Human Rights Tribunal of Ontario
B E T W E E N:
Wendy Easthom Applicant
-and-
Dyna-Mig, a Division of F&P Mfg., Inc. Respondent
DECISION
Adjudicator: Dawn J. Kershaw Date: September 30, 2014 Citation: 2014 HRTO 1457 Indexed as: Easthom v. Dyna-Mig
APPEARANCES
Wendy Easthom, Applicant Gavin Cond, Counsel
Dyna-Mig, a Division of F&P Mfg., Inc., Respondent Greg McGinnis, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant began working for the respondent on September 27, 2010, and became a full-time employee on January 30, 2012. She currently receives long term disability (“LTD”) benefits that commenced January, 2013.
3Due to a neck injury, the applicant began working in the light duties cold forge department in March, 2011 and remained there until she went off work July 17, 2012 after returning to work for one day on July 16, 2012 after two weeks’ vacation.
4The applicant alleges the respondent discriminated against her by failing to accommodate her medical needs by not providing a straight day shift rather than either a swing shift of two weeks from 7 a.m. to 3 p.m. followed by two weeks from 3 p.m. to 11 p.m. (“the “B” shift”) or a night shift.
Legal Principles
5The relevant provisions of the Code are as follows:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of […] disability.
5(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of […] disability.
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
17(2) No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person 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.
Evidence
6In early June, 2012 the respondent advised the applicant she no longer could work straight days in cold forge but had to work the “B shift”. The respondent changed the availability of straight days for quality reasons and because of complaints from other workers who had to work either a “B shift” or a night shift.
7Ms. Scott-Dalkin, the respondent’s Health and Safety Specialist, testified all employees whose medical restrictions were being accommodated with cold forging duties returned to the normal shift patterns of all other employees and the applicant was expected to do the same unless she provided a clear medical reason why she could not do so or attempt to do so. Ms. Scott-Dalkin further testified the applicant did not voice any concerns in advance about working an afternoon or swing shift, but advised she would have to make some changes to accommodate the change in schedule.
8The applicant worked an afternoon shift the week of June 11, 2012 and a day shift the weeks of June 18 and 25, 2012. She took vacation from July 2 to 13, 2012 and returned on the day shift for one day on July 16, 2012. Her weekly time sheets show unauthorized absences from July 17 to 19, 2012, although she testified she would have called in her absences.
9The applicant provided a July 2, 2012 medical note from her family doctor, Dr. Parsons, that sets out pre-existing physical restrictions and a recommendation the applicant be returned to day shifts only which helped her symptoms, because shift work proved difficult for her.
10Ms. Hofmann, the respondent’s Human Resources/Safety Manager, wrote to the applicant on July 6, 2012 to advise her she would continue on “B shift”.
11In a July 16, 2012 note, Dr. Carey, the applicant’s chiropractor, agreed with Dr. Parsons the applicant should work only the day shift because her upper back and neck had a better chance of responding to care if she was treated after work rather than being treated and then going to work. Ms. Scott-Dalkin testified she called the chiropractor about this letter, but he was away. She spoke to someone she assumed was his receptionist who advised the times for the applicant’s two treatments a week could be changed to suit the change in shift times.
12In a July 18, 2012 letter Ms. Scott-Dalkin advised the applicant straight days was not available and offered a Tuesday to Saturday “B shift” so the applicant could have one of her twice weekly treatments on Mondays. Ms. Scott-Dalkin advised the applicant the chiropractor’s office suggested she seek treatment at 11:00 a.m. prior to her shift start when on afternoons.
13Ms. Scott-Dalkin wrote to Dr. Parsons and Dr. Carey the following day and stated the respondent could not accommodate the applicant on straight days because all hires are on a shift rotation of days and afternoons, and the applicant could work either the “B shift” from Tuesday to Saturday or straight night shift which would allow her to have her treatments after work. Ms. Scott-Dalkin wrote to the applicant the same day and offered her the “B shift” with a normal rotation, the “B shift” from Tuesday to Saturday or the night shift. Ms. Scott-Dalkin testified she had no discussions or meetings with the applicant about this or about her restrictions either before or after the applicant’s vacation.
14On cross-examination Ms. Scott-Dalkin agreed the respondent did not accommodate the applicant’s request for days only. She further testified the goal of having all associates back on rotating shifts was aimed at all associates, and for the applicant to be accommodated she required objective medical evidence.
15Dr. Parson’s July 23, 2012 letter to Ms. Scott-Dalkin again recommended a straight day shift for a variety of medical reasons and stated the employer’s insistence the applicant work shift work was in conflict with his advice.
16Ms. Scott-Dalkin’s July 24, 2012 letter to Dr. Parsons suggested the applicant could work a straight night shift, and if there was a valid medical reason the applicant could not, Dr. Parsons should advise.
17At some point, the applicant applied for short-term disability and was denied by August 13, 2012 letter because she could perform light duties, and the requirement to work rotating shifts was not part of the job duties and would have to be discussed with the employer.
18Dr. Parsons’ September 5, 2012 letter “to whom it may concern” stated the applicant was unable to work a night shift for “valid medical reasons and for her best health interest” and he and the applicant believed it was in the applicant’s best interest to have treatments after her work day was complete. They hoped the applicant could begin working regular work shifts in approximately 6 months. Ms. Hofmann testified no explanation ever was given for that opinion. Dr. Parson’s September 5, 2012 letter further stated if the respondent accommodated the straight day shift request, the applicant could return to work the next day.
19Dr. Parsons completed the respondent’s Medical Questionnaire on September 16, 2012. He outlined the applicant’s physical restrictions and noted she had a medical condition that affected her sleep pattern and made shift work very difficult for her. He further stated working night shift or a rotating shift would aggravate her medical conditions and worsen her physical symptoms. Dr. Parsons further opined the applicant would only be able to return to work if the accommodations were made.
20Ms. Scott-Dalkin agreed on cross-examination that the doctor’s recommendation the applicant work only days was clear from this questionnaire. She further agreed if the applicant had been allowed to work straight days, production would not have suffered. She also testified in response to my question that there were no other reasons the applicant could not work a straight day shift other than a straight day shift was not available.
21Ms. Scott-Dalkin agreed on cross-examination that the September 16, 2012 questionnaire included a reference to fibromyalgia [which it does not] but on re-examination stated she might have been mistaken. In response to my question about what the respondent’s response was to the information in the questionnaire that the applicant had a medical condition that affected her sleep pattern, leaving aside whether or not there was any mention of fibromyalgia, she testified there was no response. She could not recall what the respondent did in response to the information that shift work was very difficult for her.
22Ms. Scott-Dalkin testified on re-examination that in October, 2012 the respondent offered the applicant alternating days and afternoons for an 8 week trial period and as an alternative also offered her reduced hours while attempting the “B shift” by starting late or leaving early, which was rejected.
23Ms. Scott-Dalkin testified no further medical information was provided until Dr. Parsons’ November 7, 2012 letter was shared with Ms. Hofman and Ms. Scott-Dalkin who both testified this was the first time they learned the applicant had chronic pain syndrome, myofasciitis and fibromyalgia which affected her ability to work.
24Ms. Hofman testified on cross-examination that even if an associate’s doctor states the person cannot try a proposed work plan, the respondent expects them to attempt it. If the attempt was unsuccessful, then the respondent would consider modified duties again at that point. She further testified that in the applicant’s case the medical information was not sufficient to substantiate the applicant’s claim she could not work shift work, and she had not tried to do so. She testified there was no medical information to show the applicant would injure herself if she worked afternoons.
25Ms. Scott-Dalkin’s December 3, 2012 letter to the applicant’s legal representative stated the respondent had offered the applicant a straight midnight shift to accommodate Dr. Parson’s opinion that the applicant should work a straight shift. It further offered a graduated return to shift work schedule over 16 weeks that eased the applicant into working a swing shift.
26The applicant’s legal representative’s January 3, 2013 e-mail advised that the 16 week schedule was not medically feasible because of Dr. Parsons’ opinion that only day shifts were medically feasible. The applicant’s legal representative suggested the applicant return to work for four weeks on a day shift only and the parties then address whether the applicant could ease into an afternoon shift.
27On cross-examination, the applicant was asked why she did not at least work the day shift part of the “B shift” and she testified that from July, 2012 onward she was too ill to work even on the day shift, although this evidence conflicted with the reports of Dr. Parson including the September 16, 2012 Medical Questionnaire in which the applicant reported she felt she could work on a day shift on light duties.
28The applicant tried three weeks of day shift in January, 2013 after which she advised she was incapable of working although Ms. Scott-Dalkin testified the applicant during that time raised only one issue which was she thought it would be a good idea for better posture to have a table on which to sort and inspect parts. Dr. Parsons’ January 28, 2013 note stated she was off work effective January 29, 2013 for valid medical reasons for an indefinite duration.
29The respondent’s legal representative confirmed the applicant’s absence from work as of January 29, 2013 and receipt of supporting medical information that she was off work for “valid medical reasons” with an expected period of absence of “indefinite”. The letter further confirmed the applicant considered herself completely incapable of working regardless of any accommodations, and therefore the respondent was not requesting any more detailed description of her restrictions and their expected duration.
30The applicant’s claim for long-term disability (“LTD”) was accepted, effective February 5, 2013. The applicant’s representative confirmed at the hearing the applicant was not claiming lost wages past January 7, 2013.
Findings and Analysis
31This was not a case that turned on an assessment of credibility. There were minor differences in the parties’ evidence, but the main facts largely were not in dispute.
32The duty to accommodate has both procedural and substantive obligations: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at paras. 62-68 (“Meiorin”). The Supreme Court has emphasized that the procedural component requires an individualized investigation of accommodation measures and assessment of the employee’s needs. Courts and tribunals should be sensitive to the various ways in which individual capabilities may be accommodated.
33The substantive aspect of the analysis considers the reasonableness of the accommodation offered or as in this case, the respondent's reasons for not providing accommodation. It is the employer who bears the onus of demonstrating what considerations, assessments and steps were undertaken to accommodate the employee to the point of undue hardship, see Meiorin, supra.
34The evidence of the respondent’s witnesses made it clear that the primary difficulty for the respondent was that it could not reconcile the applicant’s requirement of a day shift only with the pre-existing restrictions resulting from the applicant’s neck injury. The respondent focused largely on the fact that fibromyalgia was not mentioned in any medical report until Dr. Parson’s November 7, 2012 report.
35The respondent’s focus overlooked the medical advice shared with the respondent beginning with Dr. Parson’s July 2, 2012 report that clearly stated his recommendation the applicant be returned to day shifts only which helped her symptoms, because shift work proved difficult for her. Whether the problems with anything but a day shift resulted from the pre-existing neck injury or from fibromyalgia is not the issue. At least as a starting point, there is no requirement the applicant disclose her medical condition to engage the accommodation process, simply that she disclose that she has restrictions arising from a disability.
36The respondent submitted the applicant could have had a regular sleep pattern by working the “B shift” because she still would get nighttime rest. This overlooks the family doctor’s advice that the shift work itself was difficult for her and the day shift helped her symptoms.
37I accept that there are circumstances where it may be appropriate for an employer to make inquiries about the specific nature of an employee’s medical conditions (for example, to better understand what type of options may be available to accommodate restrictions arising from the medical condition, or whether accommodation is necessary at all) but in this case, while the respondent legitimately made further inquiries and received further information, it continued to ignore the recommendations of both the family doctor and the chiropractor. Ms. Hofman’s response to Dr. Parson’s July 2, 2012 letter that advised shift work was difficult for her and that the day shift helped her symptoms was to advise the applicant she would continue on the “B shift”.
38While accommodation is a collaborative process and the employee must co-operate in the process (see, for e.g., Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362; Wall v. The Lippé Group, 2008 HRTO 50; Mellon v. Canada (Human Resources Development), [2006] C.H.R.D. No. 2.) and it is generally implicit in the duty to cooperate that the employee will at least attempt a modified return to work before ruling it out as an inappropriate accommodation (see, for. e.g., Scarlett v. Hamilton Health Sciences Corporation, 2010 HRTO 5 and Jeffrey v. Dofasco Inc. (2007), CLLC 230-040 (Ont. Div. Ct.) and Boyce v. Toronto Community Housing Corp., 2012 HRTO 853), this is not the case when there is medical advice to the contrary as here.
39The respondent’s representative referred me specifically to the case of Boyce which states:
Absent medical evidence to the contrary, it is implicit in the duty to cooperate that the employee will at least attempt a modified return to work.
However, while he submitted this supported his argument the applicant had a duty to try and return to work, he did not address the fact that in this case, there was medical evidence.
40Ms. Hofman’s evidence elucidated the respondent’s rigid approach to accommodation when she testified that even if an associate’s doctor states the person cannot try a proposed work plan, the respondent expects the person to attempt it.
41The respondent provided case law in which the Tribunal found an applicant had not proved he or she had a disability that required accommodation, but this was not the crux of the respondent’s argument in this case. The respondent argued that the applicant did not participate in the collaborative accommodation process because she refused to try anything but a day shift, an argument I reject because for the applicant to have done so, she would have had to ignore medical advice to the contrary.
42The respondent further argued the applicant could have worked at least the day shift part of the “B shift” offered to her, but I accept the applicant’s submission that the option of doing this was not offered to her by the respondent, and it was not reasonable to expect the applicant to think working half of the shifts expected of her would have satisfied the respondent.
43I find the respondent discriminated against the applicant by failing to accommodate her. At no time did it offer the applicant a straight day shift as recommended by her family doctor, a position made more difficult to comprehend in light of Ms. Scott-Dalkin’s evidence there would have been no adverse effect on production and there was no reason the applicant could not have worked a straight day shift other than that the respondent wanted to move all employees to a rotating shift because of complaints of unfairness from other employees.
Remedy
44The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provides:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
45In the Application, the applicant requested a financial remedy in the amount of $10,000.00 characterized as general damages and $19,500.00 characterized as special damages for lost wages, benefits, increases and bonuses and out of pocket expenses.
46The applicant’s submissions set out the applicant’s wage loss calculation totalling $13,345.16, as well as set out the total EI benefits she received of $4875.00.
47The applicant also sought in the Application a return to work on a modified basis but this was not requested at the hearing given the applicant’s receipt of LTD.
48The applicant also sought non-monetary remedies including a request that the respondent:
a. post the Code in the workplace;
b. develop and apply non-discriminatory policies and procedures;
c. educate and train personnel who make decisions with respect to accommodation of workers.
Monetary Compensation
49It is well established that the focus of the remedial power under the Code is restorative rather than punitive. The principle under which monetary compensation is ordered is to attempt to restore the applicant to the position she would have been in had the discrimination not occurred. In determining an appropriate and just remedy, the focus is on the applicant’s experience, not on the party who infringed his or her rights. See, for e.g., Hughes v. 1308581 Ontario, 2009 HRTO 341.
Injury to dignity, feelings and self-respect
50The Tribunal’s jurisprudence has primarily applied two criteria in evaluating appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination. See Arunachalam v. Best Buy Canada, 2010 HRTO 1880 at para. 52.
51In this case, the employer failed to accommodate the applicant, which forced the applicant to remain off work between July 17, 2012 and her brief return to work in January, 2013. She testified not working was very depressing and was a financial burden because at the time she was putting two children through university, and she had to borrow money to help her children continue at university, and to keep her house. She felt stressed and anxious, although she provided no medical evidence of any impact on her health.
52I have considered the fact the respondent did not terminate the applicant and she remains an inactive employee of the respondent in receipt of LTD. In addition, I have considered that the respondent ultimately did offer the applicant a trial of straight days in January, 2013 which she tried and at which she lasted only three weeks.
53However, I also have considered that the respondent largely ignored the doctor’s notes despite the evidence there would have been no impact on production had the applicant been allowed to work straight days. In addition, I have considered that one reason given for not accommodating the applicant was because the respondent intended to treat all employees the same, which did not take into consideration the applicant’s disability-related needs.
54Non-termination cases include Burns v. Employer’s Choice Staffing of Canada Ltd., 2009 HRTO 1255 which involved a failure to accommodate over a three month period and in which the Tribunal awarded $3,000 compensation for injury for dignity, feelings, and self-respect (the applicant continued to do office work but was deprived of the opportunity to make up time for previously scheduled physiotherapy appointments and was not allowed the opportunity to stretch his back at regular intervals) and Lagana v. Saputo Dairy Products Canada G.P., 2013 HRTO 309 in which the period during which the applicant was not accommodated was two months before the applicant ceased working at the direction of his doctor ($6000 for injury to dignity, feelings and self-respect).
55Considering those cases, I find this to be more analogous to the Lagana case, and considering it and the other factors, I find an appropriate award for injury to dignity, feelings and self-respect to be $7500. I note that there is nothing in the evidence relating to subjective impact on the applicant in the case before me to suggest any marked departure from the general result in Lagana.
Lost Wages
56In Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 CHRR D/6347 (Ont. C.A.) the Ontario Court of Appeal stated:
The purpose of compensation is to restore a complainant as far as is reasonably possible to the position that the complainant would have been in had the discriminatory act not occurred.
57In this case the loss arising out of the infringement potentially would include the full-time wages the applicant would have earned from July 17, 2012 until she returned to work in January, 2013, less any income and non-repayable benefits she received. There are numerous human rights cases awarding full compensation for the entire period of unemployment or underemployment resulting from a discriminatory termination.
58However, my determination of lost wages in this case is influenced by the fact that the applicant’s return to work on straight days in January, 2013 resulted in her being able to work for only three weeks, after which she applied for and received LTD. As indicated, she is not claiming any lost wages past January, 2013.
59It also must be borne in mind that the applicant testified she was too ill as of July, 2012 to work any shift. While this conflicts with the family doctor’s opinion through the fall of 2012, it is consistent with the fact she was able to only work for three weeks when she returned to work, and with the fact that she applied for short-term disability benefits in the summer of 2012 (although she was denied, as evidenced by the August 13, 2012 letter from the disability insurer). The applicant provided no evidence her medical condition changed between July, 2012 and January, 2013, and it is not unreasonable to conclude that even had she been offered full-time straight day shifts in July, 2012, she may not have been able to continue working for any longer than she did in January, 2013.
60The applicant’s counsel submitted that had the respondent accommodated the applicant by offering her a chance to return to work in July, 2012 on the straight day shift and had she not been able to manage it, then she may have qualified for disability benefits sooner. He offered no evidence to show what financial losses she may have had if that had been the case.
61There is sufficient evidence to establish a wage loss claim for a three week period beginning July 17, 2012 at a rate of $688.00 per week, for a total of $2064.00. However, the applicant worked three weeks in January, 2013 and was paid for that, which in effect cancels out the three weeks of wage loss to which she would have been entitled.
62The applicant is entitled to be paid the amount she would have received in either STD or LTD benefits for the period beginning at the end of the first three weeks she was off work beginning in July, 2012 and ending on the January, 2013 date upon which she began receiving long-term disability benefits, less any waiting period and including an obligation on the employer to repay the amount of Employment Insurance the applicant received during that time. The applicant provided no information about when she began to receive LTD or for what period of time she may have been entitled to STD before her entitlement to LTD commenced. The applicant shall provide that information to the respondent within 21 days of the date of this Decision and the parties shall attempt to reach agreement on the calculation of monetary compensation for the period. If they are unable to do so, I shall remain seized for a period of three months with respect to this issue.
Non-Monetary Remedies
63According to the Response, the respondent has no policy related to the type of discrimination alleged by the applicant and no complaint process to deal with discrimination. The respondent’s witnesses provided no evidence to contradict that despite Ms. Scott-Dalkin’s evidence that the respondent at the relevant time had just over 600 production employees, 30 of whom were on modified duties.
64The Tribunal has the power to direct any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance (s. 45.2(1)3 of the Code.
65In the absence of any policy with respect to discrimination and any complaint procedure, I find it appropriate that any and all employees or managers of the respondent who are involved in decision-making with respect to accommodation issues, including Human Resources personnel and managerial employees, take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 60 days of this Decision. The respondent will provide the applicant with written confirmation from those individuals that they have done so upon completion of the course.
66I also find it appropriate for the respondent within 30 days of the date of this Decision to post Code cards in central locations throughout the respondent’s place of business, particularly in the production areas, to promote future compliance with the Code.
67The respondent also shall retain the services of a consultant with expertise in human rights to assist in the development of an internal human rights policy that conforms to the Guidelines on Developing Human Rights Policies and Procedures published by the Ontario Human Rights Commission. Within six months of the date of this Decision, the respondent shall finalize the policy and provide a copy of the policy to all of its employees.
Order
68The respondent shall pay to the applicant:
$7500 for injury to dignity, feelings and self-respect;
the amount the applicant would have been paid in either STD or LTD as set out in paragraph 62, above; and
pre-judgment interest on the monetary payments from the date of the Application to the date of this Decision, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
post-judgment interest on the amount awarded for injury to dignity, feelings and self-respect commencing 30 days of the date of this Decision in accordance with the Courts of Justice Act; and
post-judgment interest on the amount awarded for wage loss commencing 30 days from the time the parties agree or I determine the amount payable.
69The respondent shall:
ensure any and all employees or managers of the respondent who are involved in decision-making with respect to accommodation issues, including Human Resources personnel and managerial employees, take the Ontario Human Rights Commission’s on-line training “Human Rights 101” (available at www.ohrc.on.ca/hr101) within 60 days of this Decision and shall provide to the applicant written confirmation from those individuals that they have done so upon completion of the course;
within 30 days of the date of this Decision post Code cards in central locations throughout the respondent’s place of business, particularly in the production areas; and
retain the services of a consultant with expertise in human rights to assist in the development of an internal human rights policy that conforms to the Guidelines on Developing Human Rights Policies and Procedures published by the Ontario Human Rights Commission, and shall finalize the policy and provide a copy of it to all employees within six months of the date of this Decision.
Dated at Toronto, this 30^th^ day of September, 2014.
“Signed by”
__________________________________
Dawn J. Kershaw Vice-chair