HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kelly Chadwick
Applicant
-and-
The Corporation of Norfolk County and Norview Lodge
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Chadwick v. Norfolk (County)
APPEARANCES
Kelly Chadwick, Applicant
Sara Erskine, Counsel
The Corporation of Norfolk County and Norview Lodge, Respondents
Ryan Conlin, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal.
2The hearing of this matter took place on September 23, 24, and 25, 2013, in Toronto. The applicant testified and presented three other witnesses. The respondents presented three witnesses. The applicant and respondents each adduced a book of documents into evidence, respectively containing 55 and 142 tabs.
Background
3There was very little dispute about the facts in this case. The applicant began working for the respondent Norview Lodge (“Norview”) as a part-time Dietary Aide in June of 2001 and in 2005 she began working as a cook. Norview Lodge is a not-for-profit long-term care facility located in Simcoe Ontario and is owned and operated by the respondent Corporation of Norfolk County (the “County”). The applicant is represented by the Service Employees International Union, Local 1 (the “union”). As a part-time employee, the applicant was scheduled for a certain amount of hours every two weeks, which fluctuated depending on Norview’s need, e.g., to cover absences due to vacation or holidays. The applicant also could – and did – supplement her hours by accepting “call-ins” to cover the absences of other employees.
Injury and Assignment to the Float Position
4In 2006, Norview’s operation moved to a new, larger facility. The new facility had more residents and the kitchen was laid out differently; in particular, the countertops were higher. As a result of the heavier workload, heavier equipment and more onerous lifting, the applicant began to experience pain in both of her arms. The applicant injured her right arm at work on January 19, 2008, and was off of work from January 22 to January 30, 2008.
5The injury was reported to the Workplace Safety and Insurance Board (the “WSIB”). The applicant’s injury left her with permanent restrictions that prevented her from performing the essential duties of her pre-injury position. The WSIB advised the parties that the applicant would be entitled to Loss of Earnings (“LOE”) benefits unless the respondent could provide the applicant with suitable work that would allow her to earn 85% of her pre-injury net average earnings.
6Jill Thompson was the manager of Organizational Health and Wellness for the County from August 2007 until August 2011. Her role included managing claims for WSIB benefits and giving advice and assistance regarding issues concerning the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”), including return to work and accommodation issues. Ms. Thompson’s evidence was that the County’s practice was to return employees to their pre-injury jobs, within the restrictions, and also to provide them with other work, again within their restrictions, if needed. Ms. Thompson explained that the County is a Schedule II employer under the WSIA, which means that it reimburses the WSIB the amount of any LOE benefit paid to the employee plus an administration fee of approximately 25%. To avoid this expense, the County’s practice was to return employees to work with enough hours to avoid any LOE benefits.
7The documents filed by the parties indicate that the WSIB calculates LOE benefits for part-time employees based first on the employee’s earnings for the four weeks prior to the accident date. The applicant’s weekly net average earnings in this case were $566.65; therefore, she was entitled to weekly LOE benefits of $481.65. After the applicant received benefits for 12 weeks, the WSIB recalculated her LOE benefits based on her net average earnings in the 12 previous months, which was $504.50. Accordingly, the applicant’s LOE benefits were adjusted to $428.89 per week (i.e., 85% of $504.50) Ms. Thompson explained that she calculated that the applicant worked an average of 31.75 hours per week (or 63.5 hours every two weeks) in the 12 months prior to her workplace injury. In a letter dated July 10, 2008, Ms. Thompson advised the WSIB that the County would provide the applicant modified duties and schedule her to work 31.75 hours per week. Ms. Thompson’s evidence was that the respondents informed the applicant that she would be scheduled for 31.75 hours per week in a return to work meeting also on June 10, 2008. There is no dispute that the applicant did not receive LOE benefits after the respondent scheduled her hours of work at her pre-injury average, i.e., 31.75 hours per week.
8The evidence was that the respondent modified a position known as Dietary Aide Float (the “Float position”) to accommodate the applicant and another employee, Ms. B., who had similar restrictions as the applicant. Ms. B’s condition, however, was not related to a work place injury. Although Ms. B. had more seniority, and also could not take call-ins because of her restrictions, the respondent scheduled the applicant for 63.5 hours of work every two weeks while Ms. B. was scheduled for 36. Of the 63.5 hours the applicant worked, 48 were in the Float position and 15.5 were spent assisting the cooks. The respondent tendered a document setting out the scheduled and actual hours of work that the applicant and Ms. B. worked between January 22, 2007 and January 22, 2008, prior to their injuries. The document indicates that their hours of work were similar in this period.
9Donna Lotus, who testified on behalf of the applicant, was a Dietary Supervisor in 2008 and supervised the applicant. Her evidence was that the applicant was a capable employee who often accepted call-in work in both the cook and Dietary Aide positions. In her role, Ms. Lotus participated in the applicant’s return to work and she stated that she attended the meeting on June 10, 2008. Ms. Lotus testified that the accommodations required for the applicant were discussed during the meeting, including the applicant’s hours of work. In that regard, Ms. Lotus stated that the applicant worked fewer hours after her injury because she could no longer accept call-in work because none of this work came within her physical restrictions. Ms. Lotus’ evidence was that there was no discussion of modifying call-in work to accommodate the applicant. Rather, the discussion centred on the calculation of the applicant’s pre-injury hours of work and calculating the hours of work needed to compensate her. Ms. Lotus did not recall any discussion that there would be any time limit to the hours of work the applicant was to be scheduled for (i.e., 63.5 every two weeks) following this meeting. In cross-examination, Ms. Lotus agreed that she was not aware of a formal agreement regarding the applicant’s hours of work and stated that she received direction regarding the hours for which the applicant was to be scheduled.
10The issue of the applicant’s hours of work was revisited in April 2010, apparently as part of the review of accommodated positions in the county. There was no dispute that the respondents calculated the number of hours the applicant would have to work per week to earn 85% of her pre-injury net average earnings, i.e., $428.89. Ms. Thompson calculated that 26.5 hours at $19.225 per hour (the wage for Dietary Aides) would result in net pay to the applicant of $432.18. The materials filed, as well as the evidence of the applicant Ms. Thompson and Kim Jenereaux, Norview’s Administrator (senior manager of operations), show that the respondent considered that its obligation was limited to ensuring the applicant received 85% of her net average earnings. There was no dispute that the respondents discussed reducing the applicant’s hours to reflect their understanding of its obligations. The applicant objected to this proposal and the union filed a grievance on her behalf. The applicant testified that her understanding was that the respondent wanted to reduce her hours of work because of the pay equity-related wage increases and that she needed to work fewer hours to earn 85% of her pre-injury net average earnings. The respondent replied to a grievance noting that no change to the applicant’s hours of work had been made and that the issue had merely been a discussion. The applicant’s hours of work did not change in 2010.
11There is also no dispute that Ms. Jenereaux discussed with the applicant the possibility of the applicant taking a temporary, full-time Unit Clerk position. Ms. Jenereaux’s evidence was that she thought the applicant may be interested in the position because it was full time and involved sedentary tasks. Ms. Jenereaux stated that the position was created to accommodate injured employees and was often filled by accommodated employees. Ms. Jenereaux acknowledged that the full-time schedule for the Unit Clerk position did not meet the applicant’s restrictions of working no more than two shifts in a row. Ms. Jenereaux explained that she thought that the applicant’s doctor might find the Unit Clerk schedule to come within her restrictions given the nature of the position. The applicant declined the offer because she was concerned about her seniority, whether she would be entitled to return to the Float position after the Unit Clerk position ended and that she was not qualified for the position. The evidence conflicts on these issues, but I need not to resolve them as nothing turns on this issue. There was no suggestion that declining the Unit Clerk position had a negative impact on the applicant.
Reduction in Hours
12There is no dispute that the respondents reduced the applicant’s hours of work effective September 17 or 18, 2011. In an e-mail message dated July 12, 2011, Ms. Jenereaux directed Chris Arn, Norview’s Nutrition Supervisor, and other personnel to divide Float shifts evenly between the applicant and Ms. B. effective September 17, 2011. In addition to equalizing the Float hours, the respondents also stated that the applicant would no longer be scheduled to assist the cooks. The result was that both the applicant and Ms. B. were scheduled for 42 hours every two weeks in the Float position. The decision was actually conveyed to the applicant in a meeting held on August 16, 2011. Ms. Arn’s notes regarding the meeting indicate that Ms. Jenereaux advised that the decision would be effective September 18, 2011. It is common ground that, not surprisingly, the applicant reacted negatively to the change which led her to file this Application. This decision had the effect of reducing her hours of work from 63.5 to 42, every two weeks.
13As noted above, the respondent did not reduce the applicant’s hours in the spring of 2010. However, it is clear that the applicant’s hours of work continued to be a concern for the respondents. The documents filed by the respondents indicate that the respondents met with the union on October 18, 2010, to discuss the possibility of adjusting the applicant’s hours of work. The documents also contain notes of the meeting between the respondent and the union on June 6, 2011. The notes indicate that the subject of the session was reducing the applicant’s hours. The notes refer to information the respondents apparently received from the WSIB to the effect that a “business decision” to reduce the applicant’s hours would not result in LOE benefits.
14Ms. Thompson attended these meetings and was asked about them in cross examination. Her evidence was that the notation “business decision” related to the fact that the collective agreement between the respondent and the union (the “collective agreement”) required equal and equitable distribution of hours among part-time employees. This is a reference to article 17.1(c) of the collective agreement which states:
Hours of Work – Part Time
All known hour will be scheduled on an equitable basis and seniority will be given preference for call in on a rotating basis, including blocks of time which include more than one (1) shift.
The collective agreement also contains articles 30.1 and 30.3 that state as follows:
30.1
The Employer agrees to abide by the Workplace Safety and Insurance Act and the Human Rights Code including reinstatement provisions.
30.3
The Employer and the Union recognize that from time to time individual workers may have special needs that require special modification of work and/or physical accommodation within the workplace. The Employer and the Union will thereby endeavour to find co-operative solutions to workplace and/or contractual barriers to workers with special needs.
15With respect to the meeting of June 6, 2011, Ms. Thompson testified that the WSIB had advised the respondents that a reduction in the applicant’s hours of work resulting from a business decision would not result in LOE benefits to her. Ms. Thompson agreed that once the Float shifts were divided equally between the applicant and Ms. B. they would each be scheduled for 42 hours of work every two weeks. Ms. Thompson also agreed that maintaining 85% of the applicant’s pre-injury net average earnings was not a consideration in coming to this decision.
16Chris Arn is the applicant’s supervisor. Her evidence was that the applicant was scheduled for 63 hours of work every two weeks after the return to work meeting in June 2008. Ms. Arn stated that the applicant’s shifts comprised of six hours working in the Float position and two hours assisting the cooks. Ms. Arn testified that the applicant’s cooking work was created to ensure she received 63 hours and that no one else performed this work. Ms. Arn confirmed that no one else was assigned these cooking duties after the applicant ceased performing them.
17In cross-examination, Ms. Arn’s evidence was that the issue of reducing the applicant’s hours of work arose in 2010 because the respondents felt they had to bring the distribution of hours in the Nutrition Services Department into compliance with the collective agreement. Ms. Arn noted that her understanding of the collective agreement was that part-time employees are limited to 48 hours of work every two weeks and hours of work are to be divided equally among part-time staff. Ms. Arn stated that Ms. B. had raised concerns about the distribution of hours in connection with the hours of work scheduled for the applicant, and Ms. Arn brought these concerns to the respondent’s administration. Ms. Arn agreed that Ms. B. requested that she be given priority to fill any of the applicant’s Float shifts for which the applicant was absent. There is no dispute that the respondent met this request and that the applicant declined a similar arrangement because of concerns it would affect her accommodations.
18Ms. Jenereaux’s evidence was that Ms. B. had raised concerns on more than one occasion regarding the fact that the hours of work in the Float position were not scheduled based on seniority. Ms. Jenereaux testified that other employees had also made inquiries, but agreed that she received no formal complaint and that the union did not file a grievance. Ms. Jenereaux also testified that the Float position was work the respondent required and is filled when the applicant or Ms. B. are absent. Ms. Jenereaux’s evidence was that the work the applicant performed assisting cooks was created to ensure the applicant received enough work to avoid triggering entitlement to LOE benefits and was not covered when the applicant was absent. According to Ms. Jenereaux, the applicant’s work assisting the cooks had value, but was not needed. Ms. Jenereaux also attended the meeting on October 18, 2011 and stated that the reference to a “business decision” referred to the need to allocate hours of work equitably, pursuant to the collective agreement.
Reprisal Allegations
Written Warning
19There is no dispute that the respondent imposed a written warning on the applicant for not following attendance reporting procedures. Ms. Jenereaux’s evidence was that Norview experienced problems with employees purporting to inform Norview of their absence from work by faxing in their doctor’s notes, FAFs etc. without also confirming their absences with their supervisors. Ms. Jenereaux noted that Norview sometimes did not receive the fax transmissions and those that were received were sometimes illegible. The result was that Norview sometimes found itself unexpectedly short-staffed.
20Ms. Jenereaux testified that Norview responded by promulgating an Attendance Reporting Policy on April 1, 2011, which was distributed to the union and posted on the All Staff Bulletin Board. Amongst other things, the policy requires employees to call their supervisors by telephone if they are unable to attend work as scheduled and that e-mail and voicemail messages are not acceptable. The policy also stipulates that submitting a physician’s note without contacting the supervisor is not sufficient.
21Ms. Jenereaux’s evidence was that the applicant sent a doctor’s note by facsimile on November 10, 2011, and the note was illegible. According to Ms. Jenereaux, the applicant supervisor’s called the applicant on November 14, 2011 for clarification, but applicant could not be reached. The applicant did not attend work on November 14, 2011, as scheduled. As a result, Norview imposed a written warning on the applicant for failing to comply with the attendance policy.
22The applicant testified that she experienced significant stress and her blood pressure went up sharply after she learned of the reduction in hours in September 2011. As a result she went on a medical leave of absence from approximately September to December 2011. The applicant’s evidence was that she faxed in a medical note to cover an absence in November 2011, which she understood was an acceptable means by which to inform Norview. The applicant stated that she did receive a voicemail message from Ms. Arn stated that she could read the dates, but not the contents of the document. The applicant’s evidence was that she was on vacation until November 21, 2011, on which date she also saw her doctor. According to the applicant, her doctor completed the correct form and sent it by fax to the respondent. The applicant’s evidence was that Ms. Jenereaux informed her “she (the applicant) would be dealt with” for sending in her medical note by fax, instead of hand delivering it, which apparently resulted in a short-staffed situation because the applicant shift was not covered. The applicant returned to work on December 12, 2011, and Ms. Jenereaux presented her with a warning letter. The applicant stated that she was not aware of the attendance policy and that she had been unaware of any issue regarding sending notes in by fax. She stated that the union grieved the matter on her behalf and there is no dispute that the grievance process revealed that Norview had not applied the Attendance Reporting Policy consistently. Consequently, Norview agreed to remove the warning letter from her file and replace the letter with a non-disciplinary letter reminding the applicant of the importance of communicating clearly with her supervisors.
Investigation and Suspension
23It is common ground that Norview imposed a one-day suspension on the applicant on January 27, 2012. Norview informed the applicant of the suspension in a letter from Ms. Jenereaux dated January 27, 2012. The letter indicates that the suspension was imposed because of the applicant’s negative attitude and for making inappropriate comments that “have the potential to be overheard by residents”.
24Ms. Arn’s evidence was that three of the applicant’s coworkers approached her over a period of about two weeks and raised concerns about the applicant’s behavior. Ms. Arn reported this information to Ms. Jenereaux, who investigated the matter. Ms. Jenereaux testified that the respondent’s practice is to require employees to put their concerns in writing. In this regard, the respondent pointed to notes written by employees with concerns about certain aspects of the applicant’s and, to some extent, Ms. B’s, performance and negative/rude comments made by the applicant.
25Ms. Jenereaux’s evidence was that she investigated the matter by speaking to employees who work with the applicant. Some of the notes of these investigatory meetings were adduced into evidence and Mr. Jenereaux’s evidence, confirmed by the notes, was that several negative comments about Norview were attributed to the applicant. Ms. Jenereaux stated that the employees she spoke to indicated that the applicant mostly made these comments in the lunchroom in front of other employees and volunteers, but where residents could not overhear them. Ms. Jenereaux also stated that she received information that the applicant made negative comments related to the reduction in her hours of work in the “servery”. Ms. Jenereaux explained that the servery is a small kitchen adjacent to two dining rooms where residents take their meals.
26The applicant’s evidence was that Ms. Jenereaux advised her during a meeting on January 12, 2012 that Mr. Jenereaux would be investigating the Float position. The applicant assumed this meant an investigation into how she did her job. Mr. Jenereaux’s evidence in cross-examination confirmed that she advised the applicant only of an investigation into the Float position.
27Jeanette Vehof testified on the applicant’s behalf. Ms. Vehof is a full-time Chef/Dietary Aide at Norview, where she has been employed for over 25 years. Ms. Vehof testified that she recalled an incident in the lunch room in January 2012 that she described as a venting session. Ms. Vehof stated that the lunchroom is not accessible to non-staff members and that access is controlled by a door with a security code. Ms. Vehof’s evidence was that she recalled that the applicant was present, along with a co-worker named Rhonda and some housekeeping employees. Ms. Vehof stated that most of those present, including her, expressed their frustrations with management. Ms. Vehof recalled that the applicant expressed her displeasure with the reduction in hours she had experienced. Ms. Vehof was aware that management conducted an investigation into the applicant’s behaviour, but did not participate in it and was not asked any questions about the incident in the lunch room. Ms. Vehof also confirmed that she was not asked any questions about the performance of the employees in the Float position.
28Dawn Marie Baetz is a Dietary Aide at Norview. Ms. Baetz stated that she has occasion to observe the applicant in her work and in August 2011 Ms. Baetz wrote a note in support of the applicant when she learned that the applicant had been accused of disrespectful behaviour. Ms. Baetz testified that she was not present during the discussion in the lunch room in January 2012 and was not aware of an investigation into that incident.
29There is no dispute that Mr. Jenereaux and Ms. Arn met with the applicant and a co-worker, Ms. M., on January 26, 2012. The applicant’s evidence was that she asked a co-worker who she respects to attend a meeting with her, because she did not want the available union representative to assist her. The applicant, Ms. Jenereaux, and Ms. Arn each testified that Ms. Jenereaux put to the applicant a number of negative comments about Norview attributed to her. Each of these witnesses testified that the applicant admitted making some of the comments, denied making others and that there were comments she was not sure about. Ms. Jenereaux’s evidence was that they discussed the possibility that the applicant made some of the comments in the servery, where residents might be able to overhear them. The applicant’s evidence was that she made comments in the lunchroom where they could not be overheard by residents or members of the public. The applicant also stated that she was not the only employee to vent about work in the lunchroom. All three witnesses testified that Ms. Jenereaux advised the applicant that her comments could amount to resident abuse. Mr. Jenereaux explained that overhearing employment disputes can make residents feel less secure in their home. Ms. Arn testified that Mr. Jenereaux also discussed issues related to the Float position, including following the appropriate routine and responding to pages. The following day, the respondent imposed a one-day suspension on the applicant, as described above.
30In cross-examination, Ms. Arn agreed that employees had raised performance related concerns about Ms. B. and she agreed that she discussed these issues with Ms. B. in an informal manner. Ms. Jenereaux agreed that she did not speak to Ms. B. and was primarily concerned with the applicant’s comments that could have been overheard by residents.
Analysis and decision
31The applicant has the onus of proving that the respondent violated her Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against by not accommodating her disability. Clear, convincing and cogent evidence is required. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. However, the applicant need not prove that that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.
32The relevant sections of the Code are as follows:
5(1) 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, gender identity, gender expression, age, record of offences, marital status, family status or disability.
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
(1) In Part I and in this Part,
“disability” means,
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.
33The applicant makes two central allegations of discrimination, that the reduction of her work hours in September 2011 was discrimination based on disability and that the discipline imposed on her in December 2011 and January 2012 was reprisal for having asserted her Code rights.
Reduction in Hours
34The applicant submitted that the respondent accommodated her by providing her work within her restriction in the Float position and by scheduling her for 63.5 hours every two weeks to reflect the fact that she could no longer accept call-in work to augment her income. The applicant submitted that this accommodation was permanent and the respondents’ decision to reduce her hours in 2011 amounted to a breach of the respondents’ ongoing duty to accommodate the applicant. The applicant submitted that the respondents did not establish that continuing to accommodate the applicant as they had between 2008 and 2011 amounted to undue hardship. The applicant also submitted that the respondents imposed a ceiling on the applicant’s income, i.e., 85% of her pre-injury net average earning, which is discriminatory because it limits the applicant’s income because of her injury.
35In Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, the Supreme Court of Canada described the accommodation process as a multi-party inquiry. An employee seeking accommodation is responsible for requesting accommodation and must facilitate the search for accommodation, which includes accepting reasonable proposals that would meet his or her needs. In this respect, the Court noted that an employee cannot expect a perfect solution, but accommodation that is reasonable in the circumstances. The employer is in the best position to determine how to provide accommodation without undue interference to its operations and is responsible for originating proposals to provide reasonable accommodation to the point of undue hardship.
36There was no dispute that the applicant has a disability under the Code and it is common ground that the respondents initially met their duty to accommodate the applicant when the restrictions resulting from her workplace injury prevented her from performing the essential duties of her job. Norview created the Float position to provide the applicant and another employee with similar restrictions, Ms. B. with work.
37Prior to her injury, the applicant worked her scheduled hours as a part-time cook, but also supplemented her income by taking additional “call-in shifts” in other positions. The respondent calculated that, the applicant worked an average of 31.75 hours per week following her injury; however, the applicant’s restrictions prevented her from taking call-in shifts. The evidence was that Ms. B. was similarly prevented from taking call-in work. The evidence was that the applicant and Ms. B. worked reasonably similar hours in terms of both scheduled in call-in shifts prior to their injuries.
38I find on the evidence before me that there was not enough work in the Float position to replace the hours of work previously performed by the applicant and Ms. B. Although the collective agreement calls for the equal division of part-time hours, the respondents divided the hours available in the Float position in a distinctly unequal manner - in favour of the applicant. The applicant was scheduled for 63.5 hours of work every two weeks consisting of 48 hours of Float work and 15.5 hours of work assisting cooks, the latter being work only the applicant performed, and was not replaced when she was absent. The evidence was that Ms. B. was scheduled to work 36 hours every two weeks in the Float position. I find that explanation for this differential treatment lies in the fact that the applicant’s injuries occurred in the workplace, entitling the applicant to benefits under the WSIA, while Ms. B’s did not. But for the fact that the applicant’s disability was caused by a workplace injury, the applicant and Ms. B. would have received the same hours in the Float position. The applicant was entitled to receive LOE benefits to bring her income up to 85% of her pre-injury net average earnings if the respondent could not provide her with enough work to reach that threshold. As a Schedule II employer, however, Norview is effectively self-insured and repays the WSIB all LOE benefits received by its employees, plus a significant administrative fee. The respondents therefore had the choice of scheduling the applicant for her share of the Float hours and repaying the WSIB for her LOE benefits, along with the administrative fee, or of finding enough hours for the applicant to avoid this cost. The respondent chose the latter option, but either in my view would have met the respondents’ duty to accommodate.
39The respondents revisited this decision, and commencing in September 2011 scheduled the applicant and Ms. B. for an equal amount of hours in the Float position and eliminated the cook assistance work altogether. The applicant submitted that this change was discriminatory and amounted to a failure to accommodate the applicant and that that respondent was obliged to maintain the advantageous work schedule for the applicant.
40I do not agree with this submission for several reasons. First, nothing in the Code requires an employer to treat an employee better than others because of a prohibited ground of discrimination. In this case, the respondent gave the applicant more hours in the Float position than Ms. B. who had a similar disability (although Ms. B. had more seniority) and created work for the applicant that no one else performed because the applicant’s disability was work-related. Discrimination occurs when an employer treats employee worse than others because of a prohibited ground of discrimination. As noted in Mann v. Dimplex North America Limited, 2013 HRTO 606, discrimination does not occur when an employee’s circumstances deteriorate relative to his or her own situation. Ultimately, the respondent decided to treat the applicant equally to Ms. B., who is in a comparable position to her, regarding hours of work in the accommodated position they held. In my view such equality in treatment clearly does not violate the Code.
41As noted in Renaud, above, it is the employer that is primarily responsible for designing and implementing accommodative measures. The applicant pointed to no jurisprudence, and I am aware of none, that indicates that an employer cannot change the manner in which it accommodates an employee, provided the new measures meet the employee’s disability-related needs. In this case, the respondents continued to provide the applicant with work within her disability-related restrictions, albeit less of it. In that regard, however, the duty to accommodate does not prevent an employer from managing its business or require it to continue work it does not need even if it is performed by an accommodated employee.
42In Vanegas v. Liverton Hotels International Inc., 2011 HRTO 715, the Tribunal discussed the development of the jurisprudence regarding whether an employer is required to “bundle” duties together to create a new job to accommodate a disabled employee. In Vanegas, the Tribunal concluded that the duty to accommodate may, in appropriate circumstances, require an employer to “bundle” or take tasks from existing positions to essential create a new position within the restrictions of employees requiring accommodation, unless such “bundling” results in undue hardship to the employer. The Tribunal noted, however, that ultimately an employee must be able to perform a useful and productive job for the employer. See also Saucier v. Smart Lazer Grafix, 2009 HRTO 1053 at paragraph 19, where the Tribunal confirmed that the accommodation process does not require an employer to provide “make work” or to create a job that is not productive or that, in the employer’s view, does not need to be done.
43The evidence was that the Float position existed before the applicant required accommodation and it was modified to meet the applicant’s and Ms. B.’s disability-related needs. Accordingly, the Float position performed work that the Norview required, which was further demonstrated by the fact that Norview covered this work when the applicant or Ms. B. was absent. On the other hand, the respondent’s evidence was clear, and not really contradicted, that the work assisting cooks given to the applicant was provided for the sole purpose of giving her enough hours to avoid the necessity of an LOE payment and I so find. No other employee performed this work and it was not covered when the applicant was absent due to illness, vacation etc. Accordingly, I find that Norview did not need to have this work performed and that the primary value of providing this work to the applicant for Norview was to avoid expense related to her WSIB claim. In my view, an employer is in the best position to decide whether a particular function or work is required in its operations and it will generally be within the prerogative of an employer to discontinue work that it concludes it does not need. The respondents discontinued this work when it decided to equalize the hours of work as between the applicant and Ms. B. and I find it was entitled to do so.
44Contrary to the applicant’s submission, the respondents did not set the applicant’s maximum earning at the LOE entitlement threshold in September 2011, as it considered doing in April 2010. Rather, the respondents simply divided the work in the Float position equally between the applicant and Ms. B. There was no evidence that the respondents set a limit on the income the applicant could earn in the future, e.g., as a result of wage increases. Such a limit related to a disability, including an injury compensable under the WSIA, would arguably be discriminatory, but that issue is not before me.
45The respondents submitted that the business decision to equalize the hours of work in the Float position between the respondent and Ms. B. was to comply with the collective agreement. There was evidence that the respondents became concerned about the unequal distribution of hours in the Float position. The abrogation of the terms of the collective agreement, particularly when, as here, it affects the rights of other employees, can be an important consideration when assessing whether accommodating an employee reaches the point of undue hardship. In this case, however, there is no evidence that the union took any issue with the unequal distribution of work and it appears that Ms. B’s concerns were addressed when she was promised the right of first refusal regarding the applicant’s powers when she is absent. The respondent also ceased pursuit of a reduction in the applicant’s hours in 2010 in the face of determined resistance from the applicant and union, which filed a grievance on the applicant’s behalf.
46The respondents’ resolve stiffened, however, when it learned that LOE benefits would not be payable in circumstances where an injured worker’s earnings drop below the LOE entitlement threshold because of a “business decision”. The respondent then took the position that equalizing the hours in the Float position and eliminating the cook assistance work the applicant had been performing was a “business decision” required to comply with the collective agreement, which did not result in LOE entitlements for the applicant. Accordingly, the respondents reduced applicant’s hours of work to a point below the threshold for entitlement to LOE benefits. Frankly, is not clear to me how the respondent could avoid triggering LOE entitlements for the applicant by reversing decisions to allocate work and to create work taken for the sole purpose of avoiding such entitlements. However, this is a decision for the WSIB to decide, which is in my view the proper forum for this dispute.
Reprisal
47The prohibition against reprisal is particularly important because it protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
48The applicant noted that she advised the respondent that she believed the reduction in her hours of work amounted to a violation of her human rights at the time the decision was relayed to her in August 2011. The applicant also noted that she filed this Application on or about December 8, 2011. The applicant submitted that the intent to retaliate against the applicant for asserting her human rights can be inferred from the timing of the discipline imposed upon her and from the conduct of the respondent’s investigation of the applicant in January 2012. I agree that the intention to retaliate can be inferred from the circumstances of a respondent’s actions, including the timing and nature of the actions. See, for example, Knibbs v. Brant Artillery Gunners Club, 2011 HRTO 1032, where the Tribunal concluded that the respondent’s baseless allegations of theft made shortly after the applicant asserted her Code rights amounted to a reprisal. In other cases, the Tribunal found a reprisal had occurred where there was direct evidence connecting the respondent’s actions to the applicant’s assertion of his or her human rights. See Chan v. Tai Pan Vacations, 2009 HRTO 273, Newton v. Toronto (City), 2010 HRTO 1023, and Anamguya v. Intercon Security Limited, 2011 HRTO 2186. There was no direct evidence of reprisal in this case and, in my view, the circumstantial evidence adduced in this case does not permit an inference that the respondents committed reprisals against the applicant.
49With respect to the timing of the discipline imposed by the Norview, the Application was filed with the Tribunal on December 8, 2011, but the Tribunal did not deliver the Application until January 30, 2012. Accordingly, the respondents received the Application after Norview disciplined the Applicant, as is discussed below. There was no evidence that the respondents were aware that the applicant had filed the Application before the Tribunal delivered it. I find therefore that the respondents could not have retaliated against the applicant for filing the Application, since they were unaware of it at the time Norview disciplined the applicant. However, there was no dispute that the applicant asserted that the reduction in her hours of work violated her human rights at the time Norview informed her of the decision in August 2011, approximately four months prior to the first alleged incident of reprisal.
Written Warning
50In any event, the respondent’s concerns about the applicant were not baseless. Norview’s uncontradicted evidence was that in April 2011 it created a policy setting out the appropriate manner by which employees are to notify their supervisors when they are to be absent from work. Ms. Jenereaux’s evidence, which was again not contradicted and which I accept, was that the policy was intended to require employees to make direct contact with their supervisors rather than sending in the notification from their physicians that may not be received or may be illegible. The applicant’s evidence was that she did not contact her supervisor directly in November 2011 and had her doctor send in a note by facsimile, which was partially illegible. There is no dispute that Ms. Arn attempted to contact the applicant to clarify the note. This evidence, which I accept, contradicts the applicant’s submission that the respondent was aware the applicant would be absent for that shift. The applicant’s own evidence was that she did not reply to Ms. Arn’s inquiries until November 21, 2011. In short, the applicant’s actions directly contravened the Attendance Reporting Policy. The respondent imposed a written warning on the applicant on December 12, 2011, which does not in my view seem disproportionate. Norview agreed to remove this warning when, following a union grievance, it discovered that the policy had not been applied consistently. This response arguably dealt with the substance of the issue, but in any event does not seem to support an inference that Norview was “out to get” the applicant because she expressed an opinion about her human rights.
Investigation and Suspension
51The applicant submitted that the investigation conducted by Ms. Jenereaux in January 2012 did not meet the requirements of natural justice and unfairly focused on the applicant when the investigation revealed other employees also made negative comments about the respondents. The issue before me, however, is not whether the respondents conducted the investigation properly or whether the discipline imposed was appropriate. The issue is whether the respondents took these actions with the intent to retaliate against the applicant. Having said that, evidence that an investigation was a sham, conducted to ensure a finding adverse to an applicant, could be evidence of such intent.
52In this case, the respondents’ evidence, which was not contradicted, was that three employees came forward with complaints about the applicant’s behaviour and performance. There were also complaints about Ms. B’s performance. There was no evidence that the respondents concocted these complaints or encouraged the complaining employees to come forward. Having received the complaints, Norview was obliged to investigate them and it did. The applicant takes issue with the manner in which the investigation was conducted, particularly that the applicant was not given accurate information about the nature of the investigation on January 12, 2012, was not given advance notice of the allegations against her prior to the January 26, 2012 meeting, was not given an adequate opportunity to respond to the allegations, and some potential witnesses were not interviewed. I find no merit in the submissions.
53Investigations may be conducted in a variety of formats, and there is, so far as I am aware, no general requirement that an employer must advise an employee of allegations in advance. Norview met with the applicant on January 26, 2012 to put the allegations to her and get her response. Such an “interrogation style” of investigation, as the applicant described it, may have been uncomfortable for the applicant, but there is no basis for finding it to be improper. It is true that the applicant was given very little time to provide further information after the interview on January 26, 2012, as Norview imposed a one-day suspension the following day. However, the applicant did not suggest that she actually had anything she wished to add that might have changed the outcome of the investigation. The testimony and notes regarding this meeting indicate to me the parties fully canvassed the allegations against the applicant on January 26, 2012. The penalty imposed, a one-day suspension, was primarily the result of Norview’s concern that the applicant made negative comments about Norview where residents could overhear them. The applicant denied this, but there was evidence on which Ms. Jenereaux could base this conclusion. Norview did not investigate other employees who it learned may also have made negative comments in the lunchroom. Norview did not receive any complaints about these employees, however, and there was also no evidence that any other employee may have made such comments were residents could overhear them. In these circumstances, I cannot find that either the manner in which Norview conducted the investigation or the imposition of the suspension are a proper basis on which to infer intent to retaliate against the applicant.
54The Application is dismissed.
Dated at Toronto, this 19th day of December, 2013.
“Signed by”
Douglas Sanderson
Vice-chair