Parisien v. Ottawa-Carleton Regional Transit

Parisien v. Ottawa-Carleton Regional Transit
Collection
Canadian Human Rights Tribunal
Date
2003-03-06
Neutral citation
2003 CHRT 10
Decision-maker(s)
Hadjis, Athanasios
Decision Content
Canadian Human Rights Tribunal Tribunal canadien des droits de la personne
BETWEEN:
ALAIN PARISIEN
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
OTTAWA-CARLETON REGIONAL TRANSIT COMMISSION
Respondent
REASONS FOR DECISION
2003 CHRT 10
2003/03/06
MEMBER: Athanasios D. Hadjis
TABLE OF CONTENTS
I. FACTS
A. The Complainant's Employment History with the Respondent
B. Events in the Months Leading up to the Complainant's Dismissal
C. Events Subsequent to the Complainant's Termination
D. The Evidence of the Experts
II. LEGAL FRAMEWORK AND ANALYSIS
A. The Law
B. The Prima Facie Case
C. Meiorin Test
(i) Steps 1 & 2
(ii) Step 3
III. REMEDY
A. Reinstatement
B. Damages for Lost Income
C. Hurt Feelings
D. Policy Review
E. Interest
F. Retention of Jurisdiction
[1] The Complainant worked as a bus operator for the Respondent. Throughout the course of his employment, he was absent from work for a significant number of days, mainly on account of illness. Eighteen years after he was hired, the Respondent dismissed the Complainant due to his chronic absenteeism. As a result, the Complainant filed the present complaint in which he alleges that the Respondent discriminated against him by refusing to accommodate him and by refusing to continue to employ him because of his disability, contrary to s. 7 of the Canadian Human Rights Act (Act). The disability consists principally of post-traumatic stress disorder (also known as PTSD) and ailments related thereto.
[2] The Complainant's employer at the time of his termination in 1996 was the Ottawa-Carleton Regional Transit Commission, which operated Ottawa's public transit system (otherwise known as OC Transpo). His complaint was filed several months later and the same organization was named as the Respondent. In 2001, pursuant to s. 9 of the City of Ottawa Act, 1999, OC Transpo's operations, including all its assets and liabilities, were transferred to the amalgamated City of Ottawa.(1) Ms. Lois Emburg, a manager with the City of Ottawa, stated during her testimony that the City of Ottawa is accepting any liability to be attributed to the Respondent in the present case. In light of her representations, the Ottawa-Carleton Regional Transit Commission shall continue to be treated as the Respondent in this case. It should be noted, though, that according to the abovementioned legislative provision, the Respondent was dissolved on January 1, 2001.
I. FACTS [3] Most of the facts are not in dispute. All of the parties agree that during his employment with the Respondent (a total of about 18 years and 2 months), the Complainant was absent for about 1664 full days and 33 partial days. His absences were mostly related to illness. The Respondent does not call into question the genuineness of these illnesses.
A. The Complainant's Employment History with the Respondent [4] The Complainant was hired by the Respondent as a bus operator in November 1977. His employment was subject to an initial probationary period. The Respondent's records demonstrate that from the outset, the Respondent was concerned with the Complainant's level of absenteeism, so much so that the probationary period was extended by three months in January of 1979. In the month of September 1979, he was even suspended for several days because of his absenteeism, in accordance with the Respondent's policy in place at that time. No evidence was led as to the nature of the illnesses or other causes that resulted in the Complainant's absences during this early period. The Complainant acknowledges that he was made aware early on that excessive absenteeism within the OC Transpo workforce was an ongoing cause of concern for the employer.
[5] In his testimony, the Complainant brought up some of the events in his life that he feels may have contributed to the onset years later of post-traumatic stress disorder. In 1979, his relationship with a woman to whom he was engaged to be married suddenly ended. This break-up was devastating for him but it did not lead to his being absent from work. In October of 1980, the Complainant's mother died of cancer. He also describes this loss as devastating, noting that he had maintained a very close relationship with her. He took three days off work on bereavement leave, as permitted under the collective agreement.
[6] Only a couple of months later, in December 1980, the Complainant was the victim of a violent assault while he was driving his bus. A passenger wearing army fatigues and a balaclava over his head entered the bus and without any warning hit the Complainant on the side of his face, knocking him unconscious. The Complainant was treated at the hospital and released the same day. He did not return to his job until one week later.
[7] No evidence was led detailing the Complainant's attendance during the early 1980's other than an acknowledgement by him and the Commission that he worked on and off. However, his attendance sheets for the years 1984 and following were produced. In 1984, the Complainant was absent for the entire period from March to early September. The attendance sheet indicates that he was in receipt of worker's compensation benefits during this period but no explanation was provided at the hearing as to the nature or cause of his illness or disability. In 1985, the Complaint was absent due to illness for thirteen full days and four partial days. In 1986, he was absent for thirty full days and one partial day.
[8] In 1987, the Complainant's father suddenly died. The Complainant testified that this was also a significant and disturbing loss for him. He took the permitted bereavement leave of three days. During 1987, he was absent 42 full days and another 4 partial days, due to illness. The Complainant was on sick leave for 28 full days and seven partial days in 1988.
[9] On March 7, 1989, the Complainant was interviewed by management regarding his level of absenteeism. As luck would have it, only two weeks later, another unsettling incident occurred while he was at work. A male passenger entered his bus and began yelling at him. The passenger eventually got off the bus, but just two days later, he confronted the Complainant again. The Complainant was standing outside his bus, at the starting point of his bus route, when the individual approached him. The man had his hand in his pocket and began telling the Complainant that he was going to kill him. Two other bus operators happened to witness the incident and one called over a supervisor. The supervisor reacted by assisting the individual onto another bus, but he did not make a report nor call the police. The Complainant claims that he was genuinely scared of the passenger and that he felt very unprotected and unsafe as a result of the manner in which his employer had dealt with the threat.
[10] Although he did not miss any work at the time of these incidents, in the weeks and months that followed, the number of absences due to illness increased significantly. On July 18, 1989, the employer interviewed him regarding his absenteeism. The Complainant recalls that following the March incidents, he began getting pains in [his] stomach and was feeling quite sick. He went off work from December 1989 until February 1990, his medical certificates indicating that he was suffering primarily from gastro-intestinal problems. He returned to his job in early March 1990 but ceased working on March 21, 1990. This leave of absence ended up lasting for 199 working days. During this period, he was compensated by the Workers' Compensation Board, as his disability was deemed to be related to the trauma associated with the death threat made against him. The medical certificates issued by the Complainant's family physician during this period refer to his anxiety state, job tension and adjustment reaction.
[11] While the Complainant was on leave in 1990, OC Transpo's Occupational Health Unit (Health Unit) communicated regularly with him to follow up on his status and his expected date of return to work. According to the evidence adduced by the Respondent, the Health Unit had a mandate that included gathering information regarding the condition of employees on sick leave and advising the divisions where they worked (their employing divisions) when and if they were ready to return to work. The Health Unit would also assess whether a non-occupational disability claim was well founded, based on the medical information available. It was composed of several nurses who were employed full time as well as one medical doctor who was not an employee of the Respondent but who would be asked occasionally to provide an opinion. The Health Unit's activities were integral to the program that the Respondent had established to manage the attendance of its employees (Attendance Management Program). One of the main reasons for the existence of this separate unit was to protect the confidentiality of the employees' medical information. As such, the Health Unit never disclosed to management the details of an employee's condition. It would only provide to employing divisions general conclusions and opinions as to an employee's preparedness to return to work.
[12] On December 14, 1990, based on the medical information collected from the Complainant and his physician, the Health Unit determined that commencing January 2, 1991, he would be able to resume regular job duties, provided that he be initially assigned to work four hours per day instead of eight. This type of transitional activity was referred to as a process of work hardening. The Complainant performed these modified duties until February 25, 1991, when he went on sick leave, suffering from back pain and abdominal pain, according to the medical certificates submitted to the Respondent at the time.
[13] By April 1991, the Complainant's family physician had come to the realization that the Complainant was preoccupied with being assaulted on his job, to the point of almost paranoid feelings. The family physician apparently concluded that the Complainant was suffering from post-traumatic stress disorder. The physician therefore informed the Respondent that the Complainant could not yet return to work. He referred the Complainant to the Royal Ottawa Hospital for a psychiatric assessment. Dr. Hamilton Sequeira, M.D., a psychiatrist, examined the Complainant on May 17, 1991, and made a provisional diagnosis of post-traumatic stress disorder of longstanding with anxiety, depressive, somatic manifestations. In presenting his diagnosis, Dr. Sequiera referred in his report to the 1980 assault and the 1989 threat as well as the sudden deaths of the Complainant's parents. The Complainant's family physician issued an updated medical certificate declaring that the Complainant would be unable to return to work for an indefinite period. The Complainant received workers' compensation benefits while on this extended medical leave.
[14] Dr. Sequiera recommended a therapeutic approach for the Complainant that included medications as well as cognitive behavioural therapy to desensitize him from his trauma related negative constructs and feelings. For this latter purpose, Dr. Sequiera sought the assistance of Dr. David Erickson, PhD, R. Psych., who was at that time doing his internship to become a clinical psychologist, a recognition that he achieved in 1994. Dr. Erickson testified that cognitive behavioural therapy involves two components: the behavioural aspect encompasses the breaking down of a person's fear into small manageable steps. The cognitive aspect is conducted once some success has been achieved with respect to the behavioural element, and consists of the individual attempting to imagine in advance, doing the activities which are at the source of his anxiety.
[15] Dr. Erickson began treating the Complainant on November 4, 1991. He determined that the Complainant was a good candidate for cognitive behavioural therapy. Between November 1991 and August 1992, Dr. Erickson met the Complainant weekly. He kept the Health Unit abreast of the Complainant's progress. He states in the expert's report that accompanied his testimony in this case, that by July 1992, after eight months of cognitive behavioural therapy combined with medication, the Complainant's state was dramatically improved and ready for a graduated return to work. As part of this transition to full-time work it was agreed between the Health Unit and Drs. Sequeira and Erickson that the Complainant begin this process by driving what was known as the DERC shuttle bus. DERC is the acronym for the Disabled Employees Review Committee, made up of OC Transpo employee and management representatives. The DERC was established by the Respondent in order to assist in the reintegration of disabled employees into the workforce. The DERC shuttle bus was in fact a mini bus in which operators were driven to various locations to take over runs from other drivers. The only passengers on this bus were other OC Transpo employees.
[16] The Complainant drove this vehicle from mid-July to mid-September 1992, following which he was assigned to modified duties (four hours per day) driving regular OC Transpo passenger buses. According to Dr. Erickson, by mid-October 1992, the Complainant was symptom-free and back to his normal level functioning. The Health Unit accordingly recommended to the Complainant's employing division that he could return to full time regular job duties beginning October 14, 1992.
[17] Between December 7, 1992 and January 14, 1993, the Complainant booked off sick for a total of thirteen full days and two partial days, suffering from blurred vision, dizziness, insomnia and gastroenteritis. Dr. Erickson noted, after speaking with the Complainant on December 14, 1992, that his anxiety problems had returned, in part as a result of driving on some of the routes that he most feared prior to his treatment. Medication was prescribed for him by Dr. Sequeira and regular visits were scheduled with Dr. Erickson.
[18] Unfortunately, on January 15, 1993, a bus that the Complainant was driving was hit from the rear by another vehicle, as a result of which he suffered a whiplash injury (cervical neck strain). According to his family physician, the injury was such that he could not return to work until May 1993. Dr. Erickson notes in his expert's report that the Complainant experienced great frustration at being prevented from working as a result of the accident, and some gastro-intestinal problems and headaches that he suffered over this period were likely related to this distress. However, Dr. Erickson points to the absence at that time of any anxiety, mood problems or sleep disturbance that would indicate residual post-traumatic stress disorder.
[19] After being on leave due to the work-related whiplash injury for a total of 92 working days, the Complainant returned to his regular job duties at the beginning of June 1993. In August 1993, he went on sick leave for a total of six days and one partial day. According to the medical certificate that he submitted, he was suffering from acute anxiety. By October 1993, the Complainant had developed a major sleep disturbance and had to take another leave of absence that was to extend until June 1994.
[20] His sleep had been reduced to two to three hours per night. Dr. Sequeira transferred the Complainant to the care of another psychiatrist with a specialty in sleep disorders. His treatment included prescribing medication to help the Complainant sleep and to prevent the occurrence of periodic partial leg movements that were awakening him during his sleep. By May 1994, this psychiatrist deemed the sleep problems to be now under control and believed that the Complainant was ready to return to work.
[21] On May 27, 1994, the Health Unit sent a memo to the Complainant's employing division stating that his prognosis was now for regular attendance at work. The memo referred to an unnamed treating physician of the Complainant who had declared that his medical problem had been resolved and that it should not cause him any future problem. In addition, the Complainant was examined by the external medical practitioner of the Health Unit and the memo notes his observation that the Complainant's attitude was very positive, more so than in earlier assessments conducted by the same doctor in 1992 and 1993.
[22] The Complainant therefore returned to his regular job duties on June 2, 1994. Shortly after returning to work, he was confronted by several teenagers while driving his bus, in a manner that he perceived as threatening. He felt scared and vulnerable, as if someone was always out to get him. He found himself unable to sleep again so he took a higher dose of his sleep medication. This resulted in drowsiness that rendered him unable to perform his work properly. On June 5, 1994, the Superintendent of Operational Personnel, Mr. Ron Mooney, having observed the Complainant's reduced faculties, instructed him to cease operating a bus. The superintendent sent a memo several days later to the Health Unit asking that the Complainant be reassessed to determine if he was capable of returning to regular full time employment.
[23] By July, 1994, Dr. Sequeira had resumed all of the Complainant's psychiatric care. The Complainant also recommenced receiving treatment from Dr. Erickson. Within weeks, Dr. Sequeira observed that the Complainant had become so depressed, anxious and sleep-deprived that it became necessary to admit him into the Mood Disorders Unit of the Royal Ottawa Hospital. He was diagnosed with major depression, sleep disorder and generalized anxiety disorder. He was discharged from the hospital on September 20, 1994. The depression and sleep troubles were resolved by June 1995.
[24] As these problems diminished, though, the presence of post-traumatic stress disorder symptoms became apparent again. His avoidance pattern was consistent with a fear of being assaulted, combined with regular daytime flashbacks. Dr. Erickson implemented another program of cognitive behavioural therapy for the Complainant. According to Dr. Erickson, as part of the therapy, the Complainant exerted great effort, as he relived the fear of being assaulted on a daily basis. In Dr. Erickson's opinion, the therapy proved effective and by February 1996, (the month in which the Complainant was dismissed) the post-traumatic stress disorder had been vanquished.
B. Events in the Months Leading up to the Complainant's Dismissal [25] On October 26, 1995, the Health Unit interviewed the Complainant, in accordance with a policy that required such meetings periodically with employees who were in receipt of long-term disability benefits. It determined, based on the Complainant's comments as well as information obtained from his physicians, that he hoped to return to his regular occupation as a bus operator. According to a memo prepared by the Health Unit after the meeting, the Complainant was advised that his job with the Respondent was only protected for a period of 24 months following the date when he began receiving long term disability benefits. This period was to come to an end on February 2, 1996. If by that time he did not return to his own job or to some other job within OC Transpo, the Respondent would make a decision as to his continuing status and would in all likelihood [...] medically terminate him.
[26] On December 13, 1995, Dr. Sequeira filled out a form for the Ontario Ministry of Transport. The Complainant's C Class driver's licence, which permitted him to operate buses, had been downgraded because he was disabled on a long-term basis. The application for regaining the permit required that a physician report on the driver's medical condition. Dr. Sequeira stated on the form that the Complainant was ready to regain his licence as he was much improved of the symptomatology of fear-anxiety-avoidance-depression that was part of his post-traumatic stress disorder.
[27] On January 31, 1996, Dr. Sequeira and Dr. Erickson signed a letter that they had jointly prepared, addressed to the Health Unit of OC Transpo, in which they stated the following:
Alain is now in the final stages. Within a few weeks, the [cognitive behavioural therapy] regarding the post-traumatic anxiety will be sufficiently advanced to allow a safe return to work. The feared stimuli, i.e. clothing worn by his assailant, will no longer prompt incapacitating anxiety. Rather, Alain will experience only mild tremulousness.
His sleep disturbance is similarly well controlled. While he continues to have anxiety-related nightmares, they are no longer severe enough to disrupt his sleep. He does continue to have difficulty waking in the morning, however: once he has had time to gradually adjust to a structured daily routine, this problem will return to normal limits.
Finally, Alain's depressed mood is no longer an issue. In the past month, he has experienced mild dysphoria an average of 2-3 times per week, where each occasion lasts 1-2 hours. No period of severe or sustained depressed mood has occurred in the past month. Thus, Alain's mood is clearly within normal limits.
Drs. Sequiera and Erickson then went on to describe the Complainant's medications, noting that they would not interfere with his ability to operate an OC Transpo bus. It was also pointed out that the Complainant would continue to see both specialists over the following several months, just to deal with any remaining anxieties and to monitor the medications. The following conclusions were made towards the end of their letter:
During this time, Alain's health will be best served by beginning with part-time duties, and gradually building up to full-time duties. In the initial period of readjustment, extreme hours are contra-indicated because of their potential for sleep disturbance. We would greatly appreciate being consulted in preparing increases in Alain's scope of duties, as experience from his past has shown that it is possible to do too much too soon.
In sum, the prognosis is very good. Alain has worked hard to regain positive and constructive moods, such that he is now well within normal limits. The PTSD-related anxiety is much diminished, and will not interfere with his performance as an operator.
(My emphasis)
[28] The Complainant contacted the head nurse of the Health Unit to discuss his coming back to work, several days in advance of the February 2, 1996 deadline that the Respondent had set for his return. She advised him to simply show up at work on that designated day and speak to Mr. Mooney, the Superintendent of Operational Personnel. The Complainant did so, and when he met with Mr. Mooney, he explained that he was ready to work, requesting only that some adjustments be made to ease his transition back, in accordance with the recommendations of his psychiatrist and psychologist. Mr. Mooney informed the Complainant that no such work-hardening adjustments would be made available to him and, according to the Complainant, when he asked if he could be assigned to work at some other job at OC Transpo, he was told there was nothing. Instead, Mr. Mooney said that the Complainant's file was under investigation and that the Complainant would be informed of the outcome two weeks later. The Complainant's testimony regarding these meetings was not contradicted and neither the head nurse nor Mr. Mooney testified in this case.
[29] On February 6, 1996, Mr. Mooney wrote to the Health Unit asking if the Complainant's present condition, for which he had just received treatment, was the same as the condition for which there had been a prognosis of regular attendance back in May 1994. He also asked if the Health Unit was convinced, based on the medical information, that the Complainant should return to work as a bus operator when his licence was reinstated. In the Health Unit's reply, dated February 9, 1996, specific reference was made to the recently obtained opinions of Drs. Sequiera and Erickson to the effect that the Complainant could begin with part-time duties and gradually build up to full time duties. The Health Unit, however, concluded as follows:
Taking into consideration the medical information on file at present, the fact that Mr. Parisien does not hold a class C licence at present, as well as his past record of attendance, the Health Unit is not fully convinced at this time that Mr. Parisien will be able to perform his duties as a bus operator on a regular basis.
If the Transportation Division [the Complainant's employing division] is able and prepared to offer Mr. Parisien alternate employment, we will contact his medical advisors to quantify his restrictions and to obtain a more complete prognosis. Please advise us as to your decision.
(My emphasis)
[30] Mr. Mooney met with the Complainant about a week later, on February 15, 1996, and advised him that his employment was terminated. In a follow-up letter addressed to the Complainant on February 19, 1996, Mr. Mooney stated:
This letter is to confirm our meeting held on February 15, 1996 to clarify your employment status with the Commission.
Based on the information presented at our meeting we find it necessary to terminate your employment with the Commission due to chronic innocent absenteeism effective February 15, 1996.
[31] The Complainant claims that he pleaded with Mr. Mooney to allow him to return to work for OC Transpo but he was told that the decision to terminate would stand. He contends that at the time of his termination he was feeling quite good and wanted to get back right away to his ordinary duties as a bus operator. He acknowledges that he was not yet one hundred per-cent and that he could not have immediately returned to regular full-time bus driving duties. He would, however, have been able to perform modified job duties during a period of transition, as Drs. Sequiera and Erickson had recommended.
C. Events Subsequent to the Complainant's Termination [32] The Complainant filed a grievance against his dismissal several days later. The grievance passed through the required stages in the grievance process and was ultimately ruled upon through an expedited arbitration process on December 4, 1998. The labour arbitrator decided that there was just cause for the Complainant's termination and dismissed the grievance. He found that the Respondent reasonably concluded, on the evidence before it that the Complainant would not be able to perform his duties as a bus operator on a regular basis.
[33] In a preliminary motion presented to the Tribunal, prior to the hearing on the merits of the present case, the Respondent submitted that the subject matter of the Complainant's human rights complaint fell within the exclusive jurisdiction of the labour arbitrator and that the doctrines of issue estoppel and cause of action estoppel deprived the Tribunal of jurisdiction to hear the matter. The motion was dismissed by Tribunal Chairperson Anne L. Mactavish on July 15, 2002.(2) In her ruling, the Chairperson found that the issue before the arbitrator was whether the Complainant's termination was unjust and not whether he had been a victim of a discriminatory practice within the meaning of the Act.
D. The Evidence of the Experts [34] The Commission called Dr. Erickson and Dr. Sequeira to testify as experts at the hearing. They were qualified as persons who have acquired special or peculiar knowledge through study, education and experience with the Complainant, such that they could assist the Tribunal with respect to their interactions with him and their respective fields generally (psychology for Dr. Erickson and psychiatry for Dr. Sequeira).
[35] In Dr. Erickson's opinion, between 1989 and 1996 inclusively, the Complainant experienced two distinct episodes of post-traumatic stress disorder, one at the beginning of this period (from the threat to his life in 1989 until his return to work in September, 1992) and another towards the end (from June 1994 until February 1996). Between these bookends, the Complainant also passed through an episode of severe sleep, mood and generalized anxiety, from about October 1993 until June 1995, overlapping onto the final PTSD bookend. Dr. Erickson believes that this episode was likely related - in an indirect way to the Complainant's initial bout with PTSD.
[36] Dr. Erickson finds that the Complainant exhibited all of the classic elements of post-traumatic stress disorder, including:
· experiencing a traumatic event,
· intrusive daytime reliving of that event, as well as recurring nightmares,
· avoiding certain behaviours that he used to enjoy in the past, and
· being in a state of persistent hyper-arousal.
[37] For his part, Dr. Sequeira agrees that the initial diagnosis of PTSD was well-substantiated and that the PTSD had fully developed by 1989. In his opinion, the second episode, in 1994-95, was a re-emergence of the PTSD and not so much a bookend. With respect to some of the other illnesses that caused the Complainant to be absent from work, Dr. Sequeira points out that it is not uncommon for persons suffering from PTSD to also experience generalized anxiety disorder, phobia, major depression and sleep disorder. According to Dr. Sequeira, a connection may even exist between PTSD and some of the other ailments from which the Complainant suffered, including diarrhea and muscle spasms, although it is also possible that these symptoms were unrelated.
II. LEGAL FRAMEWORK AND ANALYSIS A. The Law [38] Section 7 of the Act declares that it is a discriminatory practice to refuse to continue to employ an individual, or to treat an employee in an adverse differential manner, on the basis of a prohibited ground of discrimination. Disability is included amongst the list of prohibited grounds of discrimination set out in s. 3 of the Act. According to s. 25, disability, for the purposes of the Act, means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.
[39] Section 15 (a), as it was designated prior to the 1998 amendments to the Act, (3) provides that it is not a discriminatory practice if the differential treatment exercised by the employer is based on a bona fide occupational requirement (BFOR). In 1999, the Supreme Court of Canada, in what are generally referred to as the Meiorin(4) and Grismer (5) cases, had the occasion to restate the approach to be followed whenever such a defence is invoked. The Court reaffirmed that a complainant bears the initial burden of establishing that the standard or policy adopted by the employer-respondent is prima facie discriminatory.
[40] Once a prima facie case of discrimination has been established, the employer-respondent may justify the impugned standard by establishing on the balance of probabilities:
that the employer adopted the standard for a purpose rationally connected to the performance of the job; that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; that the standardis reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.(6)
B. The Prima Facie Case [41] The Commission submits that one need only look at the Respondent's Statement of Particulars, which was prepared prior to the hearing in accordance with the Tribunal's Interim Rules of Procedure, to conclude that a prima facie case has been established. Amongst the items detailed in the document are the material facts that the Respondent seeks to prove in support of its case (Interim Rule 6(1)(a)). The Respondent declares, as a material fact, that the Complainant's absences from work were the result of illnesses, some of which were diagnosed as being PTSD and chronic sleep disorder. After detailing the number of days that the Complainant was absent from work, the Respondent states that on February 15, 1996, the Complainant was dismissed due to chronic absenteeism, as there was no prospect of regular or reliable attendance at work.
[42] In a subsequent letter from Respondent counsel to the Commission, it was clarified that at the time of the dismissal, the Respondent considered the Complainant fit to return to full and regular duties as a bus operator. However, the Respondent did not accept that the medical report from Dr. Sequeira and Dr. Erickson dated January 31, 1996, provided any prognosis of regular attendance in respect of the performance of these duties, and the Complainant was consequently dismissed.
[43] Two former managers at OC Transpo, Mr. Ron Marcotte and Mr. Gerald Timlin, testified that amongst the factors considered by the Health Unit, when assessing whether an employee has any prognosis of regular attendance, is his or her previous attendance record. Unquestionably, the Complainant's attendance record was poor, but the Commission points out that this came as a result of the Complainant's illnesses, principally PTSD, a mental disability falling within the definition of disability as set out in s. 25 of the Act.
[44] Thus, it is argued, all of the elements of the prima facie case have been made out. The Complainant, who suffered from a disability, was dismissed from his employment by the Respondent, at least in part, because of his record of absenteeism. The primary cause of the absenteeism was his disability. Therefore, one of the factors in the Respondent's decision to dismiss the Complainant was his disability, which constitutes one of the proscribed grounds of discrimination under the Act. For a complaint to be substantiated, discrimination need only be one of the factors underlying a respondent's conduct. (7) Accordingly, submits the Commission, the Respondent in the present case is prima facie in breach of the Act.
[45] The Respondent disagrees, arguing that in order for a prima facie case to be established, it must be demonstrated that the Complainant has actually been discriminated against. It is not sufficient to contend that merely because a disabled person has been dismissed, discrimination has taken place. It must be shown that the individual was dismissed because of the disability. The Respondent points out that it did not disagree with the opinion of the medical experts to the effect that the Complainant was able to return to work as a bus operator. Counsel for the Respondent reiterated, in his final submissions, the position that he had adopted in his pre-hearing correspondence with the Commission: that is, when the Complainant was dismissed in February 1996, the Respondent considered him fit to return to full and regular duties as a bus operator. The Respondent argues that the decision to dismiss the Complainant, therefore, was not based on any assumption that he was disabled. In the absence of this element, the Commission cannot claim that the Complainant was subject to discriminatory treatment on the basis of a disability. The Complainant was simply let go because of the poor prognosis of his regular and reliable attendance, not his ability to perform the work whenever he would attend. The Respondent's treatment of the Complainant, pursuant to its policy on innocent absenteeism, was no different than that afforded any worker, whether disabled or not, who failed to have a good attendance record and whose predicted attendance in the future was equally unsatisfactory.
[46] I find that the facts do not support this argument. The Respondent's decision to dismiss the Complainant was clearly influenced by the Complainant's medical condition, as appears from the evidence of Mr. Timlin, who was then Director of Occupational Health, Safety and Benefits at OC Transpo. He participated in the management process that led to the decision to dismiss the Complainant. Mr. Timlin testified that in deciding to fire the Complainant, OC Transpo relied heavily on the opinion of its Health Unit. The memo that the Health Unit sent to management regarding the Complainant's prognosis could not have been any more clear, stating that its finding took into consideration the medical information on file and the Complainant's past record of attendance. The Respondent cannot now suggest that the Complainant's medical condition was not at least one of the factors that lead to its conclusion to dismiss him. As I indicated earlier, it is not necessary for a proscribed ground to be the only factor underlying a respondent's conduct for there to be a finding of discrimination. I would also add that Mr. Timlin testified that OC Transpo's decision to terminate the Complainant was not influenced at all by the other consideration stated in the Health Unit's memo, that of his lacking a Class C driver's licence. Mr. Timlin explained that the Respondent regularly assists employees, whose permits have been downgraded while on leave, to reacquire the required certification.
[47] As an indication that the decision to dismiss the Complainant was not influenced by his medical condition, the Respondent refers to the Complainant's poor overall attendance record, dating back to the 1970's, and well before his affliction with PTSD. It is therefore suggested that the Complainant was simply someone who could not maintain regular and reliable attendance. An employer that suffers the consequences of an employee's failure to fulfill his work obligations should be justified at some point to consider the employment contract as having come to an end. But this argument does not truly reflect the facts of this case either. As I have already stated, the Health Unit's memo, upon which the Respondent's decision to dismiss was based, unquestionably concerned the Complainant's medical condition. Furthermore, although some of the Complainant's absences were not related to PTSD, the largest portion of them was, and, moreover, I accept the evidence of the Commission's experts that some of his other illnesses may have been related to the PTSD. In any event, even if the absenteeism prior to the PTSD was the only factor in his dismissal, why was the Complainant not dismissed before the onset of the disability? It is noteworthy that in the period leading up to his dismissal, the Complainant's longest continuous absence from work occurred while he was recovering from PTSD and other illnesses that may be related to this disorder.
[48] I do not accept the Respondent's further submission that the treatment of the Complainant should only be compared to that of other OC Transpo employees with poor non-culpable absenteeism records. The Complainant's attendance record was inextricably linked to his disability. The Respondent concedes that as of the date of the Complainant's dismissal, he was considered fit to return to work. Yet the employer expected him to produce medical or other evidence to demonstrate that he would be able to maintain regular and reliable attendance in the long term, defined by Mr. Timlin to mean as many as twenty years into the future. Other OC Transpo employees who were healthier than the Complainant were able to maintain good attendance records in the past because they lacked his distinguishing characteristic, a disability. It was not suggested that those employees were expected to provide evidence demonstrating a 20-year prognosis of regular and reliable attendance. In this sense, the Complainant, a person who had suffered from a disability, was treated differently than employees who were not disabled.
[49] I find that the Respondent's prediction that the Complainant's attendance in