Foster v. Upper Room Home Furnishings, 2013 HRTO 1336

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Foster

Applicant

-and-

Upper Room Home Furnishings and 7720220 Canada Inc.

Respondents

DECISION

Adjudicator: Eric Whist

Date: August 1, 2013

Citation: 2013 HRTO 1336

Indexed as: Foster v. Upper Room Home Furnishings

APPEARANCES

Peter Foster, Applicant

Self-represented

Upper Room Home Furnishings and 7720220 Canada Inc., Respondents

David Spears, Counsel

Introduction

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.

2Upper Room Home Furnishings, (the “respondent”), is in the furniture retail business. The respondent hired the applicant in July 2011 to work as a driver’s helper. A driver’s helper is matched with a driver to form a two-person team responsible for the delivery of furniture to customers. The driver who worked with the applicant at all material times was Chris Crawford.

3The applicant alleges that he was injured while he was delivering furniture on two occasions in January 2012. He alleges that when he reported these injuries to Bob Austin, the respondent’s warehouse operational manager, Mr. Austin made light of the injuries and subsequently failed to provide the applicant with modified work. He alleges that the respondent later reduced his hours and then terminated his employment as it did not want to continue to employ the applicant because of his reported injury.

4A two-day hearing was held. I heard from three witnesses; the applicant, Bob Austin and Chris Crawford. Mr. Crawford no longer works for the respondent and was summonsed to appear.

DECISION

5This is a case in which the applicant and respondent’s witnesses presented distinctly different accounts of events. I find Mr. Austin and Mr. Crawford’s testimony denying the applicant’s allegations credible. It was detailed, consistent and supported by corroborating documentary evidence and I preferred it to the applicant’s evidence. I further find that the respondent met its duty to accommodate the applicant. For these reasons the Application is dismissed.

OVERVIEW OF KEY EVIDENCE

6The focus of the hearing was on events that took place over a 17-day period in January and February 2012.

January 21, 2012 Injury

7The applicant testified that he was injured on Saturday, January 21, 2012, when trying to lift a dresser he estimated to have weighed 380 pounds. The applicant testified that after attempting to lift the dresser he knew he had done something to his back so that it was not normal, but that he continued to work for his full shift delivering furniture. He testified he told his co-worker Mr. Crawford that he had hurt his back. He testified that at the end of the day when he returned to the warehouse he told his manager, Mr. Austin that he had hurt his back, but that Mr. Austin had smirked in response and told the applicant he was lucky he had two days to recover (Sunday and Monday when the applicant was scheduled to be off work).

8Mr. Crawford testified that although the applicant complained the dresser was too heavy and that it was “bull” to be required to move it, the applicant did not complain that he had injured his back at any time during their shift on January 21.

9Mr. Austin testified that the applicant did not tell him on January 21 that he had hurt his back. He testified if someone did report an injury, he would tell them to seek medical treatment.

10Mr. Austin testified that he did recall that the applicant had made mention of how heavy the dresser was on the morning of January 21 while the drivers and drivers’ helpers were still in the warehouse prior to their deliveries. He testified that he heard comments from employees about heavy furniture all the time, noting that employees often joked about the furniture they had to move. He testified that someone referring to a piece of heavy furniture was not an issue he felt he needed to respond to.

January 24, 2012 Injury

11The applicant testified that during a delivery on January 24, 2012, he slipped on the ice outside a customer’s house and a sideboard weighing 100-125 pounds fell on him, injuring his neck and back. He testified that he was in excruciating pain but finished his shift. He testified that when he returned to the warehouse he reported to Mr. Austin that he had slipped on the ice and had again hurt himself, only to have Mr. Austin smirk saying that the applicant should have been more careful, implying, in the applicant’s view, that the accident was the applicant’s fault.

12The applicant testified he spoke to the employee health and safety representative who advised him to ask Mr. Austin for a Workplace Safety and Insurance Board (“WSIB”) incident report that he, as a worker injured on the job, is obliged to fill in (“Form 6”). The applicant testified that Mr. Austin provide him with the Form 6 before he went home.

13Mr. Crawford testified that the applicant slipped on a snow bank while carrying a sideboard and fell. He testified that it was only at the end of the day that the applicant complained to him that his back was sore.

14Mr. Austin testified that he believed the applicant told him on his return to the warehouse at the end of his shift that his back was sore. He testified that there was nothing that occurred that indicated to him to the fact that the applicant might miss time at work because of the injury. He testified that he may have given the applicant a Form 6. He testified that he would not have belittled the applicant or smirked at him for reporting an injury.

The January 25, 2012 Return to Work and Trip to the Hospital

15The applicant testified that when he came into work on Wednesday, January 25, 2012, he told Mr. Austin he was in too much pain to carry out his regular duties. The applicant testified that he also asked Mr. Austin for the WSIB report that employers are required to fill in when an employee is injured on the job (“Form 7”). He testified that Mr. Austin said he would take care of this report.

16Wednesdays are when delivery staff are generally assigned to re-arrange inventory in the respondent’s retail store which involves, in part, moving furniture between the store and the respondent’s warehouse. This is generally seen as less strenuous work.

17The applicant testified that he worked for about two hours moving smaller items. He testified that Brenda Talia, the respondent’s human resources specialist, saw the applicant in pain and told him that he can’t be at work if he was in that much pain, that he had to go home. The applicant testified that he was of the view that the respondent did not want him at work if he was incapable of carrying out all his duties, including lifting heavier objects.

18The applicant testified that he needed to go to the hospital and a fellow employee provided him with a ride.

19The applicant testified he was examined by a doctor at the hospital who told the applicant he had a sprained back. The doctor provided the applicant with a Health Professional’s report required by WSIB for assessing work place injuries (“Form 8”). The Form 8 report states that the applicant has some medical limitations and specifies that the applicant is to do no lifting, bending, pushing/pulling for 3 to 7 days.

20Mr. Austin testified that on January 25, the applicant did tell him that his back was sore. He testified that he asked the applicant if he could perform his duties and the applicant told him he could. He testified that was later told by two employees that the applicant’s back was sore and that the applicant had been sent to the hospital.

The January 26, 2012 Request for Modified Duties and Work in the Warehouse

21The applicant testified that when he arrived at work on January 26, 2012, he showed Mr. Austin the Form 8 indicating that he had medical restrictions that required that he do only modified or light duties and that he wanted to work in the warehouse. He testified that Mr. Austin immediately told him that there were no light duties in the warehouse, only normal duties, and if the applicant wanted to do normal duties he would have to sign an affidavit saying the respondent was not liable. The applicant testified that he did not feel comfortable signing an affidavit but felt he had no choice if he wanted to work. He noted that Mr. Austin was adamant that he could not even step onto the warehouse floor until an affidavit was signed.

22The applicant testified that he was given a blank paper and told to draft a statement exonerating the respondent from any liability. The applicant testified that he then prepared a statement which reads as follows:

I, Peter Foster, on my own free will, against doctor’s orders, are going to continue with my normal duties as delivery helper and do not hold Upper Room Home Furnishings liable for any further injury to my back from lifting. I will continue to see my physician until such point I am cleared for normal duties. At this time after I am cleared for normal duties, this agreement becomes void for any future injury or claim.

23It is noted here that while the parties referred to this statement as an affidavit, it was ultimately not a sworn statement, and as such not an affidavit.

24The applicant testified that after receiving his written statement, Mr. Austin confirmed with Ms. Tesla that the wording of the statement was suitable and it was only then that he was allowed on the warehouse floor.

25The applicant testified that on his own initiative he proceeded to find light duties he could do in the warehouse. He testified that he cut up cardboard and put it in the compactor (the person who normally did this job was absent). He swept work areas. He inspected furniture for scratches. He testified that he worked on the assembly line assembling chairs, work the applicant stated did not involve heavy lifting or twisting. The applicant agreed under cross-examination that although he considered all of these tasks as lighter duties, all of them exceeded his restrictions because they involved some measure of bending and lifting.

26The applicant testified that he returned to the office several times during his shift to tell Mr. Austin that he felt uncomfortable about the statement he had signed only to have Mr. Austin tell him that if he felt uncomfortable he could take the statement back but he then would have to leave work and go home. He testified that he basically felt bullied.

27Mr. Austin testified that when the applicant came in on January 26 with a note from a doctor, he did tell the applicant that he did not have light duties available for the applicant in the warehouse. He testified that the applicant then told him that he could not afford not to work, that he needed the hours. He testified it was the applicant who offered to write an affidavit stating that he was willing to work outside the doctor’s restrictions. He testified that the applicant told him that the doctor was being overly cautious and that the applicant would be alright.

28Mr. Austin testified that he was leery of the applicant’s suggestion that he would sign a statement absolving the respondent of responsibility if he was injured. He was concerned about the liability for the respondent and the applicant might be at risk. He testified he was also mindful of the applicant’s stated interest in earning money.

29He testified that he faxed the proposed statement to Ms. Tesla to clarify whether they could accommodate the applicant’s request to work. He testified Ms. Tesla thought it would be fine. He testified that he agreed to the statement in order to give the applicant a chance to work and earn money as the applicant was keen to do and because he understood that the applicant’s written statement protected the respondent.

30Mr. Austin testified that he decided to keep the applicant in the warehouse, to see how he could work and whether he could put him on the road the following day. He testified he assigned the applicant to “kit”, which involves assembling and inspecting furniture. Mr. Austin described this as a lighter job which requires some lifting and bending.

31He testified that the applicant did not come back to see him during the shift, that the applicant did not tell him he was uncomfortable with his written statement. He testified that if the applicant had wanted to recant his statement he would have accepted this and sent the applicant home.

32Mr. Austin testified that he stood by the determination he made on January 26 that he had no light duties available for the applicant. He testified that he was able to make this determination because he had a good understanding of what tasks were available in the warehouse. He testified this was because just previously he had had another employee on WSIB and had been asked by WSIB if there were light duties available. He testified that WSIB sent an assessment officer to the warehouse who looked at the work being done and who reviewed the job descriptions of persons working in the warehouse. He testified that the WSIB assessment officer concluded that there were no light duties available for this injured worker (who had an injured shoulder). Mr. Austin also testified that the applicant’s medical restrictions were significant given that they stated that the applicant was to do no lifting, bending, pulling or pushing. He testified that there were no jobs available in the warehouse that did not require some degree of bending and lifting.

The January 27, 2012 Delivery

33The applicant testified that he returned to his normal delivery duties the next day. He testified that he did not request to work in the warehouse as he did not believe he could force Mr. Austin to give him light duties. He testified that Mr. Austin had, in fact, already scheduled him to return to his delivery duties and that he felt pressured to return to his regular duties otherwise he might get fired. He testified that he was on painkillers for his back pain and was not 100%.

34Mr. Austin testified that the applicant did not indicate on January 27 that he would not be able to resume his regular delivery duties.

35The applicant testified he and Mr. Crawford were subsequently delivering a sofa (and other furniture) to a tenth floor apartment when they determined that the sofa could not fit onto the elevator and was therefore undeliverable. He testified that Mr. Crawford telephoned Mr. Austin to tell him of the problem only to have Mr. Austin reply that Mr. Crawford and the applicant should use the fire escape (the internal stairs) to deliver the sofa. He testified that Mr. Crawford refused to do this. He testified that Mr. Crawford subsequently told the customer that the sofa was undeliverable and, pursuant to the respondent’s policy under such circumstances, it was open to the customer to return to the store and make an alternative choice.

36The applicant testified that at the end of his shift on the next day, Saturday January 28, he learned that Mr. Austin had told Mr. Crawford that Mr. Crawford and the applicant had the next Tuesday off (January 31). The applicant testified that Mr. Crawford told him that they were being given Tuesday off as a punishment for not delivering the sofa. The applicant testified that Mr. Crawford told him that Ryan, an experienced driver, was being assigned to deliver the sofa on the Tuesday (January 31).

37Mr. Crawford testified that he and the applicant could not fit the sofa they were to deliver on January 28 into the elevator. He testified that the son of the customer asked if they could carry the sofa up the stairs and Mr. Crawford told him they could not, and that the customer would have to re-select another piece of furniture.

38Mr. Crawford testified he called Mr. Austin to tell him about what had occurred including that the son had asked them to carry the sofa up the stairs. He testified that Mr. Austin told him that the customer would have to re-select and then made a joke that Mr. Crawford and the applicant could have carried the sofa up the stairs. Mr. Crawford testified that he told the applicant about Mr. Austin’s joke. He testified that he did not tell the applicant that Mr. Austin was sending Ryan to deliver the sofa on the following Tuesday.

39Mr. Crawford testified that he also conveyed to the applicant Mr. Austin’s message that Mr. Crawford and the applicant had Tuesday off and that this was because it was Mr. Crawford and the applicant’s turn to have a day off. Mr. Crawford testified that each of the three delivery teams took turns taking time off when there was a shortage of work. Mr. Crawford testified that he did tell the applicant about Mr. Austin joking that they should have carried the sofa up the stairs. He testified that he did not tell the applicant that they were being punished for failing to deliver the sofa or that Ryan had been assigned to deliver the sofa.

40Mr. Crawford testified that he did end up working the following Tuesday. He testified that Mr. Austin later called him up to say he needed him to do a delivery that did not require a driver’s helper. Mr. Crawford testified that it was not unusual for drivers to do jobs without the aid of a driver’s helper.

41Mr. Austin testified that he got a call from Mr. Crawford that he and the applicant had been unable to get the sofa into the elevator. He testified that he told Mr. Crawford to mention to the customer that he would have to re-select. Mr. Austin testified that he did ask Mr. Crawford if there was any other way to take the sofa in and was told no there was not and he accepted that.

42Mr. Austin stated that the customer called into the showroom shortly later (on the same day). He testified that when Mr. Crawford and the applicant returned to the warehouse on Jan. 27 he may have joked with Mr. Crawford and may have said something to the effect of “you couldn’t have carried the sofa up the stairs on your back?”

43Mr. Austin testified that Mr. Crawford and the applicant were not scheduled to work the following Tuesday because of a shortage of work, not because they were being disciplined. He testified that if they were, in fact, being disciplined by being given time off, there would have been paperwork to that effect and there was none. He testified that Mr. Crawford did end up working the Tuesday after all because he was called in in order to make a delivery that did not require a driver’s helper.

44The applicant testified that he got a telephone call from Mr. Crawford on Tuesday January 31, saying he was at work and telling the applicant that he was the only one not working that day. The applicant testified that this reinforced his view that he was being singled out for disciplinary action because he filed a WSIB incident report. He testified that Mr. Crawford told him that he was working with Ryan on the Tuesday, which further fueled the applicant’s suspicions as he had never heard of two drivers being assigned to work together. Mr. Crawford and Mr. Austin testified that Ryan and Mr. Crawford did not work together on January 31, but there were occasions that two drivers did work together, for example when Ryan and Mr. Crawford worked together on February 2 and 3, 2012.

Termination of Employment

45The applicant testified that he returned to work on Wednesday, February 1, 2012. As it was a Wednesday he was working in the store. He testified that at the end of the day Mr. Austin told him to take the rest of the week off, namely Thursday, Friday and Saturday, February 2, 3 and 4. The applicant testified that he met with Mr. Austin and told him that he could not continue to lose hours and that Mr. Austin simply told him there was no work. He testified that Mr. Austin had a smirk on his face when he said this.

46The applicant testified he did not believe there was no work available even though he acknowledged that work in January was traditionally slow and staff were given days off. He testified that it was unusual to be given three days off. He testified that he believed he was again being punished for complaining about his injured back and requesting modified work.

47The applicant testified that he went away to his brother’s house in Constance Bay for the weekend of February 3, 4 and 5. He testified that he telephoned Mr. Austin on Monday, February 6 (a day off) to clarify what was happening. He testified that he left a message and that Mr. Austin called him back later on the Monday. He testified that Mr. Austin told him that his employment had been terminated, as of Saturday, February 4 because the applicant had failed to show up for work on the Saturday as required and for not having telephoned to say he was unavailable. The applicant testified that he was never told by the respondent to come to work on Saturday February 4.

48It was the applicant’s contention that he was deliberately “set up” by not being told to report on Saturday, February 4 so that the respondent would have a pretext to terminate his employment when he did not appear for his Saturday shift. The applicant was of the view that this was a further measure taken by the respondent because he had reported an injured back and requested modified work.

49Mr. Crawford testified that he worked Thursday, February 2 and Friday, February 3 without the applicant. He testified that he was teamed with another driver, and that this was not unusual.

50Mr. Crawford testified that on Friday, February 3, Mr. Austin called him to say that Mr. Crawford would be working Saturday, February 4 and that Mr. Austin had also called the applicant to tell him the same. Mr. Crawford testified that he subsequently telephoned the applicant on the Friday and told him that he would pick him up on his way to work on the Saturday morning. I heard evidence that Mr. Crawford regularly gave the applicant a ride to work.

51Mr. Crawford testified that when he spoke to the applicant on Friday, February 3 by telephone the applicant told him that he was just sitting there at home with his friend Brandon (an ex-employee of the respondent’s) having a couple of drinks.

52Mr. Crawford testified that when he arrived at the applicant’s house on Saturday morning and rang the doorbell there was no answer. He testified he called the applicant on his cell phone and there was no answer.

53Mr. Crawford testified that when he got to work, he told Mr. Austin about his efforts to contact the applicant and to bring him to work. He testified that he had to find someone from the warehouse to help with his deliveries. He testified that it was a busy day.

54Mr. Austin testified that he told the applicant on Wednesday that he was not required on the Thursday and not that he had the rest of the week off as the applicant maintained. He testified that Julian, Ryan’s driver’s assistant, was also told not to report on Thursday.

55Mr. Austin testified that he telephoned the applicant on Thursday to tell him that he would not be required on Friday because of a lack of work.

56Mr. Austin testified he telephoned the applicant on Friday and told him he would be needed on Saturday, February 4.

57Mr. Austin testified that on Saturday morning Mr. Crawford told him that he had gone to the applicant’s house but that the applicant had not responded. Mr. Austin testified that he then telephoned the applicant’s house and left a message asking the applicant where he was and that he needed to come in to work.

58Mr. Austin testified that he spoke to the applicant on Monday, February 6. He testified that he had already decided that he was going to terminate the applicant’s employment because of his failure to come to work on Saturday or call in unless the applicant provided an explanation during their telephone conversation that changed his mind. He testified that when he called the applicant and asked where he had been the applicant told him Constance Bay and that he had forgotten the telephone number of the warehouse and had therefore been unable to call in. Mr. Austin testified that he found that excuse inadequate and that he then decided to proceed with terminating the applicant’s employment.

Other issues

59There was conflicting evidence about whether the applicant and Mr. Crawford met with Mr. Austin to discuss performance issues. Both Mr. Austin and Mr. Crawford testified that there were two meetings held in December 2011 and January 2012 to discuss Mr. Crawford’s and the applicant’s delivery times and other performance-related issues. Both testified that Mr. Austin was trying to encourage better performance from Mr. Crawford and the applicant. Both testified that at the second meeting, Mr. Crawford also told the applicant he had to put in more of an effort, that he needed to be less argumentative with Mr. Crawford and that he needed to not be telling Mr. Crawford what to do. Both Mr. Austin and Mr. Crawford described the meetings as having taken place in Mr. Austin’s office, behind closed doors.

60The applicant testified that no meetings took place in December or January in Mr. Austin’s office involving himself, Mr. Austin and Mr. Crawford to discuss performance-related issues.

ANALYSIS

61Section 5(1) of the Code provides as follows:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

62The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46. While the final or ultimate onus remains on the applicant to establish that a violation of the Code has occurred, the Tribunal must often determine whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent. See Shaw v. Phipps, 2012 ONCA 155.

63This is also a case in which witnesses have provided differing versions of events which has required me to make a number of credibility assessments. In determining credibility, I follow the Tribunal’s usual practice of relying on the test set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.):

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken. (para. 356-357)

64There are significant differences in the accounts of events provided by the applicant and the respondent’s witnesses. These differences include whether the applicant told Mr. Austin and Mr. Crawford he was injured on January 21; whether Mr. Austin made light of the applicant’s injuries on January 21 and January 24 by smirking; whether it was the applicant or Mr. Austin who insisted on a written statement in order to allow the applicant to work on January 26; whether the applicant was told that he was not being scheduled for January 31 because he and Mr. Crawford failed to deliver a sofa to a customer; whether the applicant was subsequently told he was off work for the “rest of the week”; whether Mr. Austin and Mr. Crawford telephoned the applicant on Friday, February 2 about working on Saturday, February 3; and whether the applicant participated in meetings in December and January with Mr. Austin and Mr. Crawford about performance-related issues.

65This is a case in which the overall differences in accounts cannot be fully explained by witnesses having different or mistaken understandings of the meaning of events. This is a not a case in which someone is claiming to have forgotten key events. This is an instance in which one party has, in some measure, deliberately presented a fabricated account in order to support their position as to whether the applicant was unfairly and/or discriminatorily treated.

66Having considered the evidence before me, I find Mr. Austin and Mr. Crawford’s testimony to be credible and I prefer their testimony to the applicant’s. I had the evidence of two different witnesses, Mr. Austin and Mr. Crawford, that was highly consistent and complimentary. Both testified, for example, that the applicant did not work on Tuesday, January 30 because of the rotation of days off given to each of the delivery teams, not because Mr. Crawford and the applicant were told they were being disciplined for failing to deliver the sofa. Both testified that the applicant was expected to work on Saturday, February 4 and each made telephone calls to the applicant on Friday, February 3. Both testified in consistent and persuasive detail about the performance-related meetings they said took place in December 2011 and January 2012, meetings the applicant denied even occurred. There were no instances in which Mr. Austin’s and Mr. Crawford’s testimony was inconsistent or contradictory.

67I further note that I found Mr. Austin to be a forthright and thoughtful witness whose evidence about how he worked with employees indicated, in my view, that he was a conscientious manager who was keen to support employee performance. He testified, for example, about using “PEP” meaning praise, evaluate and praise as a management practice to encourage staff performance. I found Mr. Crawford to be a straightforward and direct witness who provided clear, succinct evidence of his experiences working for the respondent. I found nothing problematic with his evidence.

68I note here that Mr. Crawford no longer works for the respondent and was summonsed to appear. I am satisfied that he has no interest in the outcome of the hearing and that his testimony was his own independent recollection of the events.

69I did not find that there were particular inconsistencies with the applicant’s testimony. It was internally consistent. However, I did not find specific claims of the applicant’s, including a claim that he and Mr. Crawford were punished for not taking a sofa up ten stories and that he was up never called about working Saturday, February 4, credible in light of the totality of the evidence before me.

70Furthermore, I do not, on the evidence before me, accept the applicant’s underlying thesis that the respondent was antagonistic towards him for having filed a workplace injury report with WSIB and as a consequence took steps to reduce the applicant’s hours and then terminate his employment. I find this theory to be less plausible and less credible than the respondent’s explanations for events. The applicant did not establish, in my view, why the respondent would retaliate against the applicant for having filed a WSIB report, given that the applicant subsequently carried out lighter duties for one shift before returning to his regular duties. And there is no indication that the applicant had any ongoing injury or disability that may have been a concern to the respondent.

71The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. In my view, the applicant has not provided clear and cogent evidence to meet this onus.

72Turning to each of the alleged incidents of discrimination I make the following findings.

January 21, 2012 Injury

73Both Mr. Austin and Mr. Crawford testified that the applicant never told them that he injured himself when moving the dresser on January 21, contrary to the applicant’s allegations. In light of the overall credible testimony of these two witnesses, I do not find that the applicant has established on a balance of probabilities that he did complain as claimed. I further find that he has not established, on a balance of probabilities, that Mr. Austin smirked at the applicant for having made a complaint or made a comment to the effect that the applicant would have two days to recover from his injury.

January 24, 2012 Incident

74It was not disputed that the applicant told Mr. Austin that he had injured his back on January 24, 2012. The only allegation of discriminatory treatment is that Mr. Austin smirked at the applicant when the applicant told him he was injured. I do not accept that Mr. Austin belittled the applicant by smirking at him. I prefer Mr. Austin’s testimony that he did not belittle the applicant given that I found Mr. Austin to be a credible witness and a conscientious manager. I also note that I did not find the applicant’s claim about being subject to similar treatment on January 21 to be credible.

The January 26, 2012 Request for Modified Duties and Work in the Warehouse

75On January 26, the applicant provided Mr. Austin with a doctor’s report which indicated that he had a medical condition which required modified work with some limitations namely no lifting, bending, pushing or pulling.

76When 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. The Supreme Court of Canada has accepted that the duty to accommodate has both a procedural and a substantive component. The procedural component requires that the respondent employer take steps to understand the employee’s disability-related needs and to consider potential accommodation measures to address those needs. The substantive component refers to the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation.

77It was not disputed that after the applicant provided Mr. Austin with the doctor’s report, Mr. Austin immediately informed the applicant that there were no light duties in the warehouse that would accommodate the applicant’s restrictions.

78The respondent submits that Mr. Austin’s statement was not based on a cursory assessment, that his determination that the respondent could not accommodate the applicant was considered and reasonable, for two reasons. One, the respondent had just gone through an assessment process with the WSIB to determine available light duties in the warehouse and the WSIB had determined that there were no light duties available to meet the medical restrictions of an employee with a shoulder injury. The respondent submits this experience was relevant and it informed Mr. Austin’s determination that there were no light duties available for the applicant. Two, the applicant’s medical restrictions, namely no lifting, bending pulling and pushing, were, by their very nature, highly restrictive and it was reasonable that given these restrictions Mr. Austin could quickly conclude that there were no modified duties available for the applicant.

79It is noteworthy, in my view, that the applicant did initially identify the jobs he performed on January 26, namely disposing of cardboard, inspecting and assembling furniture and sweeping, as light duties but later agreed that all of these jobs were beyond his restrictions given that they involved bending and lifting. He did not identify any jobs in the warehouse that he could have done within his restrictions.

80I am satisfied that the respondent did appropriately consider the applicant’s request for modified duties and reasonably determined that it did not, in fact, have duties that would meet the applicant’s restrictions. I am consequently satisfied that the respondent met both its procedural and substantive duty to accommodate the applicant.

81I have also considered the significance of the fact that the applicant did proceed to carry out work on January 26 that was beyond his restrictions and that this was done after the applicant signed a written statement that he would not hold the respondent liable in the event he was injured when carrying out duties beyond his identified restrictions.

82The parties disputed who was responsible for the applicant’s written statement. I am of the view that it was likely the applicant, not the respondent, who generated the idea of a written statement. I am satisfied that the applicant was keen to continue to work because of his stated interest in earning money while the respondent was reticent given its view that there were no available light duties. I note it was the applicant who drafted the affidavit. It was the applicant who chose to state that he was prepared to work “of his own free will” a phrase that, in my view, supports the contention that the statement was the applicant’s idea. The fact that Mr. Austin got input from Ms. Tesla as to whether to accept the applicant’s written statement is also consistent, in my view, with Mr. Austin’s contention that he did not initiate idea of a written statement. Finally, I note that I found Mr. Austin generally credible and this was a further factor in my preferring his account rather than the applicant’s.

83Consequently, I am of the view that the agreement reached to allow the applicant to work beyond these restrictions was not as the result of the respondent applying undue pressure on the applicant to do such work. However, there remains the fact that the respondent was prepared to allow the applicant to work beyond his medical restrictions. Does allowing the applicant to work beyond his restrictions constitute a breach of the Code?

84In my view if the applicant was further injured or disabled or told the respondent that he could not do duties beyond his restrictions but was nonetheless required to carry out these duties, this could well suggest that the respondent had failed to appropriately accommodate the applicant. See Lagana v. Saputo Dairy Products Canada G.P., 2012 HRTO 1455. But this is not what occurred in the present situation. The applicant carried out lighter duties in the warehouse on January 26. The applicant did not submit that he could not do these tasks or that he was injured by carrying out these tasks. He returned to his regular delivery duties on January 27. He did not tell the respondent that he was unable to carry out these duties. He did not submit at the hearing that working beyond his medical restrictions, whether it was lighter duties in the warehouse or his regular delivery duties, caused him injury or that he was incapable of carrying out these duties because of his injured back. Under these circumstances I do not find that the respondent’s agreement to allow the applicant to work beyond his identified restrictions constitutes a Code violation.

The January 27, 2012 Delivery

85The applicant submits that he and Mr. Crawford were punished for not delivering a sofa by being given a day off. I do not find this to be the case. I accept the respondent’s explanation that Mr. Crawford and the applicant were told they were being given a day off because days off are rotated amongst delivery teams and it was their turn. I am also persuaded by Mr. Austin’s further argument that if Mr. Crawford and the applicant were being disciplined there would have been written documentation to that effect. I also note both Mr. Crawford and Mr. Austin’s testimony that it is not unusual for there to be difficulties in delivering a piece of furniture that require a customer to order alternative furniture and consequently such a failure would not warrant disciplinary action.

86There was also documentary evidence before me that supported the respondent’s version of events. I had before me a work order to indicate that on Friday, January 27 a customer did not receive a sofa because it did not fit into the elevator. More importantly, I had a sales receipt dated January 28 to show that this customer made an order to replace the sofa and indeed spent a further $1550. I agree with the respondent that this supports the respondent’s position that the applicant was not told at the end of his shift on Saturday that he and Mr. Crawford were being punished for failing to deliver the sofa and that Ryan would deliver the sofa on the next Tuesday.

87The applicant did note that ultimately Mr. Crawford did not have a day off, that he ended up working the Tuesday and consequently it was only the applicant who ended up having his hours reduced. Again, I am satisfied that the respondent has provided a non-discriminatory and credible reason for this. Both Mr. Austin and Mr. Crawford testified that it was because Mr. Crawford was assigned a specific task on the Tuesday that did not require the assistance of a driver’s helper.

Termination of Employment

88The applicant testified that on Wednesday February 1, 2012, Mr. Austin told him not to come in for the rest of the week. He submits that this reduction in hours was because he made a WSIB complaint. Mr. Austin and Mr. Crawford testified that Julian, another driver’s helper, was also told he would not work on Thursday and Friday because of a shortage of work.

89The respondent disclosed a time sheet that indicated that both Julian and the applicant did not work February 2 and 3. In my view the evidence indicates that the applicant was not singled out for differential treatment on Thursday and Friday and the respondent has provided a credible non-discriminatory reason for why the applicant did not work on these two days— there was a shortage of work.

90The applicant contends that Mr. Austen “set him up” by telling him on Wednesday to take the rest of the week off and then, when the applicant did not show up for work on Saturday, using this as an excuse to terminate the applicant’s employment. The applicant again claims the motivation for this action was because he had filed a WSIB incident report.

91Mr. Austin and Mr. Crawford both testified that they talked to the applicant by telephone on Friday about being needed at work on Saturday. Mr. Crawford testified about coming to the applicant’s house on the Saturday morning to pick him up. I find the evidence of the two witnesses, Mr. Crawford and Mr. Austin, that they each had conversations with the applicant about needing to report on Saturday, credible. I further find the applicant’s claim that there was an intent to terminate his employment for having filed a WSIB incident report not credible. As stated earlier, the evidence before me is that the applicant did not miss any work following his WSIB claim, that he performed lighter duties for one day before he returned to his regular delivery duties. There was no evidence that he had an ongoing or potentially debilitating disability arising from his injury that might have led the respondent to believe he would be unable to work or would require ongoing modified work. It is not evident why, under these circumstances, the respondent would be setting the applicant up in order to terminate his employment. In my view the applicant’s employment was terminated because he failed to appear for work on Saturday, February 3 as required. There is no evidence that the respondent’s decision to terminate the applicant’s employment was tainted by discriminatory concerns.

92For all these reasons the Application is dismissed.