Smit v. Diageo Canada Incorporated, 2013 HRTO 2042

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jonathon Smit

Applicant

-and-

Diageo Canada Incorporated

Respondent

-and-

Unifor

Intervenor

Decision

Adjudicator: David Muir

Date: December 10, 2013

Citation: 2013 HRTO 2042

Indexed as: Smit v. Diageo Canada Incorporated

APPEARANCES

Jonathon Smit, Applicant ) Self-represented

Diageo Canada Incorporated, ) Andrew J. Zabrovsky, Counsel Respondent )

Unifor, Intervenor ) Rick Laporte, Representative

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 11, 2011 alleging discrimination by the respondent in employment on the basis of disability, reprisal and association with a member of a protected group.

2The allegations in the Application as originally filed related to an incident that the applicant states took place on March 28, 2007. A Notice of Intent to Dismiss (“NOID”) was issued on November 4, 2011 indicating that the Application appeared to be outside the Tribunal’s jurisdiction because it was filed more than one year after the last incident of alleged discrimination.

3Included with the applicant’s submissions in response to the NOID were additional allegations of discrimination upon the applicant’s return to work in November 2011. The applicant had been out of the workplace from some time in 2007 until November 2011. In Interim Decision 2012 HRTO 300 the applicant was permitted to amend the Application to include alleged discrimination in November and December 2011 and January 2012. The allegations with respect to events in 2007 were dismissed for delay. The respondent filed a Response to the Application as amended.

4In Interim Decision 2012 HRTO 1208 a Request to Intervene filed by the applicant’s bargaining agent CAW-TCA Canada (now Unifor) was granted. In the same Interim Decision the Application was deferred pending the conclusion of a grievance arbitration related to the issues in dispute in this case. In 2012 HRTO 2239 the Application was reactivated when the grievance process concluded with no decision or binding settlement.

5In his Application as amended the applicant makes the following allegations:

The applicant states that upon his return to work in November 2011 he was advised by the respondent employer that he could apply for any position that had been posted in the prior three months. The applicant states that when he applied for one of these positions he was told that he could not. The applicant states that he believes that he was being treated differently due to his disability.

The applicant also alleges that in December 2011 N. Thomas ignored his request for a benefit rep. This occurred for nearly two hours. The applicant alleges that he was offered a number of alternative work options but required a “benefit rep” to address his ability to perform these tasks.

The applicant also alleges that the respondent failed to provide an appropriate accommodation for him in the lunch room.

The applicant alleges that on December 20, 2011 the Plant Manager told the applicant he needed to be at full time hours.

The applicant alleges that on January 5, 2012 the applicant was called to a meeting with management and denied a union rep. He alleges that he was told that he was wasting the company’s time and money. He was told that he needed to be working 8 hours a day. The applicant alleges that he was accused of being insubordinate and was bereted by management. The applicant alleges that management told him that because the injury was not work related they did not have to follow the “modified work program”.

6The allegations as set out above were repeated in a CAD issued on October 11, 2013. In addition to framing the allegations as set out above I also made the following comments about the case.

The legal questions arising from this Application may be whether the respondent failed to accommodate the applicant to the point of undue hardship. However to the extent that the applicant’s complaint is more about the process that was engaged to get him back to full time work the primary issue may be whether or not the application’s allegations of disrespectful treatment are well founded and whether or not this conduct can be understood to be harassment within the meaning of the Code. The Tribunal does not have the general power to remedy unfairness but can only deal with substantive claims of harassment under the Code. In order to establish that he experienced harassment the applicant will have to show not only that he experienced unfair treatment but that a factor in this treatment was that he was a person with a disability.

7Prior to the hearing the parties agreed to mediation-adjudication pursuant to Rule 15A and extensive settlement discussions took place prior to the scheduled hearing and at the hearing. Significant progress was made in resolving a number of issues several of which were not raised in the Application. However the parties were unable to finally agree and the hearing proceeded.

8The hearing was held on November 6 and 7, 2013 in Windsor. I heard the evidence of the applicant and two witnesses he called in his case. At the conclusion of his evidence the respondent sought the dismissal of the Application on the basis that it had no reasonable prospect of success. The Tribunal has previously noted that when a general evaluation of the evidence that has been called and is proposed to be called makes it clear that the Application has no reasonable prospect of success, the Application should be dismissed. The rationale for this approach and the circumstances in which it might be appropriate were set out at greater length in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. In that context one of the questions I posed for the parties was whether the Application included an allegation that the respondent may have breached its procedural obligations in the accommodation process in failing to properly address any psychological barriers to the applicant’s safe return to work.

9After hearing the submissions of the parties, the hearing adjourned on the understanding that if any further submissions or evidence was required the Tribunal would contact the parties.

10In considering the issues raised in the Application I have concluded based on the evidence called by the applicant that that the Application as framed must be dismissed as having no reasonable prospect of success.

11In coming to this conclusion, one of the issues I have considered is whether it would be appropriate to allow the applicant to materially amend his application, again. This question arises because during the course of his evidence and submissions it became apparent that the applicant was raising issues relating to the ongoing employment relationship that went beyond the scope of the amended application as framed. After careful consideration of the parties’ submissions I have concluded that it would be unfair, after the evidence of the applicant has been put in, to allow the applicant to effectively, and materially, amend the Application yet again. In my view, this would require restarting the process for all practical purposes. In coming to this conclusion I considered the fact that the evidence of the applicant going to issues beyond the apparent scope of the Application was no more than suggestive of these other issues. I also observe that it would be more fair, just and expeditious, to the extent that these other issues continued to affect the employment relationship beyond the short temporal frame of this case, to have the parties engage these other issues with a properly framed Application.

12The specific allegations of the applicant, as set out above do not in and of themselves raise any Code issues. My reasons for this conclusion follow. I also have considered the applicant’s concession, at the hearing, that there was no evidence of discrimination in the first allegation (his inability to immediately take over the duties of the lead hand position).

13By way of background to the facts of the case, the applicant was returned to work after being away from the workplace in excess of 4 years. The return to work occurred on November 21, 2011 after several unsuccessful attempts. The applicant was required to engage in a work hardening program paid for by the respondent. He had also identified both physical and cognitive disability related needs, although the precise nature of the cognitive issues and any attendant accommodations was never clearly articulated by the applicant or his treating physicians. Prior to his return, a return to work meeting of the Modified Work Committee – a joint labour management committee – had discussed the applicant’s restrictions and proposed accommodation.

14The applicant returned to work and initially was given general training and orientation to the workplace after being away for an extraordinary period of time. The respondent’s efforts to accommodate the applicant’s physical limitations were, to the extent captured by the allegations in this Application, appropriate.

15The applicant was assigned to perform some clerical tasks unrelated to his normal duties. The applicant also performed some of the duties of the General classification. As an accommodation of his disability related needs the applicant was working only two hours per day. During this initial period he also job shadowed the incumbent ‘case bond lead hand’ for two shifts of two hours.

16The case bond lead hand job is a full time position. For all of the period contemplated by this Application – November 21, 2011 to mid-January 2012 – the applicant was only able to work two hours per day. The applicant was able to increase his hours of work and subsequent to a further return to work meeting facilitated by the WSIB in March 2012 the applicant was able to secure the case bond lead hand job for a period of time.

17The first allegation as set out above relates to the applicant’s attempt to secure a position as case bond team lead. The evidence on this point is reasonably clear. The applicant alleges that he was told that he could apply for the position but then was told he could not. However that is not what occurred and the applicant essentially agreed in cross examination that upon his expression of interest the incumbent was “removed” from the position – that is the position was then available for the applicant, however before he could actually take the position he would need to be working at 8 hours per day and able to perform General Duties work for 8 hours per day. The applicant acknowledged that in this initial stage he was not able to perform the work of the team lead because he was not working more than two hours per day. His complaint boiled down to an issue of being paid the job rate for the position in any event which he believed might be required by the collective agreement. It is not at all clear how the failure of the respondent to pay him the rate for that job while he worked up to being able to perform the work is discrimination under the Code. As indicated above the applicant conceded in his reply submissions that he had not been discriminated against in this instance.

18The applicant next alleges that he was harassed and bullied by a supervisor, N. Thomas, on December 15, 2011. The applicant alleges that he was denied a union representative and that this is discriminatory. As I indicated at the hearing there is no evidence that the actions of N. Thomas were either discriminatory or constituted harassment. The applicant led no evidence that he was mistreated by this individual, only that he was asked to perform some work in the bottling area of the facility

19The issue that day was not the work being asked of the applicant per se, but an ancillary issue related to his ability to use the lunch room facilities in the bottling area of the plant. The applicant had gained a great deal of weight while away from work. In his view this weight gain is related to either a claimed psychological injury or his physical injury. I note that while it is possible that this is the case there is no medical evidence before me to support the applicant’s contention. In any case the applicant’s concern at the time and the reason for his requesting a representative was the fact that because of his weight gain he could no longer sit at the tables in the bottling lunch room. After being asked several times why he needed the representative, he then told N. Thomas what the issue was. Mr. Thomas then called on two representatives to assist the applicant. A discussion ensued in which options for lunch were discussed including his leaving the building. Later the same day the applicant proposed a third option: that he not take lunch and leave the workplace early. This proposal was made in writing to N. Thomas who agreed to it.

20There is no evidence of harassment in this interaction. It is not clear how this one interaction could be considered to be a course of vexatious conduct. I also find that the failure of N. Thomas to immediately get a representative for the applicant was in the circumstances not discrimination. The applicant was candid in his evidence that these requests were not really related to any Code related need but because he felt that he was entitled to such representation under the collective agreement. It is noted in the material on more than one occasion that his requests for representation were in part a result of the applicant being “old school” and believing he was entitled as of right to a representative any time he talked to management. In respect of this request and several others the applicant testified that he made the requests for “protection” from “bullying and mis-representation”. I note in this regard that there appears to be a culture of securing “reps” in this workplace which may have informed the applicant’s actions. At one stage a person brought into a meeting to represent the applicant felt the need to have a representative present for herself.

21The applicant alleges that the respondent failed to accommodate his disability related needs in relation to the lunch room. As discussed above the applicant had gained considerable weight and as a result could not fit into the table and chair units in one of the lunch rooms. As discussed above the applicant raised it, apparently for the first time, in the interaction with N. Thomas above and an accommodation was agreed to for that shift. When the issue was raised again is not clear but prior to the January 5, 2011 meeting, below, it had been and the respondent provided a chair which could be used by the applicant.

22At the hearing the applicant testified that the use of a chair was not ideal for him because he felt that it singled him out, but it is not clear that the applicant raised this concern with the respondent. In any event I am not sure that his subjective feelings in this regard amount to more than a preference. There was also some evidence that the chair was not always in the lunch room because not being fixed to the floor it might have to be retrieved from another location.

23The parties did not address at length the question of whether or not weight gain as such is a disability. The respondent took the position that obesity is not a disability within the meaning of the Code. The applicant argued that his weight gain was a consequence of his physical and psychological injury. I note again in this regard that there is no substantial medical evidence before me of a psychological injury and no evidence other than the applicant’s belief that his weight gain was the result of his other injuries. In these circumstances, including the absence of evidence on the issue, I am not prepared to conclude that the applicant’s weight gain was a disability within the meaning of the Code. Even, assuming without deciding that the applicant’s weight gain was a disability under the Code that required accommodation, I also find that although not the applicant’s preferred accommodation (and it is not clear whether he suggested anything else) the provision of a chair in the lunch room was not an inappropriate accommodation in all of the circumstances.

24The final allegation relates to a meeting on January 5, 2012. The applicant alleges that he was denied a union representative and bullied and harassed by management. I heard the evidence of the applicant and one of two union representatives who participated in the meeting. I have also had the benefits of notes taken by several participants. It is clear that the applicant requested a representative at this meeting. This request was initially denied. It is also clear that the issue of the chair in the lunch room was discussed but what was said about it by the applicant at that point is entirely unclear. Otherwise the meeting was an attempt on the part of management to more fully understand the applicant’s functional limitations. This was required because the occupational health and safety nurse who had been in receipt of the applicant’s medical information was leaving the respondent’s employment and the Director of Human Resources who was relatively new to the workplace and in any event had not had access to this information needed to understand the applicant’s functional abilities as part of the accommodation process.. That was the nature of the discussion in the meeting. In my view while perhaps uncomfortable for the applicant such a discussion is not harassment under the Code. Similarly the initial non-provision of a union representative is not harassment or discrimination in these circumstances. This does not mean that the provision of a representative might not be required in some circumstances as an accommodation but that that there was insufficient evidence lead in this case to establish that it was a required accommodation for the applicant.

25For these reasons I would dismiss this Application as it was framed. I would observe however, as I did at the hearing, that there were other issues which I have concluded were not ever raised in the Application that seemed to have affected this return to work process. It may be that they remain issues that need to be dealt with. The parties should turn their mind to what have been described as psychological barriers to the applicant’s productive return to work to the extent that they may still be issues.