Tony Lagana v. Saputo Dairy Products Canada G.P., 2012 HRTO 1455

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tony Lagana

Applicant

-and-

Saputo Dairy Products Canada G.P. and Rob Castellano

Respondents ______________________________________________________________________

DECISION

Adjudicator: Eric Whist

Date: July 25, 2012

Citation: 2012 HRTO 1455

Indexed as: Lagana v. Saputo Dairy Products Canada G.P.

APPEARANCES

Tony Lagana, Applicant ) Self-represented

Saputo Dairy Products ) Ranjan Agarwal,

Canada G.P., ) Counsel

Respondent )

1The applicant has filed two Applications under the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). Application TR-0419-09 was a complaint originally filed with the Ontario Human Rights Commission on November 19, 2007. This complaint was brought before the Tribunal through an Application made under section 53(5) of the Code. This Application alleges discrimination in employment on the basis of disability and age and focuses on the applicant’s employment during the period April to December 2007.

2Application 2008-00897-I is an Application filed under section 34 of Part IV of the Code on December 8, 2008. This Application alleges that the termination of the applicant’s employment on December 10, 2007 was in reprisal for the applicant having filed Application TR-0419-09.

3In an Interim Decision dated November 17, 2009, 2009 HRTO 1943, the Tribunal determined that these two Applications would be heard together. In an Interim Decision dated January 26, 2010, 2010 HRTO 155, the Tribunal removed the named personal respondents from both Applications and amended the style of cause for both Applications to make Saputo Dairy Products Canada G.P. the sole respondent.

4At the hearing I heard testimony from the applicant and three witnesses for the respondent, Pat Roehl, Frank Zbaraschuk, and Rob Castellano. I heard detailed evidence about a series of events that took place during the period April to December 2007. I also had extensive documentary evidence before me including medical documentation related to the applicant’s disability, return to work plans, case notes recorded by the applicant’s Workplace Safety and Insurance Board (WSIB) claims manager and correspondence exchanged between the applicant and respondent. Both parties submitted case law for my consideration. Both parties provided oral and written submissions.

5Both parties agreed with the basic chronology of events in this case. I have referenced the respondent’s submissions to set out this chronology and other uncontested background information.

6I also determined that the hearing would be bifurcated, that I would be deciding whether the applicant’s rights under the Code were violated and only if I found a Code violation would the hearing resume to consider evidence and submissions relating to remedy.

BACKGROUND

7The respondent produces a variety of food products including cheese and dairy products. The applicant worked in the respondent’s Woodbridge facility which supplies the respondent’s products to pizzerias. The facility includes a warehouse with a fridge and freezer for food storage. The warehouse operates with three shifts; a day, afternoon and night shift.

8The applicant began working for the respondent in September 2004. He was employed as an order picker on the afternoon shift. As an order picker, the applicant was responsible for preparing orders to be shipped to the respondent’s customers. His duties included “picking” products from the warehouse shelves based on a customer’s list, stacking the selected products on a pallet or skid (usually by using a forklift), and then shrink wrapping the skid. Products weigh up to 40 pounds. Some products have to be retrieved from the fridge or freezer. In a normal shift an order picker may pick products that require 10-15 skids.

9Some employees and supervisors have an additional duty of “checking summaries” which involves checking skids to ensure that customer’s orders were accurately filled. All employees are expected to contribute to keeping the facility clean. Some employees are given additional cleaning duties which required riding a sit down sweeper.

10Rob Castellano was the warehouse supervisor on the afternoon shift and the applicant’s direct supervisor. Pat Roehl was the Human Resources Advisor responsible for human resource issues at the Woodbridge facility. She reported to Frank Zbaraschuk, the respondent’s Vice-President for Human Resources-West.

CHRONOLOGY OF KEY EVENTS

11The applicant was off work with an injured back in August 2005. He testified that he also injured his back in December 2006 and at the beginning of 2007 and that he told Mr. Castellano of this injury. The applicant was clearly of the view that the difficulties he had with his back were attributable to the demanding nature of his job picking orders. The applicant was of the further view that he was assigned particularly challenging jobs including picking orders for “Enzo’s Truck”.

12Mr. Castellano acknowledged that the applicant told him in early 2007 that he had back pain. He testified that it was not unusual for order pickers to have occasional difficulties, including difficulties with their backs, given the physically demanding nature of their jobs.

13Mr. Castellano testified that he had an established informal system of accommodation. He testified that his practice as a supervisor was to accommodate employees who informed him that they had an injury or pain by allowing them to carry out the jobs and tasks they felt they were capable of doing and by choosing not to carry out tasks they were unable to. He testified that he would usually talk to the employee experiencing a problem and have them identify what they felt they could and could not do. He testified that an employee would only be expected to provide a doctor’s note if an injury was serious or persisted and that in these cases he would follow the directions provided in the medical note. He testified that he would confer with human resources, if required.

14Mr. Castellano testified that he recalled accommodating the applicant in early 2007 when the applicant identified that he was having back pain by telling him to carry out only the duties he felt he was able to do.

15On April 23, 2007 the applicant submitted three medical documents to the respondent. One was a doctor’s note stating that “due to a severe spinal condition I have advised Mr. Lagana to perform modified duties until further notice. He will be re-evaluated within four weeks”. The second note was a WSIB functional abilities form, “Form 7”, that had been filled out by the applicant’s doctor recommended that the applicant continue with full time hours but with certain limitations including avoiding shrink wrapping pallets/skids, avoiding exposure to the freezer and limiting bending, twisting or repetitive movement. The third document was a note from a physiotherapist who had been treating the applicant for eight weeks who indicated that the applicant should avoid any sustained or repetitive bending or heavy lifting.

16The applicant testified that on April 22 he told Mr. Castellano that he felt the injury was work related. Mr. Castellano testified that the applicant had told him that he had injured his back working at home.

17Mr. Castellano testified that the applicant was provided with modified duties. Mr. Castellano testified that the applicant was assigned to cleaning duties that required him to drive a sit down sweeper. He was also assigned to pick special orders. Special orders required the applicant to pick lighter items for customers who came to the warehouse facility. Mr. Castellano testified that these were often packages of cheese weighting less than 5kg. Mr. Castellano testified that the applicant was also loading and unloading trucks (which require no lifting). Mr. Castellano testified that he believed the applicant went into the fridge on one occasion and that he did not have to go into the freezer. He testified that he communicated to the applicant if there was a job he could not do that he shouldn’t and that he should request help. He testified that he did not recall the applicant asking others for help and never came to him to complain about his job duties.

18The applicant submits that the respondents failed in their duty to accommodate his injury during this period. The applicant testified that while he was assigned to do modified duties he was also required to undertake tasks that exceeded his functional limits as described in his functional abilities form. He testified that he did have to go into the freezer. He denied that Mr. Castellano ever told him that he could decline to undertake certain tasks. The issue of whether the applicant was required to undertake tasks beyond his functional limits in the period April 23 to and May 31, 2007 is an important issue in this case.

19On April 27 Ms. Roehl faxed a copy of the applicant’s Form 7 along with the three notes provided by the applicant on April 23 to the WSIB. She identified on the form that the applicant had an illness rather than an accident as it was the respondent’s position that the applicant had not been injured at work. The applicant’s WSIB claim was eventually allowed for both health care and lost time and the applicant received loss of employment benefits during the period June 1 to September 4, 2007, a period during which he either was not working or was working reduced hours.

20The WSIB was actively involved in the applicant’s return to work efforts during the period of April to September 2007. The applicant accessed his WSIB file and this documentary evidence including records of the contact between the WSIB, the applicant and respondent over the period of May to September 2007 was before me. I have relied on this documentation to make certain findings.

21On May 22 the applicant provided a further medical note from his doctor saying he was able to continue with light duties until June 4.

22On May 22 the applicant also met with his supervisor, Mr. Castellano. The applicant testified that during this meeting Mr. Castellano made a number of comments that the applicant found to be harassing and discriminatory in nature. He testified that these comments indicated that Mr. Castellano did not accept that the applicant had a significant injury, that he was opposed to having to continue to provide accommodation for the applicant, that Mr. Castellano was of the view that the applicant was too old for his job. Mr. Castellano denied these comments, contending that the applicant misunderstood or misconstrued the comments he did make. An important issue in this case is whether Mr. Castellano’s behaviour on May 22 can be considered harassment and evidence that he treated the applicant in a discriminatory manner.

23The applicant continued to work until May 31 at which time he provided a further medical note from his doctor recommending that the applicant be off work until June 18.

24The applicant met with Ms. Roehl on June 4 to discuss concerns the applicant had about Mr. Castellano and his future return to work. It is agreed that the applicant told Ms. Roehl that he was of the view that Mr. Castellano was requiring him to carry out tasks beyond his medical restrictions. The applicant contends that he also told Ms. Roehl about his meeting with Mr. Castellano on May 22 and that Mr. Castellano had harassed him. The applicant testified that Ms. Roehl told him that she would raise this concern with Mr. Zbaraschuk.

25Ms. Roehl denies that Mr. Castellano raised any allegations of harassment and discrimination. She testified that Mr. Castellano’s concern focused on his work assignments including his contention that he had been assigned to pick orders for Enzo’s truck, a job the applicant considered to be particularly demanding and had been required to wrap pallets, go into the freezer and to pick 500 items per shift. Ms. Roehl testified that she spoke to Mr. Castellano who maintained that he had assigned the applicant modified duties after the applicant provided his doctor’s note and the Form 7 on April 22 and that he explicitly indicated to the applicant that if a task was beyond his capacity because of his back that he should not do it.

26Ms. Roehl testified that she reported the applicant’s complaints about the nature of his work assignments as well as the subsequent information she received from Mr. Castellano to Mr. Zbaraschuk. Mr. Zbaraschuk testified that Ms. Roehl did report to him that the applicant had complained about Mr. Castellano and that he subsequently spoke to Sam Bianco, the day shift supervisor. He testified that Mr. Bianco told him that employees are expected to pick 500 items per shift and that while filling orders for Enzo’s truck is a major job (it requires 1800 picked items) three employees usually pick items for it, suggesting, in effect, that it was not a more onerous job assignment. Mr. Zbaraschuk testified that he also spoke to Mr. Castellano who told him that he had an informal practice of accommodating employees with minor injuries by allowing them to do what they can and that if someone came with a medical note he would look at what the person could do.

27On June 7 the applicant’s doctor completed a new functional abilities form which stated that the applicant was physically unable to return to work at the time. The doctor indicated that this assessment would apply for approximately 8-14 days and that the doctor was recommending a further appointment with the applicant in mid-June to review the applicant’s abilities and/or restrictions. The applicant provided this form to the respondent on June 12. On June 28 the applicant provided a note from his doctor stating that he was able to start work on July 3, 2007 with light duties for four hours a day with breaks.

28I also heard evidence as to whether the respondent had modified work for the applicant for the month of June. The respondents initially indicated to the applicant that there was no modified work they could offer him past June 1. There is further evidence that there were discussions during the month of June involving the applicant, the respondent and the WSIB claims manager about identifying modified work for the applicant that I will refer to later. The applicant contends that the respondent failed in its duty to accommodate him during June 2007.

29The applicant returned to work on July 3. When the applicant returned to work he was placed on the day shift in a modified position with reduced hours, pursuant to his doctor’s note of June 28. The applicant reported to the day shift supervisor, Sam Bianco. The applicant was in this modified position on the day shift from July 3 to Aug 31. The applicant testified that he had no health related issues while working in this position. The applicant testified that while on the day shift he was mainly loading and unloading trucks using a pallet mover or forklift.

30The applicant provided a further functional abilities form from his doctor to the respondent dated July 20. The applicant’s doctor recommended that the applicant continue with modified duties for four hours a day until September 4. On August 16, the applicant underwent an assessment at the Humber River Hospital in response to a request from WSIB. This assessment recommended that the applicant continue with his current modified duties for the next four weeks and then over the next two weeks incrementally increase his hours to full time.

31On August 27 the respondent presented the applicant with a return to work plan that continued his modified duties and reduced hours on the day shift until August 31 but then indicated that the applicant would return to modified duties with reduced hours on the afternoon shift beginning September 4 with the applicant reporting to Mr. Castellano. The plan called for the applicant to gradually increase his hours of work from September 4 to October 5 at which time he would return to his full time regular duties on the afternoon shift.

32The applicant objected to this return to work plan, complaining that he had not been consulted, that Mr. Castellano and Mr. Bianco had not been consulted, that he interpreted the Humber River’s assessment that he continue with current modified duties as recommending that he stay on the day shift and that he believed that Mr. Castellano would violate the requirements of the return to work plan by requiring him to do work that exceeded his physical limitations.

33The respondent provided the applicant with a revised return to work plan on August 31 and indicated that Mr. Bianco and Mr. Castellano had reviewed the revised plan and had agreed to it. The plan still required the applicant to return to the afternoon shift on September 4 but slightly altered how returning to full time work would be phased in. Mr. Zbaraschuk testified that the respondent did not agree with the applicant that the Humber River Hospital’s assessment that the applicant should continue with current modified duties required that the applicant remain on the day shift. Mr. Zbaraschuk testified that he reviewed the return to work plan with Mr. Castellano and communicated the respondent’s expectations that Mr. Castellano would meet his obligations to accommodate the applicant under this plan.

34On September 4 the applicant returned to a modified position on the afternoon shift as directed to do. The applicant worked for approximately two and half hours checking summaries before stating that he had reinjured his back and was unable to continue. The applicant was of the view that checking summaries was a job task beyond his functional limitations. This was the last day the applicant worked.

35On September 7 the applicant, Ms. Roehl and the applicant’s WSIB case manager held a conference call. The applicant indicated that he was of the view that the day shift was more suitable noting that it did not require him to check summaries. It was agreed that a WSIB ergonomist would visit the warehouse and assess whether the proposed work duties for the applicant on the afternoon shift, in particular checking summaries, were within the restrictions set out in the Humber River Hospital assessment and the applicant’s July 20 functional abilities form.

36On September 12 WSIB ruled that it would not provide the applicant with loss of earnings benefits past September 4 because it was of the view that the modified job on the afternoon shift as described in the August 31 return to work plan was suitable.

37On September 21, a WSIB ergonomist visited the warehouse to conduct an assessment of the applicant’s job duties. The ergonomist then told the applicant and the respondent that he had determined that the duties offered to the applicant on the afternoon shift, including checking summaries, were within the applicant’s medical restrictions.

38Later in this September 21 meeting the applicant stated that he had been subject to harassment and discrimination by Mr. Castellano. The respondent submits that this is the first time these allegations were raised with the respondent contrary to the applicant’s contention that he raised these allegations with Ms. Roehl on June 4. Mr. Zbaraschuk indicated at the meeting that he would conduct an investigation into the applicant’s allegations. Mr. Zbaraschuk testified that it was further agreed at the meeting that the applicant’s return to work plan would be modified so that when the applicant returned to work (following his September 4 injury) the applicant would still return to the afternoon shift but would report to Sam Bianco or Jerry Perritore (another supervisor) rather than Mr. Castellano until the allegations of harassment and discrimination raised by the applicant were investigated and addressed.

39On September 24 the applicant met with Mr. Zbaraschuk and Mr. Bianco to discuss his allegations of discrimination and harassment. Mr. Zbaraschuk testified that at this meeting the applicant stated he would never report to Mr. Castellano no matter what the outcome of the investigation. He testified that the applicant indicated he was willing to report to Mr. Bianco on the day shift.

40Mr. Zbaraschuk met with the applicant again on October 1 to discuss the applicant’s allegations of harassment and discrimination and asked the applicant again to return to the afternoon shift. He testified that again the applicant refused to return to the afternoon shift saying he would never work for Mr. Castellano. Mr. Zbaraschuk testified that the respondent’s goal was to return the applicant to his pre-injury position on the afternoon shift and that placing him in a position on the day shift was not an alternative that the respondent considered reasonable as it would have required displacing a person on that shift.

41Mr. Zbaraschuk testified that consideration was given to putting the applicant in another position. He testified that in October the applicant was told about two full time warehouse positions that were becoming available that the applicant could compete for. Mr. Zbaraschuk testified that the applicant told him these positions were not appropriate as he still required modified duties. Mr. Zbaraschuk testified that he was surprised by this as the applicant’s July 25 function abilities form and the Humber River Hospital August 16 assessment suggested that the applicant would have been able to return to full time duties by October.

42In a letter dated December 3, 2010 Mr. Zbaraschuk advised the applicant of his investigation findings. Mr. Zbaraschuk advised the applicant that based on the interviews he conducted with staff that the applicant’s allegations of discrimination and harassment were unfounded and that there was no evidence to support the applicant’s contention that he brought these allegations of discrimination and harassment to Ms. Roehl in June or to the respondent at any time prior to the September 21 meeting with the WSIB ergonomist. The applicant submits that the investigation was not broad enough in scope and that there was documentary evidence to support his contention that Ms. Roehl was aware of his allegations prior to September 21.

43Mr. Zbaraschuk concludes his December 3, 2009 letter to the applicant by stating that in light of the investigation findings it was the respondent’s expectation that the applicant would report for the afternoon shift on December 10, 2007 and if the applicant failed to do so the respondent would consider the applicant to have resigned his position.

44The applicant did not report to work on December 10. The respondent then sent the applicant a letter dated December 10 stating that it considered that the applicant had abandoned his position and, accordingly, his employment was terminated as of December 10, 2007.

45The applicant testified that he filed his complaint, T-0419-09, with the Commission on November 19, 2007 and was of the view that the respondent would have been aware of this complaint prior to its decision to terminate his employment on December 10. The applicant submits that the decision to terminate his employment was in reprisal for his filing of a complaint with the Commission.

46Mr. Zbaraschuk testified that the respondent did not receive a copy of the applicant’s Commission complaint until sometime later in the week of December 10-14 and as such, it could not have been a factor in the respondent’s decision to terminate the applicant’s employment.

ANALYSIS AND DECISION

47There was no dispute at the hearing that the applicant’s back injury constitutes a disability within the meaning of the Code. The key issues in this case relate to whether the respondent met its duty to accommodate the applicant’s disability. Failure to do so would constitute discrimination on the basis of disability.

48The applicant’s allegation of discrimination on the basis of age was raised in the hearing in one specific context which is when the applicant alleged that Mr. Castellano made an offensive comment about his age during a conversation on May 22. I will deal with allegations of age discrimination in the context of this incident.

49The applicant’s allegation of reprisal arises in relation to the termination of the applicant’s employment and I will address it in this context.

The Application relates to sections 5, and 17 and 8 of the Code. Section 5 provides:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of… 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… disability and age.

Section 17 sets out an employer’s duty to accommodate a disability. It provides:

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.

Section 8 sets out the Code’s provisions on reprisal. It provides:

8. Each person has a right to claim and enforce his rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe the right of another person under this Act without reprisal or threat of reprisal for doing so.

Section 10 of the Code defines harassment. It states:

10(1) “harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

50The applicant has the onus of proving, on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para.46.

51It is also appropriate to note here that in determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions…

The principal issues to be decided in this case are:

1. Did the respondent meet its duty to accommodate the applicant’s disability up to the point of undue hardship in April and May 2007?

2. Did the respondent meet its duty to accommodate the applicant’s disability up to the point of undue hardship in June 2007?

3. Did Mr. Castellano subject the applicant to harassment during their meeting on May 22?

4. Did the respondent meet its duty to investigate the applicant’s complaint of harassment and discrimination under the Code?

5. Did the respondent meet its duty to accommodate the applicant up to the point of undue hardship when it required that the applicant return to a position on the afternoon shift?

6. Was the decision to terminate the applicant’s employment discriminatory or in reprisal for the applicant exerting his rights under the Code?

1) Did the respondent meet its duty to accommodate the applicant’s disability up to the point of undue hardship in April and May 2007?

52An employer must reasonably accommodate the needs of an employee with a disability unless accommodation would result in “undue hardship”. The Supreme Court of Canada has accepted that the duty to accommodate has both a procedural and a substantive component. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 7868. The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin.

53In deciding whether the respondent met its duty to accommodate the applicant during the period April 23 to May 31, 2007 I would first note that I am satisfied, based on the evidence before me that the respondent did assign the applicant modified duties in response to the functional abilities form the applicant provided on April 22. The evidence is that the applicant was assigned to pick special orders that required reduced lifting. He was assigned additional cleaning duties and, it appears, additional work loading and unloading trucks. However, the more difficult issue is whether the applicant was assigned duties that required him to work beyond the restrictions outlined in his functional abilities form and that would lead me to find that the respondent failed in its duty to accommodate?

54Mr. Castellano testified that he did not assign duties that exceeded the applicant’s medical restrictions. He testified that the applicant was not required to shrink wrap and never had to go into the freezer, tasks that were beyond the applicant’s restrictions. The applicant indicated that he was required to enter the fridge and freezer during this period. Mr. Castellano testified that the applicant was told he could decline to do a task if he was of the view he could not do it. The applicant denied that he was given this discretion. These differing accounts raise an issue of credibility. Whose account do I find to be more credible?

55I do not find either account to be entirely credible on all points. I do not find the applicant’s contention that Mr. Castellano never told him that he could decline work that might affect his back to be credible. I prefer Mr. Castellano’s testimony that he did say this to the applicant as it was his general practice to tell an employee that they could decline work when injured. I accept that this was part of an informal accommodation practice used by Mr. Castellano in a work environment where it appears there was an ongoing need to manage short term and informal requests for accommodation because of the physical demands of the work.

56That said, I do not find Mr. Castellano credible when he testified that in April and May the applicant only entered the fridge on one occasion and never entered the freezer and that the applicant never performed tasks beyond his medical restrictions. I prefer and accept the applicant’s testimony that there were indeed occasions where he was required to carry out work beyond his restrictions that included, for example, having to go into the freezer.

57In making this credibility assessment in favour of the applicant’s testimony that he did carry out work beyond his restrictions, I find it significant that it was agreed by both sides that the applicant told Ms. Roehl on June 4 that he was required to work beyond his restrictions. This was the testimony of the applicant, Ms. Roehl and Mr. Zbaraschuk. In other words it was not disputed that the applicant was claiming that he was obliged to work beyond his restrictions shortly after the period in question.

58In making this credibility assessment I have also relied on the fact that the question of whether the applicant had to carry out work beyond his restrictions in April and May 2007 was very much an issue that was considered by the applicant’s WSIB case manager, as documented in her case notes. The case manager makes the following notes after a conversation with Ms. Roehl on June 12:

IW [Injured Worker] informed her [Ms. Roehl] that he didn’t feel that work he was doing previously was suitable

–he had medical restrictions that he could not go into freezer and couldn’t do the shrink wrapping job but was asked to do this

–she asked his supervisor about this who denied that he was being asked to do this; he was only responsible for light order picking

59On June 14 the WSIB case manager has a conversation with the applicant and makes the following notes:

With regard to the modified duties IW was doing until he stopped working it consisted of the following:

-Ist 3 hrs was required to pick orders in the fridge/freezer

-lifting restriction was to 10 kilos-did not exceed this

When getting product he’s required to bend and forward reach-this aggravates his back

He would also do some forklift driving and when driving backwards the twisting of his back would increase soreness

-he was required to shrink wrap which involved pulling a roll of wrap around the skid manually –this increased his back pain

-last portion of the day he levels and picks up cardboard from floor

-cardboard is large pieces and could range up to 300 pieces

-leveling involves adjusting boxes on skids –he’s required to squeeze through tight areas to get to certain boxes

-the awkward back positions aggravate his back

I will verify with AE [accident employer] whether Job Description is accurate if versions are inconsistent I will have ergonomist perform ass’t [assessment]

60On June 19 the case manager spoke to the applicant’s doctor and records in her notes:

I explained that AE has modified duties and explained what they were:

general clean up sit down sweeper, forklift, standing and writing summaries, filing

Dr. Nagdhi responded that IW is able to do office type work, and agreed with standard back precautions that I tend to follow

-she explained that IW was doing OK, but his condition had worsened while doing the modified work as she felt it wasn’t suitable

…I explained due to different versions of the job description I would arrange for an ergonomist to visit the worksite with wpps [workplace parties] present to make a ruling on the risk factors for aggravating a low back condition

She strongly agreed with this

-in the meantime I will clarify IW had appropriate modified duties for IW

61On June 20 the WSIB case manager leaves a message for Ms. Roehl to contact her about the details of the modified position as described to her by the applicant on June 14. It appears the case manager was unable to make contact with Ms. Roehl and subsequently contacts Mr. Castellano by telephone and records that:

Rob confirmed the IW’s duties as described

-he agreed the job may not be suitable for someone with a back injury but said that was all he had available and the IW is willing to try the job

62Mr. Castellano testified that his conversation with the WSIB case manager was very short, that he did not recall being given a list of the applicant’s job duties to confirm or that he indicated that the applicant’s job duties may not be suitable for the applicant.

63I find the WSIB case manager’s notes to be corroborating evidence that supports the applicant’s contention that he performed tasks beyond his medical restrictions in April and May. It is relevant, in my view, that the WSIB case manager is an independent third party making contemporaneous notes of her phone conversation with the applicant and Mr. Castellano.

64I find that the fact that these prior statements were made goes to the consistency of the applicant’s testimony and is evidence that contributes to my preferring the testimony of the applicant that he was working beyond his restrictions. I find it particularly significant that the WSIB case manager also records that Mr. Castellano acknowledged that the applicant was working beyond his restrictions.

65The respondent submits that the applicant should have called the WSIB case manager if he wanted to rely on the case manager’s notes, particularly given that Mr. Castellano did not agree with the case manger’s account of their telephone conversation on June 20. I do not agree that this was necessary. I am of the view that the applicant is entitled to admit these notes as evidence that the statements were made and as discussed above, I am also of the view that it is reasonable for me to attach some weight to the WSIB case manager’s contemporaneous notes about a series of related conversations about the specific issue of whether the applicant was working beyond his restrictions. This is particularly so in light of the testimony of Mr. Castellano who testified that he did not recall the particulars of his conversation with the WSIB case manager.

66I recognize that some of the concerns that the applicant expressed to the WSIB case manager were about tasks that appear to be within his restrictions and their impact on his back, for example complaints that driving a forklift and bending and lifting product less than 10 kilos. Nonetheless, the applicant was also clearly raising concerns about tasks beyond his restrictions.

67I also recognize that some of the applicant’s complaints to Ms. Roehl on June 4 were about tasks Mr. Castellano assigned to the applicant that occurred before April 22, most notably having to work on Enzo’s truck. But again I am satisfied that the applicant was also complaining about what was happening after April 22.

68The respondent maintains that there was a standard proviso that the applicant did not have to undertake a task he felt he could not do, that Mr. Castellano had told the applicant he could decline to do a task. This respondent submits this is, in effect, a procedural safeguard to help protect the applicant from injury and as such is an appropriate accommodation.

69As stated earlier I am of the view Mr. Castellano did have an informal practice of letting employees decline work and, in my view, a reliance on employees self-regulating their work may be a reasonable accommodation measure when employees have reported a minor injury and when there are no clearly identified medical restrictions. It may also be a reasonable accommodation with an employee who has identified medical restrictions when they are told that they can decline to undertake a task that is within their restrictions in order to protect them from aggravating their condition. However, this informal approach is not so appropriate in situations, such as the applicant’s, where an employee has defined medical restrictions and has job functions that potentially extend to tasks beyond these restrictions. It is not appropriate, in my view, to have an employee potentially undertake tasks beyond their modified duties with a proviso that they do not have to do these tasks if it further aggravates their condition. In my view the applicant did have tasks that took him into the fridge and freezer and I accept his claim that there were occasions that he had to shrink wrap product during this period. In my view the respondent needed to have a more formal established protocol that expressly made it clear that the applicant should not perform tasks beyond his medical restrictions.

70I do agree with the Tribunal’s decision in Colella v. Toronto Catholic District School Board, 2010 HRTO 2224, that the Code does not require a standard of perfection, and every technical violation of a medical restriction will not necessarily amount to a finding of a breach of the Code. However, I am satisfied, based on the evidence before me, that the applicant’s duties in April and May included some tasks that were beyond his restrictions and consequently the respondent failed in its duty to accommodate the applicant during this period. This constitutes a violation of the applicant’s rights under the Code.

71I would briefly note here that the applicant also complained that other persons who were given modified duties were not required to undertake modified duties tasks assigned to the applicant, for example, using the sit down sweeper. I accept the respondent’s testimony that this was because modified duties were assigned according to the nature of the injury and that these other two employees who respectively had a shoulder injury and a foot injury were not given a job using the sit down sweeper because of the difficulty they would have in driving the sweeper.

2) Did the respondent meet its duty to accommodate the applicant’s disability up to the point of undue hardship in June 2007?

72There was evidence before me to suggest that the respondent was not initially going to offer the applicant modified work in June. Mr. Castellano testified that there was limited modified work available in June because of the number of persons on the afternoon shift who had injuries requiring accommodation. Ms. Roehl submitted a form to WSIB in May (page four of the WSIB Form 7) stating that “Saputo will be able to accommodate the modified light duties until June 1 (inclusive) but will not have these light duties after this date and that this is due to the light duties not being designated to one employee each day. The light duties are shared with all employees. Mr. Lagana was made aware on May 22/07 that his modified duties would not be made available after June 1, 2007.”

73The fact that the respondent was of the view that they could and would not provide modified duties for the applicant after June 1 could potentially give rise to a finding that the respondent did not meet its duty to accommodate the applicant in June. However, in my view there is evidence that the respondent was attempting to accommodate the applicant after June 1. There is further evidence that raises a question as to whether the applicant was available to work in June and, if so, with what restrictions.

74According to the WSIB case manager’s notes of June 1, 2007 the respondent offered the applicant a modified position driving a forklift beginning June 4 but the applicant was concerned that he could not perform this job because he believed driving a forklift in reverse would aggravate his back. On June 4 Ms. Roehl provided the applicant with a blank functional abilities form for his doctor to fill in to clarify what modified work the applicant would be able to do.

75The applicant’s doctor completed a functional abilities form for the applicant on June 8. The doctor indicates that the applicant is physically unable to return to work and that his next assessment is scheduled for mid-June. This functional abilities form does not identify the applicant’s abilities and/or restrictions and provides no expected return to work date.

76The efforts to accommodate the applicant continued. According to the WSIB case manager’s notes of June 21 the respondent offered the applicant a sit down sweeper position for four hours a day and that the applicant was agreeable to this arrangement and was prepared to return to work on Monday June 24. I heard no evidence as to why the applicant did not return to this offered modified position. However, shortly thereafter, the applicant provided the respondent with a doctor’s note dated June 28 stating that the applicant could return to light duties with reduced hours on July 3.

77The applicant did contend that he was cleared to return to work on June 18, pursuant to the May 31 note from his doctor and the respondent failed in its duty to accommodate him after this date. However, following his May 31 note the applicant’s doctor provides a functional abilities form on June 8 indicating that the applicant was unable to work, provides no date of expected return and indicates that the applicant would be subject to a further assessment in mid-June. The functional abilities form does not identify the applicant’s abilities and restrictions. In my view the applicant has not shown that he had medical clearance to return to work on June 18 or, as importantly, what his functional abilities and limitations were at that time that the respondent would need to accommodate. Information about the applicant’s restrictions was not provided until June 28 when the applicant’s doctor indicates that the applicant is able to return to light duties with modified hours.

78I do not find that the respondent failed in its duty to accommodate the applicant in June given its efforts to find a modified position for the applicant and the fact that the applicant does not provide medical information about what work he could do upon his return to work until June 28.

3) Did Mr. Castellano subject the applicant to harassment during their meeting on May 22?

79The applicant detailed his allegations regarding his meeting with Mr. Castellano in his September 24, 2007 letter to Mr. Zbaraschuk. The applicant identified Mr. Castellano as making the following comments during their May 22 meeting:

“How do you know you didn’t hurt your back building your pond?”

“When you applied for this job I was supervisor, I would never have hired you because of your age”.

“When I became supervisor I could have let you go because you did not meet my numbers”

“When you get back to full time duties you will be doing exactly the same thing, nothing changes”

“To be honest Tony I don’t know what you are doing here. You’re such a great landscaper… Why don’t you do that

Mr. Castellano told the applicant that he was looking for handouts and that “What do you think, the company will hand you a job because you are hurt”

Mr. Castellano questioned the applicant’s medical notes and commented “What is this? What are you going to bring me next… another note for more time? What do you think… we have light duties forever?

80The applicant testified that he asked Mr. Castellano why he was not helping him and that he was of the view that Mr. Castellano essentially did not believe that he had a significant injury and that this explained the way in which Mr. Castellano was treating him. The applicant testified that he was distraught. He testified that the meeting lasted an hour to an hour and a half.

81Mr. Castellano testified that he did not make the statements attributed to him by the applicant. He testified that he did ask the applicant about whether he had hurt his back building his pond on another occasion, on a Monday when the applicant had come to work and had complained about working on his pond over the weekend and had asked for modified work. Mr. Castellano denied stating that he would never have hired the applicant for his age. He testified that the applicant was a good worker and that the only time age was discussed was when he was explaining the difference between age and seniority to the applicant and that older workers were not at a disadvantage in promotions now that the company was no longer relying on seniority in making promotional decisions. Mr. Castellano testified that the applicant raised the issue of not meeting an expectation to pick 500 items per shift and that Mr. Castellano had assured the applicant that not to worry that picking 500 items per shift was a goal, that he had never fired a person for low production but that he had spoken to employees who picking less (for example between 250-300 items) to say that they needed to be more productive. He testified that he had spoken to the applicant once, soon after becoming a supervisor in 2005 about low production but that this had not continued to be an issue with the applicant. Mr. Castellano testified that the issue of “handouts” came up in the context of a discussion about recent internal job postings for a warehouse clerk and a salesperson with the applicant believing Mr. Castellano had some authority to help the applicant get these jobs with Mr. Castellano explaining that he did not. Mr. Castellano denied having made the comment “what do you think the company will hand you a job because you are hurt” and a comment in response to the applicant bringing a medical note and asking the applicant if he believed that the respondent would provide light duties forever.

82Mr. Castellano testified that the whole tenor of his conversation with the applicant was his trying to console the applicant who was distressed about the fact that he had an injured back, was worried about his future and was feeling dejected and depressed. Mr. Castellano estimated that the meeting lasted for two hours.

83It is difficult to determine what exactly took place during this meeting. It is entirely possible, in my view, that during this conversation the applicant did complain about his work and that Mr. Castellano tried to console the applicant who was expressing concerns about his injured back and his future. I find it significant that the meeting on May 22 was at least an hour in duration which supports, in my view, that it was a broad ranging conversation addressing multiple issues.

84However, ultimately I do not find the applicant’s claim that he was harassed during this conversation to be credible. To begin with I am not prepared to accept the applicant’s verbatim recollections of the conversation and the alleged harassing comments that he recorded in a letter to Mr. Zbaraschuk four months later on September 24, 2007 and which I have quoted above. In my view these are more likely approximations of comments the applicant identifies as occurring. Moreover, the applicant has not shown how a number of these alleged harassing comments would constitute harassment under the Code. It is not clear, for example why Mr. Castellano suggesting that the applicant may have hurt his back at home or suggesting that the applicant would be better off working as a landscaper or making a comment about the applicant not meeting a work quota constitutes harassment under the Code. Comments to the effect that Mr. Castellano may not have wanted to hire the applicant because he is older, or believed that the applicant was exaggerating the nature of his injury or that Mr. Castellano was unwilling to continue to accommodate the applicant can more clearly be considered to be harassing in nature.

85However, I find Mr. Castellano’s testimony about the general tenor of the conversation on May 22 that the applicant was upset about his back and his future prospects, and that Mr. Castellano was trying to be supportive, to be credible. I find it significant that, according to both, the applicant and Mr. Castellano used to be good friends (they socialized together) and I accept that the nature of the meeting was not confrontational in nature.

86I find Mr. Castellano credible when he suggests that he believed the applicant to be a good worker, that he did not have an issue with his age and that his comments about the applicant’s age arose when he was explaining the distinction between age and seniority and its effect on the applicant’s opportunity for other jobs within the company. I find Mr. Castellano credible when he described the applicant as a good worker, that the discussion about handouts had arisen in reference to other jobs the applicant might apply for, that Mr. Castellano believed the applicant had other skills as a landscaper all to be credible. I accept Mr. Castellano’s testimony when he denied having stated that he would not have hired the applicant because of his age, that he believed the applicant had exaggerating his injury and that he would not be able to accommodate the applicant forever. It is possible, in my view, that Mr. Castellano could have said something that the applicant found difficult to accept or even offensive but I am not prepared to find, based on the evidence before me that comments made by Mr. Castellano during the May 22 meeting comments constitute harassment or evidence of discrimination on the basis of age or disability.

87It is significant in my view that the applicant’s claims of harassment are not confirmed by any contemporaneous record. The applicant testified that he told the WSIB case manager that he was subject to harassment by Mr. Castellano. However, this information is not recorded by the case manager in her notes. The applicant suggests that this was because the case manager only wrote what she wanted.

88The applicant also states in his Application that he told two fellow employees about this harassment. Mr. Zbaraschuk interviews these two employees as part of his investigation. According to Mr. Zbaraschuk’s investigation report one of these employees tells Mr. Zbaraschuk that the applicant had complained to him about the duties assigned by Mr. Castellano but had never complained that he had been subject to harassment or discrimination. The other employee tells Mr. Zbaraschuk that the applicant had approached him saying he wanted to meet to discuss an issue but that the applicant had never followed up with this employee to explain what the issue was.

89The applicant’s testified that he also complained to Ms. Roehl on June 4 that Mr. Castellano harassed him on May 22. Ms. Roehl denies this. I find Ms. Roehl credible on this point. It does not seem probable to me that Ms. Roehl would be prepared to immediately take action in response to the applicant’s allegations that Mr. Castellano made him carry out work beyond his medical limitations and would have chosen to disregard the further allegation that Mr. Castellano made harassing comments to the applicant on May 22. It does not seem probable that Ms. Roehl would not have reported this allegation to Mr. Zbaraschuk given that she immediately reported the applicant’s allegation about being made to work beyond his medical restrictions and the evidence before me that suggested that Ms. Roehl had a close reporting relationship with Mr. Zbaraschuk and relied on his guidance in carrying out her duties.

90Ms. Roehl testified that she took contemporaneous notes of her June 4 meeting with the applicant. She testified that she transcribed these notes and other notes from meetings during 2007 in preparing the respondent’s case before the Tribunal. These notes were before me. She testified that she rewrote her notes in order to compile them all in one place. She testified that she did not keep her original notes. The applicant submits that Ms. Roehl’s actions are suspicious, that an experienced human resources specialist like Ms. Roehl would know better than to destroy contemporaneous notes and that the Tribunal should infer that she was hiding the fact that she had recorded the fact that the applicant had made a complaint of harassment to her on June 4.

91The applicant also submitted that it was significant that Ms. Roehl recorded in an entry dated July 3, 2007 that “there was no response to harassment/discrimination as he never used these words”. Ms. Roehl initially had testified that she transcribed her original contemporaneous notes. The applicant then brought to her attention that this entry for July 3 records a reference to discrimination and harassment that clearly predates September 21 which is the date the respondent maintains the applicant first raised these allegations. Ms. Roehl then testified that her notes were written in a manner that responds to the allegations raised in the Application and her use of the phrase “there was no response to harassment/discrimination as he never used these words” is in response to the allegation of harassment and discrimination raised by the applicant in his Application.

92The applicant also noted that a copy of the August 31, 2007 return to work plan that was disclosed by the respondent includes a hand written note in the margin stating “Sam, Jerry report to the above until the issue ___[unknown word] harassment discrimination allegations by the co. render a decision.” The applicant submits this is also significant as it is a document that refers to harassment and discrimination that predates when the respondent submits the applicant first raised the allegation of harassment and discrimination.

93I do not find these documents corroborate or support the applicant’s position. I accept Ms. Roehl’s testimony that she prepared her notes for the purposes of the Tribunal process and I do not make the inference that she transcribed her notes in order to alter the notes that she did make on June 4. I also find that the way all of her notes are written indicate that they are written as responses to the applicant’s allegations as contained in his Application. I do not agree that the reference to harassment and discrimination made under a July 3 entry indicates that the applicant used these words in the entry she would have originally made on July 3.

94I accept the testimony that the margin notes on the August 31 document were, in fact made, in September when the August 31 document was being discussed. The margin notes explicitly refer to the decision that the applicant would report to Sam and Jerry while the respondent responds to the applicant’s allegations of discrimination and harassment, a decision that was clearly made in September not August.

95In summary, I do not find that Mr. Castellano harassed the applicant during their meeting on May 22 given, most importantly, that I find Mr. Castellano’s general description of what occurred to be credible and the evidence the applicant states helps corroborate his account, namely that he told a number of persons of this harassment does not support his version of what happened. I make the further finding that there is no persuasive evidence that the respondent discriminated against the applicant on the basis of his age.

96I would note here that the applicant’s complaint to the respondent in September was that he had been harassed and discriminated against by Mr. Castellano. There was some ambiguity as to what discrimination the applicant was referring to, whether he was alleging only that Mr. Castellano’s harassing comments on May 22 were discriminatory or whether he was making a broader complaint, that Mr. Castellano’s actions during April and May constituted discrimination in addition to the harassing comments Mr. Castellano made on May 22. I have, for the purposes of this section of my Decision, considered only the issue of the alleged May 22 comments and whether they were discriminatory. I have already determined that there was a failure to accommodate the applicant in April and May that constitutes discrimination. I further note that when the respondent investigated the applicant’s complaint of harassment and discrimination after September 21 it considered both the Mr. Castellano’s comments on May 22 and the respondent’s actions in general.

4) Did the respondent meet its duty to investigate the applicant’s complaint of harassment and discrimination under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

97The Tribunal has held that a respondent has a duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination free environment (see Laskowski, para 53). A failure to take reasonable steps to address allegations of discrimination may result in an employer being held liable for violating the Code (see Moffatt v. Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19, para 234).

98The Tribunal’s decision in Laskowska v. Marineland of Canada Inc, 2005 HRTO 30 (Laskowska), sets out the following three criteria to assess the reasonableness and adequacy of a respondent’s response to an allegation of harassment:

(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant? (para. 59)

The Tribunal in Laskowska goes on to state that :

While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably. (para. 60)

99I note in relation to the first element identified in Laskowska that the respondent has a Code of Ethics that refers to the principle of carrying out business with respect for individual rights to equality and non-discrimination. This policy addresses a broad range of ethical issues with a brief reference to the principle of non-discrimination. All employees are required to acknowledge that they have received, read and understood the Code of Ethics and agree to comply with its requirements. It does not identify a specific complaints process.

100Mr. Zbaraschuk testified that employees are aware that they can make complaints to their supervisor or to human resources and that this information is provided during the orientation provided to new employees. In my view the respondent would, like most employers, have benefited from a specific anti-discrimination policy with an established complaints mechanism that more explicitly indicates the rights and responsibilities of employees. However, I am of the view that the question of whether the respondent met its duty to investigate in this case turns on how the respondent responded to the applicant once he made his complaint.

101I find that the respondent’s response to the applicant’s allegations of harassment and discrimination made on September 21, 2007 was reasonable. Mr. Zbaraschuk requested the applicant’s allegations in writing which he received on September 24. He met with the applicant on September 24 and indicated that the applicant did not have to report to Mr. Castellano pending the outcome of Mr. Zbaraschuk’s investigation of the applicant’s allegations. Mr. Zbaraschuk interviewed all the persons that the applicant identified may be aware of his allegations by, it appears, October 1. These efforts indicate, in my view, that the respondent took the applicant’s allegations seriously and acted sensitively and promptly.

102The applicant raised a concern that the investigation moved slowly between September and December but I am satisfied that the delay in the respondent preparing and issuing its investigation report was reasonable given Mr. Zbaraschuk, a senior manager for the respondent, had other duties during this period which required him to be out of Ontario. I further note that the applicant was absent from the workplace during this period lessening, in my view, the need to resolve his allegations in a more timely fashion.

103The applicant raised a concern as to whether Mr. Zbaraschuk’s investigation was broad enough that Mr. Zbaraschuk should have questioned other employees. I accept the respondent’s position that it was of the view that it was appropriate to interview those persons the applicant identified were aware of his allegations.

104A key issue, of course, is the applicant’s contention that the respondent knew in June of the applicant’s allegations of discrimination and harassment and failed to take any action until these allegations were again raised by the applicant on September 21. Such a delay could give rise to whether the applicant’s complaint was treated seriously.

105However, I am satisfied that the first time the applicant explicitly raised an allegation of harassment and discrimination was in September not in June. I do not accept, as I have already indicated, that the applicant told Ms. Roehl on June 4 that he had been harassed and discriminated against by Mr. Castellano.

106In terms of the third element identified in Laskowska Mr. Zbaraschuk did provide a written account of his investigation to the applicant. It is clear that the respondent interpreted the applicant’s allegations of harassment and discrimination to extend beyond the May 22 meeting involving the applicant and Mr. Castellano, that they were investigating the relationship between the applicant, Mr. Castellano and the respondent during the period April to September 2007. The respondent did not find evidence that the respondent and Mr. Castellano had discriminated against the applicant or harassed him and indicated that the applicant had to return to his original position on the afternoon shift. This, in my view, was reasonable given the outcome of the respondent’s investigation.

107Importantly, I am of the further view that the respondent did take measures to see that the applicant would return to a healthy, discrimination free environment. I note that Mr. Zbaraschuk testified that he told Mr. Castellano that he was expected to adhere to the August 31, 2007 return to work plan for the applicant’s return to the afternoon shift. Mr. Zbaraschuk’s letter to the applicant that accompanied the respondent’s proposed August 31 return to work plan also states:

I can assure you that I have met with the Supervisor in charge [Mr. Castellano] and reviewed this plan, as well as the employer’s responsibility with respect to the RTW plan. He clearly understands his responsibilities and will co-operate to administer the RTW plan as designed.

Mr. Zbaraschuk goes on in his letter to the applicant to say:

We must insist on your co-operation in the Return to Work Program. If you are experiencing difficulties with assigned tasks discuss with your supervisor immediately. If you are asked to assist in or perform a task which you have been medically restricted from politely decline and report to your supervisor.

These are reasonable measures, in my view, to support the applicant’s return to a healthy work environment.

108I do note here that I have made a finding that the respondent failed in its duty to accommodate the applicant in April and May. However, this finding does not mean that when the respondent arrived at a different finding, namely that the applicant had not been subject to any discrimination by the respondent that the respondent failed in its duty to investigate. As stated in Laskowska the standard a respondent has to meet is reasonableness not correctness or perfection. I find that the respondent’s timely and considered efforts in investigating the applicant’s allegations of discrimination and harassment were reasonable and it has met its duty to investigate.

5) Did the respondent meet its duty to accommodate up to the point of undue hardship when it required the applicant to return to his position on the afternoon shift?

109The respondent submits that it is reasonable that the respondent return to his home position, that the identified job duties on this shift were within his physical restrictions, that they have a policy of returning employees to their home position, that there was not an ongoing position on the day shift. The applicant argues that there was no undue hardship for the respondent to place him on the day shift, that it would not be reasonable to expect him to report to a supervisor who, in the past, had subjected him to harassment and forced him to carry out duties beyond his physical restrictions.

110I find the respondent’s offer of accommodation on the afternoon shift meets the respondent’s duty to accommodate the applicant up to the point of undue hardship. In considering the issue of how a respondent must meet its duty to accommodate up to the point of undue hardship the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 (“Renaud”) writes:

While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

111It is clear the applicant wanted to return to a position on the day shift. He further indicated in September and October 2007 that he would never return to work under Mr. Castellano’s supervision. I am of the view that this stated precondition for returning to work is not reasonable. I find that the modified position proposed by the respondent would meet the applicant’s restrictions and therefore his accommodation needs. Indeed the applicant was not disputing that this would be the case. I agree with the Tribunal in Boyce v. Toronto Community Housing Corporation, 2012 HRTO 853 that absent medical advice to the contrary, it is implicit in the duty to cooperate that the employee will at least attempt a modified return to work before ruling it out as an inappropriate accommodation.

112The fact that the applicant has a further concern that if he was to return to the afternoon shift his supervisor might not respect the requirements of his modified position, even if based on past experience, does not, in my view mean that it is reasonable for the applicant to categorically refuse the respondent’s offer. Again I would note Mr. Zbaraschuk’s letter to the applicant dated August 31, 2007 which accompanied the respondent’s proposed return to work plan that indicates that Mr. Zbaraschuk had spoken to Mr. Castellano and that Mr. Castellano understood his responsibilities and would co-operate with administering the return to work plan as designed. The letter also clearly states that the applicant is to decline any task beyond his medical restrictions and report it to his supervisor.

113Under these circumstances the applicant has, to use the language of Renaud, a duty to facilitate the implementation of the respondent’s proposal. If the applicant has concerns that the position is not being implemented as offered he, in my view, needs to address this after having returned to the position.

114The applicant submits that to return him to work on the afternoon shift would be to return him to a poisoned work environment. It is well-settled law that the prohibition against discrimination in employment under the Code affords employees the right to be free from a poisoned work environment. As noted in Smith v. Menzies Chrysler, 2009 HRTO 1936, human rights jurisprudence has long accepted that the “emotional and psychological circumstances in the workplace” which underlie the work atmosphere constitute part of the terms and conditions of employment.

115It is not clear to me that the situation in which the applicant was working in April and May 2007 rises to the level of a poisoned work environment even though I have found that the respondent failed during this period to ensure that the applicant did not carry out tasks beyond his medical limitations. I further note that I have found that Mr. Castellano did not harass the applicant on May 22 and so I do not accept an argument that the events of May 22 may have contributed to or created a poisoned work environment for the applicant.

116However, regardless of work conditions in April and May I do not accept that the applicant can reject a return to a modified position on the afternoon shift on the basis that he will be exposed to a poisoned work environment. Again, I find significant the applicant’s August 31 return to work plan that clearly sets out the expectation that Mr. Castellano will abide by the requirements of the plan and that the applicant is to decline to do any tasks beyond his medical restrictions. In my view the applicant cannot, under these circumstances, unilaterally refuse to return to a position that meets his medical restrictions. The reasonable step is for him to return to work and to raise issues related to his accommodation if they do, indeed, occur.

117In conclusion, it is my view that the respondent discharged its duty to accommodate the applicant when it offered a position on the afternoon shift. Accordingly, the fact that the applicant’s employment was ultimately terminated for failing to accept this proposed accommodation cannot be considered to be discrimination based on disability.

6) Was the decision to terminate the applicant’s employment done in reprisal for the applicant exerting his rights under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html)?

118I do not find that the decision to terminate the applicant’s employment was in reprisal for exerting his rights under the Code.

119The applicant filed his complaint with the Ontario Human Rights Commission on November 19, 2007. According to the applicant the respondent would have received a copy of this complaint prior to December 10 when the respondent formally terminated his employment. The respondent denies having received the applicant’s complaint prior to December 10.

120I find that the respondent communicated to the applicant its position that he had to return to the afternoon shift long before the applicant filed his complaint with the Commission in November 2007. The respondent made it evident to the applicant in August 2007 that it expected him to return to his home position on the afternoon shift and reiterated this expectation in meetings with the applicant on September 24, and October 1, 2007. The respondent also indicated to the applicant during this time that it was not prepared to assign him to a position on the day shift. I find that these consistently held positions explain why on December 3, 2007 the respondent communicated that if the applicant did not report to the afternoon shift his employment would be terminated. I do not find, given these circumstances, that the termination of the applicant’s employment can be considered reprisal for his complaint to the Commission because the evidence does not support an inference that there was an intention to reprise against the applicant.

121I have further considered whether the fact that the applicant raised an earlier complaint of harassment and discrimination with the respondent contributed to the respondent’s decision to terminate the applicant’s employment. In other words did the applicant’s efforts to pursue his rights prior to formally filing a complaint with the Commission contribute, in some measure, to the decision to terminate his employment.

122I do not find this to be the case. In my view there is a clear and non- discriminatory reason for the respondent’s decision to terminate the applicant’s employment. It presented what it determined was a reasonable and appropriate return to work plan that the applicant refused to accept. It determined that the applicant had not been subject to harassment or discrimination. In my view the respondent’s decision to terminate the applicant’s employment is based solely on the applicant’s categorical rejection of the respondent’s return to work proposal.

NEXT STEPS

123I have found that respondent violated the Code when it failed in its duty to accommodate the applicant during the period April 23 to May 31, 2007. As a result of my finding, I will need to hear evidence from the parties as to the appropriate remedy. Accordingly, I am requiring the parties to file materials regarding remedy with the Tribunal in accordance with the following schedule:

Within 21 days of the date of this Decision, the applicant shall serve on the respondent and file with the Tribunal a statement of the specific remedies that are being sought and the evidence to support those remedies;

Within 14 days of receiving the applicant’s submissions, the respondent shall serve on the applicant and file with the Tribunal its response to the applicant’s material on remedy; and

Within 7 days of receiving the respondent’s submissions, the applicant shall file any materials in reply.

124The parties will be contacted regarding an appropriate date for their further attendance on the remedial portion of this hearing.