HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sharon Fair
Applicant
-and-
Hamilton-Wentworth District School Board
Respondent
decision
Adjudicator: Kaye Joachim
Indexed as : Fair v. Hamilton-Wentworth District School Board
APPEARANCES
Sharon Fair, Applicant ) Ed Canning, Counsel
Hamilton-Wentworth District ) Mark Zega, Counsel
School Board, Respondent )
Introduction
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code), dated May 18, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on November 24, 2004.
2The applicant alleges that she experienced discrimination in employment because of disability contrary to ss. 5 and 9 of the Code, in relation to her efforts to obtain accommodation for her disability and in relation to the termination of her employment on July 9, 2004. The respondent asserts that it took all appropriate steps to assess the applicant’s medical condition and concluded that she could not be accommodated, and since she was incapable of performing the essential duties of her job, the termination of her employment did not constitute discrimination.
3For the reasons that follow, I conclude that the respondent failed to fulfill its duty of accommodation reasonably. I find it unnecessary to review the facts in the detail. They are set out in the parties’ document books and written submissions. Despite the volume of opposing evidence filed by the parties, there is little dispute about the essential facts. The actions of the parties and the communications between them are recorded in their e-mails, correspondence and notes. For the most part, the witnesses were frank and I found most of the testimony presented at the hearing credible. Rather than laboriously reviewing the evidence, I will provide an overview of the material events, state my conclusions and introduce the factual detail necessary to explain them as required.
4Nor do the parties dispute the principles to be applied. The mutual obligations of employee and employer to co-operate in canvassing options for a reasonable accommodation are usefully summarized in the Ontario Human Rights Commission Guidelines on Accommodation:
The person with a disability is required to:
advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation
answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed
participate in discussions regarding possible accommodation solutions
co-operate with any experts whose assistance is required to manage the accommodation process or when information is required that is unavailable to the person with a disability
meet agreed-upon performance and job standards once accommodation is provided
work with the accommodation provider on an ongoing basis to manage the accommodation process
discuss his or her disability only with persons who need to know. This may include the supervisor, a union representative or human rights staff.
The employer is required to:
accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
obtain expert opinion or advice where needed
take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated, and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate
keep a record of the accommodation request and action taken
maintain confidentiality
limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request
grant accommodation requests in a timely manner, to the point of undue hardship, even when the request for accommodation does not use any specific formal language
bear the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer.
5The substantive principle at issue in this case relates to an employee who, because of disability, can no longer perform the essential duties of the job she has been performing until the onset of the disability. Reasonable accommodation of such an employee may, in some circumstances, be accomplished by a transfer to another position with the employer. The respondent's own policy on the “Accommodation of Personnel” recognizes this principle. The policy states:
If an employee cannot perform the essential duties in his/her existing position, accommodation may be made in other positions. The respondent will consider the following factors in this process: seniority, availability, qualifications, and legislative or contractual obligations.
Factual Overview
6The applicant was employed by the respondent school board from October 24, 1988, to July 8, 2004, when her employment was terminated. She was initially hired as a casual employee in the position of Technician. As time went on, she was assigned some supervisory responsibilities for the Asbestos Response Team, and effective September 1994 she became a permanent employee in the role of Supervisor, Regulated Substances, Asbestos.
7In the fall of 2001 the applicant developed a generalized anxiety disorder and was off work from October 2, 2001. In December 2001 her treating physician recommended hospitalization and she was discharged on January 10, 2002, with a diagnosis of anxiety disorder. The applicant was subsequently diagnosed with depression and post-traumatic stress disorder. There is no dispute that these conditions constitute a mental disability within the meaning of the Code. Her disability was a reaction to the highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended. The applicant reports that the Ministry of Labour was critical of the respondent's handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.
8On March 14, 2002, the applicant applied for and received long-term disability benefits (“LTD”) through the Ontario Teachers Insurance Plan applicable to tradespeople (“OTIP”).
9After two years, the applicant still could not return to her position, but, as she was assessed as capable of gainful employment, her eligibility for the LTD benefits terminated on April 3, 2004. After that, she resumed sick leave benefits, and since the respondent did not identify another suitable position for her, her employment was terminated on July 8, 2004.
10While the applicant was medically incapacitated from performing her own job, she received benefits under the OTIP plan. During that time, the respondent did not seek any medical information with respect to applicant. OTIP requested and obtained medical information required to determine her entitlement to benefits. In April 2003, OTIP contacted the respondent to seek a meeting to discuss a return to work. The Disability Management Co-ordinator, refused to meet at that time as she felt that she did not have enough information about the applicant`s restrictions and limitations to discuss possible accommodation.
The applicant fulfilled her obligation to co-operate fully in the accommodation process
11The respondent submitted that the applicant had failed to provide it with information from her treating physician regarding her restrictions and limitations until December 2003. The respondent did not have access to the medical information the applicant provided to OTIP. The consent to the release of medical information that the applicant provided with her claim to the Workplace Safety and Insurance Board was of no assistance because the respondent has no access to medical information unless it contests the claim, which it did not do.
12Eventually, the respondent obtained the report of its own physician, who provided his opinion after reviewing documentation about the job, interviewing the applicant on two occasions, and consulting with the applicant’s treating physician. His conclusion was:
I would concur with [the treating physician's] opinion of her patient's restrictions and limitations. Specifically, Ms. Fair would not be able to function in a job which entailed responsibility for health and safety issues, nor any duties which would leave her at risk for personal liability. Outside these limitations and restrictions, Ms. Fair is otherwise capable of gainful employment, as she is not currently deemed to suffer from a psychiatric impairment sufficient to render her totally disabled.
13Notwithstanding that this report is dated May 21, 2004, the respondent seems to have been aware of the applicant's treating physician's opinion much earlier. A memo dated July 14, 2003 from the respondent's Disability Management Co-ordinator to the supervisor of the applicant's position stated that the applicant’s specialist “clarifies that the only restriction is to not to be in a job with the same level of liability [emphasis in original]. OTIP agrees with and supports the specialist's recommendations". The e-mail of the Disability Management Co-ordinator dated November 4, 2003 confirms that she was aware of the restriction "may return to work, but not to a position with the same level of liability."
14The respondent's report to the Workplace Safety and Insurance Board indicates it was aware the applicant was suffering from traumatic stress related to asbestos removal as early as April 14, 2003.
15What is clear is that the applicant stayed in constant communication with the respondent and provided it promptly with whatever information, including medical information, it requested. The respondent did not request any medical information from the applicant until November 2003 and as stated earlier, the applicant provided a report from her treating psychiatrist in December 2003.
16Given these findings I do not accept the respondent's submission that the applicant did not share information with the respondent in a timely manner.
The respondent failed to actively, promptly, and diligently canvass possible solutions to the applicant's need for accommodation.
17My conclusion that the respondent failed to actively, promptly and diligently canvas possible solutions to the applicant's need for accommodation is based on the following actions and omissions by the Respondent. In reaching my conclusion I have considered their cumulative effect. I should not be taken to suggest that each matter, considered in isolation, would support a finding of a failure to fulfill the duty to accommodate.
a) The respondent's Plan administrator’s statement regarding the applicant's application for long-term disability benefits.
18The respondent's Plan administrator’s statement in regard to the applicant's application for long-term disability benefits was completed on March 14, 2002. The form contains the question “If the member could do less demanding work, would such will be available?” The respondent's response explained that the applicant was in a non-union position and that “In the non-union sectors, jobs are singular in nature, requiring specific skill sets and also requiring advanced level complex skills. These components make all the non-union jobs demanding.”
19The applicant testified that in early March 2003, the respondent's Disability Management Coordinator confirmed to her that this was the respondent's position.
20In my view, this response indicates that the respondent was not open to adopting an active role in canvassing all possible accommodation solutions from the outset.
b) Failure to Meet with OTIP Vocational Rehabilitation Consultant
21OTIP's Initial Report concerning the applicant completed by an OTIP vocational rehabilitation consultant (“VRC”) is dated March 26, 2003. The VRC wished to meet with the respondent for the purpose of exploring some volunteer or work-hardening activity. The Report goes on to note that the VRC’s request to the respondent was declined.
22The respondent’s Disability Management Coordinator at the time testified that she refused to meet at that time as she felt that she did not have enough information about the applicant’s restrictions and limitations to discuss possible accommodation. That response does not fulfill the duty to accommodate. The respondent ought to have attended the meeting to obtain the necessary information. She frankly admitted that the respondent “could have done better”.
c) Failure to provide the applicant with the essential duties of her position
23By e-mail dated April 1, 2003 to the respondent's Disability Management Coordinator, the applicant asked “Can you please send me a copy of the essential duties of my position as Supervisor, Regulated Substances”. The applicant indicated she was making the request because OTIP was pursuing further medical information with her doctor and had initiated a request for accommodation on her behalf.
24The respondent's response, which I set out in full, was “I don't determine the essential duties of anyone's job. That is done by the Supervisor. Sorry”.
25The respondent's response does not indicate it took on an active role in searching for a reasonable accommodation
d) Delay in meeting with the applicant
26On July 14, 2003, the applicant requested that the Disability Management Coordinator arrange a meeting with the Controller of Plant Services to discuss her return to work. The meeting did not take place until October 23, 2003. The delay cannot be attributed to the applicant. The delay was caused by the Controller’s unwillingness to meet earlier. This delay contributed to the failure to provide the applicant with available work opportunities.
e) Failure to obtain the necessary expert opinion or advice it considered necessary
27The medical information available to the respondent called for clarification. The medical restriction, of which I have found the respondent was aware from almost the outset, was most clearly expressed by the respondent's physician. As noted, he stated in his report that the applicant “…would not be able to function in a job which entailed responsibility for health and safety issues, nor any duties which would leave her at risk for personal liability”.
28This expressed restriction, if taken literally, would disqualify the applicant from all employment. In his oral testimony, the respondent's physician agreed that every position involved some risk of liability. Anyone could be sued, however wrongfully. In determining whether the risks of a particular position would be too great for the applicant, the respondent's expert quite sensibly answered that he would expect that the particular position should be proposed to the applicant’s doctor.
29I accept that the information available to the respondent from OTIP and the applicant was ambiguous. On the one hand, the respondent was advised that the applicant could not work in any position that exposed her to civil liability or breach of the Occupational Health and Safety Act. On the other hand, it was aware that the applicant was capable and eager to work at other jobs in the plant or outside the plant. When faced with that ambiguity, the obvious solution (obvious even to the respondent’s own expert) was to seek clarification from the applicant’s treating psychiatrist about her capacity to undertake specific alternate positions. The respondent failed to do so.
f) The respondent’s attempt to influence its expert witness
30When the respondent eventually requested that the applicant submit to an examination from the respondent’s own expert, the Disability Management Co-ordinator attempted to influence the expert’s report in the following ways.
31She sent a letter to the respondent’s expert, requesting that he “identify REAL (emphasis in original) limitations/restrictions, fitness to return to work, separate from preference.” She advised that OTIP had approved the applicant’s pre-absence position, which was not accurate. She advised that the applicant had a “skewed sense of entitlement” and characterized the applicant as “extremely manipulative” and an “extremist.”
32In my view, this letter demonstrates that the respondent was not attempting to obtain objective clarification of the applicant’s limitations but was intended to encourage the expert to conclude that the applicant was not worthy of accommodation.
g) The respondent was not open to accommodating the applicant in another position
33The respondent's position throughout was that the medical evidence restricted the applicant from all supervisory positions, as all supervisors face potential liability under the Occupational Health and Safety Act. This position was most forcefully expressed by the Controller of Plant Operations at his meeting with the applicant on October 23, 2003, referred to above. The Controller did not testify. I accept the applicant's version of the meeting, which is supported by her notes as well as the Controller’s notes.
34The purpose of the above meeting was to discuss the applicant’s return to work in the plant department. I accept that the applicant was trying to persuade the Controller to develop a training position for her in the plant department; that was her first choice. However, I also accept her evidence that she made it clear that she could return to a position as supervisor in a position other than asbestos removal. She perceived other supervisory positions as less stressful and posing a lower level of risk of personal liability. The Controller took the position that either the applicant was fit to return to asbestos removal or she was not fit to return to the plant department at all. He stated that all supervisors in the plant department were responsible for health and safety and if the applicant could not accept the health and safety risks of her previous position, she could equally not accept the health and safety risks of any other supervisory position.
35I accept the applicant's testimony that the Controller refused to discuss alternate positions she might fill. He was emphatic that her medical condition prevented any accommodation within the plant department. While the respondent attempted to undermine the applicant’s version of the meeting, her version is the only direct testimony of the meeting. Her account of the Controller’s position at the meeting is consistent with notes made by the Disability Management Coordinator to the effect that the Controller did not want to accept the applicant back into the plant department.
Available Positions
36I find that there were work opportunities from June 2003 in which the applicant could have been placed, either temporarily or permanently, without causing undue hardship to the respondent.
37The respondent submits that as of June 2003 it was not required to transfer the applicant to an alternative position as she had not reached maximum medical recovery and it was anticipating that she could eventually return to her pre-absence position. Further, she was participating in a work-hardening program, which indicates that she would not be ready to return to full-time work until September 2003.
38I do not accept this submission. First, the applicant had made clear that her participation in the work-hardening program did not preclude her from accepting full-time employment as soon as it became available. Second, the Disability Management Co-ordinator, in an email dated July 14, 2003, indicates that that the Co-ordinator clearly understood that it was unlikely that the applicant would ever be able to return to her pre-absence position. The email stated in part, “Although she remains in treatment, it is doubtful she will be given medical clearance to return to her pre-injury job.” I find that the respondent could have had this information as early as April 2003, when the applicant indicated she wanted to return to work.
39In any event, even if the respondent believed that the applicant could eventually return to her pre-absence position, there is no reason not to have provided the applicant with available opportunities on a temporary basis, until the situation was clarified. The evidence demonstrates that a number of employees were filling positions on a temporary basis.
40I find that the respondent had the following available opportunities to place the applicant on a temporary or permanent basis and if it had any concerns about whether the applicant was capable of performing the essential duties of those positions, it should have sought clarification from her treating psychiatrist.
a) Area supervisor positions
41On June 26, 2003, an area supervisor in the plant announced that he was leaving effective July 7, 2003. The respondent did not consider the applicant for this position, choosing instead to redistribute the duties to other supervisors. It is arguable that the redistribution indicated that the job was no longer necessary, and that the respondent had no obligation to maintain an unnecessary position. However, the totality of the evidence indicates that the plant was in the process of re-organization and the respondent anticipated reorganizing many of the positions and hiring several more area supervisors. As it turns out, those reorganization plans did not take place due to financial considerations, but the fact remains that as of July 2003 there was ample opportunity to return the applicant to the plant as an area supervisor. The respondent also argues that it was under orders to reduce full-time positions (“FTE’s”). However, the obligation to reduce FTE’s cannot be done at the expense of a disabled employee on disability leave. The order to reduce FTE’s was not an order to terminate employees, but rather not to hire new ones. The applicant was not a new employee. She was an employee on disability leave with a right to return to work in an existing FTE vacancy. Further, the budget documents for 2003/2004 reflect that there was no change to the total supervisory complement for the plant department, which indicates that there were surplus FTE’s where the applicant could have been placed.
b) Staff development supervisor
42The respondent advertised a position of Staff Development Supervisor on June 26, 2003, with a closing date of July 4, 2003. This was a non-union supervisory position at the same salary grade as the applicant. Further, it was in the same department as the applicant had been volunteering in during her work-hardening program. The position would have offered an opportunity for a lateral transfer without displacement of any other party. The fact that the applicant appeared to be qualified for the position is demonstrated by the fact that the respondent invited her for an interview.
43The applicant regarded the staff development supervisor position as alternative work in which she should be accommodated. This is apparent from the July 4, 2003 e-mail she sent to the Disability Management Co-ordinator stating “I have submitted my application for the position of Staff Development Supervisor. As per our previous discussions, this is exactly the sort of role my doctor has suggested that I pursue with the Respondent. Please let me know if you require any further medical notes in support of my application to this position. Thanks.”
44The respondent submitted that the staffing of the Staff Development Supervisor position was merely a formality to ensure that the unionized employee who previously performed the functions was awarded the position. This submission is not accurate. The respondent’s own witnesses were inconsistent on this point. Some witnesses said the position was a “reclassification” and that the job posting was a mere formality and there was no real vacancy. Other witnesses insisted that the competition was genuine.
45I note that the respondent posted the vacancy, received applications and created a short-list of four applicants, including the incumbent unionized employee and the applicant. It interviewed the applicant. I conclude that this was a genuine vacancy, although the respondent had in mind a candidate it wanted to win the competition. That does not make the position any less of an opportunity for accommodating the applicant. I recognize that the unionized employee seeking the position would have been disappointed in having her career aspirations derailed. However, the applicant equally had a legitimate right to return to the workplace. I note as well that the unionized employee had the right to remain in the union in an alternative position.
46The respondent had the discretion not to post the position and it was open to it to use the position as a form of accommodation. It chose not to do so. I find that it would not have caused the respondent undue hardship to have placed the applicant in that position without a competition.
Failure to Consider Other Options
47A further failure to accommodate occurred when the respondent received its expert report dated May 21, 204. A copy was sent to the applicant and received by her on June 28, 2004. The report stated:
I would concur with [the treating physician's] opinion of her patient's restrictions and limitations. Specifically, Ms. Fair would not be able to function in a job which entailed responsibility for health and safety issues, nor any duties which would leave her at risk for personal liability. Outside these limitations and restrictions, Ms. Fair is otherwise capable of gainful employment, as she is not currently deemed to suffer from a psychiatric impairment sufficient to render her totally disabled.
48Upon being advised that the applicant was capable of alternative employment, it terminated her employment without giving any consideration to her ability to perform alternate employment opportunities.
49The respondent submitted that all supervisory positions or comparable positions involved some form of personal liability. That ambiguity was discussed above. It was incumbent upon the respondent to inquire of its own expert or the applicant’s treating psychiatrist what kind of employment the applicant was capable of and where the line between unacceptable risk of liability and acceptability risk of liability lay.
50Instead, it immediately terminated her employment. The respondent led no evidence about any attempt to consider alternative positions after receipt of its expert’s report. The failure to mount a job search is inconsistent with the respondent’s stated position that it was waiting for the applicant to reach maximum medical recovery before seriously considering its obligation to place her in an alternative position.
51As soon as it received confirmation from its own expert that the applicant was unlikely to ever return to her pre-absence position, instead of considering her for alternative positions, it terminated her employment.
Conclusion
52I conclude that the respondent discriminated against the applicant on the basis of disability by failing in its duty to accommodate the applicant since April 2003.
53If the parties are unable to resolve the issue of remedy, they are directed to contact the Registrar within 30 days of the date of this Decision to set dates for a hearing on the remedies arising from this decision. If the parties do not contact the Registrar as directed, the Tribunal will assume they have reached an agreement and will close its file.
Dated at Toronto, this 17^th^ day of February, 2012.
“Signed by”
Kaye Joachim
Member