Matthews v. Chrysler Canada, 2011 HRTO 2053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philip Matthews

Applicant

-and-

Chrysler Canada Inc.

Respondent

-and-

Canadian Autoworkers Union

Intervenor

DECISION

Adjudicator: Faisal Bhabha

Date: November 10, 2011

Citation: 2011 HRTO 2053

Indexed as: Matthews v. Chrysler Canada

APPEARANCES

Philip Matthews, Applicant ) Self-Represented

Chrysler Canada Inc., Respondent ) Clifford J. Hart, Counsel

Canadian Autoworkers Union, Intervenor ) Leon Rideout, Representative

INTRODUCTION

1The applicant filed two Applications, one filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), 2009-03254-I (the “Section 34 Application”), and another filed under section 53(5) of the Code, TR-0897-09 (the “Transitional Application”). In both Applications, the applicant made similar allegations of discrimination, failure to accommodate, harassment and reprisal by his former employer (“Chrysler”), and also named three individual managers and an insurance company.

2In an Interim Decision dated March 24, 2010, Matthews v. Chrysler Canada, 2010 HRTO 647, the Tribunal ordered that the personal respondents be removed; that the two Applications be consolidated; and that the applicant’s bargaining agent be permitted to participate in the hearing as an intervenor. Subsequently, by the parties’ agreement, the Section 34 Application was withdrawn, leaving only the allegations contained in the Transitional Application against Chrysler to proceed to a hearing.

3The hearing was convened over two days, April 26, 2011, and June 10, 2011. The only witness to give oral evidence was the applicant. The respondent did not call any witnesses, and made submissions in support of its request for the Tribunal to dismiss the applicant’s case as unproved. The intervenor did not take a position and did not make any substantive submissions. The parties agreed that the hearing would be bifurcated between the question of liability and remedy. In other words, the parties agreed that only if there was first a finding that the respondent breached the applicant’s Code rights would the parties call additional evidence to address the issues of harm and remedy.

4The parties agreed that the relevant time period in which the alleged discrimination occurred was October 2006 to February 2007. The applicant alleges numerous breaches. He claims the respondent ignored obvious signs of the applicant’s health-related needs and failed to accommodate him when he needed it, and further that he was disciplined for disability-related issues, such as falling asleep on the job. He also claims that he was denied accommodation with respect to standard operating call-in and break-time procedures. Instead, he says he was treated as if he had no disability-related needs when the respondent either knew or should have surmised that the applicant’s inconsistent hours were caused by his illness, and that an unauthorized toilet break from the production line was medically necessary. Finally, the applicant alleges that he was improperly accommodated following a shoulder injury and that he was harassed and reprised against on the basis of his disabilities and his requests for accommodation.

5The respondent took the position that it recognized and met its duty to accommodate based on what information the applicant provided and the medical and accommodation needs that he and his doctors identified. The respondent maintained that it did everything it could with the information before it. It argued that the Code does not require employers to predict or presume anything about an employee’s health or disability status. While it acknowledged having a duty to act, the respondent argued that the duty to accommodate is only triggered by information given, or requests made, by the applicant, and where the applicant is co-operative in facilitating the development of an appropriate accommodation plan.

6For the reasons that follow, I find that the applicant has not demonstrated that the respondent failed in its duties under the Code. The respondent acted appropriately under the Code given the information it had. If the applicant suffered difficulties or harm during his employment with the respondent, it was not a result of any breaches of the Code by the respondent.

THE FACTS AND EVIDENCE

7The following is based on the evidence elicited during the applicant’s testimony on his own behalf, and in response to questions on cross-examination by respondent’s counsel and from the Tribunal. It is also based on materials filed by the parties where there is agreement as to the facts.

8The applicant commenced employment with the respondent at its automobile manufacturing plant in Brampton in 1996.

9The applicant identifies as a person with disabilities. He is bi-polar and suffers from depression, anxiety, drug and alcohol dependence (in remission), and history of abuse. In addition, he is diabetic.

10In early 2006, the applicant was on sick leave, dealing with his mental health symptoms. During that time, he filed a Sickness and Accident Report (the “Report”), which identified his psychiatric illness and detailed the medications he was taking at the time. On May 31, 2006, the applicant attended an independent psychiatric examination at Chedoke McMaster Hospital, conducted by Dr. Cote. The Report, which was produced to the respondent at the time, provided extensive detail into the applicant’s mental health, and mentioned his diabetes.

11In June 2006, the applicant returned to work. He was assigned the position of “mats install” in the “mats and decklids” section of the plant’s paint department.

12On October 2, 2006, the applicant wrote a letter to the Human Resources department at the respondent, identifying “health issues” (though not specifying what exactly) and citing the fact that he had missed a number of days of work. Requesting accommodation of his “very obvious disability”, the applicant stated that he was “not always able to ‘call in’ as is unreasonably required, with no individual consideration or accommodation for disability, by the ‘absenteeism regulations’.” He also demanded to be relieved of the obligation of providing medical notes, as this would be “somewhat difficult” in the circumstances. His letter went on to threaten to commence human rights proceedings unless “any and all ‘discipline notices’ that may or may not be generated and/or considered…be withdrawn and the accommodation acknowledged in writing immediately”.

13In the respondent’s response, dated October 4, 2006, the applicant was directed to follow protocol by bringing his request through his “exclusive bargaining agent”, the union.

14On October 4, 2006, the applicant was working on the line when he needed to urinate. He knew that there were only four minutes left on his shift before break, but he felt that he could not wait. He left the line and went to the toilet. He believed that his absence would not cause any issues on the line because it was so near to break time. The applicant did not dispute that he did not have authorization to leave the line. He was issued a written warning, which the union grieved and was eventually reduced to a verbal warning.

15The applicant asserted in evidence that, as a diabetic, he urinated frequently. He stated that the information was known to the company doctor and was clearly documented in his medical file, and that the respondent should have known what his accommodation needs were, based on this information.

16On October 5, 2006, the applicant failed to call in to work when he was going to be absent for the start of the shift, in violation of the company policy. He was disciplined for it. The union filed a grievance, which it ultimately withdrew. The applicant testified that due to his psychiatric illness he was unable to always comply with the call-in procedure. He testified that the respondent knew, based on the applicant’s medical file, what the applicant’s diagnoses were and therefore should have known what his accommodation needs were.

17The applicant admitted on cross-examination that he was aware of the call-in protocol and of the importance of production line workers calling in when they were going to be absent. He mostly complied with the policy and called in his absences. When he did not follow the procedure, he was disciplined. His position was that the respondent should have known of his disabilities and should have offered appropriate accommodations.

18In his correspondence of October 2, 2006, the applicant had demanded a blanket exception to the call-in rule. Although the respondent advised the applicant to make his request through his union, as is required under the collective agreement, the applicant failed to follow up, testifying that his union was unhelpful. He failed to produce further medical information detailing any specific restrictions, and he further maintained that the respondent had a duty to accommodate him in the manner requested in the applicant’s October 2 letter. He described this letter as putting the company “on notice” and that any failure to accommodate would be actionable.

19The applicant’s medical file did not address the applicant’s ability to phone in, or his toileting needs. The applicant maintained that company doctors had access to all the information they needed to recommend and implement appropriate accommodations. He admitted on cross-examination that not only did his supervisors in the plant know nothing about his medical needs, but also that he opposed providing them with any medical information on the basis of his privacy interests.

20The last week of October 2006, the applicant was on a temporary layoff when he developed pain in his left shoulder and arm. On October 31, 2006, the applicant was recalled to work, but still felt pain and sought medical attention from the company doctor, who sent the applicant home and ordered him off work for one week.

21On November 6, 2006, the applicant returned to work with several restrictions identified by the company doctor. These included no pushing or pulling, limited shoulder reaching left or right, no shoulder reaching above, no lifting above 20 pounds, no neck flexion or extension of more than 25% and no neck rotation of more than 50%. These restrictions related only to the applicant’s physical condition.

22The company doctor made it clear to the applicant that he was not to return to his “mats install” job for some time. The applicant disagreed with the identified restrictions and wanted to return to his job, though he did not voice his objection. In addition to “mats install”, the applicant also felt that he could perform the “decklids” job, another position in his area that he had previously held. On cross-examination, the applicant admitted that both positions were physical and that he likely could not have performed them safely, given the shape his shoulder was in at the time.

23At first, the respondent did not have an accommodated position available for the applicant within these restrictions. As a result, the applicant spent his first two days back at the plant in a waiting area. He was paid, but did not work. The applicant testified that he felt this was unfair; he disagreed with his restrictions and wanted to be working in the plant. He felt humiliated—even publicly shamed—by being kept waiting, out of work, in full view.

24On the third day, the applicant was assigned to J-Hook Skid Watch [“skid watch”], a position that required sitting, standing and potentially pushing a button (in the case of an emergency). The applicant testified that he did not want to work skid watch because it was known to be a job assigned to workers with restrictions. Again, he felt unfairly stigmatized as a person with a disability. There was no evidence, however, that the applicant refused the work and, on cross-examination, he conceded that the job was within his physical restrictions.

25On November 10, 2006, the applicant’s second day on the skid watch job, he fell asleep while working. The applicant testified that he was experiencing a lot of pain on the job, though admitted that the pain was not likely caused by the job itself. The various medications he was taking, including powerful painkillers, caused him to fall asleep. The applicant was disciplined. He went home and was off work for nearly three months, until early February 2007.

26The applicant testified that he should not have been put in the skid watch job, that it did not properly accommodate him. He stated that there were many jobs in the plant that could have accommodated his needs, but that these jobs were guaranteed to more senior staff. The respondent challenged these assertions on cross-examination and the applicant was unable to provide any particulars or supporting facts beyond the bald claim that “suitable work” existed but was promised to others. In response to a question as to which job in the plant he could have performed, the applicant responded, “they didn’t look”.

27On further cross-examination, the applicant admitted that the skid watch position required no physical exertion and was not responsible for his pain:

Because of the nature of the problem I had, and not because of the job itself, my shoulder, neck and back issues became quite severe. It had nothing to do with what I was doing, it was just regular movement.

28The applicant was cross-examined about a Sickness and Accident Report, dated November 6, 2006, and completed by his family doctor, which stated that the applicant was totally disabled and unfit for work between October 27 and November 13, 2006. The applicant had no meaningful response to a question on cross-examination as to why he returned to work on November 6 when his own doctor had declared him unfit until the 13. In a follow-up medical examination on November 10, 2006, the applicant’s doctor recommended the applicant work on modified duties for the first week of his return.

29On November 17, 2006, the applicant’s doctor declared the applicant unfit to work from November 14 to December 4, 2006. In a Workplace Safety and Insurance Board (“WSIB”) Health Professional’s Report (“HPR”), dated December 5, 2006, the applicant’s physician checked off “no return to work”. In a follow-up HPR dated December 13, 2006, the applicant’s physician again checked off “no return to work”.

30The applicant returned to work on February 5, 2007. He made general allegations of ongoing discrimination but the evidence on this period was scant. It appears the applicant continued to be inconsistent in calling in when he was unable to attend work and the respondent continued to handle this issue as a disciplinary matter. There remained no specific medical information on file specifically addressing the applicant’s ability to use the phone when he was unable to attend work due to medical issues.

31The applicant’s evidence, in sum, was that he had a variety of disabilities, both mental and physical, and that the respondent had all the necessary medical information on file to be able to deduce what the applicant’s restrictions and needs were in order to accommodate him. When the respondent did attempt to accommodate the applicant, he says it was, at best, not the most suitable work, and at worst, painful and humiliating.

THE ISSUES

32The dispute between the parties, and the issues for me to decide, centre on the way the respondent handled the applicant’s breaches of workplace rules and protocols, given his disabilities. With respect to discipline, the applicant admitted that his actions, namely leaving the line, falling asleep on the job and failing to attend work without calling in, were all breaches of rules and protocols. However, he maintained that the respondent had an obligation under the Code to vary the protocols to accommodate difference. He argued that the respondent should have treated the breaches as disability-related restrictions requiring accommodation rather than discipline. The respondent argued that the applicant was uncooperative and the medical information on file gave no support to the applicant’s accommodation claims.

33With respect to the applicant’s shoulder injury, the evidence demonstrates that the applicant’s doctor believed that the applicant was completely unfit to work at the material times, while the company doctor permitted him to return with a number of restrictions that essentially meant the applicant could perform no physical work. The parties agreed on the fact that the assigned skid watch position required no physical exertion, yet the applicant argued that it was not an appropriate accommodation and amounted to a breach of the Code.

34The issues therefore relate to three main questions: (1) Was the respondent’s duty to accommodate the applicant triggered and in what respect?; (2) If so, was the respondent’s duty to accommodate the applicant met?; and (3) Did the respondent harass or reprise against the applicant on the basis of his disabilities?

ANALYSIS AND DECISION

35In this section, I apply the facts to the law and explain the reasons for my decision that the respondent did not breach the applicant’s rights under the Code.

Relevant Code provisions

36The following provisions of the Code are relevant to my determination of the issues in this case:

5. (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.

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member 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.

17. (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.

(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.

Duty to Accommodate

37The Divisional Court confirmed, in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), (2008) 295 D.L.R. (4th) 425 (Ont. Sup. Ct.), that the duty to accommodate has two dimensions: procedural and substantive. Regarding the procedural aspect, the Court stated:

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties, and capabilities for alternate work.

38The substantive aspect of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. In this case, the question is whether the respondent has given sufficient reasons for not providing accommodation.

39The respondent’s basic position is that it had no information on which to offer accommodation other than information in relation to the pain in the applicant’s left shoulder and arm, which resulted in the applicant being put on skid watch. The respondent submitted that there was no specific request from the applicant or any supporting medical documentation for any of the accommodation issues the applicant raised in this Application. The respondent argued that the Report spoke in generalities about the applicant’s mental health and made no specific recommendations for workplace accommodations.

40There is no question the respondent had some awareness of the applicant’s disability-related issues. There was information on his employee file; key actors in his union and within the company most certainly knew basics if not details about the applicant’s disabilities. Although I heard no evidence from the respondent’s witnesses about the level of awareness, this fact was not disputed.

41The applicant relied on the fact of the respondent’s prior knowledge. He pointed to documents that were on file with the respondent and visits the applicant had with the company doctor as evidence that the respondent had sufficient information to know about the applicant’s need for accommodations. He put significant weight on the May 31, 2006 Report. The applicant claimed that the Report supported his need to have standard operating procedures, such as call in procedures and toilet breaks, permanently adjusted to accommodate his disability-related needs.

42The applicant also raised privacy concerns in support of this position. He argued that he should not have been expected to disclose any further information than was already available. The applicant alleged that the respondent should have taken appropriate action on the basis of the information it had and that managers with the respondent should have reviewed the applicant’s discipline and revoked it immediately on the basis of his disability-related needs. Again, he took position that the information on record was sufficient for the respondent to know why and how the applicant needed to be accommodated, if the respondent had been right-minded about it.

43The applicant’s argument hinged on two assumptions: first, that the contents of the applicant’s medical file were so “obvious” that instituting necessary accommodations would have been simple; and secondly, that everybody involved had full knowledge of, and access to, the applicant’s medical file.

44I have reviewed the evidence, in particular the Report of May 2006, and considered the parties’ positions. I see no basis on which to agree with the applicant that his needs were “obvious” and should have been known to the respondent. The Report and other medical documentation in the applicant’s medical file as a whole fail to address any restrictions whatsoever caused by the applicant’s diabetes or mental illness. The applicant suggested in testimony that his need for flexibility in toilet breaks was related to his diabetes, while his failure to call in to report absences was caused by his mental illness. Nothing in the documentary evidence supports these claims. The document contained no particulars and no prescriptions. It called for no workplace modifications. In fact, the entire Report is focused on the applicant’s mental health, not his physical ailments. Yet, the applicant argued that, because there was mention of diabetes in the Report, the respondent should have known that the applicant would require frequent and sometimes urgent toilet breaks.

45Because I have found the content of the applicant’s medical file to not disclose any clear disability-related needs or restrictions in relation to the issues raised in this case, it is unnecessary for me to consider whether, in fact, every relevant member of the respondent’s workforce was fully apprised of the applicant’s medical condition and needs. What is clear is that the applicant never made any specific accommodation requests or disclosed any of the needs he now says should have been accommodated. It is also clear from the applicant’s testimony that he did not consent to disclosure of his medical file to his direct supervisors—those who disciplined him for the toilet and call in incidents.

46No doubt the applicant feels that the respondent did nothing to help him, and got away with doing nothing, while the applicant was the one with the disability who needed assistance. However, the applicant’s view of the duty to accommodate places far too high a burden on the respondent. Not only is it unfair to expect an employer to impute and deduce a worker’s needs based on remote and scant knowledge, it is dangerous. Basing accommodation on assumptions creates a risk that an employer will act in a high-handed and potentially discriminatory manner. See Duliunas v. York-Med Systems, 2010 HRTO 1404.

47Furthermore, as the applicant himself emphasized, privacy is of primary importance. Privacy requirements limit access to employee medical information. This is a practice designed to protect employees from unnecessary personal disclosure, minimizing the risk of indirect discrimination or reprisal. However, it also means that employees are expected to waive some of this privacy in order to open an accommodation dialogue. The applicant’s refusal to disclose to his direct superiors his medical needs prevented him from carrying out necessary elements of the accommodation process.

48The duty to accommodate is not triggered simply because the applicant made a demand, and then breached because the respondent failed to accede to the applicant’s demand. The accommodation process is a two-way street. The employee must co-operate in the process and provide as much information as possible to facilitate the search for accommodation. (See Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; Wall v. The Lippé Group, 2008 HRTO 50; and Mellon v. Canada (Human Resources Development), [2006] C.H.R.D. No. 2.)

49In some cases, accommodation will be straightforward, even obvious. In other cases, the accommodation process can be more complex. If the nature of the disability is not clear or if the restrictions associated with the disability are not self-evident, or if they change, there can be a need for ongoing adaptation. See Alexander v. Zellers, 2009 HRTO 2167, at para. 33. This may at times require greater communication, less privacy, and solid trust between the parties.

50While the primary responsibility for making accommodations available rests with the employer, the employee is also responsible for making the process work. First, the employee must provide the employer with the necessary information to allow the employer to accurately understand what the restrictions are and how they can best be accommodated. The employee must also participate in discussions about finding solutions. If the workforce is unionized, the union is typically also involved in identifying appropriate accommodations and helping to solve problems that arise. See Alexander v. Zellers, supra, at para. 34.

51The applicant in this case did nothing further than draft a demanding letter outlining no particulars or expert support for his demands, and then ignore his employer’s request for further information. He declined to follow the established protocol, despite the respondent’s October 4th letter suggesting he do so, by bringing any accommodation requests to the respondent’s attention through his exclusive bargaining agent. In the circumstances, the respondent acted reasonably and did not breach any provisions of the Code in its handling of the toilet break or call in issues with the applicant.

52Further allegations remain with respect to events following the applicant’s development of physical limitations, namely the shoulder condition that he developed at the end of October 2006. The medical documents show that, for periods of time, the applicant was totally disabled and unable to work due to his bipolar disorder and depression. These periods of complete disability include May 4-29, 2006, October 27-November 13, 2006, and November 14, 2006 to February 5, 2007.

53It is salient that the last incident of alleged discrimination and failure to accommodate occurred during a period when the applicant’s own doctor was of the opinion that he was completely unable to work. This refers to the series of events leading to the applicant falling asleep on the job while on “skid watch”.

54It is inherently impossible to accommodate someone in the workplace who is unable to work. Either a person can work with restrictions or cannot work at all. It is clear on the facts that the applicant should not have been working any job at the time he alleges that he was not accommodated, namely from late October 2006 to February 2007. The applicant’s failure to point to any alternative position that he could have performed supports this conclusion.

Harassment and Reprisal

55Harassment in employment is defined in section 5(2) of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. There was no evidence before me to support a finding that any vexatious comments or conduct related to the applicant’s disability occurred. I have found that the respondent’s disciplinary action was not discriminatory and was appropriate in the circumstances. I therefore do not find that such action amounted to harassment within the meaning of the Code.

56Section 8 of the Code provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal. In Noble v. York University, 2010 HRTO 878, at para. 33, the Tribunal stated that in an application alleging reprisal, the following elements, summarized below, must be established:

I An action taken against, or threat made to, the applicant;

II The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

III An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

57The requirement of intent is essential in this analysis. Intent may be proved by direct evidence, or by inference based on the applicant's reasonable perception that the respondent's action served as retaliation because of the applicant’s assertion of his rights: Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld with respect to reprisal, (2000), 37 C.H.R.R. 481, 2000 CanLII 16800 (ON C.A.).

58Based on the facts of this case, there is no direct evidence that any of the respondent’s actions were taken deliberately to retaliate against the applicant or to thwart his attempts to have his rights under the Code enforced. The respondent’s actions of assigning the applicant to skid watch, having him wait in the foyer for an alternative job and disciplining him for breaches of toilet protocols were neither discriminatory nor were they vengeful. I have already concluded that these were legitimate actions in the circumstances. I am therefore also unwilling to infer an intention on the part of the respondent to reprise against the applicant for asserting his rights under the Code, given the factual findings and the conclusions above.

ORDER

59Based on the above, it is unnecessary to hear further evidence as to remedy. There is no finding of any breaches and the Application is accordingly dismissed.