THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marta Vargas
Applicant
-and-
University of Waterloo
Respondent
DECISION
Adjudicator: Eric Whist
Indexed as: Vargas v. University of Waterloo
APPEARANCES
Marta Vargas, Applicant Manuel Oliveira, Representative
University of Waterloo, Respondent Lisa Kwasek, Counsel
CUPE Local 793, Intervenor Paul O’Ryan, Counsel
INTRODUCTION
1This is an Application filed on August 18, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability.
2The applicant injured her knee on August 11, 2010. The applicant returned to work on August 25, 2010, with a medical restriction. The applicant continued to work until October 21, 2010, when she again left work because of her injured knee. The Application alleges that the respondent did not follow the applicant’s medical restriction thereby contributing to her further knee injury. The Application further alleges that the respondent did not adequately respond when the applicant subsequently complained to the respondent about how she was accommodated during the period August 25 to October 21, 2010.
3The applicant was hired by the respondent as a “Custodian II” in May 2006. A Custodian II is principally responsible for cleaning offices, classrooms and other rooms in a designated area. The applicant was initially hired on a recurring fixed contract until July 2008 when she was hired full time. In August 2010 the applicant was working on the night shift in the Davis Centre, one of the respondent’s library facilities.
4The applicant had a number of complaints about how she was treated by the respondent from the beginning of her employment to August 2010. These complaints were mostly about how she had been previously supervised and include complaints that she had been bullied, harassed and assigned extra work by a previous supervisor and by a lead hand in 2008. The Application refers to this treatment. At the outset of the hearing I clarified that these complaints were not issues that I would be deciding given that they did not allege Code violations.
5The applicant was represented at the hearing by Manuel Oliveira, her spouse. Mr. Oliveira is employed by the respondent as a Custodian I. It was evident from the hearing as well as the documents that were before me that Mr. Oliveira also has a number of issues about how he as well the applicant have been treated by the respondent during the course of their employment. At the hearing I further clarified that I would not hear or consider these issues.
6The applicant’s return to work lasted from August 25 to October 21, 2010. The applicant was subsequently off work until October 31, 2011 at which time she returned to work with additional medical restrictions. At the outset of the hearing the applicant raised concerns about how she was treated following her return to work in October 2011. I ruled that I would not be considering these concerns which postdate the filing of the Application and which were being newly raised by the applicant.
7At the hearing I heard evidence from 9 witnesses. I heard evidence from the applicant and two further witnesses she called; Mr. Oliveira and Michael Greulich, a representative of the applicant’s bargaining agent, the Canadian Union of Public Employees (“CUPE”) Local 793. The respondent called Tom Galloway, the respondent’s Director of Custodial and Ground Services; Phil Frowd, a Custodial and Ground Services Shift Supervisor; Glen Welch, a Foreperson with the respondent’s Plant Operations; Ian Riley, a Custodial and Ground Services Lead Hand; Vera Cardoso, a Human Resources Advisor for the respondent; and Nellie Gomes, the respondent’s Disability Co-ordinator.
DECISION
8The Application is allowed, in part. I find that the respondent failed to meet its duty to accommodate the applicant during the period August 25 to October 21, 2010. I find that the respondent’s subsequent response to complaints made by the applicant about her accommodation meet its Code mandated duty to investigate a complaint of discrimination.
THE APPLICANT’S RETURN TO WORK
The Applicant’s Medical Restriction
9The facts in this case were generally not in dispute. Where there is a disagreement I have made findings of fact based on an assessment of credibility. In determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).
10The applicant testified that on August 11, 2010, she hurt her left knee while working. She called in sick on August 12 and 13 hoping that her knee would improve with rest but it did not. She testified that on August 16, 2010, she went to see her family doctor who told her that she had tendinitis in her knee and that she should remain off work until August 25. Her doctor provided her with an “Attending Physician’s Form”. This is a form issued by the respondent so that a physician’s recommended modifications/restrictions can be used by the respondent when an ill or injured employee returns to work.
11The applicant’s doctor records on an Attending Physician’s Form dated August 16, 2010 that the applicant could return to modified duty on August 25, 2010, and that she expected that the applicant would be able to return to regular duties within 6-8 weeks. The doctor identifies one required modification/restriction for the applicant for her return for work by checking off a box that indicates that the applicant is capable of walking “short distances only”.
12The applicant dropped this form off at Ms. Gomes, the respondent’s Disability Co-ordinator’s office on August 23, 2010. Having an injured or ill employee provide their Attending Physician Form to the respondent’s Disability Co-coordinator or Occupational Health Nurse is a standard initial step in the respondent’s protocol for returning an injured or ill employee to work. Ms. Gomes testified that she copied the form to the Occupation Health Nurse who reviewed the form and was satisfied that the nature of the identified medical restriction was clear and did not, in her view, require clarification from the applicant’s doctor. Ms. Gomes testified that she subsequently sent an email to Mr. Frowd, the applicant’s supervisor, to inform him that the applicant’s restriction was that she could walk short distances only. (The respondent does not provide a copy of an employee’s Attending Physician Form to managers). She testified that she asked in her email whether Mr. Frowd had any issues with the information she had provided. She testified that Mr. Frowd confirmed that he was satisfied that the applicant could be accommodated.
13Mr. Frowd testified that he found out about the applicant’s planned return to work from an email sent to him by Ms. Gomes on August 23, 2010. He testified that the email communicated that the applicant’s medical restriction was that she was to walk short distances only. He testified that he was of the view that he could accommodate this medical restriction by allowing the applicant to sit and to take as many rest periods as she required and that these rest breaks would be determined by the applicant herself. He testified that he was of the view that allowing the applicant to sit down when needed was an appropriate accommodation of the applicant’s medical restriction to walk short distances only. He testified he did not discuss this proposed accommodation with the disability advisor, that he generated the idea himself.
14Mr. Frowd testified that he would normally have communicated the applicant’s medical restriction to Mr. Welch, the applicant’s foreperson, but Mr. Welch was on vacation. Consequently, he told Mr. Riley, the applicant’s lead hand, that the applicant’s restriction was that she could only walk short distances and should be allowed to take as many rests as she wished. Mr. Frowd testified that normally if Mr. Riley or Mr. Welch were to advise him that an employee was having trouble with their restrictions he would advise Mr. Welch to tell the employee to contact the Disability Co-ordinator.
15Mr. Riley testified that he did not recall being told by Mr. Frowd that the applicant’s restriction was that she could walk short distances only. He did recall being told that the applicant could take breaks whenever she wished. The applicant testified that Mr. Riley told her on August 25 that Mr. Frowd had called him to say that the applicant was on modified duties and that the applicant had permission to sit when she required rest.
16Mr. Welch testified that he had been on vacation when the applicant returned to work on August 25. He testified that either Mr. Frowd or Mr. Riley told him that the applicant’s accommodation was that she could sit whenever she felt necessary. Both Mr. Riley and Mr. Welch testified that they were unaware throughout the period of August 25 to October 21, 2010, that the applicant’s medical restriction was that she was to walk short distances only.
17I prefer the testimony of Mr. Riley and Mr. Welch (supported by the applicant’s corroborating evidence about what Mr. Riley told her) that they were unaware of the applicant’s medical restriction that she was allowed to walk short distances only rather than Mr. Frowd’s testimony that he did tell Mr. Riley of this restriction. In my view what is likely is that Mr. Frowd only told Mr. Riley that the intended accommodation for the applicant was to allow her to sit and take breaks when she felt this was necessary.
The Applicant’s Work Experience Following Her Return to Work
18The applicant testified that her work load did not lessen after her return to work on August 25, 2010. She testified that prior to her injury she had to rush to complete her job duties during the course of her shift. She testified that it was hard to do her work because of the physical area she had to cover and that if she was to sit for 5 or 10 minutes at a time it was hard to complete her work before the end of her shift. She testified that she did not think short breaks were an appropriate accommodation for her medical restriction.
19The applicant testified that her knee injury was evident during her return to work as she was always limping. She testified that Mr. Riley did ask her how she was doing to which the applicant would reply that her knee was more painful. The applicant testified that Mr. Welch would ask her how she was feeling. The applicant testified that on approximately October 7, 2010, she told Mr. Welch that she was in a lot of pain and that being allowed to sit as required was not helping her because she was under pressure to finish her work. She testified that Mr. Welch told her that there was nothing he could do, that only a doctor or a nurse could help the applicant and that he recommended that she see a doctor.
20The applicant testified that she did not tell Mr. Riley or Mr. Welch what her medical restriction was. She testified that she told a co-worker that she believed she needed a physically smaller area of work but did not tell any manager of this. The applicant testified that she did not know she could raise concerns about her accommodation with the Disability Co-ordinator. She testified that she also did not complain about her situation because when she had complained (prior to August 2010) about a previous supervisor these complaints had been unsuccessful and had led to her being more closely supervised.
21Mr. Riley testified that the applicant was a diligent and excellent worker. He testified that the applicant’s normal work assignment did not require the applicant to rush in order to finish her work and that he did not see the applicant rushing to finish her duties during her return to work period. He testified that the applicant never told him that her restriction was not being met nor did she ask to be assigned less work or a smaller area to work. He testified that he never heard the applicant say that she was having difficulty finishing her work although she did raise an issue of having a large area to cover.
22Mr. Riley testified that the applicant did complain about her knee and that it was obvious she was in pain. He testified that the applicant told him that her doctor had advised her that she had a degenerative knee condition that would eventually get worse.
23Mr. Welch testified that the applicant never told him that being allowed to sit as required was not an appropriate accommodation. He testified that the applicant never told him that she was having difficulty doing her job. He testified that the applicant never missed a day in the period August 25 to October 21 and that she never said she could not do her job. He testified that he asked Mr. Riley nightly how the applicant was doing and was told the applicant was doing fine, that she was finishing her work on time.
24Mr. Welch testified that if the applicant had said she couldn’t do her job or finish her job he would have accepted this but the applicant never did so. He testified that he did tell the applicant that she did not have to finish her work, and that the custodial team had a person in a floater position that could have finished the applicant’s job assignment, if necessary. He testified that the applicant did her job and did it well.
25Mr. Welch estimated that a C-II custodian will walk 7 hours on a shift. He testified that the applicant would not have been walking a greater distance than other C-IIs.
26Mr. Welch testified that he did see that the applicant was limping after he returned on August 30, 2010, and that he did tell the applicant that she should see her doctor. He testified that the whole idea of restrictions was to allow a person to get better and the applicant wasn’t. He testified that the applicant did say in October, a few days before she went off, that she was frustrated with her knee. He testified he told her that there was nothing he could do about her restriction, that she should see her doctor. He testified that he did not think to remove any of the applicant’s tasks as that would be changing the applicant’s restrictions and that was not his job.
27There was an issue about whether the applicant was required to do extra work and work beyond the C-II requirements during the period August 25 to October 21, 2010. The applicant testified that on August 25 Mr. Riley told her that a co-worker was away and that he needed the applicant to do extra work (cleaning a common area on the second floor). The applicant testified that she did this task because it was her duty to cover for someone who was away. She testified that she did not say to Mr. Riley that it was inappropriate for her to do this extra work because Mr. Riley was a boss and as such can tell the applicant what to do. She testified that she helped out for three nights (August 25-27). Mr. Riley testified he may have asked the applicant to do extra work in August, 2010.
28There was an issue about whether the applicant was required to pick up garbage off the floor. Picking garbage off the floor is a job that is meant to be performed by “C-I” custodians not C-II custodians. The applicant testified that she was told by Mr. Riley, prior to August 2010, that picking up garbage off the floor was a C-II job. She testified that later Mr. Welch told her that it was a C-I job.
29The applicant testified that during her return to work she was still required to pick up garbage off the floor. She testified that because she was finding it difficult given the condition of her knee Mr. Welch gave her a mechanical “picker” to help her. The applicant testified that she felt this was an inappropriate task to require her to do given her injury.
30Both Mr. Riley and Mr. Welch testified that picking garbage off the floor was a C-I job and that they had not told the applicant she was required to perform this task. They testified that some C-II’s will choose to pick up garbage while they clean and that the applicant was a diligent and conscientious worker who chose to do this job. Mr. Welch testified that prior to August 2010 he had told the applicant to stop doing this job but that she had said she was doing it to “help out”. Mr. Welch and Mr. Riley both testified that the applicant chose to continue to do this job after her return to work on August 25 and that it was the applicant who asked for the mechanical picker that Mr. Welch then provided to her. Mr. Riley testified that the applicant had wanted the picker because of her injured knee. The applicant denied asking for the picker.
31I am satisfied that the applicant was assigned extra work August 25-27 as claimed by the applicant. She provided detailed and persuasive evidence about this assignment, about being asked to fill in for someone absent from work. Mr. Riley did not deny that the applicant had been assigned extra work, testifying that he may have assigned the applicant extra work in August.
32I am satisfied that the applicant was doing C-1 work after her return to work, relying during part of this time on the use of a picker. This was not disputed. I am also satisfied that the applicant was not assigned this task but chose to pick up garbage off the floor notwithstanding her injured knee. I note both Mr. Riley and Mr. Welch testified that the applicant was told that picking up garbage off the floor was C-1 work and not her work. While it is true the applicant testified that Mr. Riley told her it was part of her job to pick up garbage, she also testified that Mr. Welch, the person responsible for her supervision, told her that it was not her job. I find this acknowledgement significant. In my view, it clearly suggests that the applicant knew that picking up garbage was beyond her assigned duties. In my view the applicant chose to pick up garbage given her conscientious and diligent work ethic.
33I am not sure who may have first mentioned the mechanical picker, whether it was Mr. Welch or the applicant, but regardless I am satisfied that the applicant was not directed to use the picker but rather chose to use it in order to make it easier for her to pick up garbage during her return to work.
ANALYSIS
34When an employer is notified that an employee has a disability the employer has a duty to determine whether or not the employer can accommodate the individual. There was no dispute that the applicant’s knee injury constituted a disability under the Code and that the respondent had a duty to accommodate this disability when the applicant returned to work in August 2010.
35The Supreme Court of Canada has accepted that the duty to accommodate has both a procedural and a substantive component. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 7868. The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and undertake an individualized investigation of potential accommodation measures to address those needs. The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin.
36I find the respondent’s efforts to accommodate the applicant’s disability to be inadequate and inappropriate and that consequently the respondent has failed in its duty to accommodate the applicant. In my view the respondent failed in both the procedural and substantive components of its duty to accommodate the applicant.
37My determination that the respondent has failed to meet its procedural duty to accommodate is based on a number of actions taken (and not taken) by the respondent. To begin, the decision as to what accommodation should be provided for the applicant was unilaterally determined by Mr. Frowd. I see no evidence of an investigation or assessment of the accommodation measures needed to meet the applicant’s identified medical restriction. It appears Mr. Frowd failed to seek input from the respondent’s Disability Co-ordinator or the applicant’s front line supervisors. Importantly, there was no effort to seek input from the applicant about the proposed accommodation or to confer with the applicant in any manner.
38Furthermore, Mr. Welch and Mr. Riley the two persons with direct responsibility for directing the applicant’s work testified they were completely unaware that the applicant’s medical restriction was walking short distances only, that they only knew that the plan was to accommodate the applicant by allowing her to take as many breaks as she wished. In my view this lack of knowledge arising from a failure to communicate also affected the implementation of the respondent’s accommodation plan. It compromised Mr. Riley and Mr. Welch’s ability to manage the applicant’s accommodation and respond to the applicant’s accommodation needs over the course of her return to work. Indeed, if, for example, Mr. Riley had known of the applicant’s medical restriction he may not have asked the applicant to clean additional areas when she first returned to work.
39Both Mr. Galloway and Ms. Gomes testified that the respondent has a practice of informing persons returning to work with medical restrictions that they can contact the Disability Co-ordinator or the Occupational Health Nurse if they had issues with their accommodation. This is a procedural measure to help ensure that an employee with accommodation needs can, over the course of their return to work, access further assistance and support if needed. This established protocol was not followed with the applicant. I am prepared to find this to be a further procedural flaw in the steps taken by the respondent to accommodate the applicant, notwithstanding the respondent’s argument that there was no obligation for the respondent to provide this type of information to the applicant, particularly in a unionized workplace. In my view, the procedural component of the respondent’s duty to accommodate requires it to involve the applicant in the accommodation process and if this had been done, the applicant would have indeed been apprised of the ongoing supports available to her.
40I find the respondent’s determination that the applicant’s medical restriction could be accommodated by the applicant taking breaks to sit down to also be a substantive failure of the respondent’s duty to accommodate. To tell the applicant that she could take breaks from her work fails to adequately consider the nature of her restriction. Taking breaks as needed does not necessarily mean that the applicant would only walk short distances. It does not, in my view, adequately protect the applicant from working beyond her restriction.
41In my view in order to reasonably accommodate the applicant’s restriction the respondent was required to consider the nature of the applicant’s work and what distances she might have to walk during her shift and the degree to which her regular duties might require her to walk more than short distances. In other words it would need to resolve what the restriction “walking short distances only” meant in the context of the applicant’s job. I see no evidence that the respondent attempted to do this by clarifying with the applicant’s doctor what short distances might mean and/or discussing the issue with the applicant at the outset of her return to work. I note here Ms. Gomes’ testimony that a conversation should have taken place between Mr. Frowd and the applicant to clarify what “short distances only” meant.
42Instead the respondent directed the applicant to take breaks whenever she needed to. This does not limit or reduce the amount of walking the applicant may have to do. Again, this accommodation simply does not do enough to ensure that the applicant will not be required to work beyond her restriction. In my view the respondent needed to have a more formal accommodation plan that considered what “short distances only” entailed and expressly made it clear to the applicant that she should not work beyond this medical restriction and that she could bring forward issues if there were complications with the implementation of this plan.
43The respondent submitted that it did provide reasonable accommodation to the applicant. As part of its submission it argued that the applicant never told Mr. Riley or Mr. Welch that the respondent’s accommodation did not meet her restriction. It submits that the applicant was able to carry out all of her job duties and in fact chose to carry out extra tasks including C-1 custodian tasks.
44I accept that the applicant could have explicitly raised concerns with the respondent about the appropriateness or effectiveness of being allowed to take breaks of her choosing given her medical condition. That said, the applicant did raise concerns about her knee and the respondent was aware that the applicant was continually limping, continued to complain about her knee pain and was doing extra tasks. This did not lead to any reassessment of the applicant’s accommodation. In my view both parties could have done more during the return to work period to support the applicant’s safe return to work.
45However, the onus was on the respondent to offer reasonable accommodation with input from the applicant and based on the applicant’s medical restriction at the outset of her return to work. It did not do so. It should have provided clearer direction to the applicant and others about what to do if there were issues with the implementation of an agreed to accommodation plan for the applicant. The respondent did not do this. It is this initial failure that constitutes the respondent’s failure to provide reasonable accommodation.
EVENTS FROM NOVEMBER 2010 TO APRIL 2011
46The applicant submits that during the period November 2010 to March 2011 she made several complaints to the respondent about how she had been treated during her return to work. She alleges that the respondent failed to appropriately respond to these complaints. The issue I need to decide is whether the respondent did or did not meet its duty to investigate these complaints.
47The Tribunal has held that an employer has a duty to investigate complaints of discrimination or harassment; that the duty to investigate is the means by which an employer ensures that it is achieving the Code mandated responsibility of operating a discrimination free environment. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 (“Laskowska”). A failure to take reasonable steps to address allegations of discrimination may result in an employer being held liable for violating the Code.
48I heard testimony and had documentary evidence before me about a series of meetings the applicant held with respondent representatives during the period of November 2010 to March 2011. It was evident from the testimony of the applicant and the respondent’s witnesses that a significant concern for the applicant in these meetings was how she had been treated by the respondents prior to August 2010 and in particular whether she had been harassed and bullied by a previous supervisor. I need not refer to these concerns and how they were addressed by the respondent for the purposes of my decision. I also do not need to refer in any detail to the testimony of Ms. Gomes, Ms. Cardoso, and Mr. Greulich as to their recollections of these meetings.
49In brief, in November 2010, the applicant met with Ms. Gomes the disability Co-ordinator. The applicant testified that she told Ms. Gomes that she did not think that being allowed to sit was an appropriate accommodation during her return to work. She testified that Ms. Gomes recommended that she should bring this concern to Ms. Cardoso in Human Resources.
50On November 22, 2010 the applicant and Mr. Oliveira met with Ms. Cardoso, a Human Resources Advisor. She testified that she did not complain about her return to work experience but did tell Ms. Cardoso that she did not think the respondent could do anything for her because her knee had been destroyed. Ms. Cardoso testified that the applicant was principally concerned about being harassed and bullied by a previous supervisor. She testified that the applicant did refer to her injured knee but did not refer to her accommodation or medical restriction or her experiences working in the Douglas Centre. She testified that the applicant did not identify what remedy she was looking for except to say she was looking for justice. She testified that she recommended that the applicant meet with management, in this case Tom Galloway, the Director of Custodial and Grounds Services.
51The applicant testified that on January 12, 2011, she and Mr. Oliveira met with Mr. Galloway, Matt Erickson, the Director of Conflict Management and Human Rights and Mike Greulich, a representative from CUPE 793. The applicant testified that she again described her return to work experience. Mr. Oliveira testified that the principal focus of this meeting was the applicant’s knee injury. The applicant testified that there was no particular outcome from this meeting.
52Mr. Galloway testified that the applicant recounted a number of issues of concern from early in her employment with the respondent as well as her belief that during the August to October 2010 period her return to work protocol was not followed, that she was asked to work beyond her restrictions. Mr. Galloway testified that he had had no previous knowledge that the applicant had concerns about her accommodation given that he would not have been directly involved in her return to work process. He testified that the applicant was specifically asked about what remedies she was seeking, for example whether she wanted to be relocated to another job location, but that the applicant never made it clear as to what she wanted.
53Mr. Galloway testified that he followed up on the applicant’s complaint about how she was treated during her return to work. He testified he spoke to Mr. Frowd, Mr. Riley, Ms. Gomes and the Occupational Health Nurse. Mr. Galloway testified that he determined from the information he received from Mr. Frowd and from Mr. Riley that the applicant was voluntarily going beyond her restriction. It appears that Mr. Galloway understood this to mean that while the applicant was allowed to take rest breaks she was not particularly doing so and she was carrying out additional tasks including C-1 work. Mr. Galloway testified that the applicant’s supervisors should have been more explicit in telling the applicant to work within her restriction and that if they saw her working beyond it (i.e. doing extra work) they should have told her not to. Mr. Galloway testified that it was a common problem for employees returning to work with medical restrictions to work beyond their restrictions, an issue that he felt the respondent has since addressed. He testified that he did not find that any supervisor had directed the applicant to work beyond her restriction.
54Mr. Galloway testified that the respondent has further formalized its return to work program pursuant to the collective agreement that was ratified in September/October 2010. He testified that under this collective agreement a return to work process requires that a meeting be held involving, at a minimum, the employer, the employee, a union representative and the Disability Co-ordinator or Occupational Health Nurse. He testified when the applicant returned to work in October 2011 the return to work process involved such a meeting, that a more formal written return to work plan was developed and that the applicant was explicitly told to work within her medical restrictions.
55On February 2, 2011 the applicant and Mr. Oliveira met with Janet Passmore, the Associate Provost Human Resources, Neil Murray, Director Staff and Labour Relation and Human Resources and Mike Greulich and Greg Macedo of CUPE 793. It appears this meeting was a result of a letter written by the applicant dated January 4, 2011 to Ms. Passmore and a further letter from Mr. Oliveira to Ms. Passmore dated January 26, 2011. Both of these letters raise general concerns about the employment experiences of the applicant and Mr. Oliveira.
56The applicant testified that at the February 2, 2011 meeting she again shared her experiences from August to October 2010. She testified that Ms. Passmore asked for more information and indicated a willingness to look into the matter.
57The applicant testified that she understood that Ms. Passmore subsequently arranged for the meeting that was held on March 24, 2011, which involved the applicant, Mr. Oliveira, Dennis Hubert, Vice-President Administration and Finance, Mr. Galloway, Vera Cardozo and Mr. Greulich and Mr. Macedo. The applicant testified she did not understand the purpose of the meeting and that she found this meeting unsatisfactory. She testified that again she told her account of what happened during her return to work. She testified that Mr. Hubert told her that the respondent had not followed the procedures it should have during her return to work but that the respondent had made a “little mistake”.
58The applicant testified that she felt that the respondent did not adequately address her concerns about her knee at this meeting and that it was following this meeting that she began to look at alternatives to resolve her concerns which led to the filing of her Application in August 2011.
59Mr. Galloway testified that at the meeting he did provide feedback to the applicant about his investigation. He testified that he acknowledged at the meeting that a proper return to work protocol had not been followed with the applicant in August 2010 meaning, as I understand, that she had not been properly involved in the process. He noted that this procedural step had since been corrected. He testified that he communicated his understanding that the applicant had voluntarily worked beyond her restrictions and that she ought to have been cautioned that she was going beyond her restrictions.
ANALYSIS
60The Tribunal’s decision in Laskowska sets out the following three criteria to assess the reasonableness and adequacy of a respondent’s response to an allegation of discrimination or harassment:
(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;
(2) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and
(3) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant? (para. 59)
61The Tribunal in Laskowska goes on to state that:
While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably. (para. 60)
62I find the respondent’s response to the applicant’s allegation that she was not appropriately accommodated to be reasonable. I note in relation to the first element identified in Laskowska that the respondent did have in place an anti-discrimination policy, its “Policy 33” with an identified complaints process. More importantly, for this case I find that the respondent had in place an established return to work process. This included identifying the medical restrictions of an employee returning to work through an “Attending Physicians Form”. It included having its Disability Co-ordinator and Occupational Health Nurse assess these restrictions. It included a process for the employee’s manager to then be included in preparing for the injured or disabled employee’s return to work. The process did include provisions for an employee to raise concerns about their accommodation – a complaints process if you will – although, as noted I found this was not communicated to the applicant in the case before me. I note here that I heard no evidence or submissions on what training the respondent may have provided to managers and employees about the return to work process and the respondent’s duty to accommodate.
63I find the respondent’s response to the applicant’s complaints to be reasonable pursuant to the second element identified in Laskowska. I find it reasonable that when the applicant raised concerns about her return to work accommodation (and other complaints about how she was treated by the respondent) with the Disability Co-ordinator advisor in November 2010 that she was referred to the respondent’s Human Resources Services. I find it reasonable that the applicant was subsequently referred by a Human Resources Advisor to a senior manager in the applicant’s department. The respondent met with this manager, Mr. Galloway, in early January 2011. I find it appropriate that the respondent’s Director of Conflict Management and Human Rights was also present at this meeting as a resource and to potentially provide a mediation type role, if required.
64Importantly, after this meeting Mr. Galloway undertook an investigation of the applicant’s complaint. He interviewed respondent staff involved in the return to work process. He concluded that the return to work process was not properly followed in that he understood that the applicant worked beyond her restriction. He reported his findings to the applicant in March, 2011. I find this investigation process reasonable and sufficiently timely. I am satisfied that the respondent took the applicant’s complaint seriously.
65That said, it appears Mr. Galloway’s conclusion that the respondent failed to fully meet its duty to accommodate the applicant was primarily based on an understanding that the applicant had continued to do C-1 custodial work and work hard and that this meant she was voluntarily working outside of her restriction. It appears he was of the view that the respondent ought to have told the applicant to take breaks, to do less work including not working outside her official job duties. It is not evident that Mr. Galloway understood from his investigation that the respondent failed to appropriately consider the applicant’s medical restriction to walk short distances only when it was determining how to accommodate the applicant.
66However, even so I find that the respondent did provide a reasonable resolution of the complaint pursuant to the third element identified in Laskowska. It communicated its investigation findings to the applicant. It acknowledged that its accommodation process was flawed. It introduced, albeit coincidentally, a strengthened return to work process that more formally required employee involvement in the accommodation process. This process was in place when the applicant did return to work in October 2011.
67The applicant did raise concerns that the respondent did not sufficiently address her complaints, noting amongst other concerns that Ms. Passmore had committed to providing her with further assistance and Dr. Huber had trivialized her experience by suggesting that the respondent had only made a little mistake in its effort to accommodate her return to work. While I accept that the applicant was not satisfied by how the respondent addressed her complaints I find that in considering the totality of the respondent’s actions that the respondent acted reasonably and met its duty to investigate.
REMEDY
68Section 45.2 of the Code sets out the Tribunal’s remedial powers:
45.2 On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
Accordingly, the issues that I am required to determine are whether the applicant is entitled to monetary compensation and whether the Tribunal should order the respondent to do anything further to promote compliance with the Code.
Monetary Compensation for Loss Arising out of the Infringement
69Monetary compensation is awarded as a way to make victims of discrimination whole, to compensate them for injury to dignity, feelings and self-respect.
70The applicant testified that the respondent’s failure to accommodate contributed to the further injury of her knee and that this has affected the quality of her life. She testified that after she was diagnosed with further knee problems in October 2010 she became depressed. She subsequently attended counselling and was prescribed anti-depressants. She testified that she became prone to anxiety attacks, that her relations with her children became strained. She referred to her life having been ruined.
71The applicant provided a letter from her family doctor dated September 28, 2012, stating that the applicant had been her patient since 2008. The letter describes the applicant’s difficulties with her knees beginning in August 2010 and her efforts to address her physical pain. The letter continues by stating that in January 2011 the applicant was diagnosed with anxiety/depression, for which she was prescribed medication. It states that she was diagnosed in September 2012 with Mixed Anxiety Disorder and moderate depression for which she takes medication.
72The respondent submits that the applicant has not established that the applicant’s knee injury as of October 21, 2010 was the result of having not been accommodated and that the applicant’s subsequent depression and anxiety related issues can be attributed to the respondent’s conduct.
73In evaluating the appropriate compensation for injury to dignity, feelings and respect under section 45.2 of the Code the Tribunal has applied two criteria: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940. As stated in Arunachalam v. Best Buy Canada, 2010 HRTO 1880:
The first criterion recognizes that injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
74I find the objective nature of the discrimination experienced by the applicant to be less serious. It relates to a short term accommodation. It does not involve the termination of employment.
75I find the applicant did experience emotional difficulties including anxiety and depression after she left work on October 21, 2010. I am prepared to make this finding based on the applicant’s testimony and the corroborating evidence of her doctor’s letter. It is clear that the applicant was distressed about the health of her knees and how this would affect her future. As noted she was of the view her life had been ruined.
76What is less evident is the degree to which the emotional difficulties and distress the applicant experienced after October 2010 can be directly attributable to the respondent’s failure to provide reasonable accommodation. I note that the applicant testified that after she had an MRI in January 2011 she was told by a doctor that the MRI revealed that she had stretched cartilage. She testified that when she asked the doctor what may have caused this she was told that it could be 1) age related (cartilage can break down for persons over 50); 2) that it could be the result of the nature of her occupation which involved her putting lots of pressure on her knees on an ongoing basis (like a basketball player); 3) that it could be genetic or 4) that it could be related to her August 2010 injury and her return to work. The applicant testified that she was of the view that it was her injury and return to work. However, in my view the medical evidence before me, including the letter from the applicant’s doctor does not persuasively establish this is the sole reason that she was experiencing knee troubles and that her subsequent emotional difficulties can be solely attributable to the respondent’s actions.
77In determining what should be an appropriate amount of monetary compensation in this case I have considered the Tribunal’s case law. Awards for discrimination on the basis of disability in respect of employment range widely. Cases involving the termination of employment generally result in awards of $10,000 and higher. I do not find that the nature of the respondents’ failure to accommodate the applicant over a two month period and the emotional effects this action had on the applicant warrant a remedy in this range.
78The Tribunal has issued a number of decisions that involve a respondent failing to accommodate an applicant for a short period of time and in which the Tribunal has awarded compensation for injury to dignity, feelings, and self-respect. See, for example, Piechocinski v. Toronto Standard Condominiums Corporation No. 1519, 2011 HRTO 1430, Goad v. 1681078 Ontario Inc., 2010 HRTO 817, Burns v. Employer’s Choice of Staffing of Canada Ltd., 2009 HRTO 1255 and Lagana v. Saputo Dairy Products Canada G.P., 2013 HRTO 309. These cases involve awards ranging from $1,000 to $6,000. In my view the present case is most comparable to Lagana where the applicant was not appropriately accommodated in a physically demanding job over a short period of time (three months). Having considered all the circumstances I find that $5,000 is an appropriate amount for compensation for injury to dignity, feelings and self-respect.
Compensation for Lost Wages
79The applicant asks for compensation for lost wages for the period February 2011 to October 2011 when she returned to work. As I understand the applicant was on short term disability benefits from October 2010 to February 2011 after which she received Long Term Disability Benefits until she returned to work in October 2011. The applicant seeks 10 days in lost wages which represents the difference in her wages and the long term benefits she did receive for the period February 2011 to October 2011.
80I decline to order this proposed remedy. I am not satisfied that I can conclude, based on the evidence before me, that the reason the applicant was off work for approximately one full year was because of damage to the applicant’s knees caused by the respondent’s failure to accommodate the applicant in 2010.
Other Remedies
81The applicant requests that she be re-assigned to another job, a C-II position in a different building where she would only have to walk shorter distances and would have no stairs to climb. I decline to order this proposed remedy. The applicant returned to work in October 2011 with a series of new medical restrictions. This has required the respondent to provide the applicant with reasonable accommodation. However, the issue of whether the respondent has met its duty to accommodate the applicant since October 2011 was not before me and I heard no evidence about this matter. Given the circumstances I do not find that ordering the respondent to accommodate the applicant in one particular job arising from a different accommodation process is appropriate.
Future Compliance Remedies
82I heard evidence that the respondent’s return to work process has changed since 2010 pursuant to the ratification of a new collective agreement. As I understand, it now requires that a return to work meeting take place in every situation in which an employee needs an accommodation. This is a meeting which involves the employee, a representative of their union, an employer representative and the Disability Co-ordinator or Occupational Health Nurse. The purpose of this meeting is to ensure that there is agreement about a return to work plan and how it will be implemented and what to do if issues arise about the nature of the accommodation. I am of the view that given this change to the respondent’s return to work process I do not need to order a public interest remedy to ensure future compliance with the Code.
Order
83The Tribunal makes the following Order:
a. The respondent shall pay the applicant $5000.00 as compensation for injury to dignity, feelings and self-respect.
b. Post-judgment interest is payable at a rate of 3.0% per annum from the date of this decision if this amount is not paid to the applicant within 30 days of the date of this Decision.
Dated at Toronto, this 3rd day of July, 2013.
“Signed by”
Eric Whist
Vice-chair