Gahagan v. James Campbell Inc., 2014 HRTO 14

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Gahagan

Applicant

-and-

James Campbell Inc.

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: January 6, 2014

Citation: 2014 HRTO 14

Indexed as: Gahagan v. James Campbell Inc.

APPEARANCES

Cathy Gahagan, Applicant

Don Menzes and Kristina Kolka, Representatives

James Campbell Inc., Respondent

Jeff Ayotte, Counsel

Introduction

1These Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to employment because of disability and reprisal. The applicant alleges that the respondent discriminated against her when it failed to accommodate her physical restrictions resulting from a workplace injury and when it terminated her employment as a form of reprisal. The Applications were consolidated by order of the Tribunal. The consolidated Application proceeded to a hearing on October 7 and 8, 2013.

background

Employment

2The respondent James Campbell Inc. operates nine McDonald’s restaurants in eastern Ontario. One of the restaurants is in Lakefield. The Lakefield McDonald’s is a satellite store attached to a gas station and employs 20 people. The respondent’s largest restaurant is a stand-alone McDonald’s on Lansdowne Street in Peterborough that employs 75-100 people.

3The applicant worked at the Lakefield McDonald’s for seven years. For most of her employment, the applicant worked at the grill station. The grill station drives the pace of production in the restaurant. The tasks on the grill station involve taking the buns, garnishing them, adding the burgers to the buns, wrapping them and handing them to the front of the restaurant to be delivered to customers. By all accounts, the applicant was very skilled at this work.

4On May 26, 2009, the applicant twisted her back while lifting a filter pan from underneath the vat for the french fries. The applicant was granted full loss of earnings benefits by the Workplace Safety and Insurance Board (“WSIB”) from the date of injury.

5On September 8, 2009, the applicant’s physiotherapist advised the WSIB that the applicant was beginning an 8-week occupational rehabilitation program to address her low back pain and dysfunction. The physiotherapist recommended that the applicant remain off work for 5 weeks in order to provide aggressive treatment and then gradually return to work in weeks 6-8 of her program.

6On November 10, 2009, the WSIB Return to Work Specialist attended at the Lakefield McDonald’s with the applicant’s physiotherapist to determine whether the applicant could return to work. Terry Van Zant (“Van Zant”), the co-owner of the respondent, attended the meeting. The applicant had the following physical restrictions at this time:

• No lifting above 10 pounds;
• No twisting or bending;
• Ability to stand for 10 minutes;
• Ability to sit for 5 minutes;
• Ability to work 3 hours per day, 3 days per week with a rest day in between.

These restrictions remain in place today.

7The Return to Work Specialist prepared a memo dated November 11, 2009. The memo stated that Van Zant had advised the Return to Work Specialist that the respondent was unable to accommodate the applicant because:

• It was a small restaurant with approximately 20 staff and there was no capacity to provide shadow coverage to assist the applicant;
• The restaurant was a faced-paced environment which did not provide the opportunity to rest or sit and take breaks;
• The employer was concerned about the applicant having a recurrence or new injury.

The memo noted that Van Zant did not permit the RTW Specialist to go behind the counter to survey the work site because of liability concerns.

8The Return to Work Specialist found the respondent had failed to cooperate in the return to work process. As a result, the WSIB determined that the applicant was entitled to a labour market re-entry (“LMR”) plan and she was sponsored in an educational upgrading program in the area of customer service. The applicant commenced the LMR training program in March 2010 and she remained in the program for four months.

9Following completion of the LMR plan, the case manager determined the applicant was fully restored to her pre-injury earnings based on the level of wages in her re-trained position of customer service. The applicant’s WSIB benefits ceased on August 19, 2011, the date of this determination. The applicant appealed this finding to the Appeals Resolution Officer (“ARO”). The ARO denied the applicant’s objection and the applicant appealed the denial to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). That appeal remains outstanding today.

10In October 2010, the applicant was approved for Canada Pension Plan (“CPP”) disability pension. To qualify for this benefit, the applicant must have had a severe and prolonged disability.

11In late September 2011, the applicant applied for Long Term Disability (“LTD”) benefits from her insurer, Great West Life.

12On October 3, 2011, the applicant’s employment was terminated by the respondent because it did not believe she would be able to return to work, with or without accommodation. The employer took the position the applicant’s contract of employment was frustrated.

13The applicant was subsequently approved for LTD benefits from the date of injury. Her entitlement was subject to a 17-week waiting period and she was approved for LTD benefits for the period September 23, 2009 to September 22, 2010. Great West Life found the applicant was unable to perform the essential duties of her regular occupation during this period. The applicant’s LTD entitlement ceased on September 22, 2010, because Great West Life found the applicant was capable of gainful employment in the area in which she had been re-trained by the WSIB. The applicant did not receive LTD benefits during the period of entitlement because she was receiving WSIB benefits at that time.

14The applicant has not worked since she left the workplace in 2009.

Human Rights Applications

15On September 13, 2011, the applicant filed an Application with the Tribunal where she alleged that she was discriminated against when the respondent failed to participate in the Return to Work process in November 2009.

16On October 26, 2011, the applicant filed a second Application with the Tribunal where she claimed that she had been reprised against by the respondent when it terminated her employment and when it failed to complete the Employer’s Statement for her LTD application.

17By Interim Decision dated September 4, 2012, the Tribunal consolidated the two Applications.

issues

18There are two issues before the Tribunal:

1. Did the respondent discriminate against the applicant when it failed to participate in the return to work process and failed to accommodate her physical restrictions in November 2009?

2. Did the respondent reprise against the applicant when it terminated the applicant’s employment in October 2011 and when it delayed submitting the employer’s statement for the applicant’s LTD application after termination?

Failure to Accommodate in November 2009

Jurisdiction

19The applicant alleges that the respondent failed to participate in and accommodate her physical restrictions in November 2009. Although not argued by the parties, this allegation is untimely. Under section 34(1) of the Code, applications must be filed with the Tribunal within one year after the incident to which the applicant relates.

20My jurisdiction to consider the November 2009 Application stems from the fact that this Application was consolidated with the second Application concerning the termination of the applicant’s employment. The second Application is timely. I have jurisdiction over the consolidated Application.

21Had the timeliness issue been argued by the parties, I would have been inclined to dismiss the November 2009 allegation as untimely. However, given the fact that it was not argued, I will address this allegation on its merits and not re-open the hearing to obtain submissions on the timeliness question. In my view, this is a more expeditious way of proceeding in light of my finding on the merits of this allegation.

Merits

22The applicant argues the respondent breached its duty to accommodate when it refused to allow the WSIB Return to Work Specialist behind the counter to examine the applicant’s worksite. It is not the role of the Tribunal to oversee the parties’ conduct in a WSIB return to work process. It is, however, the role of the Tribunal to determine whether the respondent failed to accommodate the applicant in November 2009.

23There is no evidence before the Tribunal that the respondent engaged any process whatsoever to determine whether it could have accommodated the applicant in 2009. On this basis alone, the applicant has established that the respondent failed to accommodate her disability-related needs. The respondent’s defence is the applicant was incapable of doing her job, with accommodation.

24Section 17 of the Code provides that a right is not infringed where the person claiming the right is incapable of performing the essential duties of a job with accommodation. The onus is on the respondent to prove incapacity on the part of the applicant.

25The applicant had significant physical restrictions in November 2009. She could not twist or bend. She could only stand for 10 minutes and sit for 5 minutes. These physical restrictions impeded her ability to do the grill assembly-line process. The applicant suggested a chair could have been placed in the grill area to enable her to alternate between sitting and standing. However, given the limited space in the grill area, the chair impeded access to the back of the store raising health and safety, and fire concerns. Employees could trip over the chair and could be harmed given the close proximity of the grill and vats.

26The applicant suggested that she could have been accommodated by being placed in the job of runner. A runner is the person that collects the food for the drive-through orders. The Lansdowne McDonald’s has this position, but the Lakefield McDonald’s does not because of its size. The cashier at the drive-through at the Lakefield McDonald’s does both duties: cash and runner. There is no suggestion that the applicant had the physical ability to do both tasks.

27The applicant also suggested that the respondent could have had a staff person help her at the grill station. The difficulty with this argument is that at peak times, there were only six or seven people working at the Lakefield McDonald’s. The applicant’s argument would require the respondent to hire someone to effectively shadow the applicant at the grill station. The duty to accommodate 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. Chadwick v. Norfolk (County), 2013 HRTO 2101 at paragraph 42 and Saucier v. Smart Lazer Grafix, 2009 HRTO 1053 at paragraph 19.

28Van Zant testified that she accommodated the applicant by offering her work at Lansdowne, which had more staff to assist in the accommodation of the applicant. The applicant denies that this offer was made. In my view, this issue does not have to be decided because Lansdowne was not a realistic offer of accommodation because the applicant did not have a car to drive to that location.

29On the basis of all of the evidence before me, I find the applicant was incapable of performing the essential duties of her job with accommodation in November 2009 because of the nature of her physical restrictions at that time. The respondent could have accommodated the applicant by providing three-hour shifts every other day, but even with this accommodation, the applicant was unable to perform the essential duties of her job. The respondent was not required to hire a shadow for the applicant and putting a chair in the grill station was not feasible. As such, the respondent has established the applicant was incapable of working in November 2009 with accommodation. This complaint is dismissed.

Termination of Employment

30The applicant argues her employment was terminated as an act of reprisal for filing her Application with the Tribunal.

31Section 8 of the Code provides as follows:

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.

32In order to succeed in a claim of reprisal under the Code, an applicant must establish that the respondent did something with the intention of retaliating against him or her for claiming or enforcing his or her rights under the Code: Noble v. York University, 2010 HRTO 878.

33The applicant’s employment was terminated when the respondent concluded she could not return to work with or without accommodation because of her permanent medical restrictions. The evidence before me supports the respondent’s conclusion. At the time of termination, the applicant had not worked for almost two and one-half years.

34The applicant had significant physical restrictions in 2009. These physical restrictions remain in place today. In light of my finding that the applicant could not work in 2009 because of the nature of her physical restrictions, she could not work in 2011 when her employment was terminated with the same physical restrictions. The applicant has not worked since her work-related injury in 2009. She received LTD from 2009 to 2010 and CPP disability pension from October 2010 onwards. To obtain these benefits, she was professing both an inability to perform her job and a severe and prolonged disability. All of this evidence supports the conclusion that at the date of termination, the applicant could not work with accommodation.

35The respondent terminated the applicant because of frustration of contract and not because the applicant had filed an Application before the Tribunal. There is no evidence before the Tribunal to support the finding that the respondent intended to retaliate against the applicant for filing an Application. As such, this complaint is dismissed.

Employer’s Statement for LTD

36The applicant argues the employer delayed filing the employer’s statement for the LTD application as a further act of reprisal. Van Zant testified that she did not complete the form because she believed she had no obligation to do so because the applicant was no longer an employee when the LTD application was filed. When the respondent received the second Application, it filed the employer’s statement. The applicant was ultimately successful in receiving LTD for one year post-injury.

37I accept the respondent’s explanation that it failed to file the employer’s statement because it incorrectly believed it had no obligation to do so when an individual is no longer an employee. Upon receipt of the second Application, it filed the statement. The respondent’s delay in filing the statement did not prejudice the applicant’s receipt of LTD benefits.

38There is no evidence to support the finding that the respondent intended to retaliate against the applicant by delaying the filing of the employer’s statement for the LTD application. As such, the applicant’s complaint of reprisal regarding this allegation is also denied.

39The applicant has failed to establish a complaint of discrimination and reprisal. In my view, the applicant’s real complaint relates to the decision of the WSIB that she was employable in her re-trained occupation of customer service in August 2011 and the termination of her benefits as a result of that decision. The applicant has appealed that decision to WSIAT, which is the proper forum for this complaint.

40The Application is dismissed.