HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Farzaneh Darvish-Ghaderi
Applicant
-and-
Evertz Microsystems and Maria Beltrame
Respondents
DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Darvish-Ghaderi v. Evertz Microsystems
APPEARANCES
Farzaneh Darvish-Ghaderi, Applicant
Samia Alam, Counsel
Evertz Microsystems and Maria Beltrame, Respondents
Stuart Ducoffe, 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 because of disability.
2Essentially, the applicant alleges that Evertz Microsystems Ltd. (“Evertz”) and Evertz’s human relations manager, Maria Beltrame (“Beltrame”), discriminated against the applicant on the basis of disability by failing to accommodate her disability to the point of undue hardship and dismissing her from employment.
background
3The applicant commenced employment with Evertz in November 2007 in the capacity of a SMT Operator – Selective Solder.
4In the spring of 2008 she moved to the full-time position of Initial Test Operator on the 3:30 p.m. to 12:00 a.m. shift.
5On October 31, 2008 the applicant was involved in a motor vehicle accident. Beltrame testified that in the fall of 2008 the applicant told her about her accident but did not indicate that she was subject to any limitations in regards to performing her job.
6On April 15, 2009 the applicant advised human resources that she was experiencing sleeping problems and depression at which point Beltrame asked the applicant to provide a medical note.
7Six days later the applicant submitted a medical report from Dr. Rahimpour indicating that her sleeping problem and medication required her to be home by 10:00 p.m. Evertz permitted the applicant to end her shift between 9:30 p.m. and 10:00 p.m. The applicant, however, elected to continue to work until 12:00 a.m. The applicant testified that she could not afford to forego any wages by taking a reduced shift of six hours. It is unclear whether the applicant asked Evertz if she could start the afternoon shift two hours earlier so that she would not lose any hours yet still be home by 10:00 p.m. or if this was ever suggested by Evertz. The applicant testified that Evertz offered her the day shift but she declined because she “had obligations with her son”.
8On June 28, 2010, fourteen months after Dr. Rahimpour’s medical certificate, the applicant supplied Evertz with a medical certificate from Dr. Daabak indicating that based on the applicant’s depression and chronic pain she should be moved to the day shift from 8:00 a.m. to 4:30 p.m. On July 19, 2010 the applicant was placed on the day shift.
9On August 10, 2010 the applicant advised HR that due to injuries suffered in her October 2008 motor vehicle accident she was experiencing pain in her left shoulder and that she was having problems with the movement of pushing which she was required to do on the day shift. Evertz provided the applicant with a functional abilities form (“FAF”) which was to be completed by the applicant’s treating physician.
10On August 13, 2010 the applicant provided Evertz with a completed FAF from her chiropractor dated August 13, 2010. It identified that the applicant could not perform any “repetitive overhead work – no lifting/pushing overhead”, no repetitive screwing and limitations on bending or twisting of “waist/lower back”.
11According to the applicant she was moved to a different station and while there was no lifting there was nevertheless overhead work. According to Mike Pirruccio the applicant’s manager, the applicant’s job did not involve screwing, twisting or turning or any overhead work. He testified that he arranged to have the top shelf of the applicant’s work station removed so as to remove the temptation of using the shelf for purses or other articles that could give rise to voluntary movement overhead. While the parties dispute whether there was overhead work at this station at this time it is clear that by the end of November 2010 the applicant was satisfied with her work station. See paragraph 16 below.
12Towards the end of October 2010 the applicant indicated that she was not capable of pushing the electronic circuit boards into the appropriate apparatus to complete the required test of the equipment. Evertz proposed that the applicant consider the alternate position of Production Inspector, a job that did not require any pushing and was at the same level and rate of pay as her current job. The applicant turned the position down. According to Beltrame, the applicant told her that she would be bored as a Production Inspector. Evertz advised the applicant that she should provide a further FAF for its consideration in light of the electronic circuit board limitation.
13On October 28, 2010, the applicant provided Evertz with the further FAF completed by Dr. Abrishami setting out further restrictions. Specifically, Dr. Abrishami outlined that the applicant should avoid any pushing, pulling and lifting below or above her shoulders and avoid repetitive neck, shoulder and back movements.
14In a letter to the applicant dated November 1, 2010, Evertz set out its understanding of the new limitations as well as the duties being proposed by Evertz in light of the new limitations. The applicant executed the letter.
15Mr. Pirruccio testified that in early November 2010 Evertz designed and created a work station specifically for the applicant in response to her particular limitations at a cost of $40,000.00. The applicant did not dispute the fact that such a work station was created but did dispute the cost. As well, she was under the impression that the new work station was a prototype that would be introduced to all Initial Test Operators. In my view, however, the cost of the new work station and the possibility that it would be used by other Initial Test Operators does not diminish the fact that the work station was designed and built in response to the applicant’s limitations.
16On November 24, 2010, counsel for the applicant called Evertz and advised that the applicant was satisfied with the new position and that it would not be necessary to send someone to conduct an assessment. On December 21, 2010 counsel for the applicant confirmed in writing that the applicant was “happy with the new adjustments and so assessment is not required”.
17Also on December 21, 2010 Evertz received a medical certificate dated December 21, 2010 prepared by Dr. Abrishami indicating that the applicant would be off work “for an indefinite period of time”. Beltrame testified that following receipt of this medical certificate Evertz received a call from the applicant’s counsel advising that the applicant would be going on long-term disability.
18On January 3, 2011 Evertz sent a letter to the applicant explaining that it required more information relating to the December 21, 2010 medical certificate of Dr. Abrishami. Enclosed was a FAF for Dr. Abrishami to complete.
19Dr. Abrishami indicated in her medical certificate of January 10, 2011 that the applicant’s medical condition is “permanent” and that she did not expect the applicant to return to work in the “foreseeable future”. The certificate indicated that the applicant’s next appointment with Dr. Abrishami to review the applicant’s capabilities was February 4, 2011.
20On January 17, 2011 Evertz wrote to the applicant seeking clarification from Dr. Abrishami of her prognosis.
21Dr. Abrishami responded to Evertz on February 8, 2011. She indicated that the applicant’s medical condition permanently affects her ability to perform the essential duties of her job and that it was “unknown at this time” whether the applicant would be able to return to work in the foreseeable future.
22On March 10, 2011 Evertz wrote to the applicant seeking further clarification of what was meant by “unknown at this time”.
23On March 24, 2011 Dr. Abrishami provides her medical certificate indicating that the applicant would be able to return to work in the “foreseeable future” but that it was “undetermined” when that return would be. She also indicated that the applicant’s medical condition would not permanently affect her ability to perform the essential duties of her job, however, modifications would be necessary.
24On March 28, 2011 Evertz wrote to the applicant:
It is very good news that it seems as though your medical circumstance is improving. In particular, we were very glad to read that your treating physician is of the view that you will be able to return to work in the foreseeable future, and also that, with modifications, you will be able to perform all of the essential duties of your job.
That said, and in order for us to prepare for your return, please note that we will now need to be provided with the following:
A specific return to work date, and
Medical instructions including: Specific details regarding the recommended accommodation measures, the duration of the accommodation period, and a follow-up assessment date.
25On May 3, 2011 Dr. Abrishami responded to Evertz’s request for medical information. She indicated that the applicant had been referred to specialists and was awaiting assessment and that she was unable to offer a return-to-work date until the applicant had met with the specialists.
26Having met with the specialists, Dr. Abrishami wrote to Evertz on June 3, 2011: “Ms. Darvish-Ghaderi is unfit to return to work permanently.” The doctor indicated: “It is my opinion that she is eligible for long-term disability, due to multiple medical conditions”.
27By way of letter dated June 7, 2011, Evertz terminated the applicant. The letter reads in part:
That said, given your treating physician’s opinion that you are permanently unable to return to work, unfortunately we are left with no other choice at this point but to terminate your employment with Evertz Microsystems Ltd. (“Evertz” or “Company”) effective immediately.
Analysis
28There is no dispute that the applicant had a disability within the meaning of the Code, that she had associated functional restrictions arising from her disability and that the procedural and substantive duty to accommodate to the point of undue hardship was triggered. The issue is whether the respondents fulfilled that duty.
29Analysing whether the duty to accommodate has been met, or whether an individual or organization has established that hardship is “undue” is always fact-based and situation specific. There is no set formula for accommodating people with disabilities.
30Essentially, the applicant argues that the respondents failed to meet their duty to accommodate to the point of undue hardship for three reasons: (1) procedurally they failed in their duty to accommodate to the point of undue hardship because they failed to follow Evertz’s own Early & Safe Return to Work policy (“ESRTW”); (2) they harassed the applicant when they inundated the applicant with “endless requests for “clarification” from her doctor until it got what it wanted: a note stating she was unfit to return to work permanently”; and, (3) they dismissed the applicant from her employment.
ESRTW policy
31The applicant’s position is that had the respondents followed the “ESRTW” policy an ESRTW program would have been developed by the respondents, meetings would have been held with the applicant to establish written goals and objectives, weekly progress reports would have been kept and the TRW committee would have met and records of their meetings would have been kept. The applicant maintains that none of this was done.
32Assuming that the respondents did not follow the ESRTW policy, I do not see how this represents a procedural breach of the respondents’ duty to accommodate the applicant under the Code to the point of undue hardship. The policy on its very face is not designed for Code related exercises in accommodation rather the “objective of the Early and Safe Return to Work Program is …to ensure compliance with the Workplace Safety Insurance Act (WSIA), Occupational Health & Safety Act (OHSA) and related regulations”. The procedural duty in accommodation under the Code is, in my view, measured by the employer’s conduct and not whether the employer has adhered to a policy designed for other work-place related matters.
Harassment
33As for the allegation of harassment, I can see no basis for making such a finding in the present case. The OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate (2009) indicates that the an employer’s duties and responsibilities in the accommodation process requires an employer to:
Accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
Obtain expert opinion or advice where needed
Take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated and canvass various forms of possible accommodation and alternative solutions, as part of the duty to accommodate.
34The applicant characterizes the respondents’ requests for clarification from Dr. Abrishmi as part of a scheme to get what they needed to terminate the employment of the applicant. There is no evidence to support this characterization of the respondents’ conduct. In my view, the respondents, as part of the accommodation process, were entitled to clear and consistent medical reports. In my view, the reports issued by Dr. Abrishmi prior to her June 3, 2011 report were neither. On that basis alone the respondents were, in my view, obligated to seek clarification of the applicant’s limitations. I do not find this to be harassment.
Dismissal
35From the time of her auto accident until her later termination from employment the applicant’s medical condition deteriorated and changes in the applicant’s limitations ensued. Over this period of time the respondents adjusted her working conditions in light of her limitations. They provided her with a variable work schedule, moved the applicant to the day shift, offered to assign her to a new position at the same rate of pay and at the same level, which she denied, and created a new work station for the applicant having regard to the applicant’s limitations. Through her counsel, the applicant advised Evertz that she was satisfied with the arrangements that had been made.
36At the time of her dismissal on June 7, 2011 the applicant had been absent from work since December 2010. On June 3, 2011 her attending physician advised the respondents that the applicant was “unfit to return to work permanently”. In my view, it was at this point that the respondents’ duty to accommodate ended. I find that to continue the applicant in employment in these circumstances would have resulted in undue hardship.
37In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, the Supreme Court of Canada emphasized that undue hardship varies with the circumstances and “can take as many forms as there are circumstances” (para 12). The Court stated the limits of accommodation in general terms:
…in the case at bar, Hydro Québec tried for a number of years to adjust the complaint’s working conditions; modification of her workstation, part-time work, assignment to a new position etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.
…The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.
38In my view, as the applicant was unfit to return to work permanently she was “no longer able to fulfill the basic obligations associated with her employment relationship for the foreseeable future” and for that reason the respondents’ duty to accommodate came to an end. I find that the respondents have established undue hardship.
39The applicant cited a number of cases to support her position that the termination of employment due to absenteeism caused by a disability is discriminatory: Wilmot v. Ulnooweg Development Group, 2007 NSCA 49; Sandu v. North Star Mills, 2007 BCSC 1222; Naccarato v. Costco Wholesale Canada, 2010 ONSC 2651; Lippa v. Can-Cell Industries, 2009 ABQB 684; Dragone v Riva Plumbing, 2007 CanLII 40543 (ON SCJ). However, in each of these cases the disability related absenteeism giving rise to the termination of employment was not permanent or, at least, there was no evidence to that effect.
Conclusion
40I find that the respondents met their duty to accommodate the applicant to the point of undue hardship.
41For these reasons the Application is dismissed.
Dated at Toronto, this 18th day of April, 2013.
“signed by”
Keith Brennenstuhl
Vice-chair