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HomeMy WebLinkAbout2002-0944.Kerna.05-02-10 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0944 2002-2343 UNION# 2002-0528-0002 [02B576] 2002-0528-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Public Service Employees Umon (Kern a) Union - and - The Crown m Right of Ontano (Ontano Human Rights CommissiOn) Employer BEFORE Felicity D Bnggs Vice-Chair FOR THE UNION Gavm Leeb Barnster and SOliCitor FOR THE EMPLOYER Lucy McSweeney Semor Counsel Meredith Brown, Counsel Management Board Secretanat HEARING January 7 March 14 June 5 July 17 18 & 22,2003 January 20 February 4 March 3 Apnl 21 May 14 2004 CONFERENCE CALL January 5 2005 2 DeCISIon The gnevor Glona Kerna, has been an employee of the Human Rights CommissiOn for 23 years She began as a Clerk 2 and received vanous promotiOns over the years with her most home recent positiOn of InvestigatiOn Officer In early June of 2002, she filed two gnevances One alleged that the Employer demed her request for accommodatiOn m her home positiOn. The second asserted that she was discnmmated agamst as the result of her pnor mvolvement m umon activities At our first day of heanng the Umon raised a prelimmary motiOn regardmg order of proceedmg. It was the Umon's positiOn that the Employer should proceed with itS eVidence first and requested the Board to so order The Employer strongly disagreed with thiS motiOn and urged the Board to deny the Umon's request. In a deCiSiOn issued m March of 2003 I ordered the Employer to proceed first with itS eVidence regardmg the accommodatiOn matter but I expressly provided the Employer with a broad nght of reply The Umon had the onus regardmg the gnevance allegmg anti-umon ammus The gnevance form itself succmctly set out the Umons View of thiS matter It stated, m part management has demed my request for accommodatiOn m my home positiOn. Furthermore, they have failed to provide any JustificatiOn or undue hardshiP attached to my medical needs The form of accommodatiOn imposed does not reflect my digmty and self-respect and self worth as an Investigator who reqUires accommodatiOn due to my medical needs The effect of their behaviOr has margmalized, stigmatized, ignored and devalued my abilities and self worth as an Investigator with the CommissiOn. The second gnevance stated that the accommodatiOn requested was demed by the Employer "because I have been mvolved m proceedmgs to claim and enforce my human nghts under the collective agreement" The matter at hand is a temporary accommodatiOn. From the outset the parties viewed the issue at hand qUite differently It was the Umon's View that the Employer was obliged to accommodate the gnevor m her home positiOn to the pomt of undue hardshiP The Employer's positiOn was that a consideratiOn of undue hardshiP was not reqUired because the Employer was obliged to 3 and did, provide an appropnate accommodatiOn. In other words, the gnevor was not at liberty to simply pick and chose the accommodatiOn most to her likmg. Many of the relevant facts m this matter were not m dispute Ms Kerna began havmg ongomg health problems m Apnl of 1997 I am cogmzant of the very personal nature of her health problems Given that it was common ground between the parties that the gnevor had a bona fide disability it is my mtentiOn to disclose the details of her health issues only to the extent necessary to put this matter mto context. The gnevor was hospitalized m the spnng of 1997 Subsequently she was prescnbed an anti- coagulent that, accordmg to her physician m a letter dated October 28 2001 "causes her menstrual cycles to be extremely heavy and extremely pamful" and also renders her "unable to be at work for two to three days per month" After recovery from her hospitalizatiOn, the gnevor attempted to return to her full workload on a full time basis ThiS effort contmued for some time until, by all accounts, she began to get behmd m her work assignments ThiS was due to her numerous sick days as well as a general mability to perform at an optimal level However before gomg mto further details regardmg the gnevor's health and work performance, it would be useful to set out the work of the CommissiOn. Mr John Donon, Assistant Manager InvestigatiOn Office, Mr Neil Edwards, Director of MediatiOn and InvestigatiOns of the CommissiOn and the gnevor testified m these proceedmgs Each explamed the work of the CommissiOn. I will attempt to bnefly outline that process If someone m the Provmce of Ontano believes that they have been discnmmated agamst contrary to the Human Rights Code they have a nght to file a complamt with the CommissiOn. A complamant's first contact would be with an InqUiry Clerk who would ascertam whether the complamt has ment. The complamant is reqUired to fill out a questiOnnaire and the completed form goes to an Intake Officer who ensures the complamt is on the prescnbed form The Intake Officer perfects the complamt and it is then served and a response is requested. Once that process is complete, the hard copy and an electromc copy of the file are sent to a MediatiOn Officer Often at thiS pomt techmcal or legal challenges are identified. For example, under SectiOn 34 of the Code a respondent can raise issues that might end the matter such as JunsdictiOnal obJectiOns or allegatiOns that the complamt is fnvolous and vexatiOus In the event that a file is not successfully mediated, it is sent to the InvestigatiOn Office where it is reviewed 4 by the Director and then assigned to one of InvestigatiOn Officers (heremafter referred to as ''1. 0 ") In assigmng files consideratiOn is given to age of the file, geography skill and knowledge of the vanous officers and the case profile There are three Assistant Managers mcludmg Mr Donon, each of whom is responsible for approximately eight to ten InvestigatiOn Officers as well as a few support staff Each 1.0 fully explores the facts and issues of the files they are assigned. They may mterview Witnesses, mspect workplaces and request relevant documents Once the mvestigatiOn is complete there is often a consultatiOn with the Legal Branch pnor to wntmg the draft case analySiS There is a template for case analyses that have headmgs such as substance of the complamt, background, eVidence, conciliatiOn and summary eVidence With recommendatiOns The case analySiS is disclosed to the parties and a response is mVited. Once all the facts and submissiOns have been reviewed the 1.0 is to consider any issues that were newly raised or otherwise not dealt With. The 1.0 next prepares the file to go to the Registrar's Officer ThiS preparatiOn of a case package mcludes assembly of a document list, a response of the Intake phase, the case analySiS and submissiOns Once the draft case analySiS is approved the file is sent to the Registrar's Office The CommissiOn would then make a deCiSiOn. It can send the complamt on to the Tnbunal m which case the Legal Services Branch takes carnage of the matter it can decide to not send the matter to the Tnbunal, or the CommissiOn might return the file to the Investigatmg Officer for further mterventiOn. Each 1.0 has hiS or her own office, computer and phone The software on the computers is networked so that each ASSistant Manager can access the progress of files held by vanous Officers all of who are expected to keep their files electromcally up to date ThiS also allows for overall departmental planmng and scheduling. Typically once an 1.0 receives a file a prelimmary tnage is performed. The 1.0 determmes the age of the complamt, the compleXity of the matter and itS potential for resolutiOn. Some complamts are determmed to be pnonty handling which is meant to ensure expeditiOUS treatment. InvestigatiOn Officers are expected to develop work plans ThiS is considered essential for their overall work orgamzatiOn given that each 1.0 might have as many as forty active files 5 to manage m the course of a year The computer software has benchmark steps for the work plans such as when to gather the relevant mformatiOn and the appropnate people to be consulted. I heard detailed eVidence about every step of a complamt through the mvestigatiOn process as well as the duties and responsibilities of the 1. 0 m charge of the file There was no dispute that the work is complex and labour mtensive Some of the duties and related tasks listed m the positiOn descnptiOn for an 1.0 mclude Conducts human nghts mvestigatiOns for mdividual complamt cases, by . Reviewmg case documents as referred by the Human Rights MediatiOn Officer m preparatiOn for the mvestigatiOn . Providmg proJect leadershiP and/or participatmg m a team mvestigatiOn plan, considenng such factors as presence of pattern discnmmatiOn, bona fide occupatiOnal qualificatiOns, accommodatiOn applicatiOn of the Code, policies, procedures, legislatiOn, and the applicatiOn of theory of discnmmatiOn and rules of eVidence . Planmng, coordmatmg and scheduling all reqUirements for conductmg mvestigatiOns . Interviewmg complamants, respondents, lawyers, agency / orgamzatiOn representatives and Witnesses, and exammmg documents to obtam all relevant eVidence . Conductmg phySical demands analysis and functiOnal capacity assessments to determme such factors as essential duties of Job ability to perform, possibilities of accommodatiOn, and undue hardshiP . Sweanng mformatiOn before Justice of the Peace m applicatiOn for a warrant, presentmg warrant to the respondent and seizmg documents and related mformatiOn, as reqUired . Compilmg and evaluatmg testimony records, documents, correspondence and eVidence m preparatiOn for cOnCiliatiOn or Boards of InqUiry meetmgs . Conductmg mvestigatiOn and prepanng analysis with recommendatiOns under sectiOn 34 of the Code . Prepanng a detailed analysis of the case and a proposed strategy and case management plan for the resolutiOn of the issue based on all mvestigatiOn findmgs . Mamtammg accurate and complete records and data base entnes related to assigned cases Other duties mclude . Conducts conciliatiOn meetmgs to resolve complamts and negotiates systemic remedies m settlements where reqUired. . Participates on enforcement teams m the planmng and mvestigatiOn of systemic discnmmatiOn issues m the regiOn or on a provmce-wide baSiS . Participates m representmg the CommissiOn m presentatiOn of cases to the Board of InqUiry and mom tors Boards of InqUiry deCiSiOns . Provides human nghts consultatiOn and adViSOry services . Performs other related duties 6 It was Mr Donon's View that the actual mvestigatiOn of a file typically takes between mne and twelve months Much time is taken up with exchange of correspondence, the scheduling of meetmgs with vanous witnesses and the recordmg of findmgs Of course, it is also possible that a file held by an 1.0 is settled or otherwise withdrawn. ObviOusly either mstance will bnng about closure of the matter This will cause the file to be removed from the 1.0 's case list. As noted earlier it was common ground that this work is sensitive, legalistic and complex. An 1.0 must have considerable knowledge m the area of human nghts, the ability to questiOn witnesses, the ability to wnte comprehensive reports and possess some conciliatiOn skills The positiOn descnptiOn says that the Skills and Knowledge reqUired for the 1.0 are Knowledge of theones and pnnciples of human nghts, dynamiCs of discnmmatiOn, mter- group conflict, preJudice and stereotypmg. Knowledge of current issues and trends m the human nghts field, particularly related to groups protected under the Code Knowledge of pnnciples and issues of systemic discnmmatiOn, and ability to analyze orgamzatiOnal factors to identify systemic discnmmatiOn and to develop proposals for remedial solutiOns Knowledge of CommiSSiOn policies, procedures, legal processes, precedents, standards of proof and Board of InqUiry deCiSiOns to provide expert advisory services to complamants and respondents and to develop mvestigatiOn plan for specific cases Excellent mvestigatiOn skills to conduct detailed mvestigatiOns for mdividual cases and systemic reviews Good knowledge of negotiatiOn techmques and excellent negotiatiOn skills to effect case settlements Ability to functiOn effectively and mdependently m confrontatiOnal and hostile situatiOns Analytical and problem solvmg skills and the ability to synthesize complex mformatiOn m order to assess eVidence and develop sound legal recommendatiOns to the CommissiOn. OrgamzatiOnal skills to manage a high- volume caseload and to effectively determme pnonties Excellent oral and wntten commumcatiOn skills to make public representatiOns, provide consultatiOn services and to prepare detailed analytical reports Ability to work effectively m a team atmosphere Knowledge and skill m the operatiOn of a computer to mamtam records and prepare documentatiOn and reports relatmg to case work. Excellent Judgment, tact, discretiOn and the ability to work m a confidential environment. Dunng the course of her duties an 1.0 might be out of the office to take a View of a locatiOn, mterview Witnesses or secure documents At all times they are responsible for checkmg their VOice mail and their email to rem am current m their work. When m the office each 1.0 attends vanous meetmgs with departmental staff, legal and policy staff, complamants and other relevant Witnesses Mr Donon testified that at some pomt dunng last decade there was a real concern raised by the commumty that complamts at the CommissiOn were not bemg dealt with m a timely fashiOn. A 7 study was conducted and recommendatiOns made to ensure timely handling of complamts A plan was implemented to address these concerns which brought about the development of a standardized procedure with notiOnal time frames ObJectives were set m the Intake department, m MediatiOn and m the InvestigatiOns area. Agam, I heard much eVidence about the implementatiOn of these changes withm the department. It is not necessary to review that eVidence m detail except to say that it was determmed that certam standards would be expected of each 1.0 It was ultimately decided that every 1.0 should handle and close between 36 and 40 files per year Failure to meet that standard would cause an Officer to be put on a performance reView Contmued failure to meet the standard might bnng about discipline The mtroductiOn of thiS quantitative standard was a matter of some dispute between the parties ThiS matter was gneved and a settlement was eventually reached between the parties The gnevor participated m that labour relatiOns dispute In hiS eVidence, Mr Edwards reviewed the evolutiOn of the positiOn that handles SectiOn 34 matters It was explamed that SectiOn 34 issues had been part of the 1.0 role until it became eVident to the CommissiOn that m order to aVOid future problems with JunsdictiOnal rulings it was best to develop a positiOn that focused on mediatiOn and SectiOn 34 matters There is a template on the computer software for SectiOn 34 matters Eventually a case analysis is wntten on each SectiOn 34 file and while the skills needed to do thiS work are the same as those held by 1.0 s, the legal analysis is narrower m scope The process for these files is essentially the same as above It is possible that a SectiOn 34 issue will be raised after the file has been sent to InvestigatiOns In such mstances it might be dealt with by the 1.0 and the SectiOn 34 issue would be addressed pnor to proceedmg with the ments of a complamt. In hiS capacity of ASSistant Manager Mr Donon meets with staff to reView casework, set obJectives, diSCUSS problems and make suggestiOns Pnor to hiS promotiOn, Mr Donon was a co- worker and fnend of the gnevor He began hiS employment with the CommissiOn m 1998 and was promoted to hiS present positiOn m June 2000 Dunng hiS tenure as an 1.0 he and the gnevor became good fnends and socialized both mSide and outside of the office He has been aware of her Circumstances mcludmg vanous health problems smce that time 8 As the gnevor's supervisor Mr Donon began havmg concerns about performance m 2001 He had discussiOns with Mr Edwards and, on June 7 2001 Mr Edwards wrote to the gnevor mformmg her that due to concerns about her "level of productivity dunng the reView penod" she was bemg placed on performance reView until the end of September 2001 Ms Kerna was advised that assistance would be made available to her and that she should keep the Employer appnsed of any other issues/impediments that anse" The letter also stated that should she "fail to close/disclose 20 cases as reqUired, your contmued employment with the CommissiOn will be reviewed and a decisiOn made about your employment status" The gnevor recalled this letter as threatemng. After receipt of thiS letter Ms Kerna filed a gnevance Indeed other gnevances were filed regardmg case closmg numbers mcludmg a policy gnevance as mentiOned earlier The matters were ultimately resolved between the parties after the gnevor testified on her own behalf As the result of that settlement, Mr Edwards wrote to Ms Kerna and told her that she had been removed from performance management for the penod Apnl 1 2001 to March 6 2002 More will be Said about thiS later Mr Donon and Mr Edwards attended with the gnevor at her September 2001mtenm performance reView meetmg. At that time Mr Donon raised the number of cases she was able to close and, more generally her ability to manage her workload. He questiOned whether her health was a contnbutmg factor to her overall performance He mentiOned that the gnevor was seen her m the office early and often remamed late m an effort to cope with her workload. Because he knew of certam health issues that the gnevor was expenencmg, Mr Donon raised the questiOn of whether she was encountenng difficulty with her work as a result of those problems It was the gnevor's eVidence that, dunng thiS meetmg, she told Mr Donon and Mr Edwards that the two days per month at home that she had been previOusly granted was no longer suffiCient because she was not well enough to actually perform her work at home dunng that time The gnevor was asked whether she should request accommodatiOn. By all accounts, the gnevor became very upset when thiS issue was raised. Mr Donon Said that he knew she was proud of her work and would not use her health as an excuse He knew her to be very sensitive He also stated that because of their fnendshiP the meetmg was personally difficult. However the outcome of the meetmg was that the issue of accommodatiOn would be pursued. Shortly after 9 this meetmg Ms Kerna provided a note from her physician explammg her ongomg medical conditiOn and suggested that she be "granted a reductiOn m her workload of 35% to 40% specifically m terms of case closmg standards It was anticipated that there would be some reductiOn m the seventy of her problems over the next year Accordmg to Ms Kerna's eVidence, the first accommodatiOn requested and granted by the Employer began m approximately May of 2001 when she was allowed to work at home for two to three days per month. She had hoped this arrangement would be suffiCient to allow her to carry her full workload. She candidly acknowledged m her testimony that she was reluctant to face reality at that time She stated that the reason for her heSitancy was, m part, because she didn't want to be labelled by her co-workers as one who was not "pulling their own weight" It remams a concern to this day accordmg to the gnevor She Said that over the years certam co- workers took sick leave and, because the cause of their absence was unknown, diSCUSSiOns took place m the office and it was sometimes suggested that the absent co-worker was aVOidmg work. In cross-exammatiOn she conceded that any such comments were mappropnate and probably discnmmatory The irony that such diSCUSSiOns took place at the CommissiOn was not lost on Ms Kerna. When asked, she stated that she was unaware if anyone ever reported such conversatiOns to any management offiCial Mr Edwards wrote to Ms Kerna on November 5 2001 about hiS "concerns that from Apnl to September 2001 you have not demonstrated suffiCient consistency m realizmg your case closmg obJective" He also told her that she was "an expenenced Human Rights Officer and it is your responsibility to manage your casework m order to meet your obJectives" Mr Donon and Mr Edwards discussed the gnevor's request for accommodatiOn both between themselves and with human resource consultants Subsequent to those conversatiOns they were of the View that the mformatiOn provided by Ms Kerna's phySiCian was madequate Accordmgly they sent the gnevor a letter dated December 11 2001 askmg the followmg Is the medical accommodatiOn, with respect to the adJustment m your case closmg obJectives, to be effective from October 28 2001? Did your doctor have access to and rely upon the content of your positiOn descnptiOn of Human Rights Offi cer when developmg hiS recommendati on for the medical accommodatiOn? Does the medical accommodatiOn relate to an ongomg or temporary medical conditiOn? 10 What cntena and/or mformatiOn did your doctor use to determme that you were able to perform 60% of the caseload normally assigned to Human Rights Officers? Does the medical accommodatiOn relate only to a reductiOn m your case closmg obJectives or does it also mvolve a reductiOn m your hours of work? In your doctor's opmiOn, are there other optiOns that could be considered to meet your medical accommodatiOn needs besides a reductiOn m your case closmg standard obJectives? For example, a temporary/permanent regular part-time assignment as a Human Rights Officer or a temporary re-assignment to another positiOn withm the Human Rights CommissiOn or Mimstry? What is the prognosis on the need for a temporary or ongomg medical accommodatiOn, m the form of a reduced case closmg standard, beyond March 31 2002? The gnevor's phySiCian answered the above questiOns on January 3 2002 She reported that she had looked at the positiOn descnptiOn m amvmg at her View as well as discussmg the matter with her patient. She was somewhat vague about prognosis and suggested that another Job would not be of assistance because she would have the same problems irrespective of what work she was domg. In terms of reducmg her hours it was Said that she only needed approximately 2 to 3 days off per month. There was also ongomg discussiOn about the accommodatiOn request. On January 3 2002, Mr Donon wrote an email to the gnevor reviewmg a meetmg they had on that date In his memo he noted that there was discussiOn of alternative accommodatiOns mcludmg, short term sick leave, temporary re-assignment to another positiOn m policy branch, mediatiOn or mtake or regular part time work. By all accounts, Ms Kerna reJ ected these suggestiOns On January 18 2002, the gnevor was told that her request for accommodatiOn was approved retroactive to May 28 2001 and would contmue until March 31 2002 After her request for accommodatiOn was approved, Mr Edwards wrote to the gnevor on January 18 2002 mformmg her that because of the adJustment m her case closmg obJective, she was "considered to have met your adJusted case closmg obJ ective for the penod Apnl to September 2001" He also stated m thiS letter that "should you contmue to reqUire accommodatiOn with respect to your case closmg obJective I will consider other accommodatiOn optiOns other than adJustment to the annual case closmg target" He contmued that, "whatever optiOns are considered, I will do so withm the framework of the CommiSSiOn's Policy on accommodatiOn for persons with disabilities" Mr Donon contmued to momtor the gnevor's performance He testified that he was attemptmg to ascertam whether the accommodatiOn was workmg and how the gnevor was managmg with 11 what he thought was a "very heavy workload" He knew she was workmg very hard and yet she was not able to meet the case standards possibly because of her bemg "bombarded by health issues" He agam discussed other optiOns with her mcludmg takmg time off but the gnevor assured him that the work would be done Mr Donon testified that he had been optimistic that the gnevor would end the fiscal year on March 31 st 2002, on a satisfactory note However there was a public sector stnke that began at the end of February 2002 At this time, the gnevor wrote to Mr Donon mformmg him that she would reqUire an extensiOn to the accommodatiOn because she had not yet been able to have the surgery which would alleviate some of her medical problems She also mformed him of new medical issues that were recently diagnosed. This was confirmed by Ms Kerna's physician m a short note dated March 8 2002 As mentiOned earlier the gnevances filed by Ms Kerna m the spnng and fall of 2001 were ultimately resolved between the parties on March 6 2002 after the gnevor testified on her own behalf dunng the course of the arbitratiOn heanngs As the result of that settlement, Mr Edwards wrote to Ms Kerna and told her that she had been removed from performance management for the penod Apnl1 2001 to March 6 2002 AdditiOnally the settlement stated In the event that the Employer determmes m the October 2002 performance reView of the Gnevor that she has failed to meet her performance standards, the employer and the Gnevor agree to the followmg Discuss alternate forms of accommodatiOn. In the event that the discussiOns m (a) fail to resolve the issue of alternate accommodatiOn for the Employer and the Gnevor agree to discuss thiS issue With Vice Chair Harns In the event that the discussiOns m (b) fail to resolve the issue of alternate accommodatiOn the Employer and the Gnevor agree that they both retam their eXistmg nghts under the Collective Agreement and common law which mclude but are not limited to the Employer's nght to manage and define accommodatiOn plans and the Employee's nght to gneve It was the gnevor's eVidence that she thought that as a result of thiS Memorandum of Agreement her accommodatiOn would be unchanged until, at the earliest, October of 2002 Mr Edwards testified m hiS reply eVidence that he recalled the general notiOn of accommodatiOn was discussed but not the specifics To be clear he stated that he did not understand that the Memorandum of Agreement prevented the Employer from movmg Ms Kerna mto another form of accommodatiOn. Otherwise, he said, alternate forms of accommodatiOn would have been 12 canvassed. Indeed, he specifically spoke with counsel who assisted with the Memorandum of Agreement about whether he was restncted from assigmng Ms Kerna to the positiOn of Intake Officer and he was told there was no such limitatiOn. Both Mr Donon and Mr Edwards specifically demed that the decisiOn to change the gnevor's accommodatiOn was, m any way related to her havmg filed gnevances There was a public sector stnke m March, Apnl and May 2002 After the end of the stnke m early May 2002, the gnevor had not yet heard from the Employer regardmg her request to extend her accommodatiOn arrangements Also at thiS time accordmg to Mr Donon, he had to do the year-end evaluatiOns for all staff At thiS time he realized that the gnevor closed only 16 of the 24 files that were expected of her He conceded m his eVidence that two of her files would close very qUickly so he considered her number of files closed to be eighteen. However he was very concerned about the files that remamed open and he feared that her accommodatiOn was not workmg. When asked why he didn't simply adJust the number of the gnevor's files to be closed downward, Mr Donon explamed that there was a considerable impact to the office when a full time employee carnes only half of the usual workload. It affects the planmng, budget, assignment of work to others and the preparatiOn of the CommissiOn agenda. The number of cases closmg relative to the number opemng will have a negative departmental impact, and the average age of the cases will grow He conceded m cross-exammatiOn that most IOs did not meet their closmg case numbers for the fiscal years 2001/2002 or 2002/2003 Indeed, m a three-year penod only one officer met the standard. However a number of those who fell short were put on performance reView and were followed closely When asked if averages improved smce movmg the gnevor to Intake, Mr Donon said that there were still some problems but as of September of 2003 hiS group had elimmated all cases that were older than two years Mr Edwards testified that when the gnevor's performance was bemg reviewed m the spnng of 2002 there were also problems with her case summanes It appeared that she had an mability to decide when to bnng a file to a close even when she had all of the salient mformatiOn. Further her files were gettmg much older sometimes because she did not appreciate that she was gettmg too much mformatiOn. And even though it has always been conceded that the gnevor has exceptiOnal orgamzatiOnal skill, it appeared as if she simply was not able to do the work. Mr 13 Edwards was also asked if the gnevor was moved mto the positiOn of Intake Officer solely on the baSiS of her case closmg numbers He demed that the case closmg numbers were the only concern. Mr Edwards testified that he became mvolved agam m a substantial way after the stnke ended m May of 2002 Mr Donon had approached him because of the gnevor's request for an extensiOn to the eXistmg accommodatiOn. Accordmg to both Mr Donon and Mr Edwards, there was a senes of diSCUSSiOns regardmg the gnevor's "failed" accommodatiOn and the appropnate way to proceed. These diSCUSSiOns mvolved human resource people, Mr Edward's supervisor other management team members and a semor policy adViSor As a team, they considered a number of alternative pOSitiOns for Ms Kerna mcludmg part time work, the Intake pOSitiOn and an InqUiry pOSitiOn. They also discussed an aSSignment to deal With SectiOn 34 files, a pOSitiOn that the gnevor herself had suggested as an alternative When Mr Edwards consulted the semor policy adViSor he kept the gnevor's name out of the diSCUSSiOn. He asked for and received clanficatiOn as to the Employer's obligatiOns m accommodatiOn matters Accordmg to Mr Edwards, it was made clear to him m that diSCUSSiOn that Ms Kerna could be moved to the Intake officer pOSitiOn as an appropnate accommodatiOn. He was adVised that they could look at alternative ways of accommodatmg the gnevor because there was no issue of accommodatmg to the pomt of undue hardshiP given that they had provided accommodatiOn m her own pOSitiOn With reduced case closmg standards and she failed to meet those lowered standards Indeed, accommodatmg Ms Kerna m her own pOSitiOn was not the most appropnate accommodatiOn. Accordmgly they were m a pOSitiOn to look at the next best optiOns Mr Edwards said that he thought the pOSitiOn of Intake Officer was the most appropnate because she was able and expenenced to do the work and it would respect her digmty withm the department. It was Mr Donon's testimony that it was not hiS recommendatiOn that Ms Kerna be assigned to the pOSitiOn of Intake Officer However he did recommend that the imtial accommodatiOn not contmue After Mr Edwards suggested the pOSitiOn of Intake Officer it was thoroughly discussed and eventually Mr Donon agreed. In cross-exammatiOn Mr Donon acknowledged that he had to take time to reflect before he agreed to Mr Ewards' suggestiOn of assigmng the gnevor to the pOSitiOn of Intake Officer He said that, m hiS View the greatest negative to Mr Ewards's 14 suggestIOn was the gnevor's pnde He knew how proud she was of her work and feared that her dIgmty mIght well be affected by thIS decIsIOn. However he determIned that concern was secondary to hIS conclusIOn that the gnevor's performance In the last year was not sufficIent. Further the Impact on the orgamzatIOn had to be taken Into account. Mr Donon testIfied that he dId have a dIscussIOn wIth Mr Edwards about some of the earlIer alternatIve suggestIOns made to the gnevor However these were not pursued because she reJ ected all of them. There were three meetIngs wIth the gnevor dunng thIS penod. AccordIng to Ms Kerna, at the May 21 2002 meetIng she was told that because she had not been meetIng her case cloSIng numbers and because she was scheduled for vacatIOn In July She further testIfied that It was mentIOned that the accommodatIOn could not be contInued because of her possIble upcomIng surgery ThIS eVIdence was dIsputed by Mr Donon In reply eVIdence He testIfied that he spoke at the meetIng held on May 31 2002 from a prepared text that he drafted pnor to the meetIng. He dId not devIate from hIS wntten text and there was no reference to vacatIOn or ImpendIng surgery In hIS notes It was hIS recall that at a later meetIng held on May 31 2002, In an effort to comfort the gnevor he said that tIme would pass qUIckly for thIS temporary accommodatIOn because she was gOIng on vacatIOn and her surgery would be scheduled soon. Mr Donon also testIfied that he was offended that he was accused of these comments because he had gone to such lengths to be sensItIve to Ms Kerna's needs Ms Kerna testIfied that when she arnved at the meetIng held on May 21 2002, the decIsIOn had already been made to move her to the Intake posItIOn and no alternatIves were offered. She was "shocked" by the announcement because she had thought there would be no problem wIth extendIng her accommodatIOn. She vIewed the movement to Intake Officer as a demotIOn. At some pOInt dunng the course of thIS meetIng she asked to be allowed to process SectIOn 34 files ThIS request was demed and she thought no senous consIderatIOn was ever gIven to thIS suggestIOn. Mr Donon recalled that at thIS meetIng Ms Kerna was told that her accommodatIOn would be changed and that management's VIew was that the best posItIOn for her was Intake Officer By all accounts the gnevor was upset wIth thIS pOSSIbIlIty and artIculated her concerns IncludIng the 15 perceptIOn m the workplace about thIS change Mr Donon dId recall that the gnevor suggested that she be assIgned SectIOn 34 files because she was famIlIar wIth that work. It had been dIscussed and consIdered but It was thought that as she had been unable to close her own files m a tImely fashIOn there was no reason to belIeve that she would be able to close SectIOn 34 files promptly She was also told at thIS meetmg that, as part of thIS temporary accommodatIOn, she would keep her same office same phone number same salary and that she would contmue to attend InvestIgatIOn departmental meetmgs Mr Donon said that he knew that she would be very sensItIve to thIS change and for that reason they had tned to be respectful of her feelIngs and respectful of how the change would look to other staff members He acknowledged that he made an error by takmg her off the InvestIgatmg Officer em all loop but when she complamed of thIS It was corrected ImmedIately The gnevor was gIven a hand delIvered note regardmg the change m her accommodatIOn at a meetmg held on May 23 2001 In that note sIgned by Mr Edwards, she was told Further to our meetmg of May 21 2002, I am wntmg to confirm the CommIssIOn's decIsIOn on your request for further accommodatIOn dunng the penod Apnl 1 2002 to September 30 2002 In our meetmg, I mformed you that the CommIssIOn has decIded to accommodate you m the posItIOn of Intake Officer m the InqUIry and Intake Office The foregomg accommodatIOn wIll commence on June 3 2002 and cover the penod as requested m your doctor's letter of March 8 2002, specIfically untIl September 30 2002 Dunng the penod of your accommodatIOn, there wIll be no change m your salary and you may remam m your eXIstmg office Glona, as mdIcated m our meetmg, I belIeve that the accommodatIOn the CommIssIOn has provIded to you fully responds to your medIcal needs and also to the CommIssIOn's mandate and oblIgatIOn to delIver mvestIgatIOn servIces m a tImely manner I am avaIlable to dISCUSS the CommIssIOn's decISIOn and the answer any questIOns you mIght have I wIsh you the best as you deal wIth your medIcal concerns Mr Edwards and Mr Donon were clear that there was never a suggestIOn that the gnevor was not qualIfied by vIrtue of her qualIficatIOns and expenence to do the work of an 10 In theIr VIew the gnevor was not capable of domg the work because of the nature of her dIsabIlIty As an ImtIal accommodatIOn the gnevor's case closmg figures were reduced. When she was unable to meet even that reduced standard It was determmed that there was no longer an oblIgatIOn to consIder her own posItIOn for the accommodatIOn. Mr Edwards said that once thIS fact became clear he consIdered the Code and the CommISSIOn's polIcy and decIded to look at the "next best optIOns" 16 Mr Edwards said that he also consIdered the posItIOn of InqUIry Officer for the gnevor However thIS was rejected because the person holdIng that posItIOn had to be at theIr desk all of the tIme In order to be avaIlable to take calls from the publIc Further thIS posItIOn was thought to be Inappropnate because part of the gnevor's accommodatIOn was a regular short monthly absence from the workplace I heard eVIdence regardIng the posItIOn of Intake Officer The Intake Officer IS responsIble for opemng a file They receIve a complaInt and then Issue a packet of InformatIOn IncludIng a questIOnnaire Once that InfOrmatIOn IS returned It IS revIewed by the Intake Officer who then assesses whether there IS a bona fide complaInt. The complaInt IS drafted after the Officer has gathered sufficIent InfOrmatIOn. ThIS process does not take a long penod of tIme and easIly allows for a file to be transferred to another Intake Officer If necessary Each officer gets approxImately eleven of these files per week and It was thought that the gnevor would be better able to focus on thIS work. Mr Edwards said that another reason thIS was decIded to be the most appropnate accommodatIOn for the gnevor was because she had done the work In the past and was completely facIle wIth the tasks In the summer of 2001 the gnevor asked for and was refused access from her home to the CommIssIOn's computer system AccordIng to Mr Donon, thIS refusal was because such access was not avaIlable to Toronto staff Staff outsIde the CIty had access wIth segregated telephone lInes NotwIthstandIng thIS eVIdence, Mr Donon conceded that another employee from the Toronto office had specIal arrangements made to allow her computer access from her home However he was of the VIew that such an arrangement would not have helped the gnevor's produCtIVIty because he knew that she was havIng problems concentratIng and gettIng work done at home ThIS was not a VIew that he shared wIth the gnevor or anyone else at the tIme she made the request. In cross-eXamInatIOn Mr Edwards was asked about another I. 0 who was accommodated by way of reduced case cloSIng numbers That accommodatIOn was also approved by Mr Edwards Although hIS recall was not clear Mr Edwards testIfied that the other officer had two penods of accommodatIOn and that officer dId not meet hIS reduced case cloSIng numbers In the first penod but was successful In the second penod. ThIS second 1.0 was also told that If a further extensIOn 17 was requested It mIght not be granted. Mr Edwards testIfied that gIven that the gnevor had not been performIng satIsfactonly In case management It would not be appropnate to contInue her accommodatIOn. He was not Influenced by other accommodatIOn sItuatIOns Each request for accommodatIOn must be consIdered on ItS own ments As mentIOned above, It was also stIpulated by the Employer that there were other 1.0 s who dId not meet theIr case cloSIng targets and the Employer took actIOn In a vanety of ways However accordIng to Mr Donon, only one other InvestIgatIng Officer was removed from theIr posItIOn for faIlure to meet case cloSIng standards wIthout theIr consent. Another had problems and ultImately agreed to move to another posItIOn. Ms RIema KhawJa, Semor PolIcy Analyst, testIfied for the Employer It IS not my IntentIOn to set out her eVIdence In detaIl She testIfied about the meetIng she attended wIth Mr Donon and Mr Edwards to dISCUSS the gnevor's accommodatIOn. She was not told the gnevor's IdentIty at the tIme She was told only that there was an 1.0 who had been accommodated and there remaIned problems wIth the officer's attendance and wIth meetIng already modIfied performance standards Ms KhawJa testIfied that she advIsed that, In her VIew undue hardshIp need not be consIdered In the CIrcumstances of thIS case Indeed, she said that most cases do not turn on undue hardshIp and from what she understood about the facts presented to her undue hardshIp dId not apply If an accommodatIOn has been provIded that meets the needs of the IndIVIdual and they are stIll unable to perform the essentIal dutIes of the Job then the Employer's oblIgatIOn ends wIth respect to that partIcular accommodatIOn. AccordIng to Ms KhawJa, there was then dIscussIOn about what non-performance of essentIal dutIes mIght Include She stated that such a determInatIOn was a factual matter and that It was Incumbent upon the Employer to satIsfy Itself that the essentIal dutIes were not beIng performed even wIth accommodatIOn. There was dIscussIOn about an Employer modIfYIng performance standards to accommodate dIsabled employees and that faIlure to meet those modIfied standards mIght be found to be non- performance of essentIal dutIes SectIOn 17 of the Code stIll reqUIres accommodated employees to perform the essentIal dutIes of the Job and an InabIlIty to do so allows the Employer to move the person from that posItIOn Into alternate work on a temporary or permanent basIs She testIfied that Mr Donon and Mr Edwards IndIcated dunng theIr meetIng that they wanted to ensure that they took all of the appropnate steps under the CommIssIOn's polIcIes regardIng 18 accommodatIOn. She revIewed the polIcIes WIth them a second tIme because "It'S not easy to understand accommodatIOn Issues" She assured them that If a person could not perform In the Job accommodatIOn then alternatIve work could be assIgned. It was said that alternate work usually means "eqUIvalent work" and If no such work eXIsts then "eqUIvalent but less" Ms KhawJa testIfied that she was specIfically asked by Mr Edwards dunng theIr meetIng If It would be acceptable to move the gnevor from 1.0 to Intake Officer If the salary remaIned unchanged. She told Mr Edwards and Mr Donon that that If there were no eqUIvalent pOSItIOn then mOVIng to Intake would be acceptable Ms KhawJa testIfied that usually "undue hardshIp" anses In accommodatIOns that would arguably be too costly for Employers or perhaps create unsafe workIng sItuatIOns Dunng the meetIng WIth Mr Edwards and Mr Donon, there was dIscussIOn regardIng dIgmty concerns and steps that could be taken to ensure protectIOn of dIgmty AgaIn, they addressed the context of thIS workplace IncludIng a reassIgnment from InvestIgatIOn Officer to Intake Officer It was thought that such an aSSIgnment mIght be seen as less dIgmfied. AccordIngly they spoke of steps to be taken that would alleVIate that concern. Among appropnate accommodatIOns, the one that most respects the dIgmty of the dIsabled employee IS the preferred accommodatIOn as long as It IS appropnate In the first Instance In cross-eXamInatIOn Ms KhawJa said she was of the VIew that the Code does not reqUIre an employer to proVIde a dIsabled worker WIth a full tIme Job If they are not dOIng the work of that pOSItIOn. Once an employee has been accommodated they are expected to meet performance standards There has been a recent change In the publIshed polICIes and gUIdelInes of the CommIssIOn. If an employee can no longer perform the essentIal dutIes of theIr pOSItIOn It mIght not constItute undue hardshIp for an employer However there must be a reasonable balance between the work that the employee can perform and the pay for that work. Ms KhawJa specIfically dIrected attentIOn to the polIcy at sectIOn 3 3 1 EssentIal DutIes and The Current Job that states The Code guarantees equal treatment to all persons capable of performIng the essentIal dutIes or reqUIrements of the Job or servIce No one can be Judged Incapable of performIng those dutIes untIl efforts have been made to accommodate the IndIVIdual up to the pOInt of undue hardshIp the first step IS to separate the essentIal from the none- essentIal dutIes of the Job Where possIble, non-essentIal tasks can be reassIgned to another person. The person WIth the dIsabIlIty should then be assessed In terms of hIS or 19 her abIlIty to perform the essentIal dutIes and, on that basIs, accommodatIOn should be consIdered. ConclusIOns about InabIlIty to perform essentIal dutIes should not be reached wIthout actually testIng the abIlIty of the person. It IS not enough for the employer or person to assume that the person cannot perform an essentIal reqUIrement. Rather there must be an obJ ectIve determInatIOn of that fact. The duty to accommodate may reqUIre employers to consIder modIfYIng performance standards or productIVIty targets The term "performance standard" refers broadly to qualItatIve or quantItatIve standards that may be Imposed on some or all aspects of work, whether they are set by the employer or through collectIve bargaInIng. A productIVIty target IS a performance standard that relates specIfically to the output of work expected by the employer Performance standards generally can be dIstIngUIshed from qualIficatIOn standards, whIch are the skIll or attnbutes that one must have to be elIgIble for a partIcular Job The central Issue In determInIng whether or how performance standards should be modIfied IS whether the standards In questIOn are essentIal dutIes or reqUIrements wIthIn the meamng of SectIOn 17 of the Code If the person IS unable to perform the standard, but the standard IS not consIdered an essentIal part of the Job It can be changed or the functIOn removed from the employee altogether and reassIgned. If the standard IS essentIal, the employer IS nevertheless reqUIred to accommodate the employee under sectIOn 17(2) of the Code KeepIng In mInd the overall obJectIve of the InclUSIOn of employees wIth dIsabIlItIes In the workplace sectIOn 17 (1) and (2) of the Code together Include an oblIgatIOn on an employer to accommodate a person. ThIS accommodatIOn may Include an adJustment of that performance standard so long as dOIng so does not result In undue hardshIp If It does amount to undue hardshIp the employer has a defense ThIS does not preclude the employer from enforcIng performance standards that are unrelated to the dIsabIlIty The employer IS entItled to a productIve employee and to develop standards and targets that maXImIze orgamzatIOnal obJectIves Ms KhawJa also dIrected attentIOn to sectIOn 332 of the CommIssIOn's polIcy regardIng AlternatIve Work that states Although accommodatIOn In the pre-dIsabIlIty Job IS always preferable, It may not always be possIble The Issue of whether an employee IS entItled to have access to a Job other than the pre-dIsabIlIty Job IS a matter of some debate NothIng In the Code or In sectIOn 17 specIfically restncts the reqUIrement to accommodate a worker wIth dIsabIlIty to the pre-dIsabIlIty posItIOn. Conversely nothIng In sectIOn 17 expressly authonzes It eIther Nevertheless, In lIght of the broad and purposIve InterpretatIOn that should be afforded to human nghts legIslatIOn, It IS the CommIssIOn's vIew that accommodatIOn In a Job other than the pre-dIsabIlIty Job may be appropnate In some CIrcumstances SectIOn 17 may therefore Include access to alternatIve work. Ms KhawJa also conceded In cross-eXamInatIOn that If non-dIsabled employees dId not meet performance standards It would be more dIfficult for an employer to rely upon a dIsabled employee faIlIng to meet performance standards FInally she agreed that In the event an 20 accommodated employee faIled to meet performance standards for reasons that have nothIng to do wIth the dIsabIlIty It IS outsIde the parameters of the Code Ms Kerna testIfied about her ongOIng abIlIty to do the work of InvestIgatIOn Officer She candIdly acknowledged In cross-eXamInatIOn that the overall affect of her dIsabIlIty was that the momentum of InVestIgatIng her assIgned files was slowed for vanous reasons IncludIng havIng to cancel and re-book IntervIews She conceded that her concentratIOn and abIlIty to perform complex Intellectual tasks have been reduced. In part, she attnbuted thIS to the fact that the ongInal accommodatIOn request was approved too late In the process She was agItated and dIstracted whIle WaitIng for the Employer's response Ms Kerna further conceded that she was workIng as hard and as well as she could dunng the penod of her ImtIal accommodatIOn when she closed only 16 of the 21 files she was expected to close As alleged In her gnevance Ms Kerna testIfied that the assIgnment to Intake Officer has humIlIated her In the workplace She has felt stIgmatIzed and dIscnmInated agaInst because of her dIsabIlIty Dunng the course of the many days of heanng reference was made to vanous sectIOns of the Policy and Guidelines on Disability and The Duty to Accommodate publIshed by the Ontano Human RIghts CommIssIOn, revIsed November 23 2000 Relevant sectIOns of the GUIdelInes not prevIOusly set out are as follows, begInmng at page 18 Most Appropriate Accommodation The duty to accommodate reqUIres that the most appropnate accommodatIOn be determIned and then be undertaken, short of undue hardshIp The most appropnate accommodatIOn IS one that most respects the dIgmty of the IndIVIdual wIth a dIsabIlIty meets IndIVIdual needs, best promotes IntegratIOn and full partIcIpatIOn, and ensures confidentIalIty Whether an accommodatIOn IS "appropnate" IS a determInatIOn completely dIStInCt and separate from whether the accommodatIOn would result In "undue hardshIp" (the test that has to be met under sectIOns 11 and 17(2) of the Code AccommodatIOn wIll be consIdered appropnate If It wIll result In an equal opportumty to attaIn the same level of performance, or to enJ oy the same level of benefits and pnvIleges expenenced by others or If It IS proposed or adopted for the purpose of aChIeVIng equal opportumty and meets the IndIVIdual's dIsabIlIty-related needs If the accommodatIOn meets the IndIVIdual's needs and does so In a way that most respects dIgmty then a determInatIOn can be made as to whether or not thIS "most appropnate" accommodatIOn would result In undue hardshIp 21 At page 20 Alternative Work Although accommodatIOn In the pre-dIsabIlIty Job IS always preferable, It may not always be possIble The Issue of whether an employee IS entItled to have access to a Job other than the pre-dIsabIlIty Job IS a matter of some debate NothIng In the Code or In sectIOn 17 specIfically restncts the reqUIrement to accommodate a worker wIth dIsabIlIty to the pre-dIsabIlIty posItIOn. Conversely nothIng In sectIOn 17 expressly authonzes It eIther Nevertheless, In lIght of the broad and purposIve InterpretatIOn that should be afforded to human nghts legIslatIOn, It IS the CommIssIOn's vIew that accommodatIOn In a Job other then the pre-dIsabIlIty Job may be appropnate In some CIrcumstances SectIOn 17 may therefore Include access to alternatIve work. Some of the folloWIng consIderatIOns may assIst employers In determInIng whether such accommodatIOn IS avaIlable under sectIOn 17(2) The folloWIng questIOns should be consIdered Is alternatIve work possible and avaIlable, at present or In the near future? If It IS not avaIlable can a new posItIOn be created wIthout causIng undue hardshIp? Does It reqUIre addItIOnal traInIng and does the traInIng Impose undue hardshIp? Do the tasks performed match the Job descnptIOn, or IS there flexIbIlIty In the workplace wIth regard to an employee's responsibIlItIes? Does the alternatIve work polIcy contravene a collectIve agreement? What are the terms of the collectIve agreement or IndIVIdual contract of employment? What are the best practIces of the workplace? How Interchangeable are workers? Do employees frequently change posItIOns eIther permanently or temporanly for reasons other than dIsabIlIty accommodatIOn? DependIng on how the prevIOUS questIOns are answered, accommodatIOn may therefore Include Job restructunng, reassIgnment to open posItIOns, retraInIng for alternatIve posItIOns or Job bundlIng If that would not constItute undue hardshIp for the employer ThIS wIll depend on the CIrcumstances of the employment and the labour envIronment at a gIven workplace In the final analysIs, the employee must be able to perform a useful and productIve Job for the employer Temporary Alternative Work The term "alternatIve work" means dIfferent work or work that does not necessanly Involve SImIlar skIlls, responsIbIlItIes, and compensatIOn. Temporary alternatIve work may be an appropnate accommodatIOn eIther In a return to work context or In a sItuatIOn where a dIsabIlIty renders an employee temporanly unable to accomplIsh the pre- dIsabIlIty Job Temporary alternatIve work can be an appropnate accommodatIOn to aSSIst an IndIVIdual where the nature of the dIsabIlIty and ItS lImItatIOns are temporary or epIsodIC 22 Duties and Responsibilities in the Accommodation Process The accommodatIOn process IS a shared responsIbIlIty Everyone Involved should cooperatIvely engage In the process, share InformatIOn, and avaIl themselves of potentIal accommodatIOn solutIOns The person wIth a dIsabIlIty IS reqUIred to AdvIse the accommodatIOn provIder of the dIsabIlIty (although the accommodatIOn provIder does not generally have the nght to know what the dIsabIlIty IS) Make her or hIS needs known to the best of hIS or her abIlIty preferably In wntIng, In order that the person responsIble for accommodatIOn may make the requested accommodatIOn, Answer questIOns or provIde InfOrmatIOn regardIng relevant restnctIOns or lImItatIOns, IncludIng InformatIOn from health care professIOnals, where appropnate, and as needed, PartIcIpate In dIscussIOns regardIng possIble accommodatIOn solutIOns Co-operate wIth any experts who assIstance IS reqUIred to manage the accommodatIOn process or when InformatIOn IS reqUIred that IS unavaIlable to the person wIth a dIsabIlIty Meet agreed upon performance and Job standards once accommodatIOn IS provIded, Work wIth the accommodatIOn provIder on an ongoIng basIs to manage the accommodatIOn process and DISCUSS hIS or her dIsabIlIty only wIth persons who need to know ThIS may Include the supervIsor a umon representatIve or human nghts staff The employer IS reqUIred to Accept the employee's request for accommodatIOn In good faith, unless there are legItImate reasons for actIng otherwIse ObtaIn expert OpInIOn or advIce where needed, Take an actIve role In ensunng that alternatIve approaches and possIble accommodatIOn solutIOns are InvestIgated, and canvass vanous forms of possIble accommodatIOn and alternatIve solutIOns, as part of the duty to accommodate Keep a record of the accommodatIOn request and actIOn taken, MaIntaIn confidentIalIty LImIt requests for InfOrmatIOn to those reasonably related to the nature of the lImItatIOn or restnctIOn so as to be able to respond to the accommodatIOn request; Grant accommodatIOn requests In a tImely manner to the pOInt of undue hardshIp even when the request for accommodatIOn does not use any specIfic formal language and Bear the cost of any reqUIred medIcal InfOrmatIOn or documentatIOn. For example, doctors' notes and letters settIng out accommodatIOn needs, should be paid for by the employer 23 SectIOn 17 of the Ontario Human Rights Code states Handicap 17 (1) A nght of a person under thIS Act IS not Infnnged for the reason only that the person In Incapable of performIng or fulfillIng the essentIal dutIes or reqUIrements attendIng the exerCIse of the nght because of handIcap R S 0 1990 c.H.19 s 17(1) Accommodation (2) The commISSIOn, the board of InqUIry or a court shall not 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, consIdenng the cost, outsIde sources fundIng, If any and health and safety reqUIrements, If any R.S 0 1990 c H.19 s 17(2) 1994 c 27 s 65(2) Idem (3) The CommIssIOn, the board of InqUIry or a court shall consIder any standards prescnbed by the regulatIOns for asseSSIng what IS undue hardshIp RS 0 1990 c H.19 s 17(3) 1994 c 27 s 65 (2) Powers of CommIssIOn (4) Where, after the InVestIgatIOn of a complaInt, the CommIssIOn determInes that the eVIdence does not warrant the subJect-matter of a complaInt beIng referred to the board of InqUIry because of the applIcatIOn of subsectIOn (1) the CommIssIOn may nevertheless use ItS best endeavours to effect a settlement as to the dutIes or reqUIrements R.S 0 1990 c H.19 s 17 (4) 1994 c 27 s 65 (3) EMPLOYER SUBMISSIONS It has been the Employer's posItIOn from the outset that thIS Board need not consIder the Issue of undue hardshIp In these CIrcumstances because the Employer never raised thIS argument In ItS defense The real Issue for thIS Board to determIne IS whether the accommodatIOn of temporanly assIgmng Ms Kerna to Intake Officer was appropnate The undue hardshIp analysIs IS not applIcable In the Instant matter because there IS nothIng the Employer could have done to allevIate the gnevor's InabIlIty to perform the essentIal dutIes of an 1.0 For example the Umon asserted that she should have been allowed access to the Employer's computer from her home However In the Employer's VIew that factor IS not relevant because It was apparent that she was at work most of the tIme and whIle she was there she was makIng every effort to do her assIgned tasks ThIS was Just one Instance that revealed Ms Kerna was sImply unable to successfully complete the reduced case cloSIng standards and there was nothIng that the Employer could have done to assIst In that regard. Ms McSweeney for the Employer asserted that thIS area of the law IS evolvIng and complex. However It IS clear that the Employer has the nght to manage the workforce so long as It does 24 not do so In a dISCnmInatory fashIOn. A careful eXamInatIOn of the eVIdence In thIS matter wIll reveal that the Employer has met ItS oblIgatIOns under Human RIghts Code to accommodate the gnevor The Umon's contentIOn that the Employer had to contInue to allow the gnevor to remaIn In her home posItIOn WIth a sIgmficantly reduced case cloSIng standard, In spIte of her contInued poor productIVIty IS, sImply put, wrong. The Employer contended that It would be useful to consIder the extent of ItS efforts made to accommodate the gnevor She was allowed her to stay home for two or three days per month. The Employer accepted a request for a forty percent reductIOn In her performance expectatIOn and made efforts to assIst her In that regard. Indeed, It IS Important to recall that It was the Employer who encouraged the gnevor to request an accommodatIOn In the first Instance Mr Donon worked wIth Ms Kerna to assIst In her case cloSIngs but after months of the temporary accommodatIOn It became eVIdent that even the reduced standard would not be met notwIthstandIng the gnevor's best efforts In the face of the faIled accommodatIOn the Employer was left to consIder other alternatIves Those vanous alternatIves were offered to the gnevor but she reJ ected all suggestIOns MeetIngs were held wIth the gnevor and, accordIng to the uncontradIcted eVIdence of Mr Donon and Mr Edwards, her suggestIOns were consIdered and reJected for legItImate operatIOnal reasons After dIscussIOns wIth human resource consultants and counsel from the PolIcy Branch, the Employer determIned a new accommodatIOn was appropnate That new temporary accommodatIOn was then put Into place In a manner that most respected the feelIngs and dIgmty of the gnevor Ms McSweeney submItted that the accommodatIOn the Employer Imposed complIes wIth the Code's oblIgatIOns The gnevor was assIgned to a posItIOn WIthIn her department that she could perform Her salary was red-cIrcled despIte the ten thousand dollar dIfference between the classIficatIOns She was allowed to keep the same office the same phone number attend departmental meetIngs and although ImtIally taken off In error allowed to contInue to be Included In the 1.0 emaIl lIst. There can be no doubt that the Employer put ItS mInd to ensunng the gnevor maIntaIned her dIgmty wIthIn the workplace The eVIdence does not substantIate the allegatIOns that the gnevor was margInalIzed, stIgmatIzed or devalued. There was no eVIdence that anyone attempted to humIlIate the gnevor or that anyone else In the workplace had such a perceptIOn. WhIle Ms Kerna testIfied that she was concerned about peer censure due to her ongOIng health Issues the Employer was not appnsed of that worry It cannot be found that the 25 Employer contnbuted to anythIng that would cause the gnevor to feel devalued. Further gIven the nature of the allegatIOns In thIS matter It IS most appropnate that the Board take Into account what steps the Employer took In ItS temporary accommodatIOn such as keepIng pay whole and maIntaInIng IdentIcal workIng condItIons The Employer relIed upon Re Bonnetti v Escada Canada Inc. (1995) 25 C.H.R.R. D/148 (B C Cons H.R.) Re Byers Transport Ltd. V Teamsters Local Union 213 (Pollock) [2002] C.L AD No 237 (McPhIllIps) Re Turnanich v Saskatchewan (Dept. of Municipal Government) (2000) 37 C.H.R.R. D/209 (Sask. Bd. Inq) Re Law v Canada (Minister of Employment and Immigration), [1999] 1 S C.R. 497 (S C C ) Re Bonner v Ontario (Ministry of Health) (February 3 1992) 16 C.H.R.R. D/485 (Ont. Bd. OfInqUIry), Re Calgary Herald and Calgary Printing Trades Union, Local 1 (1995) 52 LAC (4th) 393 (Tettensor) Re Fenwick Automotive v United Steelworkers of America (Wrobel), [1999] O.L AA No 702 (KIrkwood) Re GUIbord v Canada (T.D) [1997] 2 F C 17 (F C T.D) Re OECTA and OPEIU (Beharry) (1996) 61 LAC (4th) 109 (Burkett) Re Ministry of Public Safety and Security and OPSEU (Alcock) (July 25 2002) GSB #1998-1368 (Petryshen) Re Ministry of Health & Bardham (May 31 2000) PSGB# P/0061/93 (Willes) Re Ministry of Correctional Services & OPSEU (Cameron) (July 26 1982) GSB#105/82 (Venty) Re Orillia Soldiers Memorial Hospital & ONA (1999), 169 D.L.R. (4th) 489 (Ont. C A) Re Poulin v Quintette Operating Corp. [2000] B C G.R.T.D No 48 (B C.H.R.T) and Re Stelco Incl - Hilton Works v United Steelworkers of America, Local 1005 (Ratytray), [2001] O.L.AA No 543 (Carner) I was also gIven two artIcles wntten by Michael Lynk. The first was Accommodating Disabilities in the Canadian Workplace CanadIan Labour and Employment Law Journal. (1999) 7 CLELJ 1-448 I also receIved Disability and the Duty to Accommodate An Arbitrator s Perspective Labour ArbItratIOn Yearbook 2001-2002, eds K. WhItaker et al (T oronto Lancaster House 2003) The Employer asserted that although much of the Junsprudence consIders the appropnateness of employment termInatIOn as a response to dIsabIlIty there are certaIn proposItIOns that are generally accepted. One such findIng was In Re Orillia Soldiers Memorial (supra) whereIn It was Said that to allow a dIsabled employee to do only half of the work of the posItIOn but be compensated fully IS "nothIng more than reverse stereotypIng" It was stated In the same decIsIOn that an employer "IS not reqUIred to abandon the standard (assumIng It to be a bona fide 26 occupatIOnal qualIficatIOn) and pay the dIsabled employees accordIng to some dIfferent standard." In the Instant matter the Employer ImtIally agreed to the gnevor's request to fulfill only 60% of the case cloSIng standard. Therefore, when she faIled to meet even that reduced standard It was neIther dISCnmInatory nor a contraventIOn of the Code when Mr Donon and Mr Edwards, after consultatIOn, determIned that a temporary reassIgnment to the posItIOn of Intake Officer was appropnate UNION SUBMISSIONS Mr Leeb for the Umon, agreed that If I find that the gnevor faIled to perform the essentIal dutIes of the posItIOn of InvestIgatIOns Officer the gnevance should be dIsmIssed. However the eVIdence revealed that the gnevor was able to and dId perform the essentIal dutIes of the posItIOn. There are three Important consIderatIOns In that regard. FIrst, the onus was upon the Employer to establIsh that cloSIng a certaIn number of files IS an essentIal part of the InvestIgatIOn Officer role second, the Employer had to prove that there IS some "magIcal" number of closed files that constItutes an essentIal duty and thIrd, In order for thIS Board to find that a duty IS essentIal the Employer must prove that It can't be done to the pOInt of undue hardshI p ThIS thIrd conSIderatIOn IS Integral to thIS dIspute and once the eVIdence IS contemplated In total, the Employer's posItIOn cannot be sustaIned. TurnIng first to thIS thIrd conSIderatIOn a reVIew of Mr Donon and Mr Edward's eVIdence reveals that they thought the gnevor was not cloSIng sufficIent files because she was not wntIng conCIse analyses and because of her InabIlIty to pare down a file to the salIent facts However they conceded that she had mamfested these problems SInce 1999 long before the onset of her dIsabIlIty As the result of an agreement between the partIes folloWIng a gnevance In whIch Ms Kerna played an actIve role, the case cloSIng standard became 36 to 40 closed files per year The gnevor had been havIng some dIfficulty meetIng that standard by all accounts pnor to her dIsabIlIty In the Umon's VIew It IS clear that the Employer seIzed upon her accommodatIOn request as a means of mOVIng her from the pOSItIOn of I. 0 because It felt she was, generally not able to meet the standard, not because of her dIsabIlIty It IS because of thIS Improper motIvatIOn that every effort was made to make the reaSSIgnment seamless by way of retaInIng the same salary same office and other SImIlar workIng condItIOns 27 The Umon noted that the purpose of the human nghts legIslatIOn IS to oblIge Employers to consIder the Inherent capabIlItIes of a dIsabled employee and compare those to the work at hand. Only when those do not alIgn IS the Employer allowed to Impose a dIfferent or dIsadvantageous posItIOn upon the dIsabled worker In the undertakIng of thIS exerCIse the Employer must also take Into account the dIgmty of the IndIVIdual It IS to noteworthy that the Employer neIther asserted nor proved that there would be undue hardshIp In allowIng the gnevor to contInue to work as an 1.0 wIth a case cloSIng standard of 21 files The eVIdence revealed that she closed mneteen files The Employer's argument from the outset has been that It IS entItled to determIne the "appropnate" accommodatIOn. ThIS IS, In the Umon's VIew sImply wrong. Indeed, In order for thIS Employer to prove that cloSIng 21 to 24 files was an "essentIal duty" In accordance wIth SectIOn 17 It had to prove that accommodatIng the gnevor's abIlIty to only close 19 files was "undue hardshIp" The Employer dId not make such a claim and therefore thIS gnevance should be upheld on thIS basIs alone Further the case law has establIshed that It IS not suffiCIent for an Employer to "form an ImpressIOn" that an employee cannot perform the essentIal tasks of her posItIOn. It has to ascertaIn abIlIty In some obJectIve fashIOn. Indeed, the Policy and Guidelines on Disability and the Duty to Accommodate publIshed by the Employer makes thIS every pOInt at SectIOn 3 3 1 - EssentIal DutIes and the Current Job If a reductIOn In the performance standard has undue hardshIp for the Employer then It has a defense However In thIS matter the Employer asserted that It need not establIsh undue hardshIp and It called no eVIdence In thIS regard. The Umon relIed upon Re British Columbia Government and Service Employees Union v Public Service Employee Relations Commission, British Columbia Human Rights Commission et ai, Interveners (1999) 176 D.L.R. (4th) 1 (S C C) Re Myrna Marzano v Nathar Ltd. and Nathan Langburt (1992), 18 C.H.R.R D/248 (O.H.R.C) Re Cindy Cameron v Nel-Gor Castle Nursing Home and Marlene Nelson (1984), 5 C.H.R.R. D/2170 (Ontano Board of InqUIry) Re Nancy Willis v David Anthony Phillips Properties, David Anthony Phillips and Patricia Phillips (1987), 8 C.H.R.R. D/3847 (Ont. Board ofInqUIry) Re Board of Governors of Riverdale Hospital and Canadian Union of Public Employees, Local 79 (1994), 41 LAC (4th) 24 (Knopf) Re Shelter Corp. v Ontario Human Rights Commission (2001) 39 C.H.R.R. D/lll (Ont. Sup Ct.) Re Entrop v Imperial Oil Ltd. 28 (2000), 50 P.R. (3d) 18 (Court of Appeal of Ontano) Re Quesnel v London Educational Health Centre 28 C.H.R.R. D/ 474 (Ont Board ofInqUIry) In Re Riverdale (supra) ArbItrator Knopf determIned that an Employer's faIlure to consIder alternatIves wIll bnng about a findIng that It faIled to satIsfy ItS onus of proVIng undue hardshIp The Umon contended that, In the Instant matter the Employer only put forward the optIOns of sIck leave, part tIme work or other work. Those efforts were InSUffiCIent to satIsfy theIr onus Mr Leeb asserted that It IS eVIdent from the Junsprudence that the questIOn for thIS Board to determIne IS whether SIxty percent of the case cloSIng standard, that IS, cloSIng 21 cases, IS an "essentIal duty" of the posItIOn of InvestIgatIOn Officer The answer must be In the negatIve gIven the eVIdence ofMr Donon and Mr Edwards that very few of the able bodIed InvestIgatIOn Officers met the case cloSIng standard at the salIent tIme It IS InterestIng that only two employees were moved for faIlure to meet the standard and both of those InvestIgatIOn Officers were dIsabled employees Put another way It IS clear that the only employees that the Employer has chosen to enforce the standards upon were dIsabled employees Of the 121.0 s who were In attendance for one full year mne dId not close the mImmum 36 files No dIsCIplInary actIOn was taken agaInst these employees Moreover In the Yearly Case CloSIng Standards for InvestIgators and MedIators report dated June of 2001 authored In part by Mr Edwards, It was stated that In 1998/99 only one person met the standard of 45 cloSIngs In 1999/2000 seven InvestIgators closed more than 36 files whIle mne officers closed between 26 and 36 files SIX closed between 15 and 20 whIle three "produced lower numbers" Indeed, the report acknowledged that "cloSIng 36-40 cases annually for some InVestIgators wIll contInue to be very challengIng" FInally on thIS pOInt, the Umon thought It hIghly sIgmficant that there IS no reference to any case cloSIng standard In the 1.0 posItIOn descnptIOn. The Umon does not completely reJect the Employer's argument regardIng the "most appropnate accommodatIOn" However a conSI deratIon of what constItutes the most appropnate accommodatIOn must Incorporate an analYSIS of undue hardshIp The Umon took exceptIOn to the Employer's assertIOn that the gnevor was not moved Into the Intake Officer posItIOn untIl an exhaustIve consultatIOn was undertaken. The eVIdence does not lead to that conclUSIOn. Indeed, Mr Donon had made up hIS mInd to move the gnevor and he 29 went lookIng for JustIficatIOn to do so Further It was submItted that the maIntenance of the gnevor's salary was an ObVIOUS effort to entIce Ms Kerna to accept the move and not file a gnevance The Umon asked that damages be awarded even If thIS Board finds that the Employer acted In good faith because, sImply put, It "got It wrong" and whether the breach of the Code was Intended or not, It must be properly redressed. RegardIng the second gnevance the Umon submItted that the onus IS properly placed on the Employer to prove that It dId not dISCnmInate agaInst the gnevor because of her Umon actIvIty The Minutes of Settlement dated March 6 2002 stated that the partIes would dISCUSS alternate accommodatIOn and yet the eVIdence was clear that no such dIscuSSIOn took place In the dIscuSSIOns that took place WIth the polIcy branch adVISors, Mr Edwards dId not mentIOn thIS Memorandum There was no satIsfactory ratIOnale put forward by the Employer as to what changed In the workplace that caused the change In the gnevor's accommodatIOn. That lack of eVIdence must lead thIS Board to find that the gnevor was beIng dIscnmInated agaInst for her partIcIpatIOn In vanous Umon actIvItIes IncludIng the legal stnke commenCIng In March of 2002 In thIS regard the Umon relIed upon Re Inglis Ltd. And United Steelworkers, Local 4487 (1978), 17 L AC (2d) 380 (Beck) FInally the Umon dIstIngUIshed Re The Crown in Right of Ontario (Ministry of Community, Family and Children's Services) and OPSEU (Balog) (Apnl 21 2004) unreported (GSB#1998-72) from the facts In the Instant matter because In that case there was no dIspute between the partIes that the gnevor could not perform the essentIal dutIes of hIS own pOSItIOn The questIOn before that Board was what accommodatIOn was appropnate for the gnevor gIven hIS chromc and permanent condItIOn. Further the Instant gnevance consIders a temporary accommodatIOn whIle Mr Balog reqUIred a permanent health reassIgnment. EMPLOYER REPLY In reply the Employer first addressed the Re Balog (supra) deCISIOn of Vice Chair Abramsky Ms McSweeney suggested that there IS now a lower standard of reVIew reqUIred for the OPS that IS, reasonable accommodatIOn UnlIke the facts In Re Balog, In the Instant matter there was nothIng that the Employer could have done to aSSIst the gnevor to perform her own pOSItIOn or to 30 Increase her productIVIty The Employer dId accommodate the gnevor Into the InvestIgatIOn Officer posItIOn for a penod thereby gIVIng her a bona fide opportumty to be successfully accommodated Into her own posItIOn. She sImply could not meet even the reduced standards Once faced wIth a demonstrated Incompetence to do her own work despIte her best efforts, the Employer then took a respectful and responsIble approach to the sItuatIOn and temporanly assIgned Ms Kerna to the posItIOn of Intake Officer Indeed, It IS more respectful to assIgn an employee to a task they can successfully perform rather than to leave them In a posItIOn where they fall The Employer replIed that Re Meorin can be dIstIngUIshed on the facts In that case the claimant had a proven abIlIty to do the work of her Job she merely faIled an aerobIcs test Imposed by the Employer The aerobIcs test was not related to the safe performance of the work In the court's VIew However It was Said that efficIency and employee functIOn IS a relevant and appropnate standard. ThIS Board should so find. The Employer contended that there IS no oblIgatIOn on an Employer to accommodate an employee In a posItIOn whereIn theIr output IS less than fifty percent of the normal standard. Further the eVIdence of Mr Edwards was clear that he put hIS mInd to what posItIOn was most appropnate gIven the gnevor's health needs It was decIded to move Ms Kerna to Intake because that posItIOn has more fimte tasks, IS more streamlIned, less complex and can be transferred to others If necessary All of these factors made the chOIce of Intake Officer the most appropnate In respondIng to the second gnevance, the Employer urged the Board to recall that the gnevor was told from the outset that her accommodatIOn In the posItIOn of InvestIgator mIght be altered In the future There sImply was no eVIdence that the Employer took retalIatory actIOn upon Ms Kerna for eIther partICIpatIng In the lItIgatIOn of her own gnevances or other Umon polIcy gnevances Indeed, the eVIdence IS to the contrary Mr Edwards consulted wIth appropnate people and made hIS decIsIOn In good faith. FInally regardIng damages It was submItted by the Employer that, even If the Board were to find for the gnevor she has suffered no losses Her salary has remaIned unchanged and there have 31 been no out of pocket losses Further no damages should be awarded because the eVIdence was very clear that the Employer made every effort to comply wIth the Code DECISION As mentIOned prevIOusly the partIes have from the commencement of these proceedIngs, held very dIsparate VIews as to the preCIse Issue for thIS Board to decIde The Umon has asserted that because there IS no dIspute that the gnevor IS dIsabled the onus IS on the Employer to prove that the Ms Kerna faIled to perform the essentIal dutIes of her posItIOn to the pOInt of undue hardshIp Its faIlure to do so must lead to a findIng for the gnevor In contrast, the Employer has taken the posItIOn that no consIderatIOn need be gIven to the matter of undue hardshIp It contended that gIven the gnevor's InCapacIty to do the work of her own posItIOn, the matter for thIS Board to determIne IS whether the gnevor's temporary assIgnment to the posItIOn of Intake Officer was an appropnate accommodatIOn After much consIderatIOn, I am of the VIew that the gnevances must fall However In dOIng so I must expressly dIsagree wIth the Employer's assertIOn that I can determIne thIS matter wIthout consIderatIOn of undue hardshIp In my VIew any determInatIOn of whether the gnevor's temporary assIgnment to the posItIOn of Intake officer was appropnate must Include a consIderatIOn of whether the gnevor could perform the essentIal dutIes of her own posItIOn to the pOInt of undue hardshIp Indeed, the CommIsSIOn's own polIcy of "Most Appropnate AccommodatIOn" states that "the most appropnate accommodatIOn be determIned and then be undertaken, short of undue hardship" (emphasIs mIne) The Employer noted that the polIcy states that "whether an accommodatIOn IS 'appropnate' IS a determInatIOn completely dIStInCt and separate from whether the accommodatIOn would result In 'undue hardshIp'" I accept that the determInatIOn as to whether an accommodatIOn IS "appropnate" IS a separate exercIse from decIdIng whether there IS "undue hardshIp" However that IS not to say that a determInatIOn as to what constItutes an "appropnate accommodatIOn" can always be made In the absence of any consIderatIOn regardIng "undue hardshIp" In a senes of cases that Involved an employer's oblIgatIOn to accommodate an employee's relIgIOus needs It has been determIned that offenng changes In the work schedule was an appropnate or "most reasonable" accommodatIOn. In those decIsIOns It was specIfically stated that there was no need for the employer to consIder whether for example, provIdIng a paid leave 32 of absence for the employee's relIgIOus holIdays would result In undue economIC or other hardshIp However those cases can be dIstIngUIshed from the matter at hand. In the Instant case the Employer has determIned that the gnevor was unable to perform the dutIes and responsIbIlItIes of her posItIOn, and for those reasons temporanly re-assIgned her to an alternatIve posItIOn. In my VIew that determInatIOn was qUIte dIfferent from an Employer merely changIng a work schedule to provIde specIfic days off In cases sImIlar to the Instant matter employers cannot merely assert that employees are Incapable of or unable to perform the work of theIr posItIOn to JustIfy a umlateral assIgnment of work In accommodatIOn cases ThIS IS true even when such an assertIOn IS made In good faith. There must be some reasonable and obJectIve measure of whether an employee IS, In the Employer's words, "able to perform the work" OtherwIse employers would enJoy far more unqualIfied dIscretIOn In determInIng "appropnate" accommodatIOns than adJudIcators have granted to date Fortunately there IS such a measure The IndIVIdual must be unable to perform the essentIal dutIes of hIS or her pOSItIOn to the pOInt of undue hardshIp At some pOInt dunng the ImtIaI accommodatIOn penod Mr Edwards and Mr Donon determIned that It was Inappropnate to contInue to accommodate the gnevor In her home pOSItIOn WIth a reduced case cloSIng standard. In other words, that deCISIOn was made because there was an assessment that the gnevor was unable to perform the essentIal dutIes of her own pOSItIOn. In theIr testImony Mr Donon and Mr Edwards IdentIfied vanous defiCIts In the gnevor's work performance such as her InabIlIty to close even fifty percent of the standard number of files, problems WIth the wntIng of case analyses, dIfficulty In gathenng too much InfOrmatIOn and trouble WIth the schedulIng and re-schedulIng of clIent and wItness meetIngs because of the gnevor's fatIgue and necessary absences due to her health. Dunng the management dIscuSSIOns and consultatIOns It was IdentIfied that the gnevor was suffenng from fatIgue, InabIlIty to concentrate and that despIte her sIgmficant and genUIne efforts, her work was fallIng far behInd leavIng an IdentIfiable Impact on the entIre InvestIgatIOn Department. AccordIngly for all those reasons I must find that the gnevor faIled to perform the essentIal dutIes of the 1.0 pOSItIOn, to the pOInt of undue hardshIp I cannot find thIS employer was oblIged to accommodate the gnevor In her own pOSItIOn when less than fifty percent of expected prodUCtIVIty was achIeved. My findIngs mIght well be dIfferent If the Employer dId not first accommodate the gnevor In her own pOSItIOn WIth a reduced case cloSIng standard. Indeed, It was through thIS ImtIal 33 accommodatIOn that the Employer had the opportumty of aSseSSIng the gnevor's abIlItIes The facts adduced regardIng that accommodatIOn penod were sufficIent for my determInatIOn that Ms Kerna could not perform the essentIal dutIes of her posItIOn to the pOInt of undue hardshIp It has long been establIshed that employers cannot merely assert an ImpressIOmstIc VIew that an employee IS unable to perform the essentIal dutIes of her posItIOn I am of the VIew that In thIS Instance the Employer dId much more than merely gather an ImpreSSIOn of the gnevor's abIlItIes In arnvIng at my decIsIOn that a consIderatIOn of undue hardshIp must be undertaken In asseSSIng appropnate accommodatIOn In thIS Instance I am cogmzant that I am dIsagreeIng wIth representatIves of the Ontano Human RIghts CommIssIOn and Ms KhawJa of the CommISSIOn's polIcy branch. With respect, I was unable to reconcIle Ms KhawJa's statement In her eVIdence- In-chIef that an appropnate accommodatIOn mIght not need an assessment of undue hardshIp wIth her comments In cross-eXamInatIOn and the CommIsSIOn's PolIcIes and GUIdelInes NeIther In thIS fact sItuatIOn could I reconcIle that concept wIth the consIderable Junsprudence I dIsagree that the Employer could, as a first step and wIthout any conSIderatIOn of undue hardshIp determIne the appropnate accommodatIOn for the gnevor In these CIrcumstances However I do agree wIth the Employer In ItS contentIOn that the gnevor cannot sImply determIne whIch accommodatIOn IS most to her lIkIng. As stated by Umon counsel, there can be no doubt that the Junsprudence on the matter of accommodatIOn IS complex and evolvIng. It IS tnte but true to note that In accommodatIOn cases decIsIOns are dnven by the speCIfic facts CertaInly the facts In the matter at hand are umque The Junsprudence has establIshed that employers are reqUIred to undertake a four-step process wIth respect to accommodatIOn efforts FIrst, It IS to determIne whether the dIsabled employee can perform her Job as It eXIsts If that IS not pOSSIble then the Employer IS to assess whether the employee's eXIstIng Job can be modIfied In such as way so as to be sUItable If that IS stIll not achIevable the Employer IS to then determIne whether another Job wIthIn the workplace IS sUItable FInally If the dIsabled employee cannot perform the essentIal dutIes and responsIbIlItIes of a dIfferent eXIstIng posItIOn, can that dIfferent Job be modIfied? In each of these steps the Employer's efforts must be genUIne and not perfunctory Further It IS clear from the Junsprudence that three partIes have responSI bIlI tI es In accommodatIOn matters, the Employer the Umon and the dIsabled employee The Employer's 34 oblIgatIOns are set out above The Umon must work wIth an Employer and not "block a vIable accommodatIOn optIOn" Finally employees are to partICIpate In the process and not refuse an offer of a reasonable accommodatIOn. It has been frequently stated that accommodatIOn IS not merely an outcome It IS a process It was useful In my delIberatIOns to apply all of these general pnncIples to the facts at hand. In thIS matter the Employer recogmzed that the gnevor's overall performance was detenoratIng. Because of hIS personal knowledge of the gnevor Mr Donon knew that the gnevor was beIng "bombarded wIth health Issues" and therefore thought that perhaps the best course would be for her to seek an accommodatIOn. Dunng a performance reVIew the Employer questIOned the gnevor about a pOSSIble connectIOn between her work performance and her health. It was suggested to the gnevor that she conSIder makIng an accommodatIOn request. WhIle the suggestIOn ImtIally upset Ms Kerna, after further reflectIOn she obtaIned a doctor's OpInIOn that her medIcal problems were "affectIng her prodUCtIVIty" She sought an accommodatIOn whereby there would be a thIrty-five to forty percent reductIOn In her workload. After further medIcal clanficatIOn was receIved, the Employer granted the gnevor's accommodatIOn request wIth the express caveat that If an extenSIOn was necessary some other form of accommodatIOn mIght occur There was no dIspute that the gnevor was unable to meet the lowered standard and when she requested an extenSIOn a number of dIscussIOns and conSIderatIOns took place Some of the consultatIOns Involved the gnevor and the Umon whIle some were between vanous management representatIves only AccordIng to the uncontradIcted eVIdence, It was known to Mr Donon and Mr Edwards that the gnevor would be upset by any change In accommodatIOn and they speCIfically put theIr mInds to adoptIng an accommodatIOn whIch met ItS statutory oblIgatIOns First, they determIned that she was unable to perform her own work. Next, It was deCIded that any accommodatIOn offered would be a posItIOn that the gnevor could perform both In terms of her abIlItIes and her health Issues It was for thIS reason that, after conSIderatIOn, that the gnevor's own suggestIOn of contInuIng as an 1.0 who dealt exclusIvely wIth SectIOn 34 matters was reJected. FInally Mr Donon took steps, to the extent pOSSIble, to ensure the gnevor was treated wIth respect regardIng her temporary assIgnment IncludIng the maIntenance of her salary The Umon suggested that her salary retentIOn was merely an unveIled attempt to bnbe the gnevor Into acceptIng the reaSSIgnment. I cannot agree SImply put, there was no eVIdence to substantIate that allegatIOn. 35 The Umon asserted that I should be swayed by the fact that other officers faIled to meet the case cloSIng standards dunng thIS penod. It IS true that others dId not meet the standard. However the statIstIcs show that the overall performance of others was constantly ImproVIng and, sImply put, the gnevor's performance was not close to an average of her peer group Further as mentIOned above the Employer asserted, and I have accepted, that It was not merely the number of files that Ms Kerna was able to close There were other performance shortcomIngs that lead to her re- aSSIgnment. I cannot find that It was Improper to take all of those factors Into account. It IS noteworthy that there was no dIspute between these partIes that the gnevor IS dIsabled and has a need to be temporanly accommodated. Indeed, It was the Employer who urged the gnevor to request an accommodatIOn In the first Instance In my VIew It was eVIdent throughout the heanng that the Employer generally and Mr Donon specIfically had shown genUIne concern for the gnevor's overall well-beIng. That IS not to say that the Employer's focus was entIrely on the health of Ms Kerna. There IS no doubt that management of the CommIsSIOn was very Interested In the prodUCtIVIty of InvestIgatIOn Officers However they cannot be faulted for that. There had been many and longstandIng complaInts from the commumty about the length of tIme taken to close files A study was conducted In thIS regard WIth recommendatIOns By all accounts some of those recommendatIOns brought about changes IncludIng the IntroductIOn of case cloSIng standards There was no eVIdence that these standards were Introduced for reasons other than bona fide operatIOnal reqUIrements It was not unreasonable for thIS Employer to take performance Into account when It consIdered the gnevor's ongInal accommodatIOn request and her request for an extenSIOn of the accommodatIOn. I accept the proposItIOn as put forward by the Employer that there are Instances when appropnate accommodatIOn can be determIned WIthout consIderatIOn of undue hardshIp However In the CIrcumstances of thIS case, I am of the VIew that In the exerCIse of determInIng whether the Employer complIed WIth ItS oblIgatIOns under the collectIve agreement and the Human Rights Code consIderatIOn must be gIven to whether Ms Kerna could perform the essentIal dutIes of her own pOSItIOn to the pOInt of undue hardshIp 36 As mentIOned earlIer from the outset the gnevor and the Umon have taken the posItIOn that the Employer vIOlated the collectIve agreement and the Code by faIlIng to accommodate her In a fashIOn that ensures her dIgmty as an employee was respected. It IS to be recalled that the gnevance stated The form of accommodatIOn Imposed does not reflect my dIgmty and self-respect and self worth as an InvestIgator who reqUIres accommodatIOn due to my medIcal needs The effect of theIr behavIOr has margInalIzed, stIgmatIzed, Ignored and devalued my abIlItIes and self worth as an InvestIgator WIth the CommIssIOn. Dunng the course of many days of heanng, the eVIdence revealed Ms Kerna to be a proud woman who has over the years, through determInatIOn and very hard work, progressed through the ranks at the CommIssIOn. No doubt It IS for thIS reason that the gnevor's allegatIOns speCIfically address her damaged dIgmty Much has been wntten by arbItrators and courts on the matter of dIgmty It was said at para 53 In Law v Canada (supra) What IS human dIgmty? There can be dIfferent conceptIOns of what human dIgmty means For the purpose of analysIs under s 15(1) of the Charter however the Junsprudence of thIS Court reflects a speCIfic, albeIt non-exhaustIve, defimtIOn. As noted by Lamer C J In >Rodriguez v British Columbia (Attorney General) [1993] 3 S C.R. 519 at p 554 the equalIty guarantee In s 15(1) IS concerned WIth the realIzatIOn of personal autonomy and self- determInatIOn. Human dIgmty means that an IndIVIdual or group feels self-respect and self-worth. It IS concerned WIth physIcal and psychologIcal Integnty and empowerment. Human dIgmty IS harmed by unfair treatment premIsed upon personal traits or CIrcumstances whIch do not relate to IndIVIdual needs, capaCItIes, or ments It IS enhanced by laws whIch are sensItIve to the needs, capaCItIes, and ments of dIfferent IndIVIdual, takIng Into account the context underlYIng theIr dIfferences Human dIgmty IS harmed when IndIVIduals and groups are margInalIzed, Ignored or devalued, and IS enhanced when laws recogmze the full place of all IndIVIduals and groups WIthIn CanadIan SOCIety Human dIgmty WIthIn the meamng of the qualIty guarantee does not relate to the status or pOSItIOn of an IndIVIdual In SOCIety per se but rather concerns the manner In whIch a person legItImately feels when confronted WIth a partIcular law Does the law treat hIm or her unfairly takIng Into account all of the CIrcumstances regardIng the IndIVIduals affected and excluded by the law? It has also been recogmzed that a person's employment IS Integral to one's sense of self-worth and emotIOnal well-beIng. Work provIdes us not only WIth a necessary Income but WIth a feelIng of havIng actIvely partICIpated as productIve members of SOCIety It IS for these reasons that the condItIOns of work are very Important factors contnbutIng to a person's dIgmty and self-respect. 37 After much consIderatIOn, I cannot find that the Employer faIled to respect the gnevor's dIgmty eIther wIth respect to the form of accommodatIOn or In the manner that It arnved at the accommodatIOn. Indeed, I am of the VIew that the facts reveal a genUIne effort was made, partIcularly by Mr Donon, to preserve Ms Kerna's dIgmty WhIle I understand that the gnevor felt as If she had been demoted, the eVIdence IndIcated that care was taken to keep many workIng condItIOns unchanged such as maIntenance of her same office same phone number and contInued partIcIpatIOn In departmental meetIngs Further the maIntenance of the gnevor's salary notwIthstandIng a ten thousand dollar a year pay dIfferentIal, must be seen to be a genUIne effort on the Employer's part to dIspel any perceptIOn of a demotIOn. At my InVItatIOn, the partIes proVIded specIfic submISSIOns regardIng what effect, If any the recent Balog (supra) decIsIOn of Vice Chair Abramsky should have on my consIderatIOns In thIS matter In that case, the gnevor a RecreatIOnal Officer was In need of a permanent health reassIgnment. After It was deCIded by the Worker's Safety Insurance Board that It was not possIble to accommodate the gnevor In hIS own posItIOn, the Employer determIned that the appropnate accommodatIOn for Mr Balog was an assIgnment to the posItIOn of Control Officer wIthIn hIS own InstItutIOn. Mr Balog dIsagreed, arguIng that the assIgnment was wrong and that there was no appropnate Job wIthIn the Immediate workplace leavIng the Employer wIth no alternatIve but to assIgn hIm to a posItIOn elsewhere wIthIn the Mimstry He filed multIple gnevances most of whIch were dIsmIssed. WhIle It IS true that there were many dIStIngUIShIng facts In that case, I found the decIsIOn to be well reasoned and of assIstance In my delIberatIOns The Umon suggested that the gnevor IS entItled to the "hIghest" level In the accommodatIOn contInuum As was stated In Re Balog (supra) at page 109 In Renaud, supra, the Supreme Court of Canada stated that the complaInant cannot expect a "perfect solutIOn" If a proposal that would be reasonable In all of the CIrcumstances IS turned down, the employer's duty IS dIscharged." ThIS seems to reJect the "most appropnate accommodatIOn" reqUIrement. Vice Chair Abramsky went on to consIder whether the posItIOn offered by the Employer was a reasonable accommodatIOn In all of the CIrcumstances It was stated further at page 110 ThIS VIew was endorsed by the Ontano Court of Appeal In Re Queen in Right of Ontario (MinistlY of Community and Social Services v Grievance Settlement Board (2000) 50 O.R. (3d) 560 (Ont. C A) The Court held that where an employer can fulfil the duty of accommodatIOn by offenng appropnate schedulIng changes, It need not demonstrate that an alternatIve form of accommodatIOn, such as leave of absence wIth pay would 38 necessanly result In undue hardshIp (50 O.R. (3d) at 574) For thIS reason, the faIlure of the Employer to consIder alternatIves to the Control posItIOn does not, by Itself, vIOlate the Employer's duty to accommodate In the Instant case, the Employer asserted that whIle the gnevor wanted to choose her preferred accommodatIOn, there IS no employee nght to do so A SImIlar assertIOn was made In Re Balog It was stated at page 110 RelYIng on the Court of Appeals deCISIOn, the Federal Court of Appeal In Hutchinson v Canada (Minister of Environment) [2003] F C.J No 439 reached the same conclUSIOn. In that case the complaInant, who had chemIcal senSItIVItIes, argued that the employer's reJectIOn of her preferred accommodatIOn (her own office In a nearby bUIldIng) showed a refusal to accommodate to the pOInt of undue hardshIp The Court held that the complaInant had no nght to hold out for her preferred optIOn. It concluded that the "complaInant cannot refuse a reasonable solutIOn on the ground that the alternatIve whIch they favour wIll not cause the employer undue hardshIp "(par 77) The same conclUSIOn applIes In thIS case The second gnevance before me asserted that the Employer dIscnmInated agaInst the gnevor because of antI-umon ammus It was suggested that the Employer faIled to accommodate Ms Kerna because of her umon partIcIpatIOn In vanous gnevance proceedIngs IncludIng her own. As mentIOned In my prelImInary deCISIOn In thIS matter the onus was on the Umon to establIsh antI- umon ammus It has long been establIshed that clear and cogent eVIdence IS needed for such a findIng and, SImply put, no such eVIdence was produced. I heard some eVIdence regardIng a Memorandum of Agreement that resulted from a gnevance that was properly before Vice Chair Harns InvolVIng Ms Kerna. It IS not necessary for me to make a findIng regardIng the aftermath of the sIgmng of that agreement. It IS suffiCIent to say that It was open to the Umon and the gnevor to reconvene that proceedIng and ask Vice Chair Harns to deal WIth any dIsputes that arose from the ImplementatIOn of that agreement. 39 AccordIngly for all these reasons, the gnevances are demed. Dated In Toronto thIS 10th day of February 2005