Human Rights Office

Human Rights Office
Human Rights Office

TP v. Ontario (Community Safety and Correctional Services)
 

Summary

The Applicant has been employed by the Ontario Provincial Police (the “OPP”) since 1989 in various roles. Just before his departure from the workplace, he worked as a network administrator in the Investigation and Enforcement Bureau of the AGCO, where he was responsible for network and computer systems used by the Bureau.

At the time he was in charge of a big project and was expecting an audit as well. When was working on the refresh of equipment, he had been experiencing the return of medical problems he had occasionally dealt with in the past: problems with digestion, frequent panic attacks and sleeplessness. He says he translated every pain in his chest area as a heart attack and said the pain was intense enough to lose his breath.

On December 22, 2010, when he was close to completing the project, the applicant met with his supervisors. He was already in a bad state that morning as he had not slept the night before and had come into the office early. One of the supervisors testified that the applicant was reassured during that meeting that the audit was not related to his job performance. The applicant says that he, feeling overwhelmed, broke down during that meeting.

On December 30, 2010, he provided a doctor’s note indicating that he needed to be off work for a month. The respondents testified that the medical note did not provide any information relating to the applicant’s limitations or restrictions. Consequently, they requested more information. On January 12, the Applicant’s doctor provided another note stating that the applicant continued to be off work for four weeks.

The doctor also filled out a form sent by the Respondent where she describes the nature of the Applicant’s medical leave. In response to a question about the applicant’s limitations and restrictions and his prognosis for return to work to his position, she answered that he was “limited by decreased concentration, should improve with treatment”, and that no accommodation was available but that the situation could improve if the Applicant’s commute time were shorter.

Following submission of the materials from his doctor, the Applicant had a conversation with Ted Clark, OPP Sargeant, which caused him great upset since Clark told him that he had discussed the applicant’s situation with Fred Bertucca and Laura Young, and that ‘they could not see anything wrong with him.” Additionally, Clark inquired more about the nature and reason behind his medical leave and said that the Applicant’s doctor did not know how to fill out forms.

The Applicant said Ted Clark told him that he could extend his time off to January 31, 2011, but after that would have to cut his pay off. The impact of this conversation on him was devastating. He was extremely concerned about losing his income and had a panic attack while on the phone.

After the troubling phone call, he immediately phoned Laura Young, Human Resources Advisor, who reassures him that his income was not in jeopardy and asked that he get his doctor to fill out the form in a more detailed fashion. She testified that it was the practice of the organization to send out requests for additional information about limitations and restrictions if a person was absent for more than just a few days, so she did not disagree with Ted Clark’s decision to send the forms out for the applicant’s doctor to fill out.

The applicant continued to provide notes and forms from his doctor. In total, Dr. McComb provided six handwritten notes between December 29, 2010, and March 30, 2011. Also, she provided three completed forms between January 12, 2011, and June 12, 2011, at the request of the respondents.

The Applicant said that Clark did not believe he was off work due to an illness and that he heard from friends and colleagues that Ted Clark was making cryptic and disparaging remarks about him when people asked where he was and when he would be returning.

The applicant filed a WDHP complaint in which he alleged that he had experienced harassment. The WDHP complaint was found not to be substantiated in May 2011. The applicant was upset by the results and took issue with the fact that the investigator did not interview key witnesses.

Later on, the Applicant was not reporting to Clark anymore, and his physician had suggested the possibility of him working from a location closer to home. This proposal was denied since, to provide IT assistance to people in the Bureau, the applicant would need to be in the main office location where most employees from the field would come for assistance. By August 10, 2011, his doctor pronounced him unable to return to work at that time and requested psychiatric consultation and follow-up.

The situation with his employer has reached and remained at an impasse, and the applicant also has litigation pending against the insurer that stopped paying his LTIP benefits.
 

Questions to be Determined and Findings

1. Did the Applicant experience harassment when he first went off work? (YES)

2. Did the Applicant experience reprisal? (NO)

3. Did the Respondent meet its duty to accommodate? (YES)
 

Reasoning

1. The Tribunal admitted that employers can request additional information from an employee if necessary. However, Clark’s actions amounted to harassment.

An unnecessary number of letters were sent immediately upon the commencement of the applicant’s leave, with unreasonable deadlines set for compliance not in accordance with the employer’s own policies, including one which threatened to interrupt the applicant’s income source, despite clear documentation that showed he was clearly off work for medical reasons and under a doctor’s care, as well as advice to the contrary from Laura Young. (p. 63)

Clark’s conduct was clearly so concerning to Laura Young, the human resources adviser, that she took the step of consulting with others in the Bureau to ensure that they were made aware of the situation.

The Tribunal also found that the employer bears some responsibility as a result of its failure to take meaningful action despite knowing the situation. Therefore, the respondent employer effectively condoned the conduct that amounted to harassment.

2. The Tribunal was unable to conclude that the actions of the respondent employer or any of the personal respondents amount to reprisal because of lack of credible evidence.

3. Although the Applicant’s doctor suggested that reducing commuting time would improve his health status, the psychiatrist with whom the applicant consulted in October 2011, Dr. Rodway-Norman, opined that he should be able to recover and that when he did, he should return to “an alternative placement.” This report appears to suggest that the issue concerning him was not an inability to travel to the workplace but the damaging effect of the particular work environment on the applicant’s health.

The Judge further stated:

Although the applicant argued that he could do many of the tasks that are essential to his job remotely given the nature of the enterprise, I am satisfied that proximity to the servers and being available for day-to-day interactions in person with the users of the IT system were critical, and it would not have been possible for the applicant to perform those essential tasks relating to his job while working from a location other than the Bureau’s main office. I am satisfied on the evidence that his stated inability to drive or travel safely would have made it impossible for him to conduct the tasks central to the job. (p. 103)

Accordingly, the Tribunal found that the applicant had not established that the respondents discriminated against him on the basis of disability by failing to accommodate him in 2011 when he still contemplated a return to work but requested the ability to do so remotely.
 

Remedy

Tribunal awarded $25,000 in damages for injury to dignity against the OPP, and $2,500 against Clark personally, also ordering Clark to complete an online human rights training module.