Shannon v. Renfrew (County), 2011 HRTO 435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Shannon Applicant

-and-

Corporation of the County of Renfrew Respondent

-and-

Canadian Union of Public Employees Local 3586 Intervenor

DECISION

Adjudicator: Eric Whist Date: March 1, 2011 Citation: 2011 HRTO 435 Indexed as: Shannon v. Renfrew (County)

APPEARANCES

Brenda Shannon, Applicant ) Self-represented Corporation of the County of Renfrew, Respondent ) Steven Menard, Counsel Canadian Union of Public Employees Local 3586, Intervenor ) Susan Lott, Counsel

1This Application, which was filed on September 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination in employment on the basis of disability.

2In an Interim Decision dated March 2, 2010, 2010 HRTO 466, The Tribunal granted a Request to Intervene made by the applicant’s union, the Canadian Union of Public Employees (“CUPE”) Local 3586.

3In an Interim Decision dated April 28, 2010, 2010 HRTO 930, the Tribunal dismissed the respondent’s Request for an Early Dismissal pursuant to section 45.1 of the Code. The Tribunal did not accept the respondent’s submissions that the second stage grievance meeting held on July 10, 2009, at which the applicant’s grievance was withdrawn, constituted a proceeding that appropriately dealt with the substance of the Application.

4A hearing was held on February 7, 2011. At the hearing I heard testimony from the applicant and Amy Parker, a staff representative from CUPE who was involved in the meeting on July 10, 2009 that culminated in the withdrawal of the applicant’s grievance.

DECISION

5The Application is dismissed on the basis that the applicant has failed to establish a prima facie case of discrimination. It is not necessary for me to rule on the renewed Request made by the respondent and CUPE that the Application be dismissed pursuant to section 45.1 of the Code.

BACKGROUND

6The following facts are not in dispute. The applicant is a full-time Health Care Aide (“HCA”) who works at the Miramichi Lodge, a long-term care home operated by the respondent. The applicant was injured at work in February 2001 and, as a result, has several physical restrictions that limit her ability to do all the expected tasks of a HCA. The applicant has been successfully accommodated in the workplace by being assigned to work with residents who are mostly ambulatory and do not require the use of mechanical lifters or transfers.

7The applicant currently works full-time on an evening shift in Unit 2A, one of Miramichi Lodge’s six residential units. The applicant is unable to work in any of the other residential units because of the physical demands of working with the residents in these other units (e.g. residents with dementia).

8In May 2009, a full-time day shift HCA position in Unit 1B was posted for which the applicant applied. The applicant acknowledged that she would be unable to do the job in Unit 1B because of its physical demands. However, she testified that she applied because she wanted to gain access to the full-time day shift job in Unit 2A which she would be able to do and which she would prefer to her full-time evening position in Unit 2A. The full-time job in 2A is currently held by a person who does not require accommodation.

9According to the job posting provisions of the Collective Agreement, job assignments are made on the basis of seniority when two or more job applicants have the required qualifications and ability. The vacant job in Unit 1B was assigned to a HCA with less seniority than the applicant.

10At the hearing, the applicant expressed a frustration that persons with no physical restrictions have potential access to a much broader range of positions than those that have physical restrictions. The applicant testified that this was discriminatory. She testified that if the permanent day shift position in Unit 2A became available, a person with greater seniority than her but who did not need accommodation (and thus could work in any of the residences) could be assigned to the Unit 2A position. It appears the applicant also finds this to be discriminatory. The applicant indicated that she was of the view that the respondent should have placed her in the day shift position in Unit 2A as an outcome of her application for the job in Unit 1B.

11On May 28, 2009, the applicant was advised that her application for the HCA position in Unit 1B was denied as it was not within her physical restrictions and that she was already successfully accommodated in Unit 2A.

12On June 17, 2009, the applicant formally filed a grievance complaining that the decision violated several sections of the Collective Agreement, including the anti-discrimination provisions of the Collective Agreement. The remedy the applicant was seeking was transfer to the full-time day shift position in Unit 2A.

13On July 10, 2009, a second stage grievance meeting was held that involved the applicant, three union representatives (the Local 3853 President, Chief Steward and Ms. Parker) as well as Miramichi Lodge management. According to the respondent’s written materials, the meeting included a review of the accommodation efforts to date and an admission by the applicant that her interest in applying for the job in Unit 1B was the day shift job in Unit 2A. The meeting ended with the union withdrawing the grievance. The applicant contended that she only withdrew because her union told her that management would not budge and that she was led to believe that she could pursue an Application with the Tribunal.

14Ms. Parker testified that she participated in the July 10, 2009 meeting, but initially was led to believe that the applicant was grieving the job posting based on seniority. She testified that when she realized the applicant could not do the job in Unit 1B because of her medical restrictions and that the applicant was raising an accommodation issue she caucused with the applicant about withdrawing the grievance. She further discussed with the applicant the need to substantiate that any request for accommodation was related to an accommodation need. She discussed with the applicant the possibility of the applicant conferring with her physician as to whether any of her functional abilities had changed.

15The applicant testified that she had no issues with the adequacy of her accommodation on the evening shift in Unit 2A. She testified that she had no medical reasons for needing to transfer to the day shift, acknowledging that her interest in a day shift position was a work preference rather than a requirement related to her disability.

16Evidence was led to indicate that the Collective Agreement has no provision for a member to bump a member with less seniority from a position except during a layoff. Consequently, under the Collective Agreement the applicant would have no right to bump a person with less seniority occupying a position she would prefer.

ANALYSIS

17The respondent requested that the Application be dismissed on the basis that the applicant failed to establish a prima facie case of discrimination. The Tribunal considers a prima facie case to be one in which if an applicant’s allegations, as presented, are accepted as true, (absent any answer from the respondent(s)) they support a finding that the Code has been violated. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.) at para 28. It is only upon establishing a prima facie case of discrimination that the burden shifts to the respondent to provide a credible and rational explanation demonstrating that, on a balance of probabilities, its actions were not discriminatory.

18On the basis of the applicant’s allegations as set out in the Application and her evidence at the hearing I find that she has failed to establish that the facts she alleges to be true constitute discrimination under the Code.

19First it is important to note what the applicant is not alleging. She does not allege that her current position in Unit 2A fails to accommodate her disability. She does not allege that she has to be accommodated in a day shift rather than an evening shift position because of the nature of her disability. She does not allege that the position she applied for in Unit 1B was a job within her medical restrictions and was a job she was able to do. She does not allege that the respondent’s decision to assign the job in Unit 1B to someone else with less seniority was an act of discrimination. She does not allege that under the Collective Agreement that she had rights to the day shift position in Unit 2A and that the failure to assign her to this position under the Collective Agreement is discriminatory. There is no allegation that the respondent has treated the applicant differently than other staff. The applicant’s allegations are about what should be done in light of the limited opportunities she has to gain another position with the respondent.

20The applicant alleges that she, unlike other staff who do not have a comparable disability, has a limited range of jobs she can apply for. I agree that this alleged fact is true. However, this is clearly because of the physical demands of most of the HCA positions offered by the respondent, a fact the applicant did not dispute. The fact that the applicant does not have as many alternative job opportunities with the respondent is not evidence that the respondent has discriminated against the applicant.

21The applicant alleges that the respondent could have assigned her to the day shift position in Unit 2A and that the respondent could have moved the person currently in the Unit 2A day shift job to another position because this person did not require accommodation.

22There is no dispute that the respondent did not place the applicant into this day shift position. However, I find that the applicant has not established that the respondent’s failure to do so constitutes discrimination. The Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, states that a person is obligated to accept reasonable accommodation and that if such accommodation is offered the employer’s duty to accommodate is discharged. The applicant has not established why the respondent should be required to transfer her to a preferred job when it had already successfully accommodated her in her current position. Placing the applicant in this job would require the displacing of another staff person. The applicant has not explained why her interest should override rights under the Collective Agreement. There is no prima facie case that the refusal of the respondent to place her in the day time job in Unit 2A constitutes discrimination.

23The applicant did raise the further possibility that if the day shift position in Unit 2A did become available it is possible that someone with more seniority without any accommodation needs could get this position. This is speculative as to what could happen and does not raise a question of whether the applicant’s rights under the Code have been violated. As a consequence I do not need to address whether this constitutes discrimination.

24I did hear evidence about what occurred at the July 10, 2009 grievance meeting and did hear submissions from both the respondent and the intervenor as to why they were of the view that this meeting constituted a proceeding under section 45.1. I do not find it necessary to rule on this issue given my finding with respect to the absence of any prima facie case of discrimination.

25The Application is dismissed.

Dates at Toronto, this 1st day of March, 2011.