Published on October 30, 2009 by Donna Seale
In Tofflemire v. Metro (Windsor) Enterprises Inc., the Human Rights Tribunal of Ontario examined the efforts made by a food and drink services company to accommodate a long-serving employee upon his return-to-work after having a heart transplant. The Tribunal determined that the company's efforts were woefully inadequate and awarded damages to the employee as a result.
The Facts
Mr. Tofflemire began working for Metro Enterprises in 1981. His work involved driving a mobile catering truck on designated routes selling food and drinks at construction job sites. Mr. Tofflemire also happened to have a history of heart-related problems and required modification to his job from April to September 2006, which the company provided.
In mid-September 2006, Mr. Tofflemire left work to have a heart transplant, which ultimately took place in June 2007. While he was recovering from his surgery, Mr. Tofflemire maintained contact with his employer and Metro expressed the desire to see their employee return to work.
In March 2008, Metro wrote to Mr. Tofflemire's doctor asking him to identify which functions of the mobile catering job Mr. Tofflemire could perform. The doctor advised that the employee would require a modification to his duties that would limit him from lifting no more than 10-15 pounds initially but then Mr. Tofflemire could increase the lifting weight as he was able to tolerate it. Further, the doctor recommended the following return-to-work schedule:
Mr. Tofflemire returned to work on April 7, 2008. He worked two hours a day for one week in the stock-room. He next returned to work on June 9, 2008 and worked in the stock room for two hours a day for a period of two weeks. The employer then took the position that there was no further available work for Mr. Tofflemire in the stock room.
So, Mr. Tofflemire expressed a desire to be transferred to the company's vending machine division which would involve supplying food and drinks to vending machines at a number of locations. He held the view that the vending machine position would be less stressful than his catering truck position. There were six permanent jobs in the vending division, all filled by long term employees. There was, however, a summertime replacement position held by a person who was hired at the beginning of the summer of 2008 and, given Mr. Tofflemire's seniority, he knew he could bump this person. Mr. Tofflemire was fully aware that this was a temporary position but he was prepared to do the job for that temporary time period and then resume discussions with Metro about how he could be accommodate further after the job ended. Mr. Tofflemire obtained a letter from his doctor stating that by the end of June 2008, he was medically cleared to work a 7 hour day.
In early July 2008, Mr. Tofflemire met with his employer to discuss his return to work. During the meeting, Mr. Tofflemire said he was told by the company's President that the vending division had no job for him and that he would have to go back to the catering division. The President recalled that the company had, instead, asked Mr. Tofflemire to provide a functional analysis form to indicate he was capable of carrying out the job functions of the vending position but this was never provided. Mr. Tofflemire denied being asked to complete such a form.
On July 27, he filed a grievance alleging that the company had not reinstated his employment even though he had been cleared to return to work by his doctor. The next day, the company wrote to Mr. Tofflemire offering him a customized seven hour per day mobile catering route. During the grievance process, the company indicated that they did not want to assign Mr. Tofflemire to any position in the vending division. Ultimately, the union concluded that Metro's job offer of the modified catering position was reasonable in the circumstances.
On July 31, Mr. Tofflemire wrote to his employer to say he would consider the proposed job offer after seeing his doctor on August 5 and that he would be in contact with them the week of August 11. On August 5, Mr. Tofflemire's doctor wrote to Metro advising that Mr. Tofflemire should neither take on a job that required 10 hour days nor should the job involve long periods of exposure to the sun (as long exposure to the sun increased the risk of skin cancer in transplant patients).
Subsequently, the company's President met with Mr. Tofflemire's union representative. But, the President simply advised that transfers between divisions were not possible.
On August 18, 2008, the employer wrote to Mr. Tofflemire to state that they had not heard anything from him. They advised that they were taking his lack of response to mean that he had turned down their job offer, was no longer seeking his job, seniority or other rights and, as a result, they considered his file to be closed. Metro did not, however, take steps to formally sever Mr. Tofflemire's employment after sending this letter and at no point issued a Record of Employment.
Mr. Tofflemire alleged that Metro Enterprises and its President, in his personal capacity, discriminated against him in employment on the basis of disability in that it failed to provide him with reasonable accommodation when he sought to return to work following his surgery. He also contended that the failure of Metro to issue a Record of Employment was also discriminatory as it deprived him of his rights to collect termination and severance pay under Ontario's Employment Standards Act.
The company and its President asserted that its July proposal to have Mr. Tofflemire return to a modified mobile catering route position was reasonable accommodation. It was Metro's view that the job had shortened hours (7 hours), was less stressful and although it required Mr. Tofflemire to be outside that did not necessarily mean he would be exposed to an undue amount of sun as he could use sunscreen, wear protective clothing and park his truck in a shady area. The company, in essence, argued that it would be an undue hardship for it to place Mr. Tofflemire in the vending division. It was pointed out that transfers into the vending division had become less attractive over time because layoffs from the vending division would be done on a seniority basis and someone coming into that division could lose their job if they were junior to current members in the vending division (due to the vending division operating under a different collective agreement). Concern was expressed that existing vending division employees might come to resent the accommodation of Mr. Tofflemire in that division. The company noted that it was also at the point of downsizing the vending division from six to three positions. Finally, the company took the position that there was a general economic downturn that was impacting the company's financial status and if they had to create another position in the vending division to accommodate Mr. Tofflemire, it would have cost $53,000 in salary at a time when the company was losing money.
The Decision
The Tribunal concluded that if the company had not received the August 5 doctor's letter indicating that Mr. Tofflemire needed to avoid long term sun exposure, this complaint would not have succeeded. The Tribunal indicated that as the proposed mobile catering position included modifications regarding the length of hours to be worked (reducing them from 10 hours to 7) coupled with changes to decrease the stress of the job it would have, absent the doctor's letter, met the duty to accommodate. But, the doctor's letter was found to have changed Mr. Tofflemire's circumstances and required the company to re-examine its accommodation proposal. However, after receiving the August 5 doctor's letter, the Tribunal determined that the company did little to reconsider its position, failed to meet with Mr. Tofflemire and, instead, wrote its August 18 letter saying they were closing his file.
According to the adjudicator:
"…the respondents did not want to reconsider whether their offer of a modified catering job was reasonable or to reconsider the applicant for any position in the vending division because they believed this might entail further difficulties for them. I believe that they felt their best strategy to manage the situation was to end the discussion on accommodation with the applicant, as demonstrated by their August 18 letter."
The Tribunal rejected the company's argument of undue hardship pointing out that all of the concerns that had been raised related to a permanent transfer of Mr. Tofflemire into the vending division. However, Mr. Tofflemire was only seeking to be considered for the temporary summer job available in that division. The company had not raised any undue hardship issues relating to that proposal. Concluding that the company and its President had made inadequate efforts to reconsider the ability to accommodate Mr. Tofflemire in light of the August 5 doctor's letter, the Tribunal pointed out:
"A reasonable accommodation in these circumstances could well have been to place the applicant in the temporary summer position. It is true that this would have only been a short term solution but it was an alternative the respondents did not meaningfully pursue after receiving the August 5 letter. In taking no substantive action the respondents failed both in terms of procedure and substance to meet their duty to accommodate the applicant." (emphasis added)
In terms of remedy, the Tribunal ordered that the company and its President pay Mr. Tofflemire $7,500 in general damages and, in addition, lost wages. The company was also ordered to resolve his employment status and provide any entitlements under the Employment Standards Act.
What to take from this case:
The Tribunal's decision is a great reminder to employers that the duty to accommodate employees is an ongoing one. If there is a change in an employee's circumstances, an employer must reexamine the accommodation that has already been put in place for the employee or that has been proposed in order to determine whether it meets the revised needs of the employee. A failure to do this can lead to a finding that reasonable accommodation has not been provided.
Knee-jerk reactions to an employee's accommodation proposals should also be avoided. To be able to successfully assert undue hardship associated with an accommodation request, you must be able to show why that particular request cannot work. Here, the company appears to have either consciously or subconsciously avoided examining what the employee was actually seeking due to a desire to avoid any movement into that division whatsoever. (Have a look at my prior post on what undue hardship is for further information).
Additionally, at the risk of sounding like a broken record, I cannot stress enough how critical it is to have a written procedure in place in your workplace relating to the duty to accommodate. Properly written, it should spell out all of the steps that should be taken by an employer whenever a request for accommodation is made by an employee or a change in the employee's circumstances occurs. Such a procedure, properly followed in all circumstances, would help an employer avoid missteps the likes of which occurred here.
Lastly, note here that the company's President was found, in his personal capacity, to be liable for what happened here and jointly responsible with the company for paying damages to the employee. As the President was intimately involved with discussions with Mr. Tofflemire and his union relating to accommodation, and he was the operating mind of the company, it was well within Mr. Tofflemire's right to name the President as a personal respondent to his complaint and within the Tribunal's jurisdiction to make a finding specifically against him.
(Image by linder6580)
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Published on September 16, 2009 by Donna Seale
Many of you will have heard about the story that hit the news last week of a Manitoba man who was barred from patronizing a restaurant in Seven Sisters, Manitoba because his wife had been diagnosed with the H1N1 flu. The story broke on Richard Cloutier's show on CJOB radio and I was fortunate enough to have been interviewed by him on-air about the human rights implications of the restaurant's decision to deny service. The man has, apparently, now filed a human rights complaint against the restaurant with the Manitoba Human Rights Commission. Time will tell how this case ultimately resolves itself.
While this particular situation involved the denial of services by a service provider, the comments I made on the radio show are equally applicable to employers and the workplace. I thought it might be useful here to let you know what I said and expand upon my comments a bit further:
What is H1N1?
Health Canadaadvises that H1N1 is a strain of the influenza virus that usually affects pigs (and so sometimes this flu is also called the "swine flu"). This virus can, however, make people sick as well. It is a respiratory illness that causes symptoms similar to the regular human seasonal flu.
How do I deal with H1N1?
1. Operate based on Fact versus Fear
When dealing with or otherwise deciding how to address H1N1, businesses of all stripes need to operate on the basis of fact versus knee-jerk fear. This is often easier said than done, especially when dealing with health and safety-related issues, but it is critical. The minute you take action based on fear versus fact, that triggers a risk of running afoul of the many pieces of legislation business owners need to abide by but, in particular, human rights law.
In terms of H1N1, it is important for business owners to understand what it is, how it is transmitted and how to protect against an outbreak. Accessing information on the Public Health Agency of Canada's website on the H1N1 virus or similar information placed on provincial government websites (such as the Province of Manitoba's fact sheets) are key steps.
2. Assume that H1N1 constitutes a disability under human rights legislation
Human rights legislation across Canada prohibits discrimination on the basis of disability or perceived disability. While historically the flu hasn't been considered a disability by human rights commissions, that related to the regular human flu which is very common and usually of short-term in duration. H1N1 has been classified as a pandemic virus by the World Health Organization which may well result in human rights commissions considering it in a different light. Such an approach would be consistent with the Ontario Human Rights Commission's response to the SARS outbreak back in 2003.
It is important to remember as well that human rights commissions take a broad approach to what constitutes a disability. A person can, as a result, be considered disabled on the basis of how they are treated even if they do not have an actual disease or illness. Consider, for example, the man who was barred from the restaurant. He did not have H1N1, his wife did. Yet, the restaurant seems to have treated him as though he had the disease. The H1N1 label had an effect on him anyway. A human rights commission may well conclude that this person was perceived as having a disability and discriminated against as a result of that perception.
In my view it would be wise for employers to assume that H1N1 would be considered a disability by a human rights body and operate on the basis.
3. Uphold your human rights-related responsibilities to all employees impacted by H1N1
The human rights-related responsibilities of employers extend not just to employees who are or may be infected by the virus but also to employees who are not infected.
Employers must ensure that their workplaces are free of discrimination and harassment. This means that they need to:
a. make sure they have a clearly thought out plan to respond to H1N1 in the workplace, one that does not discriminate against employees who have H1N1 or may have been exposed to H1N1. In particular, you want to be able to justify any actions you take in relation to employees who have H1N1 or may have been exposed to H1N1 on the basis of fact-driven health and safety precautions. Here, you would want to follow the lead of public health officials and medical professionals;
b. make sure that you take appropriate steps to accommodate employees who are disabled by H1N1. What type of accommodation will be reasonable will depend on the circumstances. It can, however, include things like permitting the employee to take time away from work, allowing the employee to work from home, or providing the employee with alternate work;
c. make sure to refrain from harassing employees who may have H1N1 or are suspected of having H1N1 and prevent your employees from doing the same. People have a natural fear of the unknown and since H1N1 is still a very new disease you may find your non-infected employees acting out of fear when they find out or suspect a work colleague has come down with H1N1 or has been exposed to someone with the illness. This can result in harsh treatment of their colleagues. Take any complaints of this type of harassment seriously and take appropriate steps to put a stop to any inappropriate behavior.
Conclusion
While the barring of the man from the restaurant is the first incident of this kind that I have heard about relating to H1N1, I'm hopeful that it will be the last. I'm also hopeful that the above information helps you avoid coming into conflict with the human rights legislation in your jurisdiction in relation to how you operate your business if H1N1 knocks on your door.
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Donna M. Seale B.A., LL. B.
Human Rights Lawyer
and Educator
