AN EMPLOYER MUST MAKE AN EFFORT TO TEST THE FEASIBILITY OF AN ACCOMMODATION REQUEST
Purres v. London Athletic Clun (South) Inc., 2012 HRTO 1758
June Purres worked as customer service associate at this fitness club in London, mainly working behind the main reception counter. The conditions of the job required that she stand for the entire time she was working. This was not a problem until she became pregnant and experienced problems with the circulation in her legs. She brought her manager a note from her doctor, asking that she be allowed to sit down, from time to time, when she could no longer tolerate standing. Specifically, she asked her manager to let her sit as required on a bar-stool type chair behind the counter. The manager said that he did not need to see the doctor's note, and refused outright the request for a chair or stool behind the counter, saying that it would be in the way and cause problems for people walking to various stations behind the counter.
In order to prevent serious damage to her legs, Ms. Purres found that she had no alternative but to ask that her work status be changed from full-time to part-time. This eased the problem with her legs, but meant that she did not accumulate enough working hours to be entitled to full EI maternity leave benefits when her child was born. She filed an Application with the Human Rights Tribunal of Ontario and her case went to a hearing on July 5, 2012.
At the hearing, Ms. Purres present, as part of her evidence, a photograph from the London Athletic Club's website, showing a considerable number of employees gathered behind the reception counter, in some spots standing three people deep. She argued that this showed that there had been sufficient room behind the counter to accommodate a stool on which she could have sat as needed. Testimony from the witnesses for the London Athletic Club showed that there had been no interest in trying the effect of placing a bar-stool, from the nearby juice bar, behind the reception counter to see if it really did present undue hardship that would mean the Club could not accommodate Ms. Purres's request.
The Tribunal decided that the London Athletic Club (South) had discriminated against Ms. Purres. Specifically, the Tribunal pointed to the failure of the Club to test the suitability of placing a bar-stool behind the counter. This reinforced the position that the Tribunal has taken in previous decisions, that an employer has an obligation not only to provide accommodation for characteristics listed under the Code, but also to make every reasonable effort to explore the options for accommodation.
The Tribunal awarded Ms. Purres a payment to make up for the wages she lost when she switched from full-time to part-time work, along with an amendment to her record of employment reflecting her additional wages, so she could receive retroactively the benefits to which she would have been entitled during her maternity leave if she had, in fact, worked full-time hours until her maternity leave began. She also received $10,000.00 in compensation for the injury to dignity, feelings and self-respect she experienced as a result of the discrimination.
AN INJURED EMPLOYEE MAY BE CONSIDERED DISCRMINATORILY DISMISSED EVEN IF NOT FORMALLY FIRED
Moore v. Curraghmore Farm Inc., 2013 HRTO 1586
Brian Moore loved working with horses, and had been doing it for most of his life, performing just about any task around a racing stable. In the spring of 2011, he was looking for work and applied to Curraghmore Farm Inc., which boarded and cared for racing thoroughbreds, and especially breeding mares and their foals. He was hired in May, 2011 as a general labourer, performing maintenance and horse care tasks around the three farms operated by Curraghmore Farm Inc.
One day, Mr. Moore injured his right shoulder pulling a lawn mower out of long wet grass. The injury was severe enough that it would eventually require surgery, but it did not keep him entirely from working. He asked his employer for accommodation in the work he was given to do, until he had the surgery. His employer, without discussing the matter with Mr. Moore, decided that there was nothing he could do at any of the farms, and told him to go home. She called him back for one day's work a few weeks later, and then gave him a Record of Employment that said he had been laid off for "lack of work". After that, there was no contact with Mr. Moore from the employer, and no further offers of work were made. Mr. Moore concluded that his employment had been terminated because of his injury. He filed his Application with the Tribunal in March, 2012. The hearing on his Application took place on June 21, 2013.
The Tribunal found that Curraghmore Farm Inc. had discriminated against Mr. Moore, saying, "The applicant should have been accommodated after his workplace injury, however, he was not." In particular, the Tribunal found that Curraghmore Farm Inc. did not make any effort to find out what work Mr. Moore could do and that no consideration was given to what accommodations he could be offered, up to the point of undue hardship.
The Tribunal also found that Curraghmore Farm Inc. terminated Mr. Moore's employment because of his injury. Curraghmore Farm Inc.'s failure to recall Mr. Moore to work after laying him off constituted, for the Tribunal, termination of his employment. This was the case even though Curraghmore Farm Inc.'s owner insisted that she had not formally terminated Mr. Moore's employment. It was the effect of the action, in that Mr. Moore was not recalled to work, that was determined to constitute termination.
The Tribunal awarded Mr. Moore his lost wages, from the date his employment ended to the start of his EI benefits, and also awarded him $13,000.00 for injury to dignity, feelings and self-respect. The owner of Curraghmore Farm Inc. and her partner were also required to complete an on-line course in the Human Rights Code.
AN EMPLOYER MAY NOT USE A SUPPOSED DISCIPLINARY REASON TO EXCUSE DISCRIMINATORY DISMISSAL
Elliott v. Can Art Aluminum Extrusion Inc., 2014 HRTO 1574
Anthony Elliott worked as a lead packer for Can Art Aluminum Extrusion Inc., which produced aluminum tubes and other parts in various shapes and sizes. While he was working the night shift with an inexperienced partner on November 8, 2010, Mr. Elliott injured his left shoulder. He went to the hospital and was told to take two days off work, until the nature and extent of his injury could be determined.
Mr. Elliott took the note he received from the hospital to his supervisor, who urged him not to take the time off, arguing that he might not receive WSIB benefits and that he would, therefore, lose two days' wages. Mr. Elliott agreed, in spite of the fact that his shoulder caused him significant pain. The evidence presented at the hearing showed that the company had a practice of encouraging injured employees to keep working in spite of their injuries, because it kept the company's WSIB premiums down. After two days of performing so-called "light duties" in increasing pain, because he could not use pain medication powerful enough to control his pain in the busy environment of the extrusions plant, Mr. Elliott's shoulder was clearly not getting better, and he had determined that he would have to take time off, after all.
At the same time, Can Art Aluminum Extrusions Inc. was conducting an internal investigation into a reported short shipment. The witnesses for Can Art who gave evidence at the hearing said that short shipments represented a serious problem, although they could provide no evidence about any other short shipments, including how frequently those occurred, whether they could be linked to any specific packers and how much they cost the company. The Can Art witnesses testified that the investigation showed that Mr. Elliott had packed the short shipment. The evidence given was that the short shipment had cost the company about $180.00, and there was no evidence of any lost business due to the short shipment.
Mr. Elliott's employment was terminated by Can Art Aluminum Extrusions Inc. on November 12, 2010. The company witnesses said that the termination was due entirely to the short shipment, and was meant to provide a lesson for other packers to be more careful about their packing. But the evidence at the hearing was that Mr. Elliott's termination was not used as an example to other packers. Nor had the company fired anyone else, or even disciplined any other workers, for packing short shipments. The company, according to the evidence, made no effort to assess whether or not the termination of Mr. Elliott had any effect on the incidence and seriousness of packing errors. However, the effect of the termination on Mr. Elliott, given that the company told WSIB that it was solely due to internal disciplinary causes, was that Mr. Elliott could not receive WSIB benefits for his undeniable workplace injury.
The Tribunal decided that Mr. Elliott's injury was a factor in the termination of his employment. The Tribunal noted that if Can Art had continued to employ Mr. Elliott while he went on WSIB-approved leave, it could entail greater costs to the company, including increased WSIB premiums. The Tribunal said, "The effect of the termination was to relieve the respondent of responsibility for dealing with the effects of the injury going forward."
The Tribunal awarded Mr. Elliott $15,000.00 for injury to dignity, feelings and self-respect. He was also awarded three months' wages in compensation for the termination of his employment, and Can Art was required to cover the costs of eight sessions of psychological counselling to help Mr. Elliott deal with the effects of his termination on his mental health. Can Art Aluminum Extrusions Inc. was also required to engage the services of an expert in human rights "to review its human rights policies and train all of its current employees holding the rank of supervisor or higher as well as the entire staff in human resources, with respect to the revised human rights policy and the Code."