HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paula Addley Applicant
-and-
PGI Fabrene Inc. and Derek Peters Respondents
DECISION
Adjudicator: Eric Whist Date: March 5, 2012 Citation: 2012 HRTO 453 Indexed as: Addley v. PGI Fabrene
APPEARANCES
Paula Addley, Applicant ) Self-represented P.G.I. Fabrene Inc., Respondent ) Elisha Jamieson, Counsel Derek Peters, Respondent ) Self-represented
1This Application was filed on May 5, 2010 under, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of sex, disability, age and reprisal. The Application alleges that the applicant was subject to discriminatory treatment while working for the corporate respondent, PGI Fabrene Inc. (“Fabrene”), during the period 1990 to 2010.
2In an Interim Decision dated November 7, 2011, 2011 HRTO 2007, the Tribunal determined that the Application would only proceed in relation to the allegations raised about events occurring within one year of the filing of the Application. Allegations that related to earlier events were dismissed for delay pursuant to section 34(1) of the Code. The Interim Decision also dismissed the Application against ten of the eleven named personal respondents.
3The hearing was held on January 24-27, 2012. I heard testimony from nine witnesses. I heard testimony from the applicant and three witnesses she called. These were Gilles Hebert, a fellow employee of Fabrene and union steward, Karen Dickson, a fellow employee of Fabrene, and Dale Sheremeta, the applicant’s partner. I heard testimony from four witnesses called by the corporate respondent, all employees of Fabrene. These were Richard Ladouceur, a Shift Team Co-ordinator who was the applicant’s direct supervisor, Brenda Vannanen and Steve Rickertsen, Human Resources Co-ordinators, and Roger Perry, Director of Human Resources. I also heard testimony from Derek Peters, the personal respondent, who is an employee at Fabrene. In addition to hearing oral testimony I had considerable documentary evidence before me including a number of Fabrene’s written policies and guidelines as well as letters, emails, and further documents that record a number of relevant interactions between the respondents and the applicant.
DECISION
4The Application is dismissed in its entirety. I do not find that the applicant’s rights under the Code have been violated. I am satisfied that the respondents have provided credible, non discriminatory reasons for why the applicant was treated the way she was during the events and incidents from May 2009 to January 2010 that were the subject of the hearing before me. I am satisfied that the respondents followed established corporate policies and practices in dealing with the applicant and there is no persuasive evidence that in so doing the applicant was treated in a discriminatory manner contrary to the Code.
EVIDENCE AND ANALYSIS
Introduction
5Many of the facts as to what occurred in the period May 2009 to January 2010 are not in dispute. Accordingly, I have generally provided accounts of events based on the undisputed facts before me. I refer to the specific testimony of witnesses when required. The principal findings I have had to make are whether the generally undisputed actions of the respondents constitute discrimination.
6The Application alleges discrimination on the basis of disability, sex, age, and reprisal, and makes several references to the applicant not being accommodated. At the hearing the applicant stated that she was not pursuing allegations of age discrimination. I do note that it was not always clear which of the respondents’ actions the applicant was alleging constituted discrimination, harassment, or a failure to accommodate, and/or reprisal. The Application provides a lengthy and detailed narrative of events and it was not always evident which of the many described actions of the respondents the Application was alleging violated the applicant’s rights under the Code. Similarly, at the hearing it was not always clear which of the respondents’ actions the applicant was alleging constituted discrimination and on which grounds.
7The focus of the hearing was on eight incidents or events that occur between May 2009 and January 2010. The allegations against the personal respondent relate to one incident only, the September 8, 2009 audit. I have considered four of the incidents to involve allegations of discrimination based on disability and three incidents to be based on allegations of sex discrimination (one of which is also, in part, based on reprisal). At the end of my Decision I consider the applicant’s further allegation that, in effect, all of these incidents constitute reprisal, including the eighth incident, the applicant’s resignation.
8The applicant was employed in Fabrene’s manufacturing plant in North Bay, Ontario from 1986 to January 2010 when she resigned her position. The plant produces engineered fabrics including synthetic roofing materials, liners, and covers which are used primarily in the building and construction industry. The plant is unionized, the bargaining agent being the Northern Independent Union. During the period May 2009 to January 2010 the applicant held a “Class VI” position in the Weaving/Finishing area of the plant. The production workforce is predominantly male and it is reasonable to characterize the applicant as working in a traditionally male occupation.
The Applicant’s Absence from Work in June 2009.
9The applicant was off work from June 1 to June 15, 2009. The applicant alleges that Fabrene discriminated against her on the basis of disability in the way it treated her in relation to this absence.
10Fabrene has a well established policy that if an employee is off work for more than a prescribed number of shifts (it varies depending on the employee and their assignment) they are required to apply for Short Term Disability (“STD”) . The policy is included in the collective agreement.
11The policy requires an employee who is absent from work for more than a defined number of shifts to submit an STD package that consists of an attending physician’s statement and the employee’s statement. This package is then provided to Fabrene’s insurance carrier, Sun Life Assurance Company, (“Sun Life”). Sun Life reviews the claim and determines, based on this submitted information (and a further form completed by Fabrene) whether the employee will receive STD benefits for the time they are absent from work. Fabrene’s practice is to pay the employee the equivalent of their disability wages for at least five days while the employee’s claim is being processed. Fabrene reserves the right to reclaim disability wages paid to the employee by Fabrene if the employee fails to submit the appropriate forms.
12Fabrene submits that employees are required to submit claims for STD wages for two reasons: one to be approved for disability wages, a benefit provided by the insurer, and two, to substantiate for Fabrene that the employee’s absence from work is for medical reasons. Fabrene relies on Sun Life to make the assessment as to whether an employee’s absence is medically related based on the information the employee provides to Sun Life, particularly the required attending physician’s statement.
13The STD policy requires that the employee file their STD forms within 30 days of their absence. In this case the applicant was given a deadline of July 15, 2009 to submit her claim. The applicant claims that she did not understand that there was a 30 day requirement and that Fabrene should have “accommodated her” by allowing her to submit her claim beyond a 30 day limit. The applicant testified that Fabrene has not always required employees to adhere to the 30 day time limit.
14On July 23, 2009 Fabrene issued the applicant a Contact to File letter. A Contact to File letter is a disciplinary measure which was issued to the applicant for failing to submit the required STD documentation to Sun Life to support the applicant’s claim for the period of June 1 to June 14, 2009. Because the applicant had failed to submit the STD documentation by July 15, 2009 to substantiate her absence, Fabrene considered the applicant to have been absent without leave (“AWOL”). Being AWOL is considered to be a culpable absence under Fabrene’s Attendance Support Program and as a consequence the applicant was issued the Contact to File letter.
15I had considerable oral and written evidence before me about Fabrene and the applicant’s communications in June and July 2009. I heard testimony that Mr. Ladouceur and Mr. Rickertsen were in contact with the applicant by telephone and voicemail during this period to indicate the need for the applicant to submit her STD claim. Mr. Rickertsen testified he made notes at the time to record his interactions with the applicant about the expectation that she submit an STD claim. These notes were before me. I also had before me emails exchanged between Mr. Rickertsen and other Fabrene managers and human resources staff dated June 10, June 11, June 12, and July 8, all referring to Fabrene’s communications with the applicant to indicate the need for her to file an STD claim. On July 8, 2011 Mr. Perry sent the applicant a letter stating that she had to submit her STD forms including one prepared by her attending physician by July 15 otherwise Fabrene would have to consider the applicant AWOL during the period of June 1 to 14, 2009.
16The applicant testified that she was trying, in good faith, to complete the required forms but that she was having difficulty getting the doctor she saw (at a drop-in health centre) to submit the necessary physician’s statement. She indicated that it was not clear to her that she had a 30 day time limit in order to produce this documentation and that the decision to issue her a Contact to File letter was, under the circumstances, unduly harsh. The applicant also referred to Fabrene failing to accommodate her by its repeated insistence that she had to submit her STD documentation within a limited timeframe and then disciplining her for failing to do so.
17I will note here that the evidence as to whether the applicant was disabled within the meaning of the Code in the period of June 1 to June 15, 2009 was not entirely clear. However, even if I accept that the applicant had a disability and was entitled to accommodation of this disability, I find that there was no breach of the Code. I am satisfied that none of Fabrene’s actions including requiring the applicant to complete the STD package, insisting that this package be completed by July 15, 2009, and then disciplining the applicant for failing to meet this time requirement constitutes discrimination based on disability. The evidence before me is that Fabrene clearly and repeatedly indicated to the applicant the need to participate in its established STD program and to do so on a timely basis otherwise she would be subject to discipline. There is no evidence that in requiring the applicant to participate in the program the applicant was treated differently than other absent employee because of her disability. I am also of the view that Fabrene’s subsequent disciplining of the applicant is based on the applicant’s failure to meet the requirements of the program and is not related to her disability. Importantly, I note the applicant does not claim that a disability affected her ability to participate in the STD program or meet the program’s requirements.
18The applicant submits that she should have been accommodated by the respondent. The applicant’s argument, it appears, is that she should have been accommodated by being given more time to submit her documentation given that she was, at the time, a person with a disability. However, the duty to accommodate in respect to employment is not a free-standing obligation under the Code. In order to trigger the duty to accommodate under the Code, the applicant would have to show that her disability affected her ability to meet a neutral “requirement, qualification or factor”, in this case the requirement to submit documentation under the STD program within 30 days. However, the applicant did not claim that her disability affected her ability to meet the 30 day time limit. She testified that she could not meet the time requirement because of her physician’s failure to submit the required physician’s form on time. Consequently, there is no basis to conclude that, in the circumstances, the 30 day time limit is a discriminatory requirement or barrier for the applicant, or that any duty to accommodate is triggered that would have obliged Fabrene to accommodate her by giving her more time to submit her documentation.
19The applicant also testified that she understood that the 30 day requirement to submit documentation under the STD program is not always enforced: that Fabrene can waive this requirement. She testified that she was told this in November 2009 by a Sun Life caseworker. The applicant has not alleged that her disability was a factor in the respondent’s insistence on the 30 day requirement in this case. I did not hear evidence as to when an exception might be made to the 30 day requirement. However, even if the rules of the STD program are not applied consistently or even fairly, this does not lead to a finding that the way in which the applicant was treated, including obliging her to meet the time requirements of the program, was discriminatory.
20I would note here that I had evidence before me that in November Fabrene did offer the applicant the opportunity to submit her STD documentation to Sun Life with the understanding that this could lead to Fabrene removing the Contact to File letter from the applicant’s file. The applicant did not pursue this opportunity.
21The applicant did refer to the section of the collective agreement that describes the STD program and how it will be administered in support of an argument that the employer was obliged to work with her to avoid financial consequences of any delay processing an STD claim.
22I do not find this argument persuasive. The issue I must determine is whether Fabrene’s actions were discriminatory under the Code, not whether Fabrene met a requirement under the Collective Agreement to act in a co-operative manner. And as stated, I do not see evidence to support the claim that Fabrene’s actions in administering its STD program were contrary to the Code even if the applicant feels they were inflexible or unfair.
23The applicant did provide Fabrene with doctor’s notes dated June 5, 2009 stating that she had missed work for medical reasons and a further doctor’s note dated June 12, 2009 saying she had missed Thursday and Friday (June 11 and June 12) but may return to duties on Monday (June 15, 2009). This second note was understood by Fabrene to mean that the applicant had been cleared to return to work on June 15, 2009. However, these notes do not clearly account for the applicant’s entire absence in June and I find it reasonable and non-discriminatory that Fabrene required the applicant to provide additional medical information to its insurer carrier in the form of a physician’s report, in part, to have Sun Life adjudicate whether she had medical reasons to account for her absence.
The July Incident involving the Rewinder 161
24The applicant alleges that in July 2009 she was assigned to work two shifts on the Rewinder 161, a machine that the applicant had not operated in some time. The applicant alleges she was criticized for not producing sufficient rolls of materials: a criticism the applicant felt was unfounded. The applicant testified that she produced 20 rolls and this production should have been seen as comparable to a three person team that had produced 30 rolls.
25The applicant testified that she also had difficulty generating tickets for her work. Tickets consist of computerized information that records data about the nature of each of the rolls produced. The applicant testified that she had to ask for assistance and ultimately it was another employee, Dan Montreuil, who produced the tickets by inputting the necessary data on behalf of the applicant. The applicant testified that she was then told that the tickets were filled in incorrectly but that Dan Montreuil told her that this was impossible and that he believed the data may have been changed by Lisa Goldthorpe, the production manager. The applicant testified that although she did not know, she was of the view that Ms. Goldthorpe may have deliberately changed the ticket information in reprisal for the applicant having filed a grievance in 2001 about being demoted when she was operating the Rewinder 161. The grievance was settled in 2006.
26The applicant also testified that while she was working on the Rewinder 161 the plant manager removed a radio that was nearby. She believed the plant manager did this in an unnecessarily aggressive manner. It appears the applicant was of the view that this action was discrimination based on sex.
27The applicant testified under cross-examination that she did not produce the tickets during her shift, that she did not see the alleged changes to the tickets, and that she did not discuss any alleged changes to the tickets with Ms. Goldthorpe. The applicant acknowledged that there were no negative outcomes from this incident for her. She testified that there was no discipline, docking of pay, or any other further follow up in relation to her production while working on the Rewinder 161 or as a result of the incorrect tickets.
28The applicant testified under cross-examination that she did not know why the plant manager removed the radio. Nothing was said to the applicant when the radio was removed. She testified that she was unaware of any company policy about radios. Mr. Ladouceur later testified later that Fabrene has had an administrative guideline in place since at least 2006 stating that no radios were allowed in production areas of the plant.
29The evidence I heard about the Rewinder 161 and the radio incident was brief and much less detailed than the evidence I had before me about all of the other disputed events and incidents. Neither the applicant nor Fabrene called Mr. Montreuil or Ms. Goldthorpe to give evidence.
30In my view the applicant has not established an evidentiary base for the claim that Ms. Goldthorpe deliberately changed information on the tickets in retaliation for a grievance filed by the applicant in 2001 and which was settled in 2006. I find this claim to be highly speculative in nature. The applicant herself testified that she did not know but maybe Ms. Goldthorpe was retaliating against her. I find it significant that there were no identified repercussions whatsoever for the applicant over the incorrect tickets or the number of rolls produced, which may have been possible indicators that she was being unfairly treated or retaliated against. I am also not satisfied that the incident with the radio can be interpreted as a discriminatory act or an act of harassment. This, too, is a speculative claim without an evidentiary foundation, particularly in light of the little testimony I heard about the incident and Fabrene’s guideline for not allowing radios on the plant floor, which would suggest a non-discriminatory reason for the plant manager’s actions.
The September 8, 2009 Audit
31On September 8 the applicant was the subject of an audit, a process in which the personal respondent, Derek Peters, reviewed her work as a “Class 7” operator directing the operation of the 160 Extrusion Coater, a machine that requires the work of a three person team. Following the audit, Mr. Peters produced a written assessment that was shared with the applicant and Mr. Ladouceur, her supervisor.
32The applicant alleges that Mr. Ladouceur did not tell her in advance that she would be the subject of an audit. She alleges Mr. Ladouceur deliberately assigned her to work with a less qualified team during the audit and deliberately scheduled the audit to take place on September 8, the same day she was scheduled to have a meeting with Mr. Ladouceur and Fabrene human resources staff to discuss her concerns about how she was treated in relation to her STD claim. The applicant alleges that it was not clear why Mr. Peters rather than Mr. Montreuil would have been assigned to audit her work. She alleges Mr. Peters acted in an intimidating manner during the audit and was unfairly critical of her work. The applicant alleges that the September 8, 2009 audit process was harassment and constituted discrimination on the basis of sex.
33Mr. Ladouceur testified that audits are routinely conducted of employees taking on new tasks after 15-30 shifts of having being trained in the new task. He testified that the applicant had completed 20 shifts as a Class 7 operator and was due for an audit of this job responsibility. He testified that employees are not told audits in advance. He testified that he assigned Mr. Peters, who is a trainer, to conduct the audit because the other trainer, Mr. Montreuil, was not available. He testified that audits are intended to measure proficiency and to identify for employees their strengths and weaknesses. Audits are non-disciplinary unless the employee has been notified otherwise.
34Mr. Ladouceur acknowledged that the audit was on the same day as a meeting that had been scheduled with the applicant about her participation in the STD program, but that he understood that this meeting would be routine in nature and did not consider that it would have a bearing on the applicant’s ability to participate in an audit. He also testified that it was difficult to find a suitable day given that Mr. Peters worked a different shift than the applicant. Mr. Ladouceur testified that he did deliberately assign two less experienced employees to work with the applicant while she was being audited because this was his standard approach in such circumstances. He testified that he wanted to make sure that a person being audited as the operator on the 160 Extrusion Coater cannot unduly rely on experienced assistants while their performance in operating the machine is being audited.
35Mr. Peters testified that audits are done to ensure employees are performing at suitable levels and that as a trainer he is responsible to record his findings on a standard audit checklist. He testified that he generally simply observes a person being audited, fills in the audit form, and afterwards participates in the meeting with the employee and their supervisor to discuss possible corrective steps. Mr. Peters testified that he felt the audit went fairly well and that the applicant did not indicate during the process that she was upset. He testified that afterwards he met with Mr. Ladouceur to discuss the results and then he met with Mr. Ladouceur and the applicant together to review the checklist.
36Mr. Hebert testified that he was present at the time of the audit. He testified that he believed the applicant adequately performed her job during the audit. He testified that he did not see any behaviour by Mr. Peters that he thought was harassment nor did he hear any complaints from the applicant about Mr. Peters.
37In my view the respondents provided a number of persuasive non discriminatory reasons for when and how the audit took place. I accept Mr. Ladouceur’s testimony that the applicant’s audit followed his usual practices that included not telling employees in advance that they will be audited and assigning a less experienced crew. I accept that Mr. Peters was assigned given Mr Montreuil was not available and that Mr. Ladouceur did not know that the meeting scheduled for September 8 would have an emotional effect on the applicant and her audit performance. I do not accept that Mr. Ladouceur deliberately scheduled the audit on the day of a meeting to discuss the STD issue in order to somehow effect or undermine the applicant’s audit performance.
38I further note that there were no outcomes from the applicant’s audit that the applicant identified as concerns. There were no negative outcomes from what Mr. Peters wrote in relation to her performance, no further training or remedial steps that she was required to take, and no discipline.
39I accept that the applicant found the audit process difficult. It must be, in of itself, a stressful experience. It was also unexpected and carried out by a trainer the applicant did not work with. It involved less experienced crew and was complicated by the applicant attending a meeting on the same day that she found emotional and trying. However, I am satisfied that the evidence indicates that the respondents followed established practices for conducting audits, and the way in which the audit was conducted does not indicate, in my view, that the applicant was harassed or differentially treated because of her sex by Mr. Ladouceur and/or Mr. Peters.
The September 8, 2009 Meeting
40The applicant requested a meeting with Fabrene management to explain the efforts she had made to file her STD documents, to ask that Fabrene waive the 30 day STD filing requirement, and to ask Fabrene to reconsider the Contact to File letter it issued to the applicant. The meeting took place on September 8, 2009. Roger Perry, Richard Ladouceur, Steve Rickertsen, Gilles Herbert, the applicant’s Union representative, and the applicant were present.
41At the outset of this meeting Mr. Rickertsen stated that he had just been in contact with Sun Life and was told that Sun Life had not received the applicant’s employee statement and statement from her physician as required under the STD program. The applicant disputed this by showing fax receipts that she felt indicated that both she and her physician had sent documents, albeit after the deadline set by Fabrene and after the applicant was issued the Contact to File letter.
42Roger Perry, Richard Ladouceur, and Steve Rickertsen all testified that it was not clear to them that the fax receipts provided by the applicant demonstrated that the applicant had sent the required documents to Sun Life. Mr. Perry testified that he then explained that even if the documents were sent as claimed by the applicant, they were sent after the 30 day time limit. It was agreed that the applicant was presented at the meeting with an “Employee Wages Payback form” that she was asked to sign that would authorize the respondents to claim back some of the wages paid to the applicant during her absence in June on the basis that Fabrene was of the view that the absence was a culpable absence. The applicant refused to sign and Mr. Perry determined at the meeting that she was not required to sign at that time. The applicant has not signed the document since.
43The applicant testified that the meeting did not go well, that it was not co-operative in nature. She testified that Mr. Rickertsen was aggressive and that due consideration was not given to her claim that she had submitted documents to Sun Life. She testified that no accommodation was offered at the meeting to allow here to file her STD claim past the 30 day time limitation. She testified that the principal interest of Fabrene was for her to sign the Employee Wages Payback Form. The applicant testified that the meeting was very emotional for her and that she felt Fabrene’s representatives were hostile. The applicant took the position that she was harassed during this meeting and that Fabrene’s refusal to reconsider its position on the applicant and her participation in the STD program constitutes discrimination based on disability.
44Mr. Ladouceur, Mr. Rickertsen, and Mr. Perry all testified that while there were a number of disputes during the course of this meeting, most notably about whether the applicant had produced evidence of having faxed documents to Sun Life, the meeting was professional in tone. All three denied that Mr. Rickertsen had called the applicant a liar. Mr. Hebert testified that there was a dispute at the meeting over whether the applicant had faxed documents to Sun Life and he recalled that Mr. Rickertsen had raised his voice. He further testified that he did not see behaviours at the meeting that were of concern to him.
45I do not find that this meeting or what transpired during this meeting constitutes harassment or discrimination based on disability. I accept that there was conflict and disagreements and there may have been raised voices even though four of the five participants at the meeting described it as professional in nature. However, any assertive actions that Fabrene may have taken in the meeting about whether the applicant appropriately participated in the STD program, whether she should be allowed to file documents past the 30 day time limit, or whether she was obliged to reimburse Fabrene for wages they paid do not constitute discrimination or harassment based on disability. As stated earlier, the applicant did not claim that her ability to participate in the STD program was affected by a disability. And again, Fabrene was under no duty to accommodate the applicant by extending the 30 day time limit, and so, if there was conflict at the meeting over this issue, it does not constitute harassment or discrimination under the Code.
The Offer of Modified Work in November 2009
46The applicant alleges that Fabrene’s offer of a modified job in November 2009 constituted an act of harassment based on sex given the demeaning nature of the job.
47On October 9, 2009 the applicant went off work principally due to a lower back condition. On November 2, 2009 the applicant’s doctor provided the applicant with a Functional Abilities Form (“FAF”) that indicated that she was capable of returning to modified work. The FAF was before me. It identifies that the applicant was able to return to light duties and that her restrictions included no lifting, standing for up to 15 minutes only and sitting for up to 30 minutes only.
48Later on November 2, the applicant discussed her FAF limitations with Mr. Rickertsen to determine whether there was a modified position in the plant that would meet these restrictions and allow her to return to work. Mr. Rickertsen initially informed the applicant he did not believe there was a modified job based on the identified restrictions to offer the applicant. Mr. Rickertsen testified that he subsequently discussed the issue with Mr. Perry and that they identified a job for the applicant disinfecting hard surfaces in the plant in order to prevent the possible spread of the H1N1 virus. Mr. Rickertsen testified that this was a six hour per day job with a top up for a further two hours. Mr. Perry testified that this position was offered at the time that the H1N1 virus was being seen as a public health issue and had been identified as an issue of concern at the plant. He testified that there had been initiatives undertaken at the plant to promote awareness of the H1N1 virus, which included the display of posters and discussions with the plant’s health and safety committee, and that hand sanitizers had been placed in the workplace. He testified that he had also participated in corporate conference calls (Fabrene’s corporate headquarters are in the United States) where the issue of what the organization should be doing about the H1N1 virus was discussed.
49There was a dispute as to whether the applicant initially accepted the offered position of cleaning surfaces in the plant. In my view nothing turns on this. However, the applicant subsequently communicated to Mr Rickertsen, it appears on November 4, 2009, that she was unable to return to work because of her physical condition. The applicant remained off work until January 25, 2010. It is noted here that the applicant did apply to Sun Life for short term disability wages for this period and that this application was accepted.
50The applicant’s November 2, 2009 FAF indicates that she was capable of returning to work with restrictions. This consequently placed a procedural duty on the respondents to determine whether they could accommodate the applicant’s return to work. There was no dispute that the applicant’s FAF provided significant restrictions as to the types of jobs she would be capable of doing. There was no dispute that the offered job potentially met these restrictions. In my view the respondent’s offer to the applicant of a position to disinfect surfaces in the plant was offered to meet Fabrene’s procedural and substantive duties to accommodate.
51I am of the further view that the offered job was intended to meet a genuine business interest and that it was a real job. I accept Mr. Perry and Mr. Rickersten’s testimony that this job offer was made at a time when the H1N1 virus was a concern and that it was made in the context of several other initiatives in the plant to deal with the issue. I do not find it constitutes an act of harassment or discrimination based on sex. I do not find that it was a job created in some fashion in order to harass, humiliate or embarrass the applicant because of her sex. The more persuasive reason for the job, in my view, was to meet Fabrene’s duty to accommodate and to address an identified business need.
52I do accept that, for an employee returning to the workplace, being obliged to accept a modified job because of a physical restriction can be difficult. It can be difficult for an employee to be required to do a do a job that may not be part of their previous responsibilities, and a job that they see as undignified or is seen by other employees as unimportant or easier. There may be issues that make it difficult for a female working in a predominantly male environment to come back to a modified job and one, as in this case, which might be perceived as “cleaning”. Indeed the applicant and Fabrene may have had to deal with a number of issues if the applicant had returned to work in the modified position that was offered. If the applicant had been subject to harassing behaviour in this modified position it would have been the responsibility of Fabrene to take steps to address this. However, Fabrene’s very offer of the modified position is not an act of discrimination.
Choosing Vacation
53The applicant alleges that Fabrene should have allowed her to choose vacation according to her seniority when she returned to work in January 2010. She alleges that this was a required accommodation given that the applicant had been absent from work because of a disability.
54Fabrene has a well established guideline for how employees get to choose their vacation time in order to manage the fact that certain periods of the year are preferred vacation time (e.g. summer, March break, and Christmas). Employees choose vacation time on a seniority basis. The vacation guideline addresses how an employee who is absent from work, including an employee on STD, is to be included in the vacation selection process. The guideline requires an employee’s Shift Team Co-ordinator to telephone the absent employee one week before their estimated turn to select vacation in order to alert them to this fact. The Shift Team Co-ordinator then telephones the employee when it is their turn to select. The employee has 24 hours to make their selection.
55There was no dispute that Fabrene contacted the applicant in December 2009 while she was on STD as required by the guideline. The applicant was alerted to the fact that her turn to select vacation was coming and was then told it was her turn to select on December 9, 2010. The applicant was given further time, until December 16, at which time the opportunity to choose vacation was given to the next senior employee.
56The applicant did not make a vacation request until she returned to work on January 25, 2011 at which time she asked that she be allowed to pick on the basis of seniority and argued that Fabrene had a duty to accommodate this request. Fabrene refused, stating that the applicant was required to select vacation based on what vacation time was available as of January 25, 2010.
57I do not find that the vacation selection process discriminated against the applicant because of a disability. It is significant that the guidelines that govern the selection of vacation had a specific process that required managers to contact absent employees, including those on STD like the applicant, and the credible oral and corroborating documentary evidence that was before me indicates that this guideline was followed with the applicant.
58The applicant was contacted by Fabrene managers and asked to submit her vacation request when it was her turn to select, based on her seniority. The applicant did not. The applicant had almost three weeks before Fabrene decided to give the next senior employee the opportunity to select vacation. I see no evidence that the applicant was disadvantaged in the vacation selection process by her disability. There was no evidence adduced that the applicant’s disability affected her ability to participate in the vacation selection process.
59The applicant did testify that when she was contacted in December, she had some questions and wanted some information that she felt she needed in order to make her choice. She testified that the vacation selection process was never implemented in a straightforward manner and that there have been exceptions to how selections have been made in the past. Ms. Dickson also testified that this was the case. The applicant asserts that when she returned to work in January the respondent should have allowed her to select her vacation at that point in time according to her seniority, that selecting in this fashion is an accommodation that should have been provided to her.
60I am not persuaded by these arguments. It is not for me to decide whether Fabrene has consistently applied its guidelines but rather whether the applicant was discriminated against during the 2010 vacation selection process. There was no evidence to indicate that the applicant’s disability was a factor preventing the applicant from participating in the selection process. The selection process itself did not create a discriminatory barrier. I do not find that Fabrene had any obligation to accommodate the applicant in January 2010 given that that the applicant had the opportunity to fully participate in the vacation selection process in December while she was on STD.
The Protective Footwear Subsidy
61The applicant alleges that she should have been allowed to claim her 2009 protective footwear subsidy in January 2010 as an accommodation given that she had a disability that required to be on STD for a period of time in 2009.
62Fabrene’s protective footwear subsidy is described in the collective agreement and in a related administrative guideline. The subsidy is valid up to a maximum of $160 per calendar year and cannot be carried forward to subsequent calendar years. In order to provide this benefit, Fabrene issues a protective footwear subsidy certificate to an employee wishing to purchase protective footwear and that the certificate must be used within a two week timeframe. The applicant was issued a certificate dated October 7, 2009, two days before the applicant went on STD.
63The applicant did not use this certificate. The applicant’s partner, Mr. Sheremeta, testified that he went to Fabrene in January 2010 and asked that the company issue a new certificate backdated to December 31, 2009 to allow the applicant to obtain her 2009 protective footwear subsidy. Ms. Vannanen, who administers the protective footwear subsidy benefit, testified that there was no precedent for backdating certificates and that it was her understanding that the language in the collective agreement that a protective footwear subsidy cannot be carried into a subsequent calendar year prevented the arrangement being proposed by Mr. Sheremeta and the applicant. The request to provide the applicant with a certificate to allow her to claim a 2009 protective footwear subsidy was refused.
64I do not find that Fabrene’s refusal in January 2010 to issue a protective footwear subsidy to the applicant for 2009 constitutes an act of discrimination or, as the applicant principally argued, that the respondent had a duty to accommodate this request.
65I do not find that the applicant’s disability prevented her from obtaining her 2009 protective footwear subsidy during the 2009 calendar year. Leaving aside the issue that there were no identified reasons why the applicant could not have obtained this benefit from January 2009 until October 11, 2009, I find that there were no reasons why she could not have obtained the subsidy in the period of October 11 to December 31, 2009 while she was on STD.
66There was no requirement that the applicant had to be actively employed to receive the subsidy. The applicant did not claim that her disability prevented her from obtaining an updated certificate and her protective footwear during the period October 13 to December 31, 2010. Both the applicant and Mr. Sheremeta testified that he could have picked up a certificate and her protective footwear during the period of October to December 2009. Accordingly, I do not see how the applicant’s disability prevented her from gaining the benefit of the footwear subsidy in 2009.
67Consequently there was no obligation or duty on Fabrene to accommodate the applicant by issuing her a certificate in January 2010 as requested. The applicant’s argument that issuing the certificate in January 2010 would not cause the respondent undue hardship is not a relevant issue. As stated earlier the duty to accommodate in respect of employment is not a free-standing obligation under the Code. It arises only where an employee is disadvantaged because of a neutral rule or requirement. The requirement that the protective footwear subsidy for 2009 had to be claimed within the 2009 calendar year did not disadvantage the applicant given my finding that that she was not prevented from claiming this benefit in 2009.
Allegations of Reprisal
68Section 8 of the Code provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal.
69In order to prove reprisal, an applicant must establish that the respondent engaged in an action, or threat, that was intended as retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate. See Noble v. York University, 2010 HRTO 878.
70The applicant alleges that she was subject to reprisal for claiming her rights under the Code in essentially two ways: by filing a grievance in 2001 about being demoted a classification (a grievance that was settled in 2006), and by repeatedly communicating to Fabrene her expectation that she should be treated in a non- discriminatory way.
71The applicant submits that Fabrene was aware that she pursued her rights under her 2001 grievance and alleges, as noted earlier, that this may account for Ms. Goldthorpe’s actions in relation to the Rewinder 161 incident in July 2009.
72The applicant further alleges that in the time period of June 2009 to January 2010 she repeatedly informed Fabrene of her rights under the Code, of Fabrene’s obligations to accommodate her disability, and that, as a result, Fabrene retaliated against her in contravention of section 8 of the Code. It appears the applicant characterizes many of the Fabrene’s actions that have been already discussed, including the decision to offer the applicant a modified job in November 2009, confronting the applicant during the September 8, 2009 meeting, and refusing to accommodate the applicant in relation to the STD program, the vacation selection process, and the protective footwear subsidy as acts of reprisal under section 8 of the Code.
73I do not find that Fabrene’s actions constitute reprisal. I find that the actions that the applicant has objected to are actions Fabrene took in an effort to have the applicant adhere to its policies and guidelines. In one instance, the offer of the modified position, the alleged reprisal was related to Fabrene’s effort to accommodate the applicant. I find no instance in which the evidence supports a conclusion that the applicant was treated in a manner that would indicate that Fabrene was deliberately retaliating against her.
74It is clear that in the period June 2009 to January 2010 (and indeed before this) that the applicant expressed her views that her rights were being violated and that Fabrene did not accept the applicant’s views. From June 2009 to January 2010 Fabrene took a number of actions knowing that the applicant believed these actions to be a violation of her rights under the Code. However, actions taken in these circumstances do not constitute reprisal and I accept that Fabrene has provided a rationale for why it took these actions that satisfies me that they were business related decisions made pursuant to its policies and guidelines.
The Applicant’s Resignation
75The applicant submitted her resignation to Fabrene on January 26, 2010: a day after returning to work. The applicant’s resignation letter was before me. The letter states that the applicant’s meetings and discussions with Fabrene regarding discrimination and harassment based on disability had not been taken seriously and had led to various forms of reprisal and for these reasons the applicant’s decision to resign has been forced on her. The letter states that the triggering event that gave rise to her resignation was returning to work to learn that all her seniority regarding vacation selection had been lost because of her disability. The applicant alleges that this resignation should be considered to be a further act of discrimination.
76The applicant’s resignation letter suggests that it is the cumulative actions of the respondents in response to her disability that have forced her to resign. The letter indicates that she is of the view that she was subjected to reprisal. I am prepared to further accept that the letter is, in effect, raising concerns about how she was treated from June 2009 to January 2010 and that these concerns would include the September 8, 2009 audit and the offer of modified work in November 2009 that the applicant alleged involved discrimination based on sex.
77However, I do not find that the applicant’s resignation constitutes an incident of discrimination or reprisal. Given that I find that none of the incidents of concern to the applicant leading up to the resignation involve acts of discrimination, including acts of reprisal, I do not accept the argument that the applicant’s resignation was precipitated by the respondents’ past discriminatory actions. The applicant’s decision to resign cannot be attributed to having been subject to discriminatory treatment.
78I have considered whether the applicant resigned because she was, at the time of her resignation, under a threat of reprisal and, as such, whether her resignation could be considered a violation of section 8 of the Code. However, I do not see evidence of a threat of reprisal. There is no evidence that would allow me to conclude that, even if the applicant’s resignation could be construed as a reprisal measure by the respondent, it resulted from an action or threat by the respondent that was intended as retaliation for the applicant claiming a right under the Code.
79The applicant’s evidence was that the triggering event for her resignation was being told upon to her return to work on January 25, 2010 that she would not be allowed to choose her vacation based on her seniority. The applicant was of the view that this was evidence that the discrimination and reprisal she had faced was active and continuing. I have not found that this triggering incident involved discrimination or reprisal and cannot find that the applicant had grounds to believe that she was under threat of reprisal in regards to her choice of vacation at the time of her resignation. Accordingly there is no basis upon which to construe that the applicant’s decision to resign was an act of reprisal.
80For all of these reasons the Application is dismissed.
Dated at Toronto this 5th day of March, 2012.
”signed by”_____________
Eric Whist Vice-chair