PSGB# P-2023-02995

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Wan

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Environment, Conservation and Parks)

Employer

BEFORE

Jayashree Sengupta

Vice Chair

FOR THE COMPLAINANT

Rudolf Wan

FOR THE EMPLOYER

Braden Maclean Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 23 and 24, 2025

Decision

INTRODUCTION

1This decision deals with the merits of the complaint filed by Rudolf Wan, the “Complainant”, in which he alleged that the Employer failed to accommodate his disability and thereby contravened a term or condition of employment, contrary to s. 4(1) of the Regulation.

Background

2The Complainant was a Manager, Air Approvals in the Employer’s Environmental Permissions Branch. Following an extended absence from work, he returned to the workplace in August 2021 and began working 2 days per week. Some of his people-management responsibilities were given to another employee and Mr. Wan was assigned to do project-work for 2 days per week. He received Short Term Sickness Plan (“STSP”) payments for the remaining 3 days of the week.

3Following receipt of an updated medical in March 2023 that stated that Mr. Wan could not work for more than 2 days per week, and that he needed 3 days off per week to recover from the 2 days of work, the Employer informed him in May 2023 that it could no longer accommodate him in his position, that his medical information indicated that he was unable to perform the duties of the position of Manager, Air Approvals and that he would be placed in the Employer’s Health Reassignment Program, during which time he would receive STSP payments. He was placed on STSP as of May 29, 2023.

4The Complainant began the Health Reassignment Program process, which included signing consents to undergo an Independent Medical Examination (an “IME”) and file review. As he was also close to exhausting his STSP credits, he was sent a Long-Term Income Protection (“LTIP”) package by Human Resources, for which he applied.

5The Complainant exhausted his STSP credits on October 10, 2023, and began an approved unpaid medical leave. His LTIP application was denied in late November 2023, following which the Complainant resubmitted the IME consent forms. On December 21, 2023, an updated consent to an Independent Psychiatric Assessment was sought from the Complainant. He did not provide that consent.

6On January 3, 2024, the Complainant gave his employer a Notice of Proposal setting out his concerns. He received an email from the employer on January 8, 2024, suggesting that he continue to work with the Director of his group to resolve issues and a Deputy Minister or Delegate meeting was not held.

7On January 4, 2024, the Complainant informed the Employer of his intention to retire effective January 30, 2024. He retired from the Ontario Public Service (“OPS”) on that date.

8The complaint to the PSGB, under s.4(1) of O.Reg 378/07, concerning a working condition or a term of employment was filed on February 5, 2024.

9Following an interim decision dismissing the Employer’s preliminary jurisdictional objection, the matter proceeded to a hearing on the merits. I heard evidence from the Complainant and Ian Greason, a friend and former colleague. The Employer called evidence from the Complainant’s former supervisor, Tesfaye Gebrezghi.

10For the reasons that follow, the complaint is dismissed.

The Parties’ Positions

11The Complainant alleged that the Employer failed to accommodate him in accordance with the OPS Disability Accommodation Policy (“DAP”), culminating in a removal from his home position of Manager – Air Approvals.

12Following his return from a leave, he was working 2 days per week, and his responsibilities had been modified. He believed he was contributing to the work of the group through his involvement in specific projects and wanted to continue to do so. He said there was a clear division of tasks with the Acting Manager, who had taken over some of the people management functions of the Manager role, and the arrangement was working well.

13The Complainant argued that the Employer did not engage with him as part of the accommodation process, in contravention of the DAP. This led to a decision to end the accommodation that had been in place, and he was, instead, placed in the Health Reassignment Program.

14Finally, the Complainant argued that the Employer deliberately drew out the Health Reassignment Program process, resulting in him being cut off from payroll when his STSP entitlement was exhausted, which then forced him to retire from the OPS for financial reasons before he was ready to do so. He argued his decision to retire was made under duress.

15The Employer’s position is that it met its duty to accommodate at all times. It supported the Complainant’s extended leave. Upon his return to the workplace for 2 days per week, it reassigned the people management duties of his job to another employee for a considerable length of time in anticipation of the Complainant eventually resuming all aspects of his Manager role.

16When it became apparent that the Complainant’s medical restrictions permanently restricted him from performing the essential tasks associated with his position, it enrolled the Complainant in the health reassignment process. That process was ongoing when the Employer received the Complainant’s retirement notice.

17The Employer said it communicated and engaged with the Complainant throughout the process and met with him in May 2023 to explain its decision. He was placed on STSP benefits, and the health reassignment process began. He was also provided with the option of applying for LTIP benefits.

18The Employer argued that the duty to accommodate does not require the creation of a position for the Complainant or that it continue the interim accommodation arrangements permanently in light of the confirmation of the permanent nature of the Complainant’s restrictions.

19Finally, while the Employer acknowledged that the Complainant may well have experienced stress in the period preceding his retirement, his decision to do so was not made as a result of threats or inducements by the Employer and, therefore, not made under duress.

ANALYSIS AND DECISION

Relevant Legislative Provisions

20Section 4(1) of the Regulation provides the following about the filing of a complaint about a working condition or a term of employment:

4(1) Subject to subsection (2), a public servant who is aggrieved about a condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) If the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) If the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) If the public servant complies with the filing requirements set out in section 10

15The relevant sections of the Human Rights Code, R.S.O. 1990, c. H19, as amended (the “Code”) provide as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10…

“disability” means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)

11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(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.

Analysis

21The duty to accommodate in respect of employment is not a free-standing obligation under the Code. It arises pursuant to s. 5(1) which prohibits discrimination in respect of employment on the basis of a prohibited ground of discrimination under the Code, such as disability, in the present case. Both direct and indirect or adverse effect discrimination are prohibited. The latter involves circumstances where a neutral rule or requirement has a differential and adverse impact on a person for reasons related to, or characteristics associated with, their membership in a group protected under the Code.

22Section 11 allows the person responsible for accommodation to demonstrate that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the group to which the complainant belongs cannot be accommodated without undue hardship. Section 17 of the Code provides that a finding that a person is incapable of performing the essential duties or requirements associated with the right cannot be made without considering whether they can be accommodated without undue hardship.

23In other words, what the Code prohibits is discrimination — whether direct or adverse effect. The Code does not require accommodation in the absence of discrimination. Thus, a person who claims that his employer has breached its duty to accommodate is really claiming that he has experienced direct or adverse effect discrimination because of disability, and that his employer cannot justify the discrimination by showing that the employee could not be accommodated without undue hardship.

24As is always the case under the Code, the complainant bears the initial onus of establishing a prima facie case of discrimination. Only at that point does the inquiry shift to whether the respondent employer fulfilled its duty to accommodate the complainant to the point of undue hardship: Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Limited, 1985 CanLII 18, [1985] 2 S.C.R. 536 at para. 28 [ 7 C.H.R.R. D/3102].

25In order to trigger the duty to accommodate under s.5(1) of the Code, the applicant would have to show that a neutral "requirement, qualification or factor" had an adverse effect on him because of his disabilities. If the applicant has made out a prima facie case of adverse effect discrimination, the onus would shift to the respondent to show that its requirement(s) were reasonable and bona fide, including, but not limited to, showing that the applicant's disability-related needs could not be accommodated without undue hardship (See British Columbia (Public Service Employee Relations Comm.) v. B.C.G.S.E.U.,1999 CanLII 652,[1999] 3 S.C.R. 3 [ 35 C.H.R.R. D/257] at para. 54 ("Meiorin").)

26Once the duty to accommodate has been triggered, the respondent employer has both procedural and substantive obligations.

27Procedurally, the employer has an obligation to take the necessary steps to determine what kinds of modifications or accommodations might be required to allow the employee to participate fully in the workplace.

28The substantive duty requires the employer to make the modifications or provide the accommodation necessary to allow the employee to participate fully in the workplace, such as by modifying duties or hours or the workplace itself, as the case may be, up to the point of undue hardship.

29However, the duty to accommodate places obligations on the employee seeking accommodation as well. An employee who seeks workplace accommodation has a duty to co-operate in the accommodation process by providing his employer with a reasonable amount of information about his physical or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee's needs may be accommodated without undue hardship. As the Supreme Court of Canada stated in Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81, [1992] 2 S.C.R. 970 at 31 [ 16 C.H.R.R. D/425 at paras. 43-44] ("Renaud"):

. . . To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus, in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

. . . When an employer has initiated a proposal that is reasonable and would, if implemented, fulfill 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.

30There is no dispute between the parties, and I find, that during the material time the Complainant was a person with a disability within the Code and that the duty to accommodate had been triggered. The Complainant does not take issue with the accommodation put in place initially to address his disability related needs that allowed him to take an extended leave from the workplace. While the Complainant expressed some concerns related to scheduling, I find the modified 2-day work week arrangement, with some of his duties reassigned, that was put in place upon his return to the workplace in August 2021 until May 29, 2023, was in line with the medical restrictions identified by the Complainant’s physician.

31The crux of the complaint surrounds the decision made by the Employer that the Complainant could no longer be accommodated in the role of Manager – Air Approvals, given the medical information provided in March 2023, indicating that his restrictions were permanent. The Employer’s assessment was that it was untenable for 2 people to continue to do the job, which it described, and as is confirmed in the job description, as a managerial role with direct reports.

32The Employer had made an interim or temporary arrangement that saw another person taking over the people management functions of the role, with a view to the Complainant eventually returning to all aspects of his job. It became clear to the Employer from the information received from the Complainant’s physician regarding his restrictions in March 2023 that he could not perform the essential tasks associated with the role he held.

33The Complainant believed that the arrangement in place was working, that he was engaged in work that was within his restrictions that was meaningful and provided value to the Employer. He sought to have this arrangement continue. He also suggested that he could have worked part time.

34While this may have been the Complainant’s desired outcome, it is settled law that he is not entitled to the accommodation of his choice. I find that the steps taken by the Employer do not amount to a breach of the Complainant’s rights under the Code.

35As summarized by Arbitrator Hayes in Scepter Canada v. Unifor, 326 LAC (4^th)174 (2021 ON LA) paragraphs 33 and 34:

Several arbitrators have variously explained a fundamental threshold point. Accommodation is required if assistance is needed for an employee to perform the essential duties of the position. But, if a disabled employee is unable to perform the essential or core duties of his/her position, regardless of what attempts might be made at accommodation, that is the end of the matter.

The Ontario Human Rights Tribunal has said the same thing. See: Briffa at paras 60, 62-3, where it was also observed that keeping a modified arrangement in place for a longer time than another employer might have done does not lead automatically to the conclusion that it is a position that could stand on its own and is sustainable on a long-term basis.

36The Employer argued, and I accept, that the duty to accommodate does not require the employer to create a new job for the Complainant or to carve out parts of the job where, as is the case here, the employee is unable on a permanent basis, due to disability, to perform the core duties of the role. The Health Reassignment Program process then commenced. It was underway, ongoing and was eventually halted not by any action of the Employer, but the Complainant’s retirement.

37I am, therefore, not persuaded that the Employer breached either its procedural or substantive obligations under the accommodation process.

38I am also not persuaded that the Employer breached provisions of the DAP by failing to consult the Complainant during the accommodation process. The documentary record shows that information about the Complainant’s restrictions was regularly sought, updated and acted upon. During the meeting in May 2023, the Employer set out the rationale for its conclusion that it could not continue with the interim accommodation arrangements. While the parties did not agree on the way forward, it cannot be said that the Complainant was unable to provide input or that he was uninformed about the reasons for decisions made by the Employer throughout the process.

39Finally, I do not accept that the Complainant’s decision to retire was made under duress. I agree that he was under stress given the difficulty of his circumstances. However, it has long been accepted that there is a distinction between stress because of one’s financial situation and duress caused by threats and inducements, either express or implied, by the employer (see Hamilton Health Sciences v. ONA (Lawson), 223 LAC (4^th) 400 (2012 ON LA) at paras 19 and 20).

Conclusion

40Having found that the Employer did not engage in discrimination contrary to the Code as alleged by the Complainant, the complaint regarding breach of a term or condition of employment is dismissed.