Ontario Employment Law – Obligation to Accomodate

Mary Pilon worked for the City of Cornwall for 23 years. In her final years with the City, she was a customer service representative in the Finance Department. She left her job in September 2005 under the advice of her family physician. Pilon suffered from colitis, a condition where the colon becomes inflamed, causing among other things, severe abdominal pains and a constant urge to use the washroom. Her doctor noted as part of her claim for Employment Insurance benefits, “the harassing and unprofeossional treatment she received [at work] caused her illness.”

As part of her disability, the applicant, Pilon, required unrestricted access to the washroom during work hours. The applicant’s need for an accommodation around her use of the washroom unfortunately became an element of tension in the workplace. The applicant claims she was harassed by co-workers beginning in 2002 in the form of heightened scrutiny and complaints to management about her use of the washroom outside of scheduled break times.

This issue was a recurring one. These complaints were overtly expressed by one of the applicant’s co-workers but there were also subtle suggestions by others which took the form of complaints that the applicant was not at her desk, or that she disappeared during the work day or that she took too long breaks. The workplace became increasingly dysfunctional and eventually led to an “informal” investigation by the employer.

The Investigation

The investigation was conducted by a Labour Relations Coordinator in Human Resources. Six individuals from the workplace were interviewed, as well as the applicant. The interviews were taped, however, the City refused to provide a copy of the tape to the applicant when asked. The City stated at the time that they would have to consult counsel. This issue was never resolved. When the question of the tapes arose during the proceedings in front of the Human Rights Tribunal, the respondents stated that the tapes had been lost.

The result of the investigation was a report. The report concluded: “The [investigation’s] findings do not clearly define a harassment issue, however several incidents, if not dealt with immediately, may result in a poisoned atmosphere being created which could be considered harassment under the … Human Rights Code.” The City did not implement any of the report’s recommendations, nor was a copy of the report given to the applicant.

After the investigation, co-workers continued to complain about the applicant’s performance, specifically in relation to her excessive absences from her desk. In September 2005, the applicant’s doctor informed the City that “emotional distress due to psychologically unhealthy work environment and harassment” was exacerbating her medical condition, and subsequently recommended she leave her placement. On two more occasions, the applicant demanded the City investigate her allegations of harassment and failure to accommodate, but the city declined, saying those allegations had already been proved groundless.

The applicant also filed grievances with her union. The union withdrew the grievances after it conducted its own investigation of the complaints. According to the Tribunal, the union’s investigation was not as thorough as the City’s. Ultimately, the union took the view that the employer’s request that the applicant restrict her use of the washroom to her breaks was silly but was not harassment. The adjudicator in the matter stated bluntly that the union’s position was wrong and completely missed the point.

Relying on the results of the union’s investigation, the City demanded that the applicant return to work as her absence was not for medical reasons. The applicant refused, and the City subsequently terminated her employment. The applicant then brought a complaint before the Human Rights Tribunal of Ontario, claiming the City did not accommodate her disability.

Human Rights Tribunal of Ontario’s Decision

The adjudicator concluded the City of Cornwall, its Director of Finance, Manager of Human Resources, and the applicant’s supervisor all violated procedural obligations to accommodate the applicant on several occasions. First, there was the City and Manager of Human Resources failure to properly investigate her initial complaint in May of 2004, as well as subsequent requests in October and December 2005. Further, the adjudicator noted that when provided with evidence that the applicant was ill due to the unresolved workplace issues, the Manager of Human Resources failed to make the proper enquiries. Finally, the adjudicator held that the City failed in its procedural obligations in the manner in which the applicant’s employment was terminated.

The adjudicator also found that the City and Director of Finance failed in their substantive obligation to accommodate in two separate matters. The first matter relates to the letter requesting the issue be resolved sent in May 2004, and the subsequent response trivializing the complaint. The second matter relates to the termination of her employment based on the results of a union investigation that the adjudicator calls “not particularly insightful”, as opposed to strong medical evidence that received virtually no inquiry. The adjudicator colourfully noted: “To the extent that the respondent employer relied on the union’s conclusions to justify taking steps to terminate the applicant’s employment, it did so at its peril.”

Finally, the adjudicator also found that the Director of Finance and the applicant’s supervisor “condoned harassment” of the applicant by failing to insulate her from the complaints of other employees that were related to her use of the washroom at times other than her formal break times.

Remedies

Under the Ontario Human Rights Code, a person whose rights have been infringed is entitled to monetary compensation for actual losses arising out of the infringement. The purpose of this is to restore the person to the position they would have been in had the discrimination not occurred.
In this matter, the applicant sought a broad range of remedies from the Human Rights Tribunal. Ultimately, she was awarded $20,000 in damages for injury to her feelings, dignity, and self respect, as well as $3,000 for her medical costs. Additionally, the City of Cornwall was told to pay the applicant almost three years, less any other business or employment income she earned in the meantime.

Not surprisingly, the adjudicator ordered the Director of Finance, Manager of Human Resources, and supervisor of the applicant to complete the Ontario Human Rights Commission’s online training module on human rights, and provide a copy of the certificate of completion to the applicant.

Analysis

The decision of the Human Rights Tribunal in this matter highlights two separate procedural obligations for municipal employers: the obligation to accommodate by being procedurally fair to the person requesting accommodation, and the obligation to investigate and provide details of the investigation. Based on the outcome of this case, the Tribunal has made it clear that municipal employers must be proactive in addressing complaints. If employee complaints are not taken seriously and the procedural duty to accommodate is not met, then employers could potentially be forced to pay out hundreds of thousands of dollars.

I) The obligation to accommodate by procedural fairness

One of the precedents referenced by the adjudicator was the Supreme Court of Canada’s decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3. In delivering the judgment of the Court, Justice McLachlin (as she was then) noted that the duty to accommodate has both a substantive and a procedural component, and that to meet the procedural part of the duty to accommodate, an employer must take adequate steps to explore what accommodation is needed, and to assess accommodation options.

In the current matter, the Human Rights Tribunal took the duty to accommodate one step further, establishing that an employer is required to accommodate to the point of undue hardship, and that the person with a duty to accommodate must make a real and bona fide effort to accommodate Code-related needs. However, the burden doesn’t completely fall upon the employer’s shoulders. The person requiring accommodation must also cooperate in the attempt to find suitable accommodation. This can be done by making their needs known and providing all required information to the employer.

Whether an employer is being procedurally fair to the person requesting the accommodation depends on the circumstances. The Human Rights Tribunal did not go into much detail about what, specifically, constitutes procedural fairness in accommodation in these circumstances. One thing the Tribunal did allude to was that the applicant deserved a completed and appropriate response to her request for accommodation. The fact that she didn’t receive one suggests that formally responding to a complaint is the first and most important step in the duty to procedurally accommodate. The Supreme Court of Canada has also offered some guidance, approving the following analysis from Shelagh Day and Gwen Brodsky [“The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433], which gives some guidance:

Accommodation seems to mean that we do not change procedures or services, we simply “accommodate” those who do not quite fit. We make some concessions to those who are “different”, rather than abandoning the idea of “normal” and working for genuine inclusiveness…In short, accommodation is assimilationist. Its goal is to try to make “different” people fit into existing systems.

Based on the above principles, a municipal employer does not have to change its entire organizational structure in order to accommodate. All that is needed is a few simple concessions. In the matter involving the City of Cornwall, the applicant did make her condition known to her supervisors and those above her. With doing as little as granting extra washroom breaks and informing the applicant’s coworkers of the reasons for the accommodation (at the consent of the applicant), the situation could have been avoided. The fact that at one point, the Director of Finance wrote a letter in response to the applicant’s complaint saying “The City has never refused your requests for washroom breaks,” indicates that the City of Cornwall is either ignoring the complaint or simply does not understand what it means to accommodate. Granting washroom breaks is not what’s at issue, rather, it’s the need to accommodate the disability and to take the necessary steps to create an understanding amongst coworkers.

II) The Obligation to Investigate

In terms of the obligation to investigate and to provide details of the investigation, the Human Rights Tribunal noted that where an employee has made a formal request for accommodation to an employer and there has been an investigation leading to a report, it is appropriate and required under the Code’s duty to accommodate to share the results of their investigation with the applicant. In this case, the City of Cornwall shelved its report and did not share any of its details with the applicant.

It was significant issue for the applicant that she was never provided a copy of the Report and heard nothing about the results of the investigation. She testified that had she seen the Report at the time, it might have given her some comfort that her concerns were being taken seriously at the very least. The applicant also took the position that the failure to provide her the Report or implement any of its recommendations was a reprisal, although the adjudicator did not agree. Nonetheless, a consequence of not ever being provided with the Report or any follow up on the investigation, the applicant stated that she didn’t know if her request for appropriate accommodation had been acknowledged by the respondents.

It’s worth noting that the Report came from an investigation that was made in accordance with the City of Cornwall’s Harassment in the Workplace policy. Most municipal employers will likely have a similar policy that contains procedural guidelines for filing a complaint, the investigation process, and what information must be provided.

One of the issues involving the Report was whether it was formal or informal. The City of Cornwall maintained the Report was informal, but this assertion was rejected. This distinguishing feature comes down to whether the investigation is in direct response to the complaint. If it is, then it will likely be characterized as formal, meaning its results must be shared with the complainant.

Interestingly, the City maintained that because there was no specific complaint, it was not required to conduct a formal review pursuant to its policy. However, City officials called upon to testify could not point to any policy document which drew the distinction between a formal versus informal investigation. Further, the Report itself refers to a complaint being made on several occasions. The adjudicator called the position of the City “difficult to understand”. In the end, it was held that the applicant would have no way of knowing that the investigation she participated in was not in response to her complaint and request for accommodation and would have reasonably expected a response to her concerns.

Ultimately, it can be inferred from this decision that where an employee makes a complaint about workplace harassment, a municipal employer should conduct a formal investigation, and the substance of the findings must be shared with the complainant.

The following is a list of the procedural steps that should be taken:

1) Formally acknowledge the complaint in writing;
2) Investigate the matter;
3) Consider all relevant information;
4) Compile a report;
5) Determine what, if any, accommodations must be met;
6) Share the findings of the report with the complainant;
7) Make a real and bona fide effort to accommodate to the point of undue hardship.

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