sander position on an as-needed basis as part of the Group Leader position. However, as discussed below, the duty to accommodate does not in these circumstances require an employer to promote an individual (who would not otherwise have been promoted) to a higher-level position.

15On February 19, 2003, Nicole Johnson, the Human Resources Manager for the respondent, indicated in an email as follows:

Met with Aubrey Ellis on Feb. 18/03 in regards to his job search in paint. This gentleman has not talked to Jim Hoy and very much wants to, he feels that the agreement was to search outside of paint. Anyway, he was at first trying not to search paint yesterday with the excuse of having no communication with Jim Hoy. He did review jobs in both plant 2 and plant 1 with both Grant, Ray and myself. The best suitable job (one with less walking and standing than his current position) with the lowest seniority was Knife Edge Patch RS on 3rd shift. He also wants to “look” at Group Leader as it falls within his seniority on 3rd too. As Knife Edge Patch RS is lower of the two in seniority and it is suitable which the operator. Ray McGill and myself agreed I will be calling in the WSIB ergonomist to deem suitability and the plant doctor for approval, as per the mediation agreement.

16The WSIB ergonomist did not consider the Knife Edge Patch position to be suitable for the applicant.

17Job searches continued that factored in both his physical limitations and seniority, but no other suitable position was identified by the respondent or the applicant prior to 2005.

The Stamping Plant Job Placement Offer

18The applicant submitted that the respondent limited the job search only to the plant where he was presently employed. The evidence does not support this. On December 2, 2004, the respondent counsel requested Personnel Director T. Costa to conduct a plant-wide job search for the purpose of identifying an operation that would be compatible with the applicant’s physical abilities and seniority. A job search was initiated within the paint shop. It was determined that there were no jobs. A job search was then conducted in the rest of the Car Assembly Plant. All jobs in chassis, trim, and the body shop were considered, but none of these jobs were compatible with the applicant’s documented medical restrictions and seniority. The job search extended outside the Car Assembly Plant. The South Stamping plant was considered first. With the aid of South Stamping plant Placement Coordinator Paul Moore, the Bay 1 through Bay 12 operations were considered to hold a position capable of meeting the documented medical restrictions and seniority. On January 31, 2005, the Company doctor, Dr. Cook, was asked to determine if the job was medically suitable. Dr. Cook informed the respondent on February 3, 2005, that in his opinion Bay 1 through Bay 12 were not compatible with the applicant’s medical restrictions.

19A subsequent job search in 2005 identified a suitable job in the stamping plant. However, the applicant refused this job offer, and chose to continue working at the Wet Deck Sander position. He indicated at the hearing that he had heard lay-offs were coming soon to those jobs, and did not wish to jeopardize his opportunity for full-time permanent work. However, none of the applicant’s concerns about this job were raised with the respondent at the time when he was offered this position.

20Mr. Ellis worked successfully at the Wet Deck Sander position for over three years. The respondent submitted this indicated that the applicant opted to work outside his medical restrictions. However, he did complain to his supervisor that the job was causing him pain; colleagues indicated in testimony that he was observed leaning against cars to rest his legs; and the applicant used vacation time to stay home when the pain in his ankles became too acute.

ANALYSIS

21The Code explicitly prohibits discrimination in employment based on disability. Section 5 states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.

22At the relevant times, the applicant had a disability within the meaning of the Code, and therefore had a right to equal treatment from the respondent. Also, it is well-established in human rights law that the protected ground need only be one factor in the decision made that adversely affected the applicant; it does not have to be the only or primary reason: see Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

23The applicant must prove on a balance of probabilities that the respondent discriminated against him based on his disability. Should he succeed in doing so, then the respondent must demonstrate it cannot accommodate the applicant or that accommodating his disability would cause undue hardship.

24When a respondent is notified that an individual has disability-related needs, the respondent has a duty to make meaningful inquiries about the disability-related needs. See Wall v. The Lippé Group, 2008 HRTO 50, and Oak Bay Marina Ltd. v. British Columbia (Human Rights Tribunal) (No. 2) (2004), 2004 BCHRT 225, 51 C.H.R.R. D/68. It is well-established in human rights law that the duty to accommodate encompasses two components: first, procedural (that being the process whereby the accommodation was considered) and second, substantive (the accommodation that was achieved or the reasons for lack of accommodation). See: Meiorin at paras. 62-68. Therefore, there is both a procedural and substantive component to the duty to accommodate which includes considering creative measures for meeting the needs arising from the individual’s disability. Furthermore, the substantive rights of the Code are incorporated into every collective agreement so that an alleged violation of the Code is an alleged violation of the collective agreement and the arbitrator must take jurisdiction over allegations of discrimination: see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.

Did the respondent discriminate against the applicant?

25As a result of the failure to find more suitable work, the applicant submitted that he was forced to retire early. I do not agree. The respondent provided containment jobs until a more permanent option could be found. It did a thorough analysis of the applicant’s disability and consequent physical limitations, and identified job options. As detailed above this included more than one plant-wide job review, the use of a work ergonomist to assess prospective jobs based on the applicant`s disability, and several meetings to discuss the applicant’s job search and needed accommodations. Ultimately, the respondent found an accommodation that was agreed to by the applicant, his union, WSIB and the respondent.

26There is no doubt that working in the Wet Deck Sander position created physical hardship for the applicant. Based upon the evidence before me, in terms of the pain that the applicant was experiencing in this position and the fact that he was required to use virtually all of his vacation days to cope with the pain, the Wet Deck Sander position was not suitable for the applicant in light of his physical restrictions. However, that does not mean that the respondent failed to accommodate the applicant’s needs. The answer to that question depends upon whether another more suitable job could be located that was suitable for the applicant within his restrictions, with any required accommodation.

27In the evidence before me, there were only three specific jobs that were identified as potentially being within the applicant’s restrictions. I will first address the Knife Edge Patch position identified in February 2003. While this position was identified by the respondent as potentially being within the applicant’s restrictions, it ultimately was determined by the WSIB ergonomist that this position was not suitable. This was not disputed by the applicant.

28I will next address the applicant’s preferred placement, which was in the Group Leader position. I have found above that the applicant was capable of performing the duties of the Group Leader position within his restrictions, notwithstanding that this position required him on an as-needed basis to perform the duties of the Wet deck Sander position. However, in my view, the duty to accommodate does not extend to require an employer to promote an individual to a higher-level position to which they would not otherwise have been promoted, whether on the basis of seniority or merit. The purpose of the duty to accommodate in an employment context is to ensure that an employee with a disability has the opportunity to continue to perform the essential duties of her or his employment if her or his needs can be accommodated without causing undue hardship to the employer. When approaching the accommodation of an employee, the first consideration is whether the employee can be accommodated in her or his home position without undue hardship. While the law is still developing in this area, it has been recognized that, if this is not possible, the duty to accommodate can extend to consideration of alternate positions. However, the duty to accommodate has not been considered to extend to granting an employee with a disability a promotion to which she or he otherwise would not be entitled. In my view, doing so would extend beyond ensuring equal treatment for an employee with a disability, which is what is protected under s. 5(1) of the Code.

29The third position identified as part of the respondent’s accommodation efforts is the Stamping Plant position. As part of the duty to accommodate, an employee has her or his own obligations and responsibilities, including the duty to cooperate with the accommodation process. An employee is not entitled to expect her or his preferred or perfect accommodation, but rather is required to accept an accommodation that meets her or his needs. In this case, it is not disputed that the applicant was capable of performing the duties of the Stamping Plant position within his physical restrictions. However, this position was turned down by the applicant. As indicated above, at the hearing, the applicant testified that this was because he had heard that there might be layoffs at the Stamping Plant that could affect this position. But he never raised this concern at the time with the respondent. This gives rise to several problems. In my view, the applicant made a strategic decision that it was preferable to continue to work in the Wet Deck Sander position rather than accept the Stamping Plant position based upon a concern over potential layoffs. However, by not raising this concern with the respondent, the applicant in my view failed in his obligation to cooperate in the accommodation process by at least affording the respondent the opportunity to allay or otherwise respond to his concern. Further, the applicant rejected the Stamping Plant position based upon a speculative or prospective possibility of future layoffs, rather than basing his decision on the suitability of the position offered. As a result, I find that the applicant failed in his obligation and responsibility to cooperate in the accommodation process in relation to the Stamping Plant position, and accordingly find that the applicant continuing in the Wet Deck Sander position from and after 2005 was based upon his own strategic decision not to accept another suitable position. On this basis, I find that the respondent’s potential liability to the applicant arising from the duty to accommodate his disability ended as of the time of the offer of the Stamping Plant position in 2005.

30This leaves the question of whether, during the period from late 2002, when I have found that the Wet Deck Sander position was not suitable for the applicant, until the offer of the Stamping Plant position in 2005, there is any basis in the evidence to support a finding that the respondent breached its duty to accommodate the applicant. In my view, the evidence does not support any breach of the substantive aspect of the duty to accommodate during this period of time, as I have found that the applicant was not entitled under the duty to accommodate to be promoted to the Group Leader position and the evidence does not indicate any other specific position that was suitable for the applicant, despite extensive job searches.

31This leaves the question as to whether there is any basis to support a finding that the respondent breached the procedural aspect of the duty to accommodate. The evidence is clear that the respondent made extensive efforts to find alternate suitable work for the applicant, that it conducted plant-wide searches, that it involved the WSIB and an ergonomist in the accommodation process, and involved and consulted with the applicant and his union. A potential issue arises, however, as to whether the respondent’s consideration of seniority as part of the accommodation process created a barrier and thereby was in breach of the procedural aspect of the duty to accommodate. The issue of the interaction between seniority and the duty to accommodate is a difficult and complex issue that has bedevilled human rights tribunals and labour arbitrators for years. In the instant case, the evidence is that the respondent would search for positions where the applicant had greater seniority than the incumbent in the position, and would not consider potential positions where placing the applicant in such position would require the displacement of a more senior employee. While the law regarding the duty to accommodate has developed to the extent of requiring an employer to consider alternate, available positions, it remains unclear the extent to which the duty to accommodate requires the actual displacement of an incumbent from a position let alone the displacement of a more senior incumbent.

32In my view, this is not the appropriate case in which to try to resolve these difficult and complex issues. Apart from a passing reference in one document to a potential position that was not considered further due to seniority, there is no specific evidence before me to indicate that any suitable job which the applicant was capable of performing was excluded from consideration because of the applicant’s seniority. Certainly, no such position was identified by the applicant. Rather, the applicant was focused on attempting to secure for himself a Group Leader position, to which I have found that he was not entitled. In these specific circumstances, I am not prepared to find that the respondent breached the procedural aspect of the duty to accommodate.

33For all of the foregoing reasons, the Application is dismissed.