HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samuel Sacco
Applicant
-and-
TRW Canada Ltd.
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Sacco v. TRW Canada Ltd.
APPEARANCES
Samuel Sacco, Applicant
Self-represented
TRW Canada Ltd., Respondent
Paul Young, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of disability.
2At the hearing held to consider the Application I heard testimony from the applicant, Tony Napolitano, the president of the Thompson Products Employees Association ("TPEA"), Darren Wilson, the Treasurer and Secretary of the TPEA, and Key Teeuwsen, the Human Resources Manager for the respondent's St. Catharines' plant.
BACKGROUND
3The applicant began working for the respondent in its St. Catharines' plant in September 1993. The respondent produces automotive parts.
4Most production employees in the respondent's St. Catharines' plant, including the applicant, are represented by the TPEA. The respondent and the TPEA have a collective agreement.
5In October 2005 the applicant suffered an upper body injury. The applicant suffered further injuries and was eventually diagnosed with a neck flexion injury that affected his ability to bend and to lift objects. The applicant required modified work over extended periods during 2005-2008.
6The respondent referred the applicant to an independent medical assessment ("IME") in March 2008. The IME recommended that the applicant be restricted to lifting no more than five kilograms and to no overhead lifting.
7The respondent and TPEA's Collective Agreement, under Article 11.06, sets out a process known as the "11.06" where the respondent, the TPEA, and an injured employee collectively identify potential jobs to accommodate the injured employee based on the employee's identified medical restrictions. This process was used in April 2008 to identify a list of jobs that might meet the applicant's medical restrictions.
8In June 2008 an occupational therapist was asked to review the list of jobs that were identified under the "11.06 process" that potentially would be suitable for the applicant. The occupational therapist concluded that none of the jobs identified by the parties represented a job match for the worker's abilities given the nature of his restrictions, but that one of the jobs, working on a machine known as the "UPN 150", had the potential to be suitable with modifications.
9The applicant began the modified UPN 150 job on July 31, 2008, and performed the job for two hours before determining he could not do the task. He attempted the UPN 150 job again on August 5, 2008 but discontinued it on August 6, 2008. August 6, 2008 is the last day the applicant worked for the respondent.
10On August 21, 2008, the employer asked the occupational therapist to review the UPN 150 job based upon the IME and the additional accommodations that had been proposed. The occupational therapist was of the view that the UPN job with the suggested modifications met the applicant's medical restrictions and was suitable.
11On August 27, 2008, a WSIB adjudicator issued a decision that determined that the modified UPN 150 job was suitable and within the applicant's medical restrictions. In this decision the WSIB denied the applicant's claims for loss of earnings ("LOE") benefits from when the applicant stopped working on August 6, 2008. The applicant appealed this decision to the WSIB.
12The respondent, TPEA, and the applicant met on several occasions in August and September 2008. The respondent told the applicant that it was of the view that the UPN 150 was a suitable job that met the applicant's medical restrictions and that it had no other position that would accommodate his disability.
13On April 18, 2009, the WSIB granted the applicant a 19% non-economic loss ("NEL") award for a diagnosis of cervical strain on degenerative disc disease and left shoulder strain: conditions that were determined would not improve. At the hearing the applicant testified that his neck flexion injury was chronic and that it had not changed or improved since 2008 when he was still working.
14In a decision dated March 25, 2010, a WSIB Appeals Resolution Officer confirmed that the modified UPN 150 job offered to the applicant was suitable for the applicant's restrictions and denied the applicant's request for LOE benefits. The applicant appealed this decision to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT").
15The respondent and applicant had essentially no contact between September 2008 and October 2010. The applicant was employed as an occasional teacher with a local school board during the 2008-2009, 2009-2010, and 2010-2011 school years.
16In a letter from the respondent to the applicant dated October 10, 2010, the respondent stated that it was terminating the applicant's employment effective immediately due to a frustration of the employment contract. The letter noted that 1) the applicant had been absent from work since August 7, 2008; 2) that the applicant had been diagnosed with permanent medical restrictions; 3) that the respondent had offered the applicant a suitable job in August 2008 and that the applicant had attempted the job but had stopped on August 6, 2008; and 4) that the WSIB had determined that the job offered by the respondent was suitable on August 27, 2008 (the letter also notes that the applicant had appealed this decision).
17The applicant filed his Application with the Tribunal on October 4, 2011. The Application alleges that the respondent discriminated against the applicant by refusing to provide him with a position that accommodated his disability and subsequently terminating his employment.
18On July 30, 2012, WSIAT issued a decision stating that the modified UPN 150 job offered by the respondent to the applicant on July 31, 2008, was not suitable for the applicant's injury. WSIAT awarded the applicant LOE dating from August 7, 2008.
Preliminary Issue of Delay
19The respondent raised a preliminary issue which was whether the Application should be dismissed in whole or in part because the alleged incidents of discrimination occurred more than one year prior to the filing of the Application and there was no reasonable explanation for why the delay in filing of the Application was incurred in good faith. At the hearing I heard submissions and evidence related to this issue.
20Section 34 of the Code states:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
21At the hearing I determined that the only allegation that I would consider was whether the respondent failed in its duty to accommodate the applicant's disability when it decided to terminate the applicant's employment on October 7, 2010. The termination of the applicant's employment occurred within one year of the filing of the Application on October 4, 2011 and consequently was timely. I determined that the allegation that the respondent failed to accommodate his disability in August 2008 was out of date, having occurred over three years prior to the filing of the Application and over two years prior to the termination of the applicant's employment. I found that the alleged discriminatory events of August 2008 and October 2010 did not constitute a series of incidents that would make the August 2008 allegations timely pursuant to section 34(1)(b) of the Code. An applicant cannot generally rely on a series of incidents within the meaning of section 34(1) if there is a gap of more than one year between some of the incidents. See Chintaman v. Toronto District School Board, 2009 HRTO 1225.
22I further found that the applicant had failed to provide a reasonable explanation for why he did not file an Application within one year of the events of August 2008 if he was of the view that he had been discriminated against at that time. The applicant submitted that he did not file an Application at that time because he was pursuing an appeal of the WSIB's August 22, 2008 decision that the UPN 150 job offered by the respondent did meet the applicant's medical restrictions and was suitable. He also submitted that he had not taken action because his employment had not been terminated at that time and that he had indications from the TPEA that his dispute with the respondent could be resolved.
23I do not find these to be persuasive reasons for the applicant not filing an Application within a year of August 2008. The Tribunal has determined that a delay based on waiting for another legal proceeding to unfold is not a delay incurred in good faith. See, Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670. Similarly, the Tribunal has found that waiting for an internal workplace process to resolve a human rights issue is not a reasonable explanation for an applicant's failure to file an Application within the one year time limit set out in the Code. See Cadena v. eHealth Ontario, 2012 HRTO 494.
24At the hearing I did hear evidence about the applicant's employment and the events leading up to the ending of his active employment in August 2008 where relevant to my determination as to whether the respondent failed in its duty to accommodate the applicant at the time it decided to terminate his employment in October 2010.
DUTY TO ACCOMMODATE
25Employers are required to make every reasonable effort, short of undue hardship, to accommodate an employee who becomes disabled. The scope of the duty to accommodate an applicant with a disability is set out in section 17 of the Code, which provides:
- (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.
26The duty to accommodate has both procedural and substantive obligations. See British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 at paras. 62-68. The procedural duty to accommodate requires an employer to take adequate steps to explore what accommodation is needed and to assess accommodation options. The substantive duty to accommodate requires an employer to make the modifications or provide the accommodation necessary in order to allow an employee with Code-related needs to participate fully in the workplace - unless it causes undue hardship.
27The respondent submits that it took steps to explore and assess accommodation options for the applicant when it learned of the applicant's medical restrictions in March-April 2008. This was the "11.06" process undertaken in April to July 2008.
28I heard evidence from Mr. Napolitano, Mr. Wilson, and Ms. Teeuwsen about the respondent's accommodation efforts. Mr. Napolitano testified that he was not directly involved in the applicant's 11.06 process, but noted that in April 2008 there would have been approximately 275 employees at the St. Catharines' plant and approximately 54 employees on WSIB benefits or on Labour Market Re-entry programs. He testified that the respondent went "over and beyond" to find modified work for injured workers.
29Mr. Wilson and Ms. Teeuwsen testified about the specific 11.06 process involving the applicant. I heard evidence that this 11.06 process involved the respondent, the TPEA, and the applicant, and that several possible jobs were identified as being potentially suitable given the applicant's medical restrictions. These positions were then reviewed with only the UPN 150 job being identified as potentially suitable and then only with modifications. Mr. Wilson testified that the applicant expressed his concerns during the review process about being able to do the UPN 150 job, even with modifications.
30Ms. Teeuwsen testified that the applicant's 11.06 process was extensive and took five or six months. She testified that it was understood that the applicant's medical restrictions were permanent. She testified that in one particular meeting, a number of potential jobs were reviewed with the applicant being asked for his feedback and whether he was of the view he could do the job. She testified that were no jobs on the list that the applicant felt he could do, but that it was agreed to look at the UPN 150 position in more depth. Ms. Teeuwsen testified that an occupational therapist was then asked to look more closely at the physical demands of this position and that the occupational therapist recommended that this job be modified. She testified that the other potential positions that had been identified were determined not to be suitable.
31Ms. Teeuwsen testified that the UPN 150 job was considered to be the lightest job on the plant floor and that if the UPN 150 was, in fact, unsuitable there were no other jobs on the plant floor which would meet the applicant's medical restrictions. She also testified that the respondent determined there was no need to undergo a further 11.06 process for the applicant in 2010 as there were no changes in the operating machines and job functions in the plant in the period 2008 to 2010. In other words, there were no jobs to consider for the applicant in 2010 that had not been available and considered in 2008.
32I am satisfied that the respondent, in co-operation with the applicant and the applicant's bargaining agent, did go through a substantive process to consider possible accommodation for the applicant, and that it was determined through this participatory process that the applicant was incapable of potentially fulfilling the basic or essential functions of his home position and other identified positions on the plant floor - except potentially for the disputed UPN 150 position. I am satisfied, based on the information before me (including the July 30, 2012 WSIAT decision) that there were no positions on the plant floor that could have accommodated the applicant in October 2010 when his employment was terminated. I note here that the applicant did not contend that there was a job on the plant floor that could have accommodated his medical restrictions and that he could do.
33However, the applicant did submit that there were other jobs that he could do that the respondent should have offered him in 2008 and in 2010. He testified that during the period of 2005 to 2008 he was on modified duties doing mostly painting as well as light cleaning. The applicant testified that these were jobs he could still do. He testified that he was also capable of doing working in the St. Catharines plant office or as a plant security guard. He submits that the respondent should have accommodated him in one of these jobs. I do not agree.
34Mr. Napolitano, Mr. Wilson, and Ms. Teeuwsen all testified that painting jobs at the St. Catharines plant are generally short term or "make work" projects given to persons who are injured and are in the process of returning to their regular duties. Ms. Teeuwsen testified that painting is not a full time or a classified job and is generally considered to be "unproductive" work. Ms. Teeuwsen testified that the applicant's light cleaning duties were also part of his modified duties when he was attempting to return to his full time regular duties, and that these duties usually form a small part of the duties of an employee in the general labourer classification.
35In my view, the respondent was not obliged under its duty to accommodate to assign the applicant to ongoing "make work" duties or duties usually assigned in order to provide employees recovering from an injury or disability with an opportunity to return to work as soon as possible and to carry out some short term work before returning to their regular duties or modified regular duties. In my view, requiring the respondent to provide the applicant with this type of work on a permanent basis would constitute an undue hardship. A similar determination was made by the Tribunal in McKee v. Imperial Irrigation, 2010 HRTO 1598. And, as stated by the Supreme Court of Canada in Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008] 2 S.C.R. 561 at para. 18:
. . . the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory.
36I am also of the view, based on the evidence before me, that the respondent's duty to accommodate did not require that it place the applicant in an office or security guard position. Ms. Teeuwsen testified the respondent had downsized the St. Catharines plant office by permanently eliminating office jobs in July and October 2008 and April 2009, and that were no vacant positions in the plant office at the time the applicant's employment was terminated. She testified that security guard positions at the plant were also fully occupied, and that there have been no positions available for the applicant. She testified that these positions were also outside the bargaining unit and the applicant had no "bumping rights" under the Collective Agreement to displace persons working in the office or in security. The respondent's position was that displacing existing staff in the office or in security would have constituted an undue hardship.
37The applicant did not adduce any evidence or make any submissions to indicate why the respondent's reliance on there being no available positions in the office or in security was not a reasonable explanation for why the respondent did not accommodate the applicant in an office or security position. He did not contend that there were vacancies in the office or in security for which he should have been considered. He did not submit that the respondent should have displaced a person from an office job or security guard position or why the displacement of an office or security employee would be reasonable or would not cause undue hardship. He simply expressed the belief that he was capable of doing office and security work and that accordingly he should have been accommodated by being placed into one of these jobs.
38Based on the information before me, I accept the respondent's basic contention that no office or security jobs were available and to displace a person from an existing position in order to accommodate the applicant would constitute an undue hardship.
39I am satisfied that there was no position within the applicant's restrictions that the respondent was required under its duty to accommodate to offer the applicant in October 2010. Accordingly, I find that the respondent did not violate the substantive aspect of its duty to accommodate under the Code when it terminated the applicant's employment on October 10, 2010.
40I am also satisfied that the respondent did meet its procedural duty to accommodate the applicant. The procedural duty to accommodate requires a respondent to obtain relevant information about an employee's disability and to consider and explore options that may be available to accommodate the disability.
41In my view the respondent did obtain relevant information about the applicant's disability and assessed accommodation options for the applicant through the 11.06 process: a process that formally involved the applicant and that systematically considered jobs that could be available to the applicant. It is true that as a result of this process the respondent wrongly relied on a determination that the UPN 150 position provided suitable accommodation for the applicant. However, this does not mean that the respondent did not meet its procedural duty to obtain information about the applicant's disability and to consider and explore options that may be available to accommodate his disability. I am of the further view that it was reasonable for the respondent to rely on the 11.06 process and its outcomes when it decided to terminate the applicant in October 2010 given the evidence I heard that that there had been no change in the applicant's medical status or in the nature of the jobs available in the St. Catharine's plant from 2008 to 2010.
42I am aware that the 11.06 process did not explore whether the applicant might have been accommodated in an ongoing painting or cleaning job or as a security guard or office worker. However, the evidence before me was that the respondent did not consider that the applicant could be accommodated into one of these positions; a position I have accepted. Under the circumstances, the fact that the respondent did not confer with the applicant about these specific possibilities does not lead me to find that the respondent failed in its procedural duty to accommodate.
43For all these reasons the Application is dismissed.
44Dated at Toronto, this 17th day of June, 2013.
"Signed by"
Eric Whist
Vice-chair