HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marie Anne Pilon
Applicant
-and-
Corporation of the City of Cornwall, Robert Menagh,
David Dick and John Flannigan
Respondents
Decision
Adjudicator: David Muir
Indexed as: Pilon v. Cornwall (City)
APPEARANCES
Marie Anne Pilon, Applicant ) Reg Pilon, Representative
Corporation of the City of Cornwall, )
Robert Menagh, David Dick ) John Saunders, Counsel
and John Flannigan, Respondents )
1This is an Application filed on June 11, 2009, under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant has alleged in her human rights complaint filed with the Ontario Human Rights Commission on January 29, 2007, that her rights to be free from discrimination in employment on the basis of sex and disability were breached by the respondents. The applicant also claimed that she was subject to reprisals for seeking to vindicate her rights under the Code.
3A hearing was held in this case over a number of days in November and December 2010. I heard from the applicant, the individual respondents, and Barb Landry, a Labour Relations Coordinator employed by the respondent City. At the time of the events giving rise to this Application, the applicant was employed as a customer service representative in the respondent City's Finance Department. The respondent John Flannigan was her immediate supervisor and David Dick was the Director of Finance and Mr. Flannigan's supervisor. The respondent Robert Menagh became the Manager of Human Resources in January 2005, partway through the narrative described below. Throughout this Decision, I will refer to the respondents collectively as the "respondents" unless a specific reference is required.
4A note on credibility. This case was somewhat unusual in that there are not significant credibility issues despite the fact that the events described below occurred five to six years prior to the hearing. The respondents argue that the applicant's evidence indicates a tendency to exaggerate her claims and, accordingly, where there is conflict in the evidence I should prefer that of the respondents. However, I have found, generally speaking, that the witnesses all attempted to relay their best recollections of what occurred despite the passage of time. The respondents are correct that the applicant made claims, in particular about her state of health at particular points in time, which could not be corroborated by contemporaneous medical records. The respondents also made claims that were not supported by contemporaneous documentation. To my mind, these credibility issues concerns were insubstantial and had no effect on any material issue to be determined.
5At the conclusion of the evidence, the parties agreed to make final submissions in writing. I have received those submissions. The applicant in her submissions alluded to a number of facts and documents not in evidence. Much, but not all, of what the applicant referred to in her submissions had been produced but had not been entered into evidence for the most part because the material was no longer relevant as a consequence of a prior interim decision in this case. The applicant also filed with her closing submissions a statement made by an individual who was not tendered as a witness. The respondents objected to any of this material being considered by me in my deliberations. The respondents are correct in most respects. The new material was not relied on in coming to any of the conclusions below, but even if it had been, it would not have affected the result in any respect.
6For the reasons set out below the Application is allowed in part. The failures of the respondents are both substantive and procedural. I have found that the respondents, the City of Cornwall, John Flannigan and David Dick, discriminated against the applicant in suggesting to her that she attempt to confine her washroom use to her scheduled break times and failed to accommodate the applicant to the point of undue hardship when requested to do so in May 2004.
7I have also concluded that the applicant was harassed by a fellow employee who complained to management about her use of the washroom in April 2004. I find that the respondents did not properly address the harassment of the applicant.
8I find as well that the failure of the respondents, the City of Cornwall, John Flannigan and David Dick, to appropriately respond to the request for accommodation and their related failure to respond to her complaint of harassment was an ongoing issue in this workplace and affected the applicant's reaction to events of September 2005, for which the respondents bear responsibility.
9Finally, I have found that the respondents failed again to investigate the applicant's concerns although requested to do so in the Fall of 2005, and that the corporate respondent and Robert Menagh discriminated against the applicant in July 2006, and failed again in their obligation to accommodate the applicant by terminating her employment rather than make further inquiries of her health and need for accommodation at that time.
10A number of other allegations of harassment and discrimination made by the applicant have already been dismissed by the Tribunal in a prior decision (see 2010 HRTO 680). As a result, any claim of discrimination on the basis of sex has been disposed of. I have also concluded that there is no evidence of a reprisal or reprisals by any of the respondents for the applicant having sought to vindicate her rights under the Code.
The Legal Framework
11The relevant provisions of the Code are set out here for convenience:
- (1) 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 disability.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
12As can be seen from the language above, section 5(1) of the Code prohibits discrimination in employment on the basis of disability. A question that arises from the facts includes whether the applicant was a person with a disability who experienced differential treatment linked to that disability which constitutes discrimination under the Code. The differential treatment can be direct or indirect (see s. 24 of the Code). As will be discussed in more detail below, I have concluded that the applicant was a person with a disability at the material times contemplated by this Application.
13In this case another question is whether or not the applicant was unable to comply with workplace requirements due to her disability. The Code provides in section 17(1) that if the individual with the disability is "incapable of performing or fulfilling the ... requirements attending the exercise of the right because of a disability," then differential treatment is not an infringement of that person's rights. However, section 17(2) then imports the duty to accommodate into the analysis providing that a person with a disability will not be considered incapable of performing the essential duties of his or her job if the needs of that person can be accommodated "without undue hardship on the person responsible for accommodating those needs." In determining whether there is undue hardship, the Code specifically identifies two considerations: cost (including outside sources of funding) and health and safety requirements.
14I have found for the reasons set out below that the applicant was unable to comply with reasonable requirements of the employer on at least two occasions. The next step in the analysis is when faced with a request for accommodation of a disability that prevents the employee from complying with a workplace requirement, what responsibility rests with the employer.
15The accommodation of a disability is a collaborative process but a significant burden rests on the party providing the employment. An employer is required to accommodate to the point of undue hardship. In some cases an appropriate accommodation may not be possible within that standard. However, the person with a duty to accommodate must make a real and bona fide effort to accommodate Code-related needs. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation by, amongst other things, making their needs known and providing the information required.
16The Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (S.C.C.) ("Meiorin"), has accepted that the duty to accommodate has both a substantive and a procedural component. To meet the procedural part of the duty to accommodate, a respondent must take adequate steps to explore what accommodation is needed, and to assess accommodation options. That involves obtaining all relevant information about an applicant's situation, at least where it is readily available. See also ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.). The substantive component of the analysis considers the reasonableness of the accommodation offered or a respondent's reasons for not providing accommodation. It is a 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. For the reasons set out below I find that the respondents failed to accommodate the applicant – both substantively and procedurally – to the point of undue hardship.
17In Lane v. ADGA Group Consultants Inc., 2007 HRTO 34, the Tribunal concluded that the failure to meet the procedural dimensions of the duty to accommodate – the duty to inquire and assess – is a form of discrimination in itself because it denies the affected person the benefit of the prohibition against discrimination, and a proper search for accommodation. The ADGA decision was confirmed on appeal: ADGA Group Consultants Inc. v. Lane, supra.
17The applicant has also alleged that she experienced harassment by the respondents. In order to establish this, the applicant must show that she was subject to a course of vexatious comment or conduct that the respondents knew or ought to have known would be unwelcome (see section 10(1) of the Code). I find for the reasons set out below that the applicant was harassed by a co-worker(s) and the respondents failed to properly address this issue as well.
18Finally the applicant has alleged that she was subject to reprisal. In order to establish this element of her claim, the applicant must show that she was subject to some action, or threat of action meant to threaten her for, or intended to prevent her in some way, from seeking to vindicate her Code rights or her participation in a Code proceeding. Unlike other provisions of the Code, where the intention of the respondent is by and large irrelevant, under section 8 intention is important and an applicant must establish that the respondent intended its action to be a reprisal for their seeking to vindicate their rights under the Code. .
Evidence and Analysis
19The applicant began her employment with the corporate respondent in 1982. She worked in a number of city departments over the years but most recently held a position in the Finance Department. She left her employment in September 2005 for reasons which will be canvassed below. The applicant never returned to the workplace and her employment was terminated on July 4, 2006.
20Much of the background to this Application is controversial and was the subject of a prior interim decision in which I dismissed significant aspects of the Application because they were out of time (see 2010 HRTO 680). Nonetheless it is important to understand that the applicant had been engaged in a long debate with the respondent employer about her job classification and work duties. The applicant believes that she was improperly compensated as a consequence of her sex since 1988. Related to this issue is the fact that the applicant was concerned that over time, her job duties were being diluted and, as a consequence, her classification and compensation might be affected. These underlying concerns engendered some level of workplace conflict over job duties with one of her work colleagues. This individual also had a role to play in relation to the Code issues that revolved around this workplace dispute.
21The allegations in this Application flow from what the applicant has characterized as harassment and discrimination related to her disability. The applicant has been diagnosed with colitis for some time. It was not disputed by the respondents that one of the effects of this condition is that she has an unpredictable need to use the washroom sometimes on an urgent and frequent basis. In order to accommodate this disability the applicant has required essentially unrestricted access to the washroom during work hours. This issue has never been adequately responded to by the respondent employer.
22The applicant's need for an accommodation around her use of the washroom unfortunately became an element of the discord in the workplace. The applicant believes that she was harassed by a co-worker in 2002 in the form of heightened scrutiny and complaints to management about her use of the washroom outside of scheduled break times. Management appears to have left it to the applicant to deal with it at the time. It was not dealt with except by the co-worker in question leaving the workplace.
23This issue was a recurring one. There is no dispute that one or more of her work colleagues complained to management about the applicant's use of the washroom outside of formal break times. These complaints were overtly expressed by one of the applicant's co-workers but there were also subtle suggestions by others which took the form of complaints that the applicant was not at her desk, or that she disappeared during the work day or that she took too long breaks. The failure of the respondents to properly address these issues, in particular management's failure to manage the other employees in the unit, became interwoven with other workplace disputes in what appears at times to have been significantly dysfunctional workplace.
24While for the applicant what she experienced and describes as harassment was an ongoing issue, in fact it was not truly continuous but it was also never satisfactorily resolved. Moreover, to describe the actions and inactions of the respondents as harassment mischaracterizes much of what went wrong in this employment relationship. Although the behaviour of the co-workers who scrutinized the applicant's washroom use and/or complained about her to management was reasonably perceived by the applicant as harassment, as I pointed out in 2010 HRTO 680, in addition to the harassing behaviour of some of her work colleagues, the other thread that runs through all of her allegations was an ongoing failure on the part of the respondent employer to appropriately acknowledge and respond to the applicant's request for accommodation. Inextricably linked with this failure is, as suggested earlier, the failure of the respondents to adequately respond to the complaint of harassment, which had ongoing consequences.
25The issues in this workplace, both Code-related and otherwise, played out in three different episodes beginning in April 2004. Following that logic I have organized these reasons around these three episodes culminating in the applicant's dismissal by the employer in July 2006.
26Although raising similar concerns to what followed, I have previously ruled that the incident of alleged harassment of the applicant by a fellow employee in 2002 was out of time. The first incidents I will deal with occurred in April and May 2004 when the issue of the applicant's need to use the washroom at times other then formal break times came to a head again. The second period relates to the Summer 2005 culminating in the applicant's leaving the workplace on September 15, 2005, due to illness. Finally, there is the period after the applicant left the workplace as a consequence of her illness until her termination on July 4, 2006.
Spring and Summer 2004
27On April 28, 2004, the applicant's supervisor, John Flannigan, had a conversation with the applicant about her use of the washroom. There is little dispute about what was said. It is agreed that the applicant was not explicitly told that she could not use the washroom outside of her break times. However, it is also clear that she was being advised by her employer that her use of the washroom outside of her regular breaks was inappropriate. The discussion included other issues, such as the applicant's alleged lateness and other workplace issues including the conflict between the applicant and a colleague, Ms. O.
28Mr. Flannigan told the applicant that if she was using the washroom either before or after her scheduled break it gave her work colleagues the impression she was taking longer breaks than were allowed. Mr. Flannigan agreed that he told the applicant that by her use of the washroom at other than scheduled break times she "was sending the wrong message". The applicant was given the same message on April 30, 2004. It is also agreed that Mr. Flannigan told the applicant at that time that a fellow employee, Ms. O, had complained that she was using the washroom at times other than her scheduled breaks.
29Mr. David Dick, the Finance Manager and Mr. Flannigan's direct report, had heard similar complaints from unnamed individuals. It was clearly an issue in this workplace. The applicant testified that she went home early from work on April 30, 2004.She testified that she felt that these events were a repeat of what she perceived to have been harassment by a co-worker in 2002 and that the associated stress exacerbated her colitis symptoms. In fact, the applicant was advised to go home by Ms. Dumoulin, Health and Safety Coordinator in Human Resources, because of the emotional state she appeared to be in. There was a dispute about her entitlement to sick pay for the day which was later resolved in the applicant's favour.
30The applicant saw her family physician on May 4, 2004, and was advised to take four weeks off work for medical reasons related to her exacerbated colitis symptoms, which she did.
31The applicant wrote a letter of complaint to the employer on May 4, 2004, and made a formal written request for accommodation of her disability. The letter was addressed to John Flannigan with copies to Cecil Vincent, Acting CEO; David Dick; Diane Dumoulin, and Mellissa Morgan, President, CUPE Local 3251. The letter begins:
I am writing this letter to express my anger and stress over your unreasonable request to expect me to only go to the washroom during my breaks.
And concludes, after outlining the applicant's version of the events of the Spring 2002 as well as April 28 and 30, 2004, as follows:
You are aware that I have a medical condition called Colitis and obviously do not respect my needs. I have enclosed a letter from my doctor defining my medical condition.
Under the Human Rights Code, the City of Cornwall has an obligation to accommodate me by allowing me to go to the washroom.
I am requesting that the City of Cornwall accommodate me due to my medical condition and provide me with a written confirmation that it will honour the Human Rights Code and grant me the right to use the washroom whenever the need arises.
Should the problem arise again, I will not hesitate to file a harassment charge.
32The applicant attached a letter from her family physician, which advised the respondent employer that the applicant had a medical condition that required her to have essentially unrestricted access to the washroom:
Marie-Anne suffers from a specific medical condition, which affects her intestine. As a result, she has unpredictable need to visit the washroom. There is an urgency to do so when the need arrives and she has no control over the number of visits or timing of the visits daily. Anxiety and stress will at times increase the frequency. As a result she will always need unrestricted access to a washroom.
33The respondents' position in this proceeding is that its response to the applicant's complaint and request for accommodation was confined to a letter dated May 19, 2004, signed by David Dick, which reads in its entirety as follows:
Dear Ms. Pilon:
The City has never refused your requests for washroom breaks.
34Despite the respondents' position that their only response to the applicant was the letter above, on May 18,2004, the respondent employer advised the applicant that an investigation of her complaint would be conducted and that she would be interviewed as part of the investigation. The applicant wrote to the respondents on May 18, 2004, acknowledging the invitation to be interviewed but asked for a delay in order to see her family physician again before the interview took place. This request was accommodated. The applicant also put the respondent employer on notice that their failure to respond to her May 4th request for accommodation was increasing her stress and worsening her medical condition. There was back and forth between the respondent, the applicant and her bargaining agent about the process and the applicant was finally interviewed on June 16, 2004.
35The investigation was conducted by Barbara Landry, a Labour Relations Coordinator in Human Resources and Ms. Dumoulin. At the applicant's request, a union official attended her interview. Six other individuals had been interviewed prior to the applicant. These interviews were apparently taped. The applicant requested a copy of the tape of her interview but the respondent declined to provide it. The respondent stated at the time that they would have to consult counsel. This issue was never resolved. When the question of the tapes arose during these proceedings, the respondents stated that the tapes have been lost.
36The result of the investigation, a report entitled Informal Review on Allegations of Harassment in the Finance Department (the "Report"), is dated July 16, 2004. The respondents take the position that according to its policy at the time there was a distinction made between a formal and informal review. A formal review according to the respondents is undertaken when an employee makes a "specific" complaint. The respondents take the position that no such complaint was made in this case and accordingly there was no obligation on their part to conduct a formal investigation.
37Despite the respondents' position on the genesis of the investigation, the Report references the applicant's letter of May 4th, and despite its title, suggests something other than an informal review. The following background is set out in the Report:
On Friday April 30th, 2004 at 9:30 a.m. Marie-Anne Champagne-Pilon came to Diane Dumoulin's office very upset. She discussed a conversation she had with Mr. John Flanagan, Supervisor, regarding bathroom breaks and her job duties. At the time, she felt she was being harassed over her bathroom breaks, Due to her emotional state, Diane Dumoulin advised her to go home and also the see her physician.
On May 4, 2004 Marie-Anne Champagne-Pilon had delivered a letter to Diane Dumoulin with copies for Mr. Cecil Vincent, CAO, Mr. David Dick, Manager, Financial Services, and Mr. John Flanagan, Supervisor. These letters were hand-delivered to the interested parties by Diane Dumoulin.
The letter stated that she felt anger and stress over the unreasonable request, in her opinion related to the use of the washroom.
As per the Corporation of the City of Cornwall's Harassment in the Workplace Policy, CSIHR03-17, the Corporation conducted a thorough investigation into the complaint and endeavoured to effect a settlement. (emphasis added)
38The Report contains a number of findings that capture what appear to have been the critical points of conflict in the workplace. The Report acknowledges that her supervisor had spoken to the applicant about her use of the washroom and "the perception from her co-workers". The Report goes on to conclude that the respondents had never "directly denied" the applicant access to the washroom "but in conversations with her supervisor, have led her to believe that her washroom breaks are inappropriate when taken around regular break times".
39The Report also speaks to the workplace conflict around job duties:
- Tasks within Marie-Anne's job Description have been an issue with a co-worker and her Supervisor for a period of time. Job tasks have been reassigned to the co-worker which has resulted in Marie-Anne being very protective of all of her job tasks.
...
- With the exception of one (1) co-worker, all have said they have a good working relationship with Marie-Anne. She is very friendly, chatty and willing to help out. There clearly is a personality conflict with the other employee and Marie-Anne. The other employee constantly competes through the Supervisor for job tasks in Marie-Anne's job description.
40The Report reframes the issues underlying the applicant's May 4th letter as, in addition to the specific concern about washroom use, conflict between the applicant and one co-worker, Ms O. who competes for the applicant's job duties. It is significant that the co-worker in question is the primary source of employee complaints about the applicant's washroom use at this time. Clearly, the issues of workload distribution and complaints about double standards as regards to break times were interwoven and the respondents were aware of this as early as July 2004.
41The Report makes seven recommendations as follows:
- Supervisor meet with both employees (Marie-Anne and [Ms. O.]) separately, reviewing their job descriptions and ensuring that both employees clearly understand what their duties are.
- Ensure that the proper protocol is followed if it is necessary to change duties on a job description. All affected employees should be aware of any change to their job duties.
- When dealing with sensitive issues the employee be offered Union Representation at the meeting. There should also be one (1) additional non-union employee present who will take minutes/notes.
- Explore the possibility of cross-training the other individuals in the department to cover absenteeism and vacation of the Customer Service Representative.
- The Corporation needs to provide Supervisory Level training within six (6) months, with on-going refresher courses to ensure consistency throughout the Corporation. All employees, including Supervisors need to review the Harassment in the Workplace Policy on a regular basis to ensure compliance of the Ontario Human Rights Code.
- Ms. Diane Dumoulin, Health & Safety, W.S.I.B. & Training Officer meet with Marie-Anne to promote the Corporation's commitment to provide support services to assist a therapeutic process to enhance physiological and psychological well-being.
- In future should Ms. Champagne-Pilon have any unsolved issues within the department, she should follow the appropriate ·chain of command".
42It is clear from the evidence that none of the recommendations was implemented. Mr. Dick testified that he received the Report, reviewed it and, being satisfied that there had been no violations of the Code, decided that nothing would be done with the Report.
43Despite Mr. Dick's views that all was well, the conclusion of the Report reads as follows:
The Corporation's findings do not clearly define a Harassment issue, however several incidents, if not dealt with immediately, may result in a poisoned atmosphere being created which could be considered harassment under the provisions of the Human Rights Code.
44A significant issue for the applicant was the fact that she was never provided a copy of the Report and heard nothing about the results of the investigation. The applicant testified that had she seen the Report at the time it might have given her some comfort that her concerns were being taken seriously at least. The applicant takes the position in her final submissions that the failure to provide her the Report or implement any of its recommendations was a reprisal. Despite these concerns the applicant did not formally request a copy of the Report until December 2005. These allegations of reprisal were not included in the complaint underlying this Application and therefore I can not deal with them in this Decision.
45As a consequence of not ever being provided with the Report or any follow up on the investigation, the applicant stated that she was never sure that her request for appropriate accommodation had been acknowledged by the respondents. The applicant testified that although she was not directly confronted with reports of complaints from other employees, there were indications that the issue from her perspective had not been resolved in the months following. The applicant testified that there were remarks about her not being at her desk. The applicant also testified that her supervisor, Mr. Flannigan, did note on one or more occasions that she was taking too long breaks. As will be seen below, the respondents acknowledge that complaints continued to be made about the applicant that in my view appear to have been related in part to the applicant's need for unpredictable, unrestricted use of the washroom during the day, which would have had an impact on her availability at her work station.
46As indicated earlier, the respondents take the position that the investigation and Report were the result of an informal review requested by Mr. Dick and not a response to the applicant's complaint and request for accommodation. Accordingly, the respondents claim that there was no obligation to disclose the Report or any follow up on it to the applicant. The position was essentially that they could put the Report on the shelf if they chose to, and that is precisely what was done with it.
47On this point Mr. Dick testified that he wanted to ensure that there were no violations of the Code in his department and consequently requested an informal investigation from Human Resources. Ms. Landry, who actually conducted the investigation with Ms. Dumoulin gave a slightly, but in an important way, different version of how the investigation was initiated. Ms. Landry testified that she was contacted by Cecil Vincent, acting CAO of the Corporation, who reported that Mr. Dick was upset by the allegations of harassment made against Mr. Flannigan and that Mr. Dick wanted an informal investigation.
48Ms. Landry also testified that in her view the applicant was merely a witness like everyone else who was interviewed as part of the process. Both Ms. Landry and Mr. Dick testified that because there was no specific complaint, the City was not required to conduct a formal review pursuant to its policy. Neither witness could point to any policy document which drew this kind of distinction.
49Mr. Dick's evidence that there was no complaint is contradicted by the Report itself which refers to a "complaint" as well as a subsequent statement he made in a memo to Ms. Landry dated September 15, 2005. More importantly, in the passage below from that memo Mr. Dick discusses his understanding of the 2004 episode:
... We have dealt with a number of complaints from staff within the Tax Department over the last number of years and all have some relationship to Marie-Anne. You will recall that an employee claimed that she [applicant] was taking excessive breaks which subsequently led to Marie-Anne filing an harassment charge against John and taking six weeks of stress leave. In light of the recent developments it would appear that there may be a constant here and the problems over the past number of years may be the responsibility of one employee.
50The respondents' position on this point was news to the applicant. When asked by me how the applicant would have known that the investigation was "informal" and that its results would not be shared with her, Ms. Landry testified that the applicant should have known this. When asked how the applicant should have known this, Ms. Landry testified that it was described as such in the email exchange about the interviews conducted as part of the process. Ms. Landry could not point to any such email. I have reviewed the email exchange produced and there is nothing in the various emails that suggests such a description. Ms Landry also testified that she had conducted eight investigations up to that point and in none of them had the final report been provided to the complainant.
51The position of the respondents on this point is difficult to understand. Despite the respondents' evidence, it is clear that the applicant was making a complaint in her letters of May 4 and 18, 2004. I do not find their reliance on her statement that if the issues were not resolved she would "file a harassment charge" persuasive. Despite the respondents' assertions, I am not persuaded that the employer's policy made a distinction between a formal and an informal review at the time. More importantly, I find that the applicant would have no way of knowing that the investigation she participated in was not in response to her complaint and request for accommodation and would have reasonably expected a response to her concerns.
52In any case, and most importantly for the purposes of the Code, the applicant's letters of May 4 and 18, in addition to being a formal request for accommodation, also constitute a complaint which the respondents had an obligation to investigate. In my view, it may not always be necessary to provide a copy of a report prepared after an investigation and one can imagine situations where it would be entirely appropriate to not do so. However, in this case, where an employee has made a formal request for accommodation and there has been an investigation leading to a report, it was appropriate and required under the Code's duty to accommodate for the respondents to share the results of their investigation with the applicant. Instead of doing so, the respondents simply shelved the Report and did not share it in any way with the person who instigated the investigation. Given these facts, I find that the respondent City, Mr. Flannigan and Mr. Dick failed in the Spring and Summer of 2004 to appropriately investigate the applicant's human rights concerns.
53As regards the applicant's May 4th request for the accommodation of unrestricted access to the washroom and written confirmation of same, the response of the respondents was said to be the one-line May 19th letter set out above. In the respondents' view this was a complete answer to the applicant's request for accommodation.
54Mr. Flannigan agreed that he had raised the issue of washroom breaks with the applicant in response to complaints made by Ms. O. Mr. Dick testified that he had heard similar complaints. Mr. Flannigan knew that this had been an issue between the applicant and another employee in 2002. The Report endorses the applicant's view that Mr. Flannigan's interventions created the impression that her using the washroom outside of the formal break time was inappropriate. Instead of taking steps to insulate the applicant from the perceptions of her co-workers, the respondents made it Ms Pilon's problem and asked her to in effect defer to her co-workers' concerns about "double standards". To his credit Mr. Flannigan did tell Ms. O., the primary, if not the only, person complaining, that he could not restrict the applicant's use of the washroom. However, there is no evidence that Mr. Flanagan or Mr. Dick indicated to the applicant that they understood the nature of the accommodation she required and would endeavour to ensure that what she experienced as harassment would stop. There is also no evidence that Mr. Flannigan or Mr. Dick told Ms. O. that it was inappropriate for her to complain about this issue with the applicant or that anyone in management took any other steps to deal with the problem.
55In the end, the result of the applicant's May 4th complaint and request for accommodation was an informal investigation into one aspect of the issue that vindicated her concerns to a considerable degree but was not shared with her, and a one-line letter that completely misses the mark to the point of trivializing her request. Because the respondents chose to treat this as a problem of workplace relationships and not what it was, i.e. a human rights problem, the applicant had no idea what the employer's response to her concerns was and consequently, she testified, she was uncertain as to whether or when the issue would arise again. This uncertainty, which I find rests entirely at the feet of the respondent City and her supervisors Mr. Flannigan and Mr. Dick, informed to some degree what happened a few months later when this employment relationship unravelled.
56The respondents take the position that there is no evidence of discrimination or harassment in these events. The respondents state that the City had never refused the applicant permission to use the washroom and that once they provided the May 19th letter the issue had been put to rest. I do not agree. Following the legal framework set out above I find that the suggestion that her washroom use was "sending the wrong message" was discrimination within the meaning of section 5(1) of the Code in that the applicant could not comply with this otherwise reasonable workplace requirement as a consequence of her medical condition. Although the employer's "rule" was a reasonable one, section 17(2) imposed the obligation on the respondents to accommodate the applicant to the point of undue hardship.
57In my view, the respondent City, Mr. Flannigan and Mr. Dick did not take any steps to respond to the applicant's need for accommodation although explicitly requested to do so by her and provided with medical information setting out her needs. The respondents state that their letter of May 19, 2004 was a complete and appropriate response. I do not agree. Mr. Dick's letter simply does not address the issue of concern to the applicant. The nature of the applicant's request was that the respondents acknowledge her need for essentially unrestricted access to the washroom when the need arose. The issue was not that the employer had ever refused a request for a washroom break; the applicant does not claim she was ever refused. Rather it was that her need for unrestricted access be acknowledged, and not constrained by concerns that people were watching her and/or complaining about her to management. In my view, the May 19th letter completely failed to respond to this issue.
58There can be no dispute that the applicant was a person with a disability at the material times. She advised the employer of this in a formal way in May 2004. As a consequence of her disability she was unable to comply with a workplace requirement that she be at her desk and engaged in her duties at all times during the work day other than the breaks to which she was entitled. She required an accommodation and formally asked for such accommodation in May 2004. For all of the reasons set out above, I find that the respondent City, Mr. Flannigan and Mr. Dick failed in their procedural obligations in the accommodation process in failing to investigate the applicant's May 2004 complaints and request for accommodation. I also find that these respondents failed to take any steps to accommodate the applicant to the point of undue hardship. This is discrimination under the Code.
59The respondents did not claim that they could not accommodate the applicant or that it would cause them undue hardship to do so.
60The applicant's harassment claim is somewhat less clear. However, I accept the applicant's point that Mr. Flannigan, having been the supervisor in 2002 when another employee was engaging in what was likely harassing behaviours around the applicant's use of the washroom, ought to have been aware of the import of Ms. O.'s behaviour in the spring of 2004. Similarly, Mr. Dick was aware of complaints about the applicant's use of the washroom. The problematic nature of Ms. O.'s behaviour, and the consequence of management's failing to deal with it appropriately, was acknowledged in the Report. I find that Mr. Flannigan's acting on Ms. O.'s complaints and communicating to the applicant the fact that an employee or employees was (or were) complaining about her use of the washroom outside of formal break times, in addition to the respondent City's, Mr. Dick's and Mr. Flannigan's failure to respond either procedurally or substantively to her request for accommodate, was harassment under the Code and created a poisoned work environment for the applicant.
Summer 2005
61There were no express reports from management to the applicant of complaints about her washroom use subsequent to the events described above in the spring and summer of 2004. However, I have accepted the applicant's evidence, as described above, that because the respondent employer, Mr. Dick and Mr. Flannigan did not adequately respond to her concerns and request for accommodation the issue remained unresolved. Accordingly, she was sensitive to the fact that the issue might arise again. I also accept her evidence that there were oblique references to her being away from her desk, or taking too long breaks etc. that raised the spectre that her washroom use was being scrutinized by workplace colleagues and noted by management. In the context of a broader workplace conflict about workload and work distribution, this issue did re-emerge to some degree in the later Summer of 2005.
62In the spring of 2005, Ms. O. requested a leave of absence for health reasons. She was expected to return in October 2005. The employer hired two summer students to help out with the extra work that Ms. O. would have done. The students completed their employment on September 2, 2005. The applicant claims that she was asked to do both her work and Ms. O.'s. The respondents dispute that this was the case.
63The applicant testified that as the summer came to an end she became concerned about how the work would get done after the summer students were gone. In her view she would not be able to cope with the workload if any significant part of Ms. O.'s job were given to her. The applicant raised these concerns with Mr. Flannigan, on more than one occasion. The applicant testified that she raised with Mr. Flannigan her concerns about how the work would get done if she got sick, or if anyone else in the department took ill or left for other reasons.
64The applicant's claim that there was too much work for her in particular and the department in general was, according to the respondents, disputed by both her workplace colleagues and management. As well, her workplace colleagues had apparently begun to complain about the applicant to management beginning in the Spring of 2005. The nature of the complaints about the applicant are somewhat vague, but were described by the respondents as being performance-related. As indicated above, some of the complaints by co-workers were about the applicant not being at her desk when she should have been, taking too long breaks, disappearing during the day, or leaving work early. In this regard, I note that when asked what performance issues of the applicant's had been identified, Mr. Flannigan offered as the first example complaints about the amount of time the applicant was away from her desk, which he conceded might have been, in part, washroom breaks. In addition to these kinds of issues being raised, there were also complaints about the applicant taking too much time with personal phone calls. Some of these alleged shortcomings were abandoned by the respondents when challenged at the hearing. For example, Mr. Flannigan conceded that he never had any problems with the applicant leaving work early. There was no evidence of what the work quality issues were.
65The triggering event for the impending events leading to the applicant's leaving the workplace was a report by a co-worker about the applicant's use of the telephone. On September 6, 2005, Ms. Pilon approached Mr. Flannigan with her concerns about workload as described above. These concerns were communicated to Mr. Dick by Mr. Flannigan. Two days, later Mr. Dick was approached by one of the applicant's colleagues, who told him that the applicant had spent approximately two hours on the telephone trying to secure a doctor's appointment for her son. The applicant denies that she spent two hours on the phone but acknowledges that she had received a call from the hospital about scheduling an appointment for her son. She testified that she was on hold for much of the time but that the total length of the call was about 20 minutes. In any event, in light of her expressed concerns about workload, Mr. Dick told Mr. Flannigan that this amount of time on the telephone was not appropriate.
66On September 13, 2005 Mr. Flannigan talked to the applicant about the amount of time she was spending on the telephone and away from her desk. After this discussion, the applicant spoke to Mr. Dick about the issue. Mr. Dick testified that he told the applicant that there were concerns about her ability to get her work done. He told her that there were complaints that she was often away from her desk and that she made too many personal calls. He agreed that the conversation included the applicant's concerns about workload and the need to replace Ms. O. He testified that he confirmed that Ms. O. would not be replaced if she did not return to work in the Fall. Mr. Dick testified that the applicant "was incensed" by this decision.
67Mr. Dick testified that he asked that the applicant provide him with a detailed time study of her day so he could try and determine if in fact there was too much work for her or if there were opportunities for efficiencies which would make it easier for her to complete her tasks. The applicant declined to perform this task. Mr. Dick stated that he cautioned her about the position she was taking and informed her that he would hold her accountable for the completion of her job duties.
68The applicant agrees that she and Mr. Dick spoke about these issues on September 13, after receiving no satisfaction from Mr. Flannigan. The applicant testified that she reiterated her concerns that there needed to be someone to cover for Ms. O. until she returned. The applicant stated that she told Mr. Dick that she was very stressed out and told him that if she fell ill there would be no one left. The applicant testified that his response to this information was to ask her to record her daily duties over a three-day period. It is agreed that the applicant refused to take on this task. In her view it would be impossible to do so and keep up with her work. The applicant was clear that she did not tell the respondents that she was becoming ill or that the workload or workplace stress would make her ill and unable to perform her regular duties.
69Subsequent to this discussion with the applicant, Mr. Dick asked Mr. Flannigan to organize a meeting of the Tax Department employees to address these issues. The purpose of the meeting, according to Mr. Dick and Mr. Flannigan, was to discuss the related issues of the applicant's workload, how the work of Ms. O. would be dealt with now that the summer students were gone, and the other issues affecting the applicant's efficiency. The meeting did not go well. Various options about redistributing work in the department were discussed; however, as was acknowledged by the respondents later, the meeting was largely concerned with the applicant's perceived shortcomings.
70The situation continued to escalate. On the morning of September 14, 2005, Mr. Dick was told by Mr. Flannigan that he had spoken with Ms. Landry. Ms Landry in turn had received information from the union that the applicant was saying that Mr. Dick and Mr. Flannigan had told her that she was going to be required to perform her own duties, as well as those of the Cashier position which had been performed by Ms. O. The applicant was also alleged to have stated that she had been told that she had a deadline of the end of October to have all of this work up to date.
71Mr. Dick and Mr. Flannigan believed that this version of events was a wilful fabrication on the part of the applicant. Mr. Dick testified that he decided that he would make her job much easier by removing her telephone from her desk. Arrangements were made on September 14, 2005, to have the telephone removed and placed away from the applicant's desk.
72Very shortly after this decision was made, but before the applicant would have been aware of it, she spoke with Mr. Dick and told him she would not attend a meeting like the one the day before without union representation; that she was actively seeking to leave the department; and that once out of the department she would tell the mayor her story.
73First thing the following day, September 15, 2005, the applicant went into Mr. Flannigan's office and told him that she would be filing harassment charges as a result of the staff meeting on September 13th. She also advised Mr. Flannigan of the advice the union had given her with respect to what she believed to be a request by the employer that she perform the work of Ms. O. as well as her own.
74Moments later a technician arrived to move her phone. It is agreed that the applicant became upset by this, locked up her cash box and left the workplace. She has not returned to work with the respondent employer.
75The applicant alleges that she experienced harassment by Mr. Flannigan and Mr. Dick. For example, the applicant believes that the request by Mr. Dick that she conduct a time study of her job was harassment. It is not clear how this would be the case. The request may have made little sense to the applicant given her circumstances at the time but that does not make it harassment under the Code. More generally, the applicant believes that the failure on the part of the employer to re-distribute work and take steps to replace Ms. O. was harassment of her by the respondents.
76I asked the applicant what she meant by harassment, and she responded that it meant continuous ongoing differential treatment of one person compared to another, particularly when they know that the differential treatment will aggravate the individual's medical condition. I also asked the applicant how she felt the treatment of her by the respondents was harassment. The applicant responded that she was again being told by management that co-workers were going behind her back and complaining about her. She also testified that her co-workers had noted that she was using the washroom more often. The applicant stated that they had never responded to her earlier complaint and request for accommodation, and now she was being told that people were complaining about her regarding, amongst other issues, not being at her desk.
77I find on a balance of probabilities that the events over the summer months 2005, culminating in the applicant's departure from the workplace, were in part a consequence of the respondents' failure to appropriately respond to her complaint and request for accommodation in 2004. As discussed above, the employer mishandled the issues the applicant raised in May 2004 and accordingly, the issues around her washroom use were never resolved so far as the applicant was concerned. I also find that the applicant reasonably perceived that the issue had not been dealt with and consequently remained an issue in the workplace, as evidenced by the complaints about her being away from her desk, disappearing during the work day, etc. The applicant's use of the washroom may not have been front and centre as it had been in May 2004, in that it was not the only issue in the workplace. Also, her supervisors did not expressly tell her that her washroom use was sending the wrong message or was inappropriate; nonetheless, the issue remained unresolved and I find there is evidence that suggests it remained a source of some of the complaints about the applicant which began to surface for her in the context of the workplace conflict in September 2005.
78I find that while there were several other issues unrelated to the applicant's disabilities that gave rise to complaints about her work habits, some of the concerns expressed are more likely than not linked to her need for unpredictable and at times frequent use of the washroom. I accept the applicant's evidence that her colitis symptoms were exacerbated by the stress associated with her workload concerns and consequently she was likely away from her desk unpredictably and more often than at earlier times. I find that to the extent that the complaints about the applicant were linked to her washroom use these complaints constitute harassment of the applicant by those who complained.
79In this regard the comments of Mr. Dick above, to the effect that there was a constant in the workplace conflict, are revealing of the respondents' understanding of the issues. He is clearly suggesting that the applicant is the constant but in the same memo references her complaints from 2004 as being part of the problem. However, the problem was not the applicant's complaint and request for accommodation– the material problem was the respondents' failure to adequately respond to the applicant's complaint and need for accommodation.
80Consequently, I find for the reasons set out earlier that to the extent that this underlying unresolved issue was the source of complaints about the applicant, management's failure to properly respond to it in 2005 constitutes discrimination. As noted by the corporate respondent's own Report, the failure to adequately deal with the issue could (and did) create a poisoned environment. The respondent City, Mr. Flannigan and Mr. Dick were responsible for the applicant's perception that the complaints about her use of the washroom were occurring again because the issue had come to a head in 2002 and again in 2004 and was never resolved. The respondent City, Mr. Flannigan and Mr. Dick had not appropriately dealt with it in the past, and the non-resolution of the issue continued to affect this employment relationship.
81At the same time, complaints about the applicant's washroom use were clearly not the predominant issue in the workplace in September 2005. The workplace disputes about workload and taking of too much personal time for phone calls and internet use do not engage the Code. Being talked about behind your back and an alleged lack of teamwork do not necessarily engage the Code. Neither does management's decision to not replace Ms. O., potentially resulting in an increased work load for the applicant. Describing the employer's efforts at performance management as harassment, while understandable from the applicant's perspective, was not helpful in describing what her Code issues were at the time.
82As I understand the applicant's evidence, she was worried that unless Ms. O. was replaced the work would not get done. She was concerned about this and it caused her stress. The stress exacerbated her colitis symptoms, which likely affected her productivity. She was away from her desk unpredictably and more often. She approached the respondents, Mr. Flannigan and then Mr. Dick, about her workload concerns. They were not sympathetic and engaged in a management process that they acknowledged in their evidence may have made things worse. The applicant called their response, in the form of some performance management measures, harassment, which included, in her view, the respondents' differential treatment of her.
83However, the applicant never made explicit the fact that she was ill or that the issues in the workplace were making her ill. The applicant states that everyone knew about her medical condition. She states that Mr. Dick knew that stress would aggravate her condition because his sister had a similar diagnosis and they had discussed her condition from time to time. Mr. Dick, when asked whether he understood that stress would aggravate her condition, indicated that stress affects many things. Despite Mr. Dick's evidence, the respondents had been made aware both by the applicant and her physician in 2004 that stress and anxiety could aggravate her colitis symptoms. While I am not prepared to infer that they had actual knowledge that the workplace issues were exacerbating her medical condition, it seems to me that the circumstances required the respondents to make enquiries. They did not do so.
84The applicant also states that the respondent Mr. Dick's decision to remove her telephone was a reprisal. The applicant does not state what this action was a reprisal for or how it might relate to any Code issues. Based on the evidence I find that the respondent Mr. Dick made the decision in response to what he perceived to be the applicant having made up a story about what Mr. Flannigan had asked of her after the meeting of September 13th. Whether the appropriate response or not, the employer is entitled to manage the workplace and I can find nothing in these circumstances that would cause me to conclude that this decision was made because the applicant had asserted her Code rights.
September 15, 2005 to Dismissal
85The events after September 15, 2005, raise somewhat different issues. The respondents state that there is no evidence that the applicant was ill at any time over the summer and fall 2005 and therefore no Code issue arose. I do not agree. As discussed further below, I find that by the time the applicant left the workplace she was quite ill. If there was any question about the respondents' obligations to make enquiries about the effect of the workplace on her health, these should have been resolved shortly after the applicant departed the workplace.
86The respondents take the position that the applicant was simply angry with their efforts at performance management and abandoned her employment. While she may have been angry about some of the steps the respondents took, the reality is more complex than that. The fact is that while she was likely angry about all of these things, she was also ill and could not work.
87The applicant's evidence was that she was under considerable stress and that this had exacerbated her colitis symptoms. The only available medical evidence is that her colitis symptoms had worsened significantly and were preventing her from working at least for a period of time. As such, as of September 15, 2005, and almost certainly for some period of time before that, the applicant's health issues were impacting her ability to work and the respondents had actual notice of this subsequent to September 15, 2005. The cause of her inability to work at that point was the effect on her medical condition of a number of the unresolved issues in this workplace. This situation changed to some degree over the following months. The applicant at first was unable to work at all. Later she was able to work but her family physician recommended that she not return to this workplace because of the unresolved workplace issues.
88The applicant's emotional state when she left the workplace on September 15 was noticeable to everyone. The respondents appear to have appreciated at the time that her emotional reaction was not entirely unjustified. In notes of a meeting held on September 20, 2005, involving Mr. Dick, Ms. Landry, Mr. Menagh, Manager of Human Resources, and others, it was acknowledged that the September 13th department meeting became about the applicant's "incompetence and inefficiency" and that her reaction to it was understandable. Mr. Dick is said to have suggested that the applicant was "crucified" by her colleagues and management at the meeting, a situation he regretted.
89The applicant also believes that her treatment by the respondents subsequent to her departure from the workplace on September 15, 2005, constitutes harassment within the meaning of the Code. In this regard, the applicant relied upon a series of actions by the respondents between September 2005 and January 2006. Although it appears that the respondents were treating the applicant as a labour relations problem and were prepared to play "hard ball" with her, I would not characterize the applicant's treatment during this period as harassment. However, I have concluded that the respondent City and Mr. Menagh failed in their procedural obligation to accommodate the applicant after her departure from the workplace on September 15, 2005. Because of these failures, which are largely failures to make enquiries or seek information from the applicant, the respondent City and Mr. Menagh never got to the point of considering whether or not the applicant could be accommodated in the workplace.
90After leaving the workplace the applicant saw her family physician at her first opportunity. The applicant filed a claim with the respondent employer for short term sickness benefits ("STD"). The applicant's family physician reported to the respondent employer on the application for STD on or about September 20, 2005, that the applicant was experiencing "exacerbation of colitis, insomnia, [illegible], emotional distress due to psychologically unhealthy work environment and harassment". The respondent employer was also advised at that time that the applicant's absence from work might be affected by "long standing issues that have never been addressed/resolved at work, not able to function in current work assignment". The physician further advised the employer that the applicant had experienced a similar job-related stress reaction in May 2004.
91Despite the reminder of the possible (and in this case actual) effects of stress on the applicant's medical condition and ability to perform her normal job duties, there were no positive steps taken by the respondent City and Mr. Menagh to accommodate the applicant in the workplace. No enquires were made of the applicant. Instead the employer took a standard labour relations approach to an employee who they believed was rebelling in the face of their performance management measures. I find that in doing so the respondent City again failed in its procedural obligations under the Code to accommodate the applicant.
92The applicant's claim for short term disability benefits was not paid. It does not appear as if the respondent City or Mr. Menagh, who administered this plan, ever informed the applicant of the denial or the reasons for it; it was simply not paid. Mr. Menagh testified that he denied the short term disability claim because the applicant's physician had indicated on the form that it was a workplace injury. Accordingly, he testified that he believed the applicant should have made the claim of the WSIB.
93The applicant, on the advice of the union, later made an application for WSIB benefits, which was denied in mid-December 2005. Mr. Menagh testified that he did not re-consider or even think about his decision on her claim for short term disability benefits. He testified that the collective agreement provided that workplace-related injuries were not compensable under STD whether or not the WSIB allowed a claim. When asked to point out where in the collective agreement it said that, it became evident that the agreement in place from 2004 to 2007 did not say that. Mr. Menagh then modified his evidence somewhat to state that although the collective agreement did not say that at the time, that is how he interpreted and administered it.
94The applicant also applied for employment insurance (EI) sick benefits. Mr. Menagh, on behalf of the City, challenged her application for benefits. The City of Cornwall had never done so before this case. The Board of Referees held a hearing in January 2006 and concluded that the applicant had just cause for not being at work largely based on her physician's statements set out above. The Board of Referees rejected the respondent employer's position that the applicant had left work because she was upset with its attempts to performance manage her.
95When asked about his decision to appeal the applicant's entitlement to EI benefits, Mr. Menagh testified that as a taxpayer he felt it was his obligation to do so because in his view the applicant had quit her employment. When asked by me, Mr. Menagh conceded that he did not consider the fact that the only medical information he had was that the applicant was unable to work due to illness at the time her application for benefits was made.
96The applicant also relied upon a summons to witness in relation to a tax prosecution served on her by a member of the Cornwall Police Services in January 2006. The applicant testified that this was very stressful for her and she believes that the respondents selected her deliberately as a reprisal. The summons was sworn and endorsed by a Justice of the Peace in April 2005. There is no evidence about who caused it to be served on the applicant. The individual respondents all testified that they had no knowledge of how it came to be served on the applicant. Despite the applicant's suspicions - which are not entirely unreasonable - there is no evidence that anyone at the City had anything to do with the summons being served on her.
97Can these actions by the City and Mr. Menagh be considered harassment of the applicant – that is, a course of vexatious conduct that they knew or ought to have known would be unwelcome? Having considered this issue at length, I have determined that in these circumstances they cannot. Although perhaps not fair, I cannot conclude that Mr. Menagh's aggressive approach to limiting short term sick claims can be considered as vexatious conduct within the meaning of section 5(2) of the Code. Although I heard limited evidence, not allowing the applicant to call evidence on the application of the policy to others, it does appear to be agreed that it is the corporate respondent's policy to deny these benefits to individuals who may be in need of them. It may not be fair but it is not an incident of harassing behaviour that can be seen to be an element of a course of vexatious conduct. I have also found, as discussed above, that the applicant has not established on a balance of probabilities that the respondents were responsible for the service of the summons on her in January 2006. As regards the respondents' challenge to the applicant's EI claim, while baseless and from the applicant's perspective vexatious, I am unable to conclude this one incident can be considered a course of vexatious conduct within the meaning of section 5(2). One of the questions which the respondents asked was how can the exercise of a statutory right to appeal be considered a harassing event? I did not hear submissions on this point but the respondents ask a good question. Another concern is that this incident is a single incident. The language of section 5(2) refers to a "course" of conduct suggesting more than one event. Without foreclosing the possibility that a discrete event or action might be found to be harassment in some other case, I am not persuaded that in these circumstances this one incident can be considered to be a course of vexatious conduct.
98The applicant asked the respondent employer for an investigation of what she described as harassment by her supervisor in September 2005 on October 17, 2005. She repeated the request in writing on December 5, 2005. The respondent employer wrote to the applicant on December 14, 2005, and advised her that it would not conduct any further investigation of her complaints because she had failed to attend the step 3 meeting concerning her harassment grievance. The applicant had not attended the step 3 meeting on the advice of her union. The respondent Mr. Menagh gave a different reason for not conducting an investigation. He testified that he felt no obligation to conduct an investigation because the applicant had filed a grievance on the same issues. He felt that the applicant was only entitled to one process and in his view the grievance process was preferable. Consistent with the respondent employer's letter of December 14, 2005, the employer did not conduct an investigation, although Mr. Menagh later represented to the applicant that it had.
99As noted elsewhere in this and in 2010 HRTO 680, there were grievances filed by the applicant. The grievances related to events in September 2005, which were denied by the employer and ultimately withdrawn by the union along with a number of others related to other unresolved issues in the workplace. The union's role in these disputes is somewhat unclear although it appears to me, based on the results of an investigation said to have been conducted by the union, that it had no better grasp of the human rights issues than the employer had.
100As indicated, the union is said to have conducted an investigation of the applicant's concerns and the employer did not. The union is not a party to this proceeding and I heard no evidence from anyone other than the applicant regarding this investigation. The applicant knows nothing of the content of the union's investigation. It does not appear that there was extensive discussion with the applicant about the issues she had raised. It is clear that this investigation was nowhere as thorough as the "informal" review undertaken by the employer in May and June 2004.
101The resulting report of the union's investigation dated June 26, 2006, is not particularly insightful. In particular, I note the union's response to the applicant's concern that the employer had questioned her use of the washroom outside of her break times. The union took the view that the employer's request that she restrict her use of the washroom to her breaks was silly but was not harassment. The union's position was wrong and completely missed the point..
102To the extent that the respondent employer relied on the union's conclusions to justify taking steps to terminate the applicant's employment, it did so at its peril.
103The day after the union's report was sent to the applicant she received a letter from Mr. Menagh:
It has come to my attention that you have been continuously absent from work since September 15, 2005. Your absence was precipitated by what you claimed was harassment in the workplace.
Your claims were investigated by both your employer and your union. These reviews concluded that your claims were without merit.
Accordingly, I am writing to instruct you to report for work in the Financial Department on Tuesday, July 4, 2006 at 8:30 a.m.
104The applicant responded:
I will be unable to report to work on July 4th, 2006 at 8:30 a.m. as indicated in your registered letter dated June 27th 2006, due to health issues.
Please refer to my previously submitted medical letters of assessment from my family physician doctor M J Randlett for any clarification.
105Mr. Menagh replied:
We are in receipt of your letter of June 30th 2006 responding to ours of June 27, 2006 which had requested that you report for work on July 4th.
You have indicated that you will not/cannot report as directed due to "health issues".
You direct that I refer to your previously submitted "medical letters of assessment" for clarification of your position. In this regard, the last medical information we received was dated November 14, 2005. It was in the form of a copy of an HRDC form which we presume you had submitted in support of a claim for E.I. benefits. The bottom half of that form contains an "Attending Physician's statement signed by Dr. Randlett.
The form which indicates that your expected date of recovery is November 14, 2005 also contains the following statement from Dr. Randlett:
Marie-Anne is able to return to work but cannot return to her previous (emphasis hers) employer. The harassing and unprofessional treatment she received there caused her illness and I recommend that she leave that placement. She is fully capable of returning to any other employment.
Dr. Randlett's opinion not withstanding, absolutely no evidence has been uncovered by either your employer or your union to support your claim that you have been harassed in the workplace.
Consequently, I am writing to inform you that should you fail to report for work on Tuesday July 4, 2006 as directed, the City will deem you to have abandoned your employment with it.
106The applicant responded the same day stating that she was not abandoning her employment but would not be reporting to work for health reasons. The applicant again referred Mr. Menagh to the previously provided medical information.
107There appears to have been no formal contact between the respondents and the applicant after this correspondence. The applicant never returned to work. A grievance regarding the applicant's dismissal but was filed and eventually withdrawn.
108After carefully considering the submissions of the parties, the viva voce evidence and the documents entered into evidence, I have concluded that the respondent City and Mr. Menagh failed in their obligations to accommodate the applicant to the point of undue hardship in their failure to investigate her complaints of harassment, and in failing to make further inquiries of her with respect to her state of health and need for accommodation at the time of her termination.
109I find that Mr. Menagh failed to investigate the applicant's claim of harassment although requested to do so on October 17, 2005, and December 5, 2005. The various explanations for not doing so are not persuasive and even more so, after the applicant did not attend the step 3 grievance meeting on the advice of the trade union, there was simply no basis for the employer to not conduct an investigation either on its own or, as can happen, jointly with the union. It is further troubling that although the City was quite candid that it declined to investigate her concerns, Mr. Menagh represented to the applicant on two occasions that the employer had conducted an investigation and had found nothing to substantiate her claims of harassment.
110I also find that in deciding to end the applicant's employment in July 2006, the respondent City and Mr. Menagh failed in their obligation to accommodate her. I find that the employer was entitled to expect that the applicant return to her duties and they were equally entitled to tell her so. The applicant responded to the employer's requirement by claiming an inability to do so due to an ongoing medical issue. When provided with that response the respondent City and Mr. Menagh should have considered their obligations under section 17(2) of the Code; they did not.
111The respondents have consistently taken the position that the applicant was unhappy with the performance management measures they had taken and in effect quit her job. As a consequence, Mr. Menagh failed to consider the fact that the applicant's physician was advising that the applicant was made ill by the workplace and could not safely return until the workplace issues were addressed. It is significant that the respondent employer took the same position in its attempt to defeat the applicant's claim to EI benefits and was told by the Board of Referees that she had just cause to leave the workplace on the basis of the medical evidence the applicant had provided. Despite the Board of Referee's conclusions, Mr. Menagh continued to disregard the applicant's claim of illness. I note as well that when Mr. Menagh responded to my question above about his reasoning in challenging her EI claim in light of the only medical evidence available to him, he conceded that he had never considered that issue.
112In the absence of a good faith investigation of her claims or any further inquiry of her health status, the City and Mr. Menagh were limited in its understanding of what the applicant's issues were. However, the respondents had been made aware both in May 2004 as well as in September and November 2005 that workplace stress could exacerbate her colitis symptoms requiring extended leaves of absence from the workplace. In my view, at the time of the employer's decision to dismiss the applicant, the primary question should not have been whether the applicant's claims of harassment had been vindicated but rather how to accommodate her medical inability to return to the workplace. Whatever the precise causes of the applicant's alleged inability to work for medical reasons, the respondent City and Mr. Menagh had an obligation to make further inquiries and take steps to accommodate her to the point of undue hardship.
113We of course do not know what the outcome of the accommodation process might have been. Given the applicant's views of the causes of her medical issues – harassment by the respondents Mr. Flannigan and Mr. Dick– it is possible that the issues could not have been resolved. However, the respondent employer took no such steps because it and its employees involved in this matter did not understand their responsibilities under the Code.
114As a consequence, in June 2006 all that Mr. Menagh knew was that the applicant could not return to work at the City because of a stress reaction exacerbating her colitis symptoms, which was said to have its source in unresolved workplace issues. Mr. Menagh might have reasonably believed that the medical information was dated and more was required. However, if further medical information was needed in June 2006 to substantiate a medically-required continuing leave of absence, Mr. Menagh should have asked for it. The City and Mr. Menagh did not tell the applicant that in their view the medical information was insufficient or dated; instead they focussed on their claim that their investigations had disclosed no harassment. I note again that the respondent City conducted no such investigation and if it had it might have resulted, as the 2004 investigation appears to have done, in some greater understanding of the underlying issues. Instead of asking the applicant for further information and engaging in the proper enquiry (namely, could the applicant be accommodated to the point of undue hardship). the respondent employer chose to terminate her employment. The respondent City did so in large part because the employees involved never turned their minds to her disability and the claimed effects of workplace stress on her, although advised on two separate occasions of the connection between stress and her medical condition.
115The respondents state that it was up to the applicant to cooperate in the accommodation process by providing further information. I agree that the applicant had an obligation to cooperate, but note again that Mr. Menagh did not ask for any further information. Mr. Menagh did not question the medical information that was provided because, as I have indicated above, he did not consider it. Instead he chose to focus on his view that there was no basis to the harassment claims of the applicant and that the applicant was simply a disgruntled employee unhappy with the respondents' performance management of her. In doing so he ignored what he should have been considering – namely, the limitation on the applicant's ability to return to work as a result of her medical issues and what accommodations might be required in order to facilitate her return. The respondents did not claim that they could not accommodate the applicant or that to maintain her leave of absence would cause undue hardship to the City.
Summary and Conclusions
116For the reasons set out above, I have concluded that the respondents were in violation of their procedural obligations to accommodate the applicant on several occasions. First, there was their failure to properly investigate her complaint of May 4, 2004. The respondent City and Mr. Menagh similarly failed to do so when requested by the applicant in October and December 2005, for reasons that I have found does not excuse them from their obligation under the Code. Similarly, when provided with evidence that the applicant was ill due to the unresolved workplace issues, Mr. Menagh failed to make enquiries. Finally, the corporate respondent and Mr. Menagh failed in their procedural obligations in the manner in which the applicant's employment was terminated.
117I have also found that the respondent City and Mr. Dick failed in their substantive obligation to accommodate the applicant to the point of undue hardship when requested to do so in the letter of May 4, 2004. This issue remained unresolved throughout the remaining months of the applicant's employment and played some role in the unravelling of the employment relationship in September 2005. The respondents did not claim that they were unable to accommodate the applicant as requested. .
118I have also concluded that the respondent employer and Mr. Menagh failed in their duty to accommodate the applicant to the point of undue hardship when they terminated her employment in the face of medical evidence that she could not return to work, without making any further inquiries of her. I find that the respondent employer and Mr. Menagh did not consider the disability issues and never turned their minds to their obligation to accommodate the applicant to the point of undue hardship. The respondents never claimed that the applicant's disability related needs at any point in this narrative could not be accommodated. .
119Finally, I also find that the respondent City, Mr. Flannigan and Mr. Dick condoned harassment of her by their failure to insulate her from the complaints of other employees that were related to her use of the washroom at times other than her formal break times. This was most acutely the case in May 2004 when she was told that an employee had made a complaint(s) about her washroom use, but was also present to a more limited degree in September 2005.
120I have largely rejected the claim of the applicant that she was harassed by the respondents Mr. Flannigan and Mr. Dick throughout the time frame of this Application, except to the extent that both of these individuals communicated and vindicated the complaints of others about the applicant's washroom use. In particular, I have concluded that the efforts to manage the applicant in September 2005, while unsuccessful, were not harassment under the Code. Similarly the applicant's claim that it was harassment to assign her extra duties and ignore her pleas for a replacement for an absent co-worker, whether fair or not, do not engage the Code and were not harassment. I have also concluded that the manner in which the employer and Mr. Menagh managed the applicant through the fall and winter of 2005-06 was not harassment under the Code.
121Similarly I have concluded that the evidence does not support the view of the applicant that various acts of the respondents, such as the removal of her telephone, the service of a summons, denial of short term sick pay and the other matters discussed above, were reprisals for her seeking to vindicate her Code rights. .
122At the outset of this proceeding the parties had agreed to bifurcate the proceeding, dealing first with liability and then if necessary, remedy. If the parties wish to engage in mediation of the remedies issues they may make a request to do so within 20 days of this Decision, failing which the Tribunal will contact the parties to schedule a one-day hearing on remedy.
123I am seized of this matter.
Dated at Toronto, this 14th day of September, 2011.
"Signed by"
David Muir
Vice-chair