Human Rights Tribunal of Ontario
B E T W E E N:
Brenda Joy Nespolon Applicant
-and-
Veltri Canada - Howard (a division of Ventra Group Co.) Respondent
DECISION
Adjudicator: Maureen Doyle
Indexed as: Nespolon v. Veltri Canada - Howard
APPEARANCES
Brenda Joy Nespolon, Applicant
Christine Lundy, Paralegal
Veltri Canada - Howard, Respondent
Clifford Hart, 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”). By way of remedy, the applicant seeks both monetary compensation for injury to dignity, feelings and self-respect and non-monetary remedies.
2The respondents deny any discrimination contrary to the Code.
3The applicant is a unionized employee. The union did not participate in the hearing into the merits of this Application.
4This matter proceeded to a hearing and the applicant presented her evidence over the course of several days. She called a friend and her daughter as witnesses and she also provided testimony. At the conclusion of the applicant’s case, the respondent argued that the applicant had not established a prima facie case of discrimination contrary to the Code and sought dismissal of this Application on that basis. The parties provided their submissions regarding all of the applicant’s allegations.
5The Tribunal issued a Case Assessment Direction (“CAD”), declining to dismiss the Application at that stage and directing the respondent to present its evidence, in particular in respect of how the respondent applied its attendance policy to the applicant and in respect of its refusal to grant the applicant her unpaid fourth week of vacation in increments rather than as a block.
6The hearing of this matter reconvened, the respondent provided evidence, and the parties made their submissions regarding the application of the respondent’s attendance policy to the applicant and the respondent’s refusal to grant her the unpaid fourth week of vacation in increments.
7This decision addresses the allegations presented at the hearing and the parties’ evidence and submissions regarding those submissions. For convenience, they are presented together with the evidence and submissions provided after the CAD.
DECISION
8For the reasons which follow, the Application is dismissed.
BACKGROUND
9The applicant alleges discrimination on the ground of disability and alleges that the respondent employer did not accommodate her properly, violating her rights under the Code.
10The Application was filed February 14, 2012, and the Tribunal granted the applicant’s request to amend her Application pursuant to her April 20, 2012 Request for an Order During Proceedings (RFOP) particularizing further allegations up to that date. Though in her evidence the applicant spoke of events after the period ending April 20, 2012, that period is not before the Tribunal in this Application and is not considered in this Decision.
11The applicant has been employed at the respondent, a producer of automotive parts, since 2001. By 2008 she was employed at the respondent as a robotics operator, and she continued in that role until she, along with numerous others, was laid off in August or September 2008 due to shortage of work. In September 2009, the applicant and others were recalled to work, but were recalled to positions where they were classified as assemblers. The applicant is a unionized employee and her recall rights and pay rates are provided for in the terms of the collective agreement in place. The pay rate for assemblers was lower than for robotics operators.
12The particular position to which the applicant was recalled was that of a nut welder. In that job, she worked at a welding machine operated by pushing buttons. The parts she worked with were generally lighter than 2 pounds each. She would take a part from a bin, place it in the machine for welding, then place the welded part into another bin behind her.
13The applicant suffers from psoriatic arthritis and additionally in January 2010, she injured her foot at the workplace. Initially she sought medical care at a walk-in clinic and was diagnosed as having sustained a strain. She did not lay off work immediately. She continued to work as a nut welder, but testified that she continued to have “issues” with her foot.
14She testified that at one point her foot was put in a cast, and when she returned from work, her work area had been changed and she was required to sit on a higher chair while working at the nut welding machine. She testified that it was more difficult for her to get on and off the chair, and that she needed someone to give her the parts as she needed them to work, as they were placed behind her and were not easily accessible. It was determined that she had suffered a fracture and a bone chip caused her continued pain.
15The applicant experienced a worsening of her ankle condition while working as a nut welder, and report dated October 4, 2010 from Dr. G. Jasey was in evidence at the hearing. In it he opined that in an effort to avoid re-injury she should wear work boot rather than running shoes in order to provide support for her ankle. Dr. Jasey’s report indicated that from the time of the accident to when he saw her, she was continuing to work “light duties” and was performing a “sit down” job at that time. The applicant’s evidence was not entirely clear on this point, but it appears that she was off work due to her worsened ankle at some point after October 4, 2010, and she returned to work in December, 2010.
16On her return to work in December, 2010, she was assigned modified work away from the factory floor, in the respondent’s office area, inspecting parts. But for the period of plant shut-down over the holidays in December 2010 and but for what appears to have been a brief absence at some point in January or February 2011, she continued there until her surgery on her ankle in February 2011. She was then away from work in receipt of Workplace Safety and Insurance Board (WSIB) benefits until late September 2011, when she returned to the accommodated work of inspecting parts in the respondent’s office area. She continued with this work until later in 2012 when she was fitted with protective footwear suitable for working on the factory floor, and was returned to her regular work in that area.
17A December 13, 2010 WSIB memorandum regarding return to work, authored by a WSIB Return to Work Specialist, was in evidence at the hearing. The form indicated December 9, 2010 as an Interim return to work date and it was signed by the applicant on December 9, 2010. The Return to Work Specialist indicated that the applicant was awaiting surgery and that in the meantime, the respondent was providing modified work for the applicant. The Return to Work Specialist indicated that the applicant was required to wear a safety boot in the plant area. As there were no jobs in the factory for which she could forego protective footwear, she was assigned to a job away from the plant floor, in the office area, inspecting parts. The Return to Work specialist indicated that she had viewed the area assigned to the applicant and found it to be suitable. She also noted that the parts would be brought to the applicant for inspection, inspected parts would be removed, and she would be supplied with a stool to elevate her foot when necessary. She stated that the applicant would park in the front of the building to avoid prolonged walking from the employee parking lot, she would take her breaks in the kitchen area at the front of the building and that in response to her concern about where she would smoke, her union representative had suggested she could smoke in her car. The applicant would work a 4-hour day, with start time negotiable depending on when she needed to take her medication. It also indicated that immediately after taking her medication she would be unable to drive. This plan was to be in place until December 23, 2010, at which point the plant would shut down for the holidays. The applicant agreed in cross-examination that there had been a meeting where these return to work measures were discussed.
18A second WSIB memorandum authored by the Return to Work Specialist, dated February 8, 2011, was also in evidence at the hearing. It also indicated that the applicant would have a parking spot in front of the building, would have a “badge” to open doors, would have parts brought to her, she would work from 10 AM to 2 PM, and if she needed a later start time, she would call the respondent and arrange for one, and due to the difficulty of a long drive into work and having to clean snow off her car, she would be provided with a taxi to and from work until her surgery.
19A further WSIB memorandum by the Return to Work Specialist, dated September 28, 2011, was also in evidence at the hearing. In cross-examination, the applicant agreed that she had attended a meeting on September 26, 2011 regarding the return to work issues and modified work. The memorandum indicated that the respondent would continue to offer the applicant the visual inspection job as she could yet not wear safety boots. It also indicated that the employer offered to pay for transportation. It noted that for the first four weeks, she would be on a gradual return to work and her therapy could be scheduled following her shift. It stated that once she was returned to a full 8-hour shift, the parties could review the times for therapy, and that if the appointments could not be made outside work hours the employer would “work with” the therapist’s schedule. Once again, she was given a 10 AM start time and a swipe card to enable her to enter through the front door. It noted that a return to the nut welder job would be reviewed when the applicant was again able to wear safety footwear.
20Not all allegations contained in the Application were the subject of identical oral evidence at the hearing, or the subject of submissions by the applicant’s representative. At the hearing, the applicant’s representative presented allegations of discrimination on the basis of disability and failure to accommodate as follows:
The office the respondent provided for her modified work was not adequate.
The respondent did not ensure that she was able to access all information posted in the plant regarding lay-offs and voluntary days off.
The respondent did not provide her with an access card immediately upon starting in the office area and she was dependent on others to let her in the building, an arrangement which occasionally had left her waiting outside for someone to come.
Her opportunity to have her surgery performed by the surgeon of her choice was impeded by the respondent employer.
The respondent did not provide her with a steady supply of parts to inspect through the day, and she experienced difficulty with delivery of parts to her, including the absence of a telephone to call for delivery of parts.
When she asked a supervisor to bring her parts, the supervisor was on occasion curt with her.
Due to her psoriasis, the applicant needed new work gloves twice per day and could not use gloves which had been laundered, but there was sometimes a delay in getting the gloves to her.
The respondent only permitted her to smoke in her vehicle parked at the front of the building and she was not able to smoke with her coworkers from the factory floor.
There was a delay in getting her footwear which would permit her return to the plant floor.
When it provided her with a taxi to and from work and physiotherapy appointments during a period when she was unable to drive, the respondent changed taxi companies from the one which had been arranged by WSIB and she did not believe the service provided by the second taxi company was comparable.
She did not advance on the pay scale to the robotics operator position, which she states other employees were able to do as they were able to work on the plant floor.
She was not permitted to take the fourth, unpaid week off, in daily increments and was instead forced to take them all at once, like all the other employees.
The respondent wrote her a letter regarding its concern with her attendance and stated that if her attendance did not improve, her continued employment may be in jeopardy, and she alleges that the office hours to which she was assigned interfered with her ability to attend at medical appointments.
Working Conditions
21The parties agree that at the initial assignment to inspect parts the applicant was given a small space in the office area. She described it as a “cubby” and indicated that it was “cluttered”, with people occasionally passing through it. In cross-examination, she testified that she believes she was moved from the “cubby” to her own office at some point before her February 2011 surgery. In cross-examination, the applicant agreed that the work of inspecting parts was within her medical restrictions and that it was sedentary, light work.
22After her February 2011 surgery, still unable to wear the footwear required on the plant floor, she returned to work inspecting parts in late September 2011, again assigned to her own office in the office area of the respondent’s premises. It is agreed that the size of the office was approximately 13 feet by 13 feet or 15 feet by 15 feet, and it had an interior window which looked out onto a corridor. The office was equipped with a table and office chair and stools for her feet. Bins of parts were placed on the table. The applicant testified that no one was working “near” her. She testified that there were other offices where the respondent could have put her and she stated that at one point the respondent assigned her some clerical work and she was in an office with someone else. She testified that people “hardly ever” checked on her to see how she was doing.
23With reference to some photographs she took, which were in evidence at the hearing, the applicant testified that when she came to work on February 14, 2012, there was snow and ice in the parking lot and she slipped. She testified that she called the office and someone threw handfuls of salt around. She testified that sometimes they would “do something, but mostly not”. She testified that ice and snow made it difficult for her to walk, as she used to walk around in slippers, and the tip of her cane would get wet. She testified that there was often ice and snow at the front of the building.
Communication to the applicant
24The applicant also testified that on January 4, 2011, there was a lay-off in the plant area, but that she showed up for work, not learning of the lay-off until later in the day. She testified that she did not learn of the lay-off earlier because it had been posted on a bulletin board in the plant, and she was not able to go into the plant to look at the bulletin board. She testified that there was no system in place to inform her of such matters and that she depended on other people to inform her. She did not testify that she was not paid for the day.
25The applicant testified that on one occasion in January 2012, she had booked a day off in order to attend at a medical appointment, but later learned that the day was being offered as a “voluntary day off”, being a day workers could volunteer to take off without pay due to shortage of work. She testified that she had not been advised of this possibility earlier and she believes it had been posted near the punch clock in the plant, but she was not able to go into the plant to look. She testified that she depended on others for such information. She testified that she was eventually permitted to take the voluntary day off and retain the vacation day in her vacation bank, but that she had had to “fight for it”.
Access card to permit entry to office area
26The applicant testified that when she began work in the office area in December 2010, she was not given a swipe card right away and that she had to use a kind of house phone to call into the respondent’s premises in order to have someone come to let her in. She testified that sometimes people were in meetings and she had to wait for them to come to let her in, and that this made her feel that her presence at work was not important to the respondent. According to the applicant’s log notes, which were in evidence at the hearing, she received her swipe card on January 10, 2011.
Choice of surgeon
27The applicant testified that when her foot injury did not heal, she was referred to an orthopaedic surgeon and surgery was recommended. In the meantime, her employer scheduled her for an Independent Medical Examination (IME) in October 2010 by the orthopaedic surgeon she wanted to have perform her surgery, Dr. Jasey. She testified that Dr. Jasey advised her that as he had been engaged by the employer, he could not perform the surgery on her. She testified that the respondent employer led her to believe that they would advise the doctor that they did not oppose him performing her surgery, but that she does not believe that ever happened as she ultimately had to choose a different surgeon in Dr. Jasey’s practice group. In cross-examination, she testified that she “heard” that the respondent had hired Dr. Jasey to examine other employees also. She agreed that Dr. Jasey is a reputable orthopaedic surgeon and that the respondent had done nothing to “spite” her in hiring him.
Supply of work issues
28The applicant testified that when she started the job of visually inspecting parts, it was not part of a regular job and was done only at the request of a customer. She testified that later, visual inspection began to be done on a regular basis. The applicant suggested that the work given to her was not important, as there was not a steady flow of parts, and that she was just at the workplace so that the respondent did not have to pay high premiums to WSIB. In cross-examination, however, the applicant agreed that it was important that the respondent not send faulty parts to its clients, as business could be affected. In cross-examination, she testified that she was unaware of how all inspections were performed, but agreed that there was someone else inspecting parts during the time period when she also was inspecting parts. She testified that on her second day at work after her surgery, September 30, 2011, when she arrived there were no parts for her to inspect and she called someone at the WSIB as she was becoming frustrated. She testified that the individual from WSIB told her to read a book while she waited for parts.
29The applicant testified that at first there was a phone in her office space and that she would call her supervisor to ask for parts to inspect, and then someone would come and take them away when she was finished. She testified that at some point, the telephone was removed and she depended on one individual to bring her parts. She testified that once the phone was removed, she would go to see the individual who was to bring her parts, or she would “poke her head in the plant”. She testified that the phone was removed after she had used it to get information from an insurance company which she had to provide to the WSIB and to the respondent. She testified that she was told it was removed because she had been making personal calls. She testified that she felt she needed the phone in order to obtain parts and in order to speak with her union if she needed to.
30Documentation in the form of shift reports was introduced at the hearing indicating several occasions when the applicant found and reported faulty parts. The shift reports dated from September 29, 2011, and generally showed an increase in the number of parts inspected over time, from 360 to 2250 parts per day, apparently matching an increase in hours at work from 4 to 8 hours. The shift report from her first day back at work after surgery, September 29, 2011, indicates that she inspected some parts, but when she paged someone for more parts at 1:30, he never arrived. The shift report for her second day back at work, September 30, 2011, indicates that when she arrived at work there were no parts for her to inspect, but it appears that at a later point in the day parts were provided and she inspected 374 parts that day. Log notes made by the applicant indicate that she waited 1 hour and 50 minutes for parts to be delivered that day. The shift reports indicate some days with an inconsistent flow of parts, but total figures of parts inspected generally increased as noted above. There are also notations in her shift reports of times she left early for therapy. She also testified that on occasion when inspection work was slow, she was given other office work to do. There were also a few shift reports which indicate she was given sorting work to do instead of visual inspection. It was agreed that the respondent did not impose a production quota on the applicant. The applicant testified that when the flow of parts to her was slow, she took her time, pacing the work to last longer, except when the respondent had a particular need for something. The applicant also agreed in cross-examination, that due to a right shoulder and arm injury, WSIB had advised her to only inspect 3 parts per minute, meaning that she should inspect no more than 1440 parts per 8-hour shift, 720 parts in a 4-hour shift.
31According to the applicant’s own log notes, which cover the period of December 20, 2010 to April 20, 2012 (and beyond), there were some occasions noted where she ran out of parts to inspect at some point in the day. For most of those further occasions, her log notes indicate she had to ask for parts and wait for 15-20 minutes while someone brought her parts, except for March 5 and 9, 2012, when the machine which makes the parts was broken and not operating at all, and October 18, 2011, when she waited from 12:30 to 1:30 for parts. I also note that according to these log notes, it appears that prior to February 20, 2012, when the phone was removed from her work area, the applicant appears to have sometimes called for parts and sometimes left her work area, usually going to Human Resources manager Jennifer Damphouse’s office, in order to obtain more parts. The applicant did not indicate that she complained to the respondent regarding a lack of a phone after February 20, 2012, or that she indicated to the respondent that a phone was necessary to her for accommodation of her disability.
32With reference to her log notes, the applicant testified that on October 31, 2011, a supervisor named Anthony came into her office and she told him she had had no parts to inspect. In her oral evidence, she testified that she was becoming frustrated and she told him so and “he went off on me as he does”. She testified that she believes he is someone who needs anger management. She testified that he pointed his finger in her face and told her that she had a bad attitude. She testified that someone else came into her office with parts for her a few minutes later. She testified that she believes Anthony was stressed and she believes he had spoken to her the way he did because he had been told to bring her parts. The notation in her log indicates that she spoke to a member of the Human Resources Department about what had happened with Anthony and she indicated that that person would speak to someone about it. The applicant testified that the next day she came in to work, Anthony was “sarcastic” and brought her 19 bins of parts. The notation in her log for that at day, November 1, 2011, simply indicates that she found 19 bins of parts waiting for her but does not mention any interaction with Anthony. It is not clear, but it may be that the applicant is of the view that Anthony was being sarcastic in leaving 19 bins of parts. She does not indicate that she was expected to complete inspection of the 19 bins of parts that day, and shift reports indicate as noted above.
33With reference to her log notes, the applicant testified about one occasion in late March 2012 when a cart of parts was brought to her and was left in the middle of the hall in front of the doorway to her office. She testified that when a supervisor came around, she brought it to the supervisor’s attention, and she called her union representative to come to see it. According to her log notes, someone came and moved it and said he would speak to management about it. In her oral testimony, however, she testified that the next day when she came in, it was placed in her office in the way of the door and she testified that she became “hysterical” at that point and called her health and safety representative. She testified that the representative had the cart moved and the parts taken off, and the cart was finally removed from the room. She testified that it had been difficult for her to get around the cart to her work area.
34The applicant also testified that on September 30, 2011, her second day back at work after surgery, she complained to someone at WSIB about the fact that the flow of parts for her to inspect was not always steady and that the individual at WSIB advised her to read a book while she waited. She testified, however, that the respondent instructed her not to use her cell phone during work time, and that as she had her book on her phone, she was unable to read while she was waiting for parts. Further, she testified that she had depended on her phone as a watch, as there was no clock in the office where she was working. She did not, however, testify about any consequences to her flowing from the lack of a clock or the inability to consult her phone as a clock or read books on it. She did not testify about how she was able to complete shift reports which require entries to be made beside pre-printed hours.
Availability of gloves
35Due to her psoriasis, the applicant also required two new pairs of work gloves per day. They were kept in an area of the plant, and were therefore not accessible to the applicant while she was unable to wear protective footwear. Accordingly, in addition to parts, gloves had to be brought to her daily. She testified that when she worked in the plant area she had no problems obtaining gloves as needed, but she testified that when working in the office area she often had to ask about gloves. On October 6, 2011, she wrote a note in her shift report, stating “Pls. note: I need more gloves on Tues.” She also testified that on January 13, 2012, there were no gloves available for her when she arrived at work and that she had to go and ask for a pair, but that they were not brought to her until 12:00. She testified that she felt that the accommodation provided to her was “bogus”.
Smoking area
36The applicant also testified that when she had been working on the plant floor, she used one of two designated smoking areas near the plant floor. When working in the office, however, she testified that she had to smoke at the front of the building. She testified that no one else smoked at the front of the building. However, her friend who testified on her behalf at the hearing, testified that he visited the applicant at the lunch hour three to four times per week, picking her up from work and taking her right back afterward. The friend testified that as the applicant was walking out of the building for lunch, she would walk by people smoking cigarettes, but there was “not a lot of interaction.”
Protective Footwear
37A further WSIB memorandum, dated April 20, 2012, from the Return to Work Specialist was in evidence at the hearing. It noted among other things, arrangements for the applicant to use a particular parking area and doors in order to reduce her need to walk longer distances, and envisaged a return to work, on a graduated basis, to the plant floor as a nut welder. In cross-examination, the applicant agreed that her return to the nut welder job was a goal she and the respondent shared, but that until she had proper footwear, it was not possible.
38The applicant testified that Jennifer Damphouse located a place for her to have appropriate footwear made for her in order to permit her to return to working on the plant floor. She testified, according to her log notes, that on March 14, 2012, Ms. Damphouse advised her that she had made an appointment for a fitting for her on that Saturday. She testified that she felt too stressed to go for an appointment on her day off, and that a Saturday appointment was not convenient for her. She testified that she spoke with someone at the footwear company and ended up having to make an appointment for 5:15 PM, after work. She testified that ultimately this resulted in her getting a shoe from the footwear company, but there were some delays, related to production at the shoe company, and she did not receive it until after the summer, perhaps September 2012. Elsewhere in her testimony, however, she testified that she believes she had a safety shoe by April 20, 2012, and elsewhere she testified that the shoe finally arrived in December 2012. In any event, she testified that she believes she began to work in the plant again when she got the shoe, at the nut welder machine. She also testified that it was not a steel toe shoe, but it was simply a full shoe, unlike the slippers she had been wearing, and the respondent was then able to give her “slip on steel toes” to use with the shoe at the plant.
Taxis
39The applicant testified that the WSIB had arranged with a taxi company to have her brought to work and physiotherapy appointments, and home again, via taxi as she was unable to drive for a period of time due to her medication. It is unclear exactly how long this arrangement continued, but the applicant testified that she believed she started trying to drive herself again by October 31, 2011. She testified that when she was taking taxis, she was satisfied with the service of the first company, which had been arranged by the WSIB, but that the respondent, who later began paying for the taxi in September 2011, unilaterally changed taxi companies and she did not find the new company to be as reliable as the first one had been and she sometimes had to wait for them. She agreed that the second taxi company was providing the service at less cost to the respondent, but stated that the first company had indicated a willingness to negotiate its price but that the respondent had not pursued that offer.
Pay rate
40The applicant testified that as a result of her modified work, people with lower union seniority than she had were receiving a higher wage, as they were moved from assembly work to robotics. She testified that she understood that she was not moved to robotics because she was on modified work, and she believes she should have received pay at the level of robotics workers. She does not indicate that she would have been capable of performing the work of robotics workers. She testified that her wage was tied to the position she occupied at the time of her injury and that she was told that that is what WSIB would pay.
Fourth week of unpaid vacation
41With respect to the issue of refusing the applicant permission to take the fourth week of unpaid vacation in increments rather than as one full week at a time, Jennifer Damphouse testified that employees were to use the unpaid fourth week of vacation as a full week, after they had used their three weeks of paid vacation, either all at once or in increments. She testified that the applicant asked in or around January 2012 to use her unpaid fourth week of vacation in increments for medical appointments, but this was denied. She testified that when the applicant made her request, she still had two paid vacation days available to her (she would accrue her annual vacation entitlement again as of June 1, 2012), and she had only used up six of her ELOA (Emergency Leave of Absence) days. Accordingly, the applicant had two paid vacation days and four ELOA days remaining for use for medical appointments when she requested permission to take the unpaid fourth week of vacation for her appointments. She reiterated that for the time period relevant to this Application, the applicant was never denied the opportunity to attend medical appointments. In cross-examination, she testified that ELOA days used for medical reasons are not paid, but vacation days are. She also testified that after an employee has used seven or eight of their ELOA days, they are given a record of their days used. She also testified that time off can also be granted by an approved leave of absence, and stated that the applicant had requested and received such approval in the past.
Attendance Issues
42It is agreed that the applicant was the only bargaining unit member working in the office area and that while working in that area, her hours were changed from her factory shift hours to office hours. The applicant testified that this was not as convenient for her as her factory shift hours had been, as she found it difficult to get things done and to attend medical appointments outside of the office hours. When the applicant commenced her modified work in the office area in December 2010, she started by working 4-hour shifts, from 10 AM to 2 PM, with the goal of eventually returning to full shifts. In cross-examination, she agreed that the late start was an accommodation due to the fact that when she was taking medications, she moved more slowly in the morning. She testified that she was uncertain as to whether she ever returned to full hours before her February 2011 surgery.
43The above-noted shift reports entered into evidence also indicated numerous occasions when the applicant’s day ended prior to the 8-hour mark, with her leaving for an appointment for therapy.
44The applicant testified that she was driving to work on November 3, 2011 and went over a bump, hurt her foot and she became emotional. In her log note of that day, she does not mention having hurt her foot, but states that her foot hit her “E brake” and it scared her and that she “continued to work very upset”. In her testimony, she stated that upon arriving at work, she told Jennifer Damphouse that she needed to go home and take a pain pill. In her log, she indicates that she could not stop crying and so at 10:30 she went to Jennifer’s office and told her that she would like to leave. She testified that Jennifer was busy, but that the union representative told her to go home. She testified, however, that as she was driving home, Ms. Damphouse called her and was angry that she had left work without permission.
45The applicant testified that every time she was away, she was charged a demerit, though she also testified that she does not feel she ever really understood the attendance system. She testified that in a discussion with an assistant in the Human Resources Department on January 19, 2012, she was told that if she was going to take 4 hours of Emergency Leave of Absence off work for a medical appointment, she was going to be “charged a whole day”, so she decided that she would use the remainder of that day for her own errands rather than return to work after the appointment. She testified that at that point, the hours she was working were either 8:30 to 5 or 9 to 3; she could not recall which. She testified that those hours were the only ones available to her while she was working in the office area.
46The applicant testified that after a discussion with Jennifer Damphouse from the respondent’s Human Resources department, she understood that if her medical appointments were not related to her foot, she was expected to schedule them on her own time. She indicated that she had to take time off for treatment for her psoriasis once every six weeks and that she had been doing that since 2007.
47The applicant testified that on January 16, 2012, Ms. Damphouse told her that she was “on warning” in respect of innocent absenteeism. She also received a letter regarding her attendance which she testified she felt threatened her employment. The letter, dated January 13, 2012, read as follows:
On February 14, 2008 you received a letter regarding your on-going poor attendance. This letter is written to express that you have not made any improvement in your ability to attend work on a regular basis. In a meeting with the Company today, in the presence of your Union Representatives, you are hereby put on final notice that your ongoing and continued absence from work is unacceptable to the Company.
As you are probably aware, you attendance record has deteriorated significantly in recent years. This recent level of absenteeism over extended periods of time continues to frustrate the fundamental aspects of our Employer/Employee relationship and is jeopardizing your continued employment opportunity at Veltri Canada-Howard facility.
The Company has take [sic] into account the nature and consistency of your recent absences as well as the future likelihood of your attendance situation improving and to date you have not demonstrated that your ability to attend work on a regular and consistent basis has improved or is likely to improve in the future.
Upon review of your overall absenteeism record over the past few years, it reveals the following:
2011 – 76.5%
2010 – 23%
2009 – 59.6%
2008 – 12%
2007 – 57.4%
2006 – 41%
2005 – 35%
2004 – 48%
This letter is a further non-disciplinary warning that your attendance record is not acceptable and that your continued employment with Veltri Canada will not be sustainable unless your ability to attend work on a regular and consistent basis greatly improves. Please govern yourself accordingly.
48The applicant agreed that the above-noted letter was very similar to a letter dated February 14, 2008, which she received prior to her injury, which stated the same concerns regarding frustration of the fundamental aspects of the Employer/Employee relationship, and also stated that it was a non-disciplinary warning that her absenteeism record was not acceptable, being 48% in 2004, 35% in 2005, 41% in 2006, 57.37% in 2007 and 4.74% in the first one and a half months of 2008. That letter also stated that her continued employment with the respondent would not be sustainable unless her ability to attend work on a regular and consistent basis greatly improved.
49Jennifer Damphouse, former Human Resources manager at the respondent, testified for the respondent employer. She testified that a new attendance policy was approved in November 2011, and effective as of January 2012. She testified that employee absenteeism percentages were high and the respondent wanted to lower them, and this new policy was put in place to address this concern. It differed from the previous attendance policy in that it introduced a demerit system. She testified that the old policy had been vague, with a good deal of confusion regarding ELOA Days. She testified that absences covered under Sickness and Accident benefits and Workplace Safety and Insurance Board absences are automatically “approved absences”, as are personal time off approved through a request for leave form, jury duty, sick time covered by Employment Insurance benefits, maternity or parental leave, ELOA and bereavement. She testified the new policy addressed absences where an employee used up the 10 ELOA days provided for in the Employment Standards Act (ESA), plus a further three absences. She testified that once an employee called in sick three days in a row after the ELOA days were used, they would receive three demerit points and a verbal warning. The demerit point system is not, however, applied to approved absences. Additionally, she testified that half a demerit point was applied whenever an employee was late, meaning that an employee had to be late 6 times before receiving a verbal warning. She also testified that where an employee only takes a portion of an ELOA day, in accordance with the ESA, the full day is counted as one ELOA day. She testified that this was explained to the employees in training provided regarding the new policy, and that the applicant received training on the new attendance policy and the ELOA day policy on January 4, 2012, by a Human Resources coordinator at the respondent.
50Ms. Damphouse testified that during the time period relevant to this Application, to April 2012, she does not recall the applicant ever being denied an opportunity to attend medical or therapist appointments or being told she would be subject to demerits for doing so. She also testified that, contrary to what the applicant testified, according to the policy, she would not receive a demerit for each time she was absent, provided it was an approved absence, as described above. The applicant’s attendance documents were in evidence at the hearing and Ms. Damphouse testified that the applicant had no unauthorized absences from the time of the implementation of the new policy in January 2012 to the remainder of the time period relevant to this Application. Accordingly, there was no time in the time period of this Application when the applicant received a demerit point in relation to her absences.
51Ms. Damphouse also testified that she, the applicant, and a union representative met and she explained the respondent’s concerns regarding the applicant’s attendance, on a “holistic” basis in January 2012. In cross-examination, she testified that this included the applicant’s attendance record over the years, including back to 2004. She testified that this concern included both authorized and unauthorized absences, and was a measure of how much time the applicant had missed from the plant. She testified that at the meeting, the respondent’s concern was explained and the applicant was asked if there was any way in which the respondent or the union could assist her to improve her attendance, and she testified in cross-examination that this was an opportunity to explain the respondent’s concerns and set out its expectations for the future. She testified it was not a disciplinary meeting. She testified that she was aware that there had been a similar meeting with the applicant in 2008. She testified that this January 2012 meeting took place, as in the three months following her September 28, 2011 return to work from WSIB, her absenteeism was a concern, and she testified that it was that period which was the focus of discussion at the meeting. She testified that there were other employees with whom the respondent has had similar concerns and they received similar letters. She testified that this letter was independent of the new attendance policy referenced above. In cross-examination, she testified that it was her expectation that the applicant would be able to plan her time off for appointments better, using vacation time or ELOA days, or scheduling them to take place at the end of her shift. She confirmed that while the applicant was performing modified work in the office area, her hours were 8-4:30.
52Jennifer Damphouse also testified that she is unaware of anyone being terminated for non-culpable absenteeism or frustration of contract by the respondent.
Regarding impact on the applicant
53A friend of the applicant testified on her behalf. She testified that the applicant is in more pain after her surgery, she is more stressed from work and she is very angry and “touchy”.
54The applicant’s daughter also provided testimony on her behalf. She testified that before 2010, her mother was a “nicer person” and was easier to get along with. She testified that she knew her mother was in pain due to her foot and that she had problems at work. She testified that she knew there was an issue at work regarding where the applicant was placed to work. In cross-examination she agreed that the applicant’s ongoing pain had something to do with the fact she was “grumpy and crabby”. She also agreed that she never saw the area where her mother was working.
55The applicant testified that following the stress she experienced at the respondent employer, her family and social relationships have suffered and she sees herself as very argumentative.
Applicant’s submissions
56Reviewing the applicant’s medical restrictions, the applicant’s representative submits that it is clear that she is a member of a protected group under the Code.
57The applicant submits that though she was injured at work on January 26, 2010, there was a period of time following her injury when she was working on the factory floor with a cast on her foot, rather than protective footwear. She submits that an explanation is required from the respondent as to why that was permitted, and appears to suggest in submissions that this means there was an alternative to having the applicant work in the office area.
58With respect to the applicant’s allegations regarding not having surgery performed by her preferred surgeon, she submits that the applicant had an “understandable sense she was let down by the respondent”, in light of the fact that the employer had indicated that it would try to “make it work”.
59With respect to her assignment to work in the office area, she noted that this was made after the orthopaedic surgeon’s report and she was advised that the move was because she could not wear safety footwear. She submits that the original space in the office area offered to the applicant was inadequate and that it was a source of frustration and anxiety. She submits that the situation lasted for longer than it should have. I find, however, that this submission is not based in the evidence. A review of the applicant’s testimony does not indicate that the initial office space caused the applicant frustration and anxiety.
60The applicant submits that the fact she was not given an access card when she commenced work in the office area, and had to wait for someone to let her in, is evidence that the accommodation was inadequate. She submits that though the applicant received an access card on January 10, 2011, when her hours were extended as part of a graduated return to work plan, her timed access card needed to be changed, and there were periods where she had to wait several minutes for someone to let her in.
61The applicant submits that visual inspection of parts was not, at the time she did it, a regular job at the factory. She submits that the evidence is clear that she ran out of parts, and that she had trouble letting the respondent know she needed more parts when she no longer had a phone to use. She submits that when there were no parts to inspect, the respondent did not provide her with alternative work. For the sake of clarity, a review of the applicant’s testimony indicates that there were occasions when she was given clerical work to perform if no parts were available to inspect. She also submits that on November 1, 2011 and on December 12, 2011, she needed someone to lift bins of parts onto and off the table for her, but could not find someone to do it. She submits that this was clearly an element of the accommodation she required, but that no one was there to do it for her. She submits that when the phone was removed from her office, she had to walk to the office of a member of management and she was not to do prolonged walking. Again, a review of the applicant’s testimony does not indicate that she was ever required to do prolonged walking. She submits that when the member of management was unavailable to assist her with obtaining parts, she became frustrated. She submits that though the shift reports indicate that she got parts most days, the issue for her was that when she ran out of parts, it was “difficult” to get more.
62The applicant submits that though she ultimately did not have to take a vacation day on January 20, 2012, she was not immediately given permission to take it as a voluntary day off and that the respondent had misrepresented the availability of it to her as she did not see the posting herself as it was in the factory area.
63The applicant submits that there was an occasion in March, 2012 when a cart of parts was left in the door of the office blocking her way and she could not take the parts off the cart to place on the table herself. She submits that it was not immediately cleared away. She submits that though it was not “a big thing in respect of the time she was working there”, it had a “significant effect on her sense of what she was capable of doing”.
64The applicant submits that there was ice and snow around the front door of the building and she was afraid of falling. She notes that she mentioned one incident when she asked that the snow be removed from the front of the building and that when she went out to take her morning break, she noted that someone had simply scattered salt around, and that at lunch it had melted, she believed due to the sunshine rather than the salt.
65With respect to the fact that there were occasions where she had to wait for gloves to be delivered to her, she submits that the respondent should have been able to ensure that pairs of new unwashed gloves were available to her where she needed them. She submits that there were notations on her shift reports from October 6 and 11, 2011 and January 13, 2012, indicating that she had had an issue with gloves on those occasions.
66She also submits that she should have been promoted to the pay rate of robotics operator at some time in 2010 or 2011. She submits that she was kept at an assembler’s rate because that was the rate of the job where she had been injured, and she was unable to advance. She submits that it was the applicant’s testimony that she believes others, less senior to her, were reclassified as robotics operators.
67The applicant submits that both of her witnesses testified to the fact that since her injury she had become more moody and frustrated.
68The applicant submits that she was treated differently from the other employees at the respondent, as she was the only bargaining unit employee working in the front office area, working office hours. She also “suggested” that the applicant was the only employee working office hours who was not allowed time off during the work day for routine medical exams, but offered no evidence of this.
69She also submits that the employer denied her the opportunity to take her fourth, unpaid week of vacation, in daily increments, and that this would have been part of reasonable accommodation.
70With regard to her attendance, she submits that in compiling her attendance record, the employer has included dates she was away for work for surgery and recovery, therefore including leave approved by the Workplace Safety and Insurance Board. She submits that the January 13, 2012 letter from the employer about her attendance made her feel vulnerable, as she interpreted it as a threat to terminate her employment due to her disability-related absences. She agreed that the letter was almost identical to the letter she had received in 2008 and submitted that this also was a letter which had counted absences related to a disability (psoriasis) against her. To be clear, a review of the applicant’s testimony does not indicate with particularity what absences were addressed by the earlier letter.
71The applicant submits that as she had to work office hours, she was not able to attend medical appointments in office hours and had to take vacation or ELOA days in order to do so. A review of the applicant’s testimony does not indicate that she was never able to attend medical appointments in working hours, but rather that she was advised that appointments for matters other than relating to her foot should be made after hours, and there was no suggestion of any appointment she was ever refused permission to attend. The applicant submits that even if she needed only part of a day, she would have a full day counted against her. This appears to be a reference to a discussion she had with a member of the respondent’s Human Resources Department regarding how the ESA ELOA days were counted. She also submits that she was refused permission to take her fourth week of time off in days at a time, but instead was forced to take them all at once.
72She submits that decisions about where and under what conditions she would work were made without her active participation and there was no evidence about how decisions were made regarding where and under what conditions she would return to work. She submits that this information is all in the respondent’s possession and they must provide it, as otherwise their decisions can only be seen as arbitrary. For clarity, a review of the applicant’s testimony indicates that she attended meetings where arrangements for her Return to Work were discussed and problem solving occurred. She submits that there may have been other places where the applicant could have worked. Again, for clarity, a review of the applicant’s evidence indicates that she agreed that she could not work in the plant without safety footwear and she agreed the office area was the only alternative. She submits that the decisions were arbitrary and that there was a “lack of procedural accommodation”. She disputes that the respondent took adequate steps to explore the relevant information and assess the options, and cites Hodkin v. SCM Supply Chain Management Inc., 2013 HRTO 923 (“Hodkin”). She submits that given the lack of evidence from the respondent, we do not know who was consulted and how the decisions were made. I note that in Hodkin, discrimination contrary to the Code was found when the respondent terminated the applicant’s employment on the basis that it was unable to provide accommodation to him within his restrictions. The Tribunal found in that case that there was insufficient evidence to find that the respondent accommodated the applicant to the point of undue hardship, citing the respondent’s failure to determine the applicant’s physical capacity to undertake physical demands of his position and the fact that there was “no dialogue” with the applicant. The Tribunal also found that there was insufficient evidence to establish that the respondent had conducted an adequate search for other positions or the possibility of bundling tasks for the applicant to perform prior to terminating the applicant’s employment.
73The applicant also cites ADGA v. Lane, 2008 CanLII 39605 (“Lane”), regarding the importance of “the procedural duty to accommodate” and the fact that employers must seriously consider how people could be accommodated. She submits that in this Application, the respondent must show that it could not have provided other accommodation to the applicant without undue hardship. She submits that in Lane, it was found that the failure to inquire and assess accommodation possibilities is denial of accommodation as it denies a proper search for accommodation. I note that the decision in Lane also involves the termination of the applicant where the respondent took the position that the applicant was unable to perform the essential duties of his position and argued “undue hardship”. In Lane, the employer was found not to have fulfilled its procedural duty to accommodate the applicant and undue hardship was not established. The employer was found to have violated the Code.
74The applicant also cites Black v. Etobicoke Ironworks, 2010 HRTO 2082 (“Black”), and submits that the employer’s responsibility to explore options is not satisfied by the determination that the employee is not able to do the pre-injury job and that other options must be considered. I note that in Black, the applicant was sent home from work after having told the respondent employer that his back hurt and it was negatively affecting his work productivity. Subsequently, the respondent employer refused to allow him to return to work. The Tribunal found that the respondent employer did no subsequent assessment of the applicant’s abilities with regard to work and accordingly, the Tribunal found that the employer had not investigated whether the applicant could be accommodated at work. The applicant in this case submits that because there is no evidence of how the respondent made its decision, we do not know what other options may have been considered and rejected. She submits that any accommodation which causes disadvantage to the applicant fails as accommodation.
75The applicant cited Alexander v. Zellers, 2009 HRTO 2167 (“Alexander”), to say that the respondent has the onus of demonstrating what steps were taken to determine if the substantive component of accommodation has been met, and whether the accommodation is reasonable. In particular, she cites paragraph 31 of Alexander where the Tribunal states:
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, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3]. To determine whether the substantive component has been met, it is necessary to consider the reasonableness of the accommodation that was offered, or the reasonableness of the respondent's reasons for not providing accommodation.
With reference to this reasoning in Alexander, she submits that the reasonableness of the accommodation cannot be determined without information about what options may have been available. In that case, the Tribunal determined that the accommodation was not perfect, but was reasonable, noting at paragraph 48 that:
The process was based on the need for accommodation that was identified by the applicant and supported by the medical information. The applicant was involved in the process and her concerns were taken into account. The accommodation has consisted of different work assignments and an ongoing commitment that the applicant is not required to do things that are outside her restrictions. It is a process that has permitted the applicant to continue to work in the workplace with the same benefits and rights as other workers in the same workplace.
76The applicant submits that “requiring someone with a disability to work in isolation from the working environment and from her coworkers serves to impede rather than promote reintegration into the working environment”.
77The applicant submits that the unpredictability of her work was a cause of heightened anxiety and frustration. Again, for clarity, a review of the applicant’s testimony indicates that she was frustrated on the second day at work after her surgery when she did not have a steady supply of parts to inspect. She submits she did not know when she would have work, and did not know if she would have the gloves she needed.
78The applicant submits that it was “difficult to see how the work that was provided to the applicant was accommodation up to the point of undue hardship for the respondent” and it was “difficult to see what hardship if any was experienced by the respondent in providing this work to the applicant”. She also submits that “From her evidence, the hardship would all appear to have been borne by the applicant. From the comments of respondent counsel, it would appear that the respondent took a benefit from the process in having work performed that benefitted their bottom line”.
79The applicant pointed to the Ontario Human Rights Commission’s policy on the duty to accommodate and noted the importance of dignity, individualized accommodation, integration and full participation in the workplace. She submits that these elements were not present in the accommodation, as the applicant was not treated with dignity when she was left waiting to be let into the office area, she was isolated in the room where she worked, and that she had to smoke and eat alone in her vehicle and her needs in respect of hours and contact with her coworkers were ignored. Again, for clarity, upon a review of the applicant’s evidence and the evidence of her friend, the evidence does not indicate that she was forced to smoke and eat alone in her vehicle. She submits that not having the social interaction associated with the factory environment is a serious disadvantage. The applicant submits that working on the factory floor, workers are not isolated, as even though they cannot chat, they know others are there. She submits that in working in the assigned office, she was denied this. For clarity, a review of the applicant’s evidence does not indicate she ever thought she was alone in the office area, though she worked alone in her office.
80The applicant submitted that the two issues at the core of the Application are the application of the attendance policy to the applicant and the way in which the unpaid fourth week of vacation was allocated.
81She submits that there is no reference in either the old or the new attendance policy regarding to how to deal with time off needed by employees who have to go to medical appointments to deal with the consequences of their sickness or injury, or in order to avoid having to take sick days. She submits that the applicant’s medical situation was complex, as she had the disability which arose from the workplace injury in addition to chronic psoriasis. She also stated that sick days fall under the ELOA policy.
82She submits that though the January 2012 letter was written after the new attendance policy took effect, the evidence was that it was written without reference to the policy. She submits that it is not entirely clear why the letter was written, other than the fact that Ms. Damphouse felt she should write a letter. She notes that it is very similar to the letter the applicant received in 2008. She submits that no clear definition of authorized and unauthorized absences was given and that there was a “flexible interrelationship so something could slide from one category to another”. She characterized the January 2012 letter as a “veiled threat of termination”. She also notes that it was clear to the applicant that if she took half a day off for a medical appointment using her ELOA day, she would be “charged” a full day absence. She submits that sometimes the applicant’s absences for medical appointments were characterized as ELOA days, and sometimes her record reflects an absence for medical reasons. She submits that this conveys a sense of arbitrariness, but she did not indicate that any of these resulted in demerits or discipline to the applicant. She also submits that the sub-categories of authorized absences used by the respondent in its record-keeping were not transparent to the applicant. She also submits that the policy does not make it evident how WSIB absences and “sickness and accident” absences are to be treated by the employer and that this is a matter of interest to people.
83She submits that it appears that on the basis of the January 2012 letter regarding absenteeism, the respondent considered all absences, including those for WSIB injuries, on an equal basis. She submits that the respondent’s concern, as described by Ms. Damphouse was “extremely general”, and that it indicates that the respondent expects workers to come to work consistently and sees it as a problem if they do not. She notes that according to Ms. Damphouse, there had been no unauthorized absences since the applicant’s September 2011 return to work. She submits that it was fair to conclude on the basis of the letter that if the applicant had continued absences, it would result in the termination of her employment. She submits that the respondent did not inquire into how it could help her reduce her sick time, and that when she was assigned to the office area and office hours, she had little opportunity for medical appointments. Again for clarity, a review of the applicant’s testimony does not indicate that she was refused permission to attend medical appointments while she was in the office area. Further, a review of Ms. Damphouse’s testimony indicates uncontradicted evidence that the respondent did inquire into how it might assist the applicant to reduce her absences. The applicant submits that the January 2012 letter was a threat to her employment, was issued due to her disability, and therefore was discriminatory.
84She cites Torrejon v. 114735 Ontario, 2010 HRTO 934 (“Torrejon”), where discrimination was found in respect of the applicant’s termination of employment. In that case, the respondent employer took the position that it was under no obligation to accommodate any absence of the applicant due to her disability and the Tribunal found that when it terminated her employment, the respondent had done so without regard to whether or not her disability-related absence could be accommodated short of undue hardship. The Tribunal found this to be discrimination on the basis of disability.
85She also cites McDonald v. Mid-Huron Roofing, 2009 HRTO 1306 (“McDonald”). In that decision the applicant’s employment was terminated due to absences associated with his need to take time off due to his wife and son’s medical problems. The Tribunal found that the applicant had a duty to ascertain what the applicant needed and consider seriously whether the applicant’s family-related needs could be accommodated. The Tribunal found that the respondent employer had failed to meet the procedural duty to accommodate the applicant’s needs and also that it had failed to establish that it could not accommodate without undue hardship, as it had not undertaken an inquiry into what accommodation was needed. In the case at hand, the applicant submits that there is no evidence here to indicate how the absences affected the employer-employee relationship. She submits it is not evident that there was undue hardship.
86The applicant submits that imposing any condition for attendance on an employee where the reason for what is defined as excessive absenteeism is due to disability, is discriminatory She cites Ontario (Human Rights Commission) v. Gaines Pet Foods Corp., 1993 CanLII 5605 (ONSC), to say that her right to equal treatment was infringed. I note that in that case, the employer of the complainant, Ms. Black, advised her that her employment would be terminated if she did not maintain a level of attendance equal to or better than the plant average. She did not live up to that condition, and this directly led to the termination of her employment. The court noted that it was apparent the letter arose from her disability and stated “While it certainly would have been open to the respondents to warn Ms. Black, upon her return to work in April 1985, that she was required to maintain a reasonable level of attendance, absent which, she would be terminated, the imposition of the restrictive condition was discriminatory, stemming as it did directly from her absence due to handicap…. It was a condition not required of or imposed on any other employee and it carried with it the sanction of immediate termination for non-compliance.” The court also found that her termination was in contravention of the Code because in terminating her, the respondents chose to take into account, at least in part, her approximate six-month absence due to cancer. There was no discussion in this decision about undue hardship.
87With respect to the respondent’s decision not to permit the applicant to take her unpaid fourth week of vacation in increments, the applicant submits that the respondent provided no real explanation for why she could not do so and did not establish that to grant the applicant this accommodation would result in undue hardship. She submits that even if it is not the normal practice, the employer presented no argument for why the applicant should not be permitted to take her vacation in this way. She submits that in asking for the opportunity to take the unpaid fourth week of vacation in increments, she was not asking to be able to take it immediately, before her ELOA days were exhausted, but was asking about the possibility generally as she was planning ahead. For clarity, a review of the applicant’s testimony does not indicate she provided any testimony regarding her request or her thoughts in making the request. She also submits that “as it turns out” she did not need to use the unpaid fourth week in this way in any event, as at the end of April 2012, she was re-assigned to duties in the plant away from the office area, resulting in a restoration of her shift hours which permitted her to schedule medical appointments after working hours. However, she submits, in the nature of a hypothetical argument, that the applicant was placed in an “invidious position where she would eventually have the choice between meeting her medical needs and earning demerit points or not taking the necessary appointments”.
88With respect to remedy, at the hearing, she indicated that she seeks $55,000 by way of compensation for injury to dignity, feelings and self-respect, but also submits that “$30,000-35,000 is adequate in these circumstances”. She also indicated that the handicapped parking she originally sought has now been provided, but that she asks for an order for the respondent to develop policies and procedures and training for managers and employees regarding the Code and accommodation of disability.
Respondent’s submissions
89The respondent submits that on the applicant’s evidence, it accommodated her at work, providing her with valuable work which did not exceed her medical restrictions, and it paid her for her work. It submits that though there may have been some problems at certain points, it has not violated the Code. It submits that the Application should be dismissed.
90The respondent submits that the evidence indicates that the accommodation of the applicant was the result of a consultative process. It notes that the applicant was unable to wear safety boots and submits that it was therefore appropriate that she be assigned to work in the office area of its premises. It notes that it is agreed that the office was either 13’ by 13’ or 15’ by 15’, that there was a window and that it was located along a corridor from other offices. It submits that though in her evidence in chief, she identified the accommodation as “bogus”, in cross-examination she agreed that the work was important to the employer.
91The respondent submits that the evidence indicated a “handful of incidents” where parts were delayed, and bins or carts were in the way. It noted that in cross-examination the applicant agreed that though parts were sometimes delayed, parts always arrived for her to inspect.
92The respondent noted that the evidence included approximately 90 shift reports, dating from September 29, 2011 to May 12, 2012, and that though some shift reports contained notations such as a delay in getting gloves, the issues were always dealt with.
93It submits that the applicant was assigned a duty which did not exceed her restrictions, that of visual inspection of parts, and that accommodated arrangements were made for parking, smoking breaks, and reduced hours due to her drowsiness and pain. The respondent submits that there were several meetings regarding the applicant’s accommodation, on December 9, 2010, February 3, 2011 and September 26, 2011 and again on April 20, 2012. It notes that the parties participating in these meetings were the respondent, the applicant, her union and the Workplace Safety and Insurance Board. It notes that at each meeting, obstacles being encountered by the applicant were noted and a solution was identified. It submits that though there were some delays, for example, with obtaining new work gloves, the applicant’s needs were ultimately all met. It submits that though the applicant was not pleased with the arrangements provided for her smoking breaks, there was no suggestion that she was not allowed to take smoking breaks.
94The respondent submits that though the applicant took issue with the fact that while working in the office area, from September 2011 to April 2012, she had to work office hours instead of her usual shifts, it would not be possible to have one employee working in the office area during hours other than when it is open. Further and in any event, with respect to the applicant’s complaint that the employer instructed her to schedule her medical appointments at a time other than during her work hours, she was never denied the opportunity to attend medical appointments. It also noted that when at the September 26, 2011 return to work meeting, the applicant stated a concern with the hours of work assigned and having to take her therapy after work, making for a very long day, it was decided that for the following four weeks, she would be on a gradual return to work and therapy could be scheduled following her shift and that once she reached an 8-hour day, times could be reviewed for therapy. It also noted that it was agreed at that time that the applicant’s recovery was the first priority and that the employer would work with the therapist’s schedule. It submits, in any event, that instructing an employee to arrange her medical appointments outside of work hours is not discrimination.
95With respect to the fact that the respondent changed taxi companies, the respondent submits that though the applicant may have experienced occasional waits for the taxi to arrive, the decision to change companies was made for valid financial reasons, and there was no violation of the applicant’s rights.
96The respondent also submits that though the applicant complained about not getting timely notice of the opportunity to take a voluntary day off, she ultimately was able to take it off.
97With respect to the applicant’s allegation that she was prevented from being able to move up a pay grade to the classification of robotics operator, the respondent submits that there is no evidence that she ever did anything but assembler work and the evidence establishes that she was paid at the assembler rate. It submits that there is no evidence of others being able to move up to the pay rate for robotics operators and that the applicant was at all times paid for the job she did. In summary, the respondent submits that from September 2011 to April 2012, the applicant was fully and properly accommodated and paid.
98With respect to the applicant’s assertion that she was forced to choose between making medical appointments and getting demerit points, the respondent submits that there is no evidence that she was required to make such a choice. The respondent also submits that the applicant’s arguments regarding Ms. Damphouse’s testimony regarding how the respondent requires employees to use the unpaid fourth week of vacation, are grounded in hypothetical situations. The respondent submits that though the applicant submits that she was being proactive and planning ahead, there is little evidence of that. Rather, the respondent submits, the evidence indicates that the applicant did not go to the respondent and state the need for help by way of accommodation to attend a medical appointment. The respondent notes that there was no testimony given by the applicant about her request, and that the only thing before the Tribunal in this regard is a Log note from February 25, 2012, indicating that the applicant inquired about using her unpaid fourth week of vacation in increments. The respondent submits that while the applicant is critical of the respondent not providing accommodation in this regard, the concern is hypothetical only. The respondent notes that factually, there was no dispute that the applicant was permitted to take whatever time she needed for therapy and other appointments, including flexible hours as agreed in the return to work meeting. In summary, the respondent submits that there was no need for the respondent to explore the issue of how the applicant could use her unpaid fourth week of vacation as an accommodation. The respondent submits there was simply a vague request with no reference to a specific need and no failure to accommodate.
99With respect to the application of the attendance policy, the respondent submits that its purpose was to reduce the level of absenteeism and that the evidence of Ms. Damphouse had been clear that demerits did not attach to authorized absences, such as WSIB absences.
100With respect to the fact that when an employee takes a partial day as an ELOA day it counts as a full day taken from that allotment, this is not the same thing as saying the employee works unpaid the remainder of the day. Rather, the respondent submits, it is consistent with employees’ obligations and employers’ expectations that an employee is at work when they can be. It also notes that she sometimes attended medical appointments during work hours, sometimes she was required to use Emergency Leave of Absence days, sometimes she used vacation or sick leave days, but that she was never denied leave or time off to go to medical appointments. In any event, the respondent submits, the policy did not result in discriminatory treatment of the applicant.
101With respect to the January 13, 2012 letter, the respondent submits that the evidence indicates it was a follow up to the February 2008 letter and that it was written due to the respondent’s concerns with the applicant’s attendance since her return to work in September 2011. The respondent submits that the letter is not unusual in that it takes a holistic view of absences. While it included WSIB absences, the purpose of the letter was not to discipline or to lead to demerits, but to bring to her attention her overall absenteeism over the previous years. The respondent submits that even if the wording of the letter was strong, that does not suggest that the applicant was treated differently or that the letter was discriminatory. It is simply a reminder to the applicant of her obligations to the employer, and it did not violate the Code. It was not disciplinary, it simply was the warning which fairness would require, that her levels of absenteeism were a concern to the employer.
102The respondent cited Xu v. The Ottawa Hospital, 2011 HRTO 1208, as a case where the respondent employer wrote to the applicant to remind and caution her about the respondent’s expectations and polices around attendance, medical documentation and return to work, and the respondent was not found to have violated the Code in doing so. The respondent also cited Rehman v. Waterloo (Municipality), 2014 HRTO 875 (“Rehman”), and Klonowski v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1568, as cases where the respondent employers’ non-disciplinary correspondence to the applicants about expectations for attendance at work were found not to have violated the Code. At paragraph 35 of Rehman, in considering an email to the applicant about his attendance, the Tribunal stated as follows:
I can certainly understand that the applicant would not have welcomed his supervisor’s expression of concern about his attendance. However, I cannot agree with the applicant that his supervisor’s February 28, 2012 email was “harassing”. In general, the Code does not prohibit an employer from counselling employees about their attendance where the intention is to assist the employee in maintaining regular attendance and where the employer is otherwise fulfilling its duty to accommodate disability-related absences, in accordance with the Code. For example, in Klonowski v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1568, the Tribunal found that the applicant had no reasonable prospect of proving that the placement of the applicant in her employer’s attendance management program, based on the applicant’s disability-related absences, was discriminatory. The attendance management program required the applicant to meet with her employer to discuss her attendance, with a view to assisting the applicant to reduce her absences and to maintain regular attendance. It was not disciplinary. On that basis, the Tribunal found that the applicant had not been disadvantaged by her placement in the program and therefore had no reasonable prospect of proving that she had been discriminated against.
103The respondent also cited arbitral awards where it was determined that the employer must warn employees if their levels of absenteeism, albeit non-culpable, may lead to dismissal. The respondent submits that the employer has a right to dismiss employees for non-culpable absenteeism, subject to the duty to accommodate, where the employer has put the employee on notice of its concerns.
104The respondent submits that the applicant’s rights under the Code have not been violated and submits that the Application should be dismissed.
DECISION
105For the reasons stated below, the Application is dismissed.
106Section 5 of the Code provides as follows:
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.
107Section 17 of the Code provides as follows:
(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.
(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.
(3) In determining for the purposes of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.
108The applicant takes the position that the respondent has violated her rights under the Code to be free from discrimination due to disability. She alleges that the respondent violated her rights by not providing reasonable accommodation, and she also appears to allege that the respondent discriminated against her on the basis of disability by sending her the January 2012 letter regarding her attendance.
109There was no dispute in this case that the applicant has a disability under the Code. The applicant's evidence was that she was unable to perform the essential duties of her position, due to her inability to wear protective footwear. Pursuant to section 17 of the Code, the Code is not violated if a person cannot perform the essential duties of an activity, e.g., a job, because of disability, provided the needs of the person cannot be accommodated without undue hardship. By its actions, the respondent conceded that it could accommodate the applicant’s disability-related needs without undue hardship.
110In considering whether the respondent has discriminated against the applicant due to her disability, the applicant must be able to establish that she has suffered adverse treatment due to her disability.
111The applicant presents several concerns with her accommodated work in asserting that the respondent has failed its responsibility to accommodate her disability at work. It is established that employers are not held to a standard of perfection, but that accommodation must be reasonable in the circumstances. For the reasons stated below, I find that the respondent provided the applicant with reasonable accommodation of her disability-related needs. In Okanogan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), the Supreme Court considered the matter of reasonable accommodation and stated:
This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer's business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer's duty is discharged.
112That it is an employee’s duty to accept reasonable accommodation, and that it is accepted that an employee “cannot expect a perfect solution”, can be expected to mean that there may be circumstances where an employee is required to make compromises which may involve some inconvenience or solutions which are not the solutions preferred by the employee. I do not find that any of the inconveniences or compromises related to the lack of perfection in the reasonable accommodation in this case, and considered below, rise to the level of adverse treatment.
113I have not found the above-noted cases upon which the applicant relies, where the respondents did not properly inquire into the possibility of accommodation and terminated the applicants’ employment, to be of assistance to me in determining if the accommodation efforts of this respondent have been reasonable. This employer did provide modified work and did not terminate the applicant’s employment. As noted above, the question before me therefore is whether the modified work provided by the employer was reasonable in the circumstances.
114In assessing the evidence presented in this case, I find that the efforts of the respondent employer in providing accommodated work, while not always perfect, were reasonable. It provided her, for example, with a job which was within her medical restrictions, was of value, and for which she was compensated at the same rate she had received in her pre-injury position.
115The applicant’s particular concerns with regard to her modified work are considered below.
Working Conditions
116The applicant takes issue with the work space provided to her, both in the initial phase where she worked in the office area in what she described as a “cluttered” area with people coming and going, and in the more long-term space where she was assigned to work in her own office in the office area. Her representative submitted that she was in the cluttered area where people were coming and going for too long and that when she was put in her own office, it was an isolating experience for the applicant. While the cluttered area may not have been an ideal workspace, the applicant has not indicated that she could not perform her assigned duties there, or that working in that space forced her to exceed her medical restrictions in any way. She has not described an unsafe work environment, and in any event, the initial arrangement was a temporary one which was ameliorated with her move to her own office. Further, there is no evidence that the applicant expressed any concerns regarding the workspace at the time. In these circumstances, I do not find that assigning her work to perform which was within her medical restrictions in the office area, was a failure by the respondent to accommodate the applicant’s disability.
117The applicant was ultimately assigned to an office of approximately 13 feet by 13 feet, and which had a window which looked out onto the adjoining office area. There were other offices nearby. There is no indication that the office space assigned was physically inadequate or unsafe. The applicant’s representative submitted that it was an isolated space when compared to the factory floor, as on the factory floor even if she was not talking to other workers, she knew they were there. There is no evidence that the applicant was ever under the impression that the office area was empty but for her, and though she may not have been used to having an office to herself, and though she may prefer the activity-filled plant floor, the fact that she was given her own office in the company’s office area was not a failure by the respondent to accommodate the applicant’s disability. Again, there was no dispute about the fact that she was unable to work on the factory floor without protective footwear, and in the circumstances, it was reasonable accommodation to provide her an office in the office area, with a table and chair and stools for her feet, where she could perform the visual inspection duty.
118The applicant has also indicated that she did not like the hours of work in the office area, and preferred the shifts she had worked on the factory floor as they allowed her time to get errands done. She made no suggestion that she should have been able to, or would have wanted to, work shifts in the office area when no one else was around. In the circumstances where there is no dispute about the fact that she could not work on the factory floor without protective footwear, and where there is no dispute that the hours assigned to the applicant were in accordance with office hours, I do not find that this difference in scheduling constitutes a failure to accommodate the applicant.
119Further, though the applicant stated that it was more difficult for her to schedule appointments outside of work hours, I am not satisfied that the evidence establishes that she was ever denied being able to attend a medical appointment which was only available during work hours, nor am I satisfied that that attending appointments during work hours had the effect of garnering demerit points or discipline for the applicant. Finally, in addition to graduated hours, there was evidence of flexible hours being assigned to the applicant in order to permit her to start later in the morning as an accommodation for the effects of her medication. While the applicant complained that the employer directed her to schedule medical appointments outside of working hours, she also testified that she was permitted to schedule medical appointments for her foot disability during work hours and in all of the circumstances described, I am not persuaded that the respondent advising her that medical appointments should generally be booked outside work hours, is a failure to accommodate.
120In her submissions, the applicant’s representative pointed to the fact that the applicant was the only bargaining unit employee in the office area and was the only one who did not work shifts as an indication of “differential treatment”, establishing discrimination. In fact, however, these were elements of an individualized accommodation plan for the applicant who could not work on the factory floor with the other bargaining unit employees, and as such, it is to be expected that her working conditions may be exceptional, insofar as necessary to effect accommodation. Further and to be clear, the evidence indicated that she worked office hours, as did office employees.
121The applicant also testified about ice in the parking lot which she had to point out to the respondent before the area was salted. She also disputes the efficacy of the salting, surmising that it was in fact the sun which was responsible for melting the ice. It is, of course, impossible to determine at this point the efficacy of the respondent’s icing efforts. That this was recognized as a safety hazard for all who used the parking lot is evident in the fact that when alerted to the presence of ice, the respondent put down salt. I do not find the fact that the applicant had to point out the need to salt the parking lot to be a failure to accommodate the applicant.
Communication to the applicant
122The applicant has complained that she did not get timely notification of a one-day lay-off or of a voluntary day off offered to bargaining unit employees, because the information was posted in the factory floor area only. Again, while it certainly would have been preferable for the respondent to have ensured a smooth flow of communication while the applicant was working in the office area, there is no evidence that the applicant did not receive payment for the partial day she worked when she should have been on lay-off, and the evidence indicates that she was permitted to take advantage of the voluntary day off and avoided having to use a vacation day instead. The evidence of these two instances of gaps in communication over a period of several months does not persuade me that the respondent did not provide reasonable accommodation.
Access card to permit entry to office area
123The applicant also complains about the fact that when she first started in the office area, she did not have an access card to gain entry to that area of the respondent’s premises, and she had to wait for someone to let her in. She alleges that on some occasions, she had to wait several minutes. She agrees that she was eventually provided with her own access card, though she did not receive one as quickly as it appears she would have liked. It must certainly have been frustrating for the applicant to be in a position of depending on someone else to let her in, and it would certainly have been preferable for the respondent to have better foreseen her needs in this regard, but I do not find that this rises to the level of rendering the accommodation unreasonable, especially as it was a problem which was remedied.
Choice of surgeon
124The applicant has also raised a concern with the fact that she was not operated on by the surgeon of her choice, as he advised her that due to the fact he was working for the respondent, he would be in a conflict if he acted also as her surgeon. She expresses disappointment as she was under the impression that the respondent was going to advise the doctor that they did not mind if he was also her surgeon, and she does not believe that the respondent ever did so. There is no evidence that the respondent never spoke to the doctor, and there is no evidence from the doctor as to why he ultimately did not operate on the applicant. In any event, even if the respondent did not speak to the doctor, despite telling the applicant that it would, I am not persuaded that by failing to ensure that she was able to secure the services of the surgeon of her choice, the respondent has either failed to accommodate her or has discriminated against her on the basis of disability with respect to her employment.
Supply of work issues
125The applicant also complains that she did not have a steady flow of parts to inspect, the telephone was removed from her office, and she was not permitted to use her cell phone, which prevented her from phoning for more parts to inspect when she was ready for them. There were approximately 95 shift reports from the applicant which were in evidence at the hearing. According to these reports, she inspected anywhere from a few hundred to more than a thousand parts per day. Only a few notations indicate days where she experienced delays in receiving parts. The applicant did not have a production quota to meet, and in fact the evidence indicates that due to medical problems with her wrist she was limited in respect of the number of parts she should inspect per minute. While it may have been frustrating for the applicant to have an unpredictable work flow, she has not indicated that the respondent required her to do more work than her medical restrictions would permit. She has given evidence indicating that there were occasions where she found faulty parts, which she agreed was important to the respondent’s business. While the pace may not have matched the faster-paced production work of the factory floor, the job was a meaningful job of work necessary for the employer, and for most of the days for which shift reports were provided, she did not complain of having no parts to inspect and in fact had parts to inspect and meaningful work to do.
126In her evidence-in-chief, the applicant called her accommodated position “bogus”, and was critical of the fact that she could not always rely on a steady supply of parts to inspect. In cross-examination, however, she agreed that the work was important to the employer, as there would be negative consequences for the business if faulty parts were delivered to customers. She also provided evidence of several occasions where she identified faulty parts for the respondent. In her submissions, the applicant’s representative submitted that in providing the accommodation it did, the employer did not reach the point of undue hardship and instead, profited by the applicant’s work. However, undue hardship is not a threshold which must be reached for accommodation. Rather, it is a limit on the duty to accommodate. Here, the employer has not taken the position that it was unable to accommodate the applicant without undue hardship, and accordingly, has accommodated her. It would seem likely that the fact that it was able to accommodate her with meaningful work, from which it would derive an advantage, underpins the fact that it was able to provide her work without undue hardship. The fact that the respondent has profited from the work it paid the applicant to perform is not an indication that it has failed to accommodate her; rather, it is part of what made her accommodation possible.
127The applicant testified that on one occasion, the supervisor named Anthony “went off as he does” when she complained about the lack of parts to inspect and advised her that he did not “need [her] attitude”. She testified that she believes he is an individual who would benefit from help with anger management. It appears that the applicant’s experience with Anthony is that she finds him to be a difficult individual to deal with in respect of many things in addition to the provision of parts, as she only notes this one interaction with him about parts. While a supervisor should refrain from making negative comments in respect of providing work to an employee, I am not persuaded that this one comment by a supervisor rises to the level of rendering unreasonable the accommodation provided by the respondent. Additionally, though the applicant has not argued that the work environment was poisoned, I would not find that this one comment establishes that her work environment was poisoned.
128Further, and while she has not articulated it in these terms, I would not find that this one interaction with Anthony rises to the level of harassment. The Tribunal has found that the requirements for establishing harassment are: a course of vexatious behaviour, by an employer, employer’s agent or a fellow employee; that is known or ought reasonably to be known to be unwelcome; and is based on a protected ground under the Code. This interaction does not establish a course of vexatious behaviour and while inappropriate, does not rise to the level of harassment.
129The applicant also complains that when she was no longer permitted to use her cell phone, it meant she was not able to read a book while she waited for parts, and she did not have a clock. There is no evidence that she ever requested that the respondent provide her with a clock or any work to perform while she awaited parts, and the fact that the absence of her cell phone left her without reading material does not diminish the reasonableness of the accommodation provided.
130The applicant also points to evidence in the above-noted logs regarding an occasion where a cart full of parts was left in her way, and where the respondent failed to ensure that someone would unload the parts onto the table for her to inspect. Again, ultimately, the cart was moved and someone did unload the parts onto the table for her to inspect. It is clear from the logs that this was not a daily, or even a regular occurrence. According to the logs of approximately 95 days, it happened on one occasion. In these circumstances, again, while the accommodation may not meet the standard of perfection, I am not persuaded that this constitutes a failure to provide the applicant with meaningful accommodation at work.
Availability of gloves
131The applicant complains that there were occasions when she had to wait for work gloves to be delivered to her. In reviewing the evidence, which includes the above-noted work logs, it appears that there were very few occasions where she had to wait for work gloves to be delivered. Again, in these circumstances, while the accommodation may not meet a standard of perfection, the very occasional delay in providing her with new work gloves, especially when combined with the fact that there were no negative employment repercussions to her for the “down time”, is not evidence of a failure to accommodate.
Smoking area
132The office area of the respondent’s premises is at the front, and it is not disputed that the applicant was assigned parking at the front of the building, close to the office space. The applicant testified that initially she was required to smoke at the front of and away from the building and that ultimately she was required to take her smoking breaks in her car. Her representative submitted that she was away from the social aspects of smoking when required to smoke in her car. The evidence does not establish that the applicant’s smoking constituted a disability. In any event, the applicant did not indicate that she ever expressed her dissatisfaction with these arrangements to the employer, nor in her evidence did she indicate any other possible area for her to smoke. While it is understandable that she may have preferred to take her smoking breaks with other factory employees, there is no evidence that the applicant was ever prevented from taking smoking breaks. I also note that it was her friend’s evidence that there were other individuals who smoked at the front of the building. While her smoking breaks may not have occurred in the same social environment as they had when she worked on the factory floor, I am not persuaded that the fact the applicant was not able to smoke in her usual smoking area constitutes a failure to provide reasonable accommodation.
Protective Footwear
133Though the applicant’s allegations included an allegation that there was a delay in acquiring footwear appropriate for work in the factory, the evidence about delay appears to relate to manufacturing delays. The evidence does not indicate any delay for which the respondent employer was responsible and I do not find that the respondent has contravened the Code in respect of the delay in acquiring appropriate footwear.
Taxis
134The applicant also complains that the respondent changed taxi companies to a provider she did not like as much. There is no dispute that when the applicant was not able to drive to work due to her disability, the respondent paid for a taxi to collect her at her home, bring her to work, take her to her physiotherapy appointment and take her home. She has disputed the respondent’s justification for changing taxi companies, as she says that the company she preferred was willing to negotiate a better price, but was not given the opportunity to do so. Whatever the company’s reason for changing taxi service providers, and though it was not the applicant’s preferred taxi company, there is no evidence to indicate that this constituted a failure to accommodate the applicant.
135The applicant’s representative has submitted that there is no evidence before the Tribunal regarding the procedural aspect of the respondent’s duty to accommodate. She takes issue with whether all of the applicant’s wishes were taken into account and seeks to know what information was considered and how the decisions were made regarding accommodation of this applicant. The evidence indicates that the respondent and the applicant, along with representation from the union and the Workplace Safety and Insurance Board, attended several meetings and follow-up meetings regarding return to work plans and accommodation. The evidence does not indicate that the applicant was ignored in this process, nor is this a matter where the employer states there was no accommodation available or where the accommodation offered is found to be wanting. It is not necessary to inquire into what other office may or may not have been available to her, or how or why the respondent decided to switch taxi company providers, for example, where the respondent has in fact involved the applicant in the process and has provided her with reasonable accommodation.
Pay rate
136The applicant alleges that due to her disability, she was not able to advance to the classification of robotics operator as were other employees she was recalled with after lay-off. Though she had indicated an intention to call a witness to testify as to this fact, she did not. The applicant did not produce any evidence regarding her application for robotics operator positions, nor did she produce any other documentation, including collective agreement provisions or other particulars, to indicate on what basis she would otherwise have been promoted to the classification of robotics operator. The applicant makes a bald assertion. This is not information solely within the purvey of the respondent, and on the basis of the evidence provided by the applicant, I am not able to conclude on what basis the applicant argues that she should have been moved to the classification of robotics operator and am not satisfied that she can establish that the fact she was paid for the work she performed at an assembler rate, the rate she received prior to accommodation for her disability, is either discrimination or a failure to accommodate her.
Fourth week of unpaid vacation
137Though the respondent submitted that the applicant was not treated differently from the other employees in being denied the opportunity to take the fourth week of vacation in increments, strict adherence to policy does not end the inquiry when the question is one of accommodation. In this case, however, the applicant did not present evidence to indicate that she asked for the fourth week of unpaid vacation in increments as an accommodation due to disability. While this may have been something she thought of as a possible accommodation, there is no evidence that she ever suggested it to the respondent as a form of accommodation she required. Further, at the time when she made her request, there were other kinds of days remaining available to her for her medical appointments (e.g. vacation and ELOA) and it is not at all clear that this kind of accommodation was going to be required. In fact, in the end, it was not required and the applicant never ran out of available days off for medical appointments.
Attendance Issues
138The applicant submits that the respondent’s January 2012 letter to her regarding her absences was a violation of the Code on the basis of disability, as the reason for a number of her absences was her disability. As in Rehman, and however, while I can understand that the applicant was not happy to receive the January 2012 letter regarding her absenteeism, the applicant was being accommodated at work, the letter was not disciplinary, and it was in the context of a meeting where the respondent expressed its concern and inquired into how it might assist the applicant to improve her attendance. It would be unfair for the employer to harbour secret expectations about attendance and not advise the applicant. Though the letter may be described as strongly worded, a letter to the applicant regarding the respondent’s expectations regarding regular attendance at work where the applicant was asked how the respondent (and her union) might help her improve her attendance, and in circumstances where reasonable accommodation was being provided to the applicant in respect of her disability, is not discrimination against the applicant on the basis of disability.
139Though the applicant says she was charged a demerit each time she was away, the employer denies this and the applicant presented no other evidence to the contrary, such as a letter of suspension or other disciplinary action. In fact, once the respondent presented evidence that there was no discipline imposed on the applicant, the applicant did not appear to challenge this, but rather appeared to rely upon her confusion regarding how the new system of demerits worked as evidence that she was discriminated against. I do not find that the evidence establishes on a balance of probabilities that the applicant was charged a demerit for any of her absences. While it is unfortunate that though the applicant received training about the new system on January 4, 2012, and while there may have remained some confusion regarding how this new system worked, I do not find that her lack of understanding of the system is evidence of a violation of the Code on the basis of disability, especially where no discipline was imposed on the applicant.
140Further, there is no evidence that she made inquiries of the employer about how her absences were being considered or “coded”, even in the face of the letter of January 16, 2012. There is no evidence that the way in which the respondent considered or “coded” her absences resulted in differential treatment of the applicant or a violation of her rights under the Code.
141While, as noted above, the applicant has also testified about her concern that the office hours she was required to keep in her modified work resulted in her having difficulty in making medical appointments outside of work hours, she also testified that she understood that there was no problem with her making medical appointments during working hours when they were related to her foot disability. Indeed, this is consistent with the shift reports which indicate a number of occasions when she left work prior to the end of 8 hours, in order to attend therapy. The applicant has also identified her psoriasis as a disability and testified that she needed regular treatment for it. The frequency of her appointments would indicate that she needed approximately 8-9 appointments per year. She has not indicated that ELOA days or vacation days or unpaid leave would not have been available to her for 8-9 days per year. Further, it was agreed that she was never denied the opportunity to go to the doctor or to therapy as she needed. In these circumstances, I do not find that the respondent discriminated against the applicant on the basis of disability or failed to provide her with necessary accommodations.
142There was one appointment, in order to have appropriate footwear made, which she was required to attend outside of working hours. She has not indicated that the 5:15 PM appointment was impossible for her to organize or to attend, merely that it would have been more convenient to her to have been able to attend it during working hours and keep her time off free of such commitments. I do not find that the fact that she attended a 5:15 PM appointment in order to obtain appropriate footwear, is an indication that the respondent discriminated against her on the basis of disability.
143In summary, while the accommodation provided by the employer may not have been the exact accommodation preferred by the applicant, and while it may not meet a standard of perfection, for the reasons above, I find that the accommodation provided was reasonable and I am not persuaded that the employer has failed to accommodate the applicant’s disability at work. With respect to the concerns the applicant has presented regarding the respondent’s actions with respect to her attendance, I am not persuaded that the employer has discriminated against her on the basis of her disability.
ORDER
144The Application is dismissed.
Dated at Toronto, this 12th day of February, 2016.
“Signed by”
Maureen Doyle
Vice-chair