Karimi v. Zayo Canada Inc. (formerly MTS Allstream Inc.)

Karimi v. Zayo Canada Inc. (formerly MTS Allstream Inc.)
Collection
Canadian Human Rights Tribunal
Date
2017-12-11
Neutral citation
2017 CHRT 37
File number(s)
T1616/16210, T1783/1312
Decision-maker(s)
Gupta, Susheel
Decision type
Decision
Decision status
Final
Grounds
Disability
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
37
Date:
December 11, 2017
File Nos.:
T1616/16210, T1783/1312
Between:
Ashraf Karimi
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Zayo Canada Inc. (formerly MTS Allstream Inc.)
Respondent
Decision
Member:
Susheel Gupta
Outline
I. Complaints 1
II. Hearing Process 1
III. Preliminary Matter 3
IV. Circumstances giving rise to the complaints 4
A. Critical treatment and scrutiny from manager 4
B. Assignment of an overwhelming volume of tasks and tasks beyond disability-related physical limitations 9
C. Reassignment and denial of training opportunities 11
D. Demotion/Rebalancing 14
E. Failure to accommodate and retaliation 16
V. Issues 22
VI. Legal Framework 23
VII. Analysis 24
A. Was the Complainant discriminated against by the Respondent, Zayo, on the basis of sex and/or disability contrary to s. 7 of the Act, pursuant to her first complaint? 24
B. Was the Complainant discriminated against by Zayo on the basis of disability pursuant to her second complaint? 33
C. If the Complainant establishes a prima facie case of discrimination based on disability, can the Respondent prove that the impugned restrictions were based on a BFOR pursuant to paragraph 15(1)(a) and ss. 15(2) of the Act? 33
D. Was the Complainant retaliated against by Zayo within the meaning of s. 14.1 of the Act? 40
VIII. Complaints dismissed 43
I. Complaints
[1] Pursuant to s. 7 of the Canadian Human Rights Act (the Act), Ms. Ashraf Karimi alleges her employer, formerly MTS Allstream Inc., now Zayo Canada Inc. (Zayo), singled her out and treated her adversely on the basis of her sex and disability. The adverse conduct she alleges includes unfair criticisms; assigning her an overwhelming volume of tasks and tasks beyond her disability related physical limitations; denying her training opportunities; and, ultimately, demoting her. Ms. Karimi claims this treatment caused her to suffer stress, anxiety and depression, and required her to go on short term disability multiple times. When her short term disability benefits were exhausted, she went on long term disability. Despite attempts to return to work thereafter, Ms. Karimi contends Zayo denied her all forms of accommodation.
[2] Ms. Karimi also alleges, under section 14.1 of the Act, that Zayo’s unwillingness to accommodate a return to work is retaliation for her having filed a complaint about her alleged discriminatory treatment in the workplace.
[3] During closing oral submissions, counsel for Ms. Karimi raised, for the first time, an allegation of discrimination pursuant to paragraph 10(b) of the Act. As this ground does not form part of the original complaints filed by Ms. Karimi and since Zayo was not provided with a proper opportunity to respond as the issue was raised for the first time in closing submissions, the Tribunal finds it would be improper for it to address this issue. As such, the allegation of discrimination made pursuant to paragraph 10(b) of the Act is not dealt with in these reasons.
[4] For the reasons that follow, I dismiss Ms. Karimi’s complaints.
II. Hearing Process
[5] This matter was originally heard by former Member Bélanger. The evidentiary portion of the hearing was completed on September 17, 2014. Final submissions were provided in writing and were supplemented with oral final submissions in April of 2015. Sadly, Member Bélanger passed away on November 27, 2015.
[6] Shortly after Member Bélanger’s death, the parties were contacted by the Tribunal Chairperson to notify them of his death and furthermore, to discuss how to move forward with this case. I was subsequently assigned to this case to carry it forward to completion. Written submissions were provided by each of the parties for a decision on whether the Tribunal could decide the case on a hearing de novo or based on the existing record. Upon receipt of the submissions, a series of Case Management Conference Calls (CMCCs) were held with the parties in order to discuss the submissions, seek/obtain clarifications and move forward with a decision on how to complete this matter.
[7] Before a decision was made by the Tribunal, the parties came to an agreement that a new evidentiary hearing would not be required and that the matter should proceed based on the record of the case. The parties agreed that the record of the case would include: all oral evidence presented at the hearing, all of the evidence (exhibits) previously tendered during the hearing, as well as, all oral and written submissions to date. Furthermore, my review of the evidence would be based on both the written transcripts and the audio recordings of the hearing.
[8] Ms. Karimi had sought to re-testify before me, but such request was withdrawn on May 30, 2016. There was an agreement by the parties that should I have any questions or require some clarifications upon completing my review of the evidence, that the parties would respond to such a request by, for example, facilitating the recall of a witness to answer the questions, and if that occurred, both parties would be given an opportunity to ask their own questions of the witness relating to my questions. Finally, it was agreed that parties would be given an opportunity to make opening statements, what was referred to as an “overview” of the case, before I commenced my hearing and careful review of all of the evidence, including the audio-recordings of the hearing presided over by Member Bélanger, and the written submissions filed by the parties. That overview occurred on October 26, 2016.
[9] Unfortunately, the oral closing submissions that had commenced before Member Belanger had not been completed before his passing. On November 9, 2017, after my completion of the review of the record of the case, including the said recordings, the parties agreed that no further oral submissions were required. The parties agreed that their previously filed written closing submissions were sufficient.
III. Preliminary Matter
[10] As a preliminary matter, I shall deal with Zayo’s letter to the Tribunal dated April 8, 2015, which sets out its objection to Ms. Karimi’s written Reply submissions dated March 31, 2015, on the grounds that the Reply is improper for introducing new arguments and for relying on facts that are not in evidence.
[11] Following a careful review of the record of the case, I agree with Zayo’s characterization of Ms. Karimi’s Reply. As such, the new arguments advanced by Ms. Karimi will not be considered for being improperly introduced in Reply. In any event, I find that the new arguments made in Reply are not material for the resolution of the complaints. The Reply arguments based on facts unsupported by evidence not in the record will not be considered either. Contrary to Ms. Karimi’s assertions in her letter dated April 14, 2015, I am not convinced that exceptional circumstances exist in this case allowing for the application of special remedial measures as set out at paragraphs 64, 69-78 of First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian Affairs and Northern Development Canada), 2014 CHRT 2 (Caring Society 2014). In Caring Society 2014, the admissibility of over fifty thousand documents was at issue. It appears that the Tribunal in that case conceived of the remedy in large measure because of the sheer volume of potentially relevant documents. Moreover, at the time the Tribunal issued the remedial measure in Caring Society 2014, the evidentiary portion of the inquiry remained ongoing. In this case, the Complainant’s request amounts to effectively asking the Tribunal to re-open the evidence gathering portion of the inquiry over six months following the close of same. I also note that Ms. Karimi seems to have abandoned the position taken in her letter dated April 14, 2015, as she more recently agreed that the matter ought to proceed on the record of the case alone (see para. 7 above). Moreover, based on my reading of the impugned Reply submissions, I find that in addition to being improper, even if the evidence supporting same had been properly before me, it would not have affected my decision on the final outcome of the complaints.
IV. Circumstances giving rise to the complaints
A. Critical treatment and scrutiny from manager
[12] The company now known as Zayo provides communication and internet services to businesses. Ms. Karimi was hired in 2000 as a Level 2 Communication Technician (CT) and worked in the Internet Department, also referred to during the hearing as the CTAC Department. From 2000 to 2006, her performance reviews indicate she was rated as having met her expectations. Zayo used a low-solid-high rating system and Ms. Karimi appears to have rated in the “solid” range during this period.
[13] In December 2005, Mr. Paul Picard took over as manager of the Internet Department. As of April 2006, Ms. Karimi was the only female working in the Internet Department. It is at this time that Ms. Karimi alleges Mr. Picard began to single her out and began a campaign of unfounded criticism of her work performance and punctuality.
Customer Complaints
[14] Ms. Karimi gave evidence with regards to three customer file matters where she was subsequently spoken to by Mr. Picard, about her performance on those files. I have referred to the customers’ names using acronyms in order to protect their privacy interests as third parties to this proceeding. The three incidents were in relation to dealings with FA which occurred in February 2006, DEL which occurred in March 2006 and ABXL which occurred in March – April 2006. Ms. Karimi alleges she was unfairly criticized for errors or issues arising in dealings with these customers when in fact the errors or issues were caused by either other employees or the customers themselves.
[15] The FA matter arose from a complaint by the customer with regards to the setup and installation of network services in February 2006. Ms. Karimi was one of the individuals servicing this customer. One of the customer’s emails implied that Ms. Karimi had not been provided all the information on the scope of the installation, which she required in order to complete the job. In that email from FA dated February 23, 2006 at 11:36 pm (email between two FA employees and subsequently forwarded to Zayo), it appears that after Ms. Karimi thought she had completed the work and had informed the customer, Ms. Karimi was surprised to learn (from the customer) that there was more that had to be done. The customer indicated that Ms. Karimi then became “mad” with him. The installation ultimately took several hours, instead of the 30 minutes that Ms. Karimi had anticipated. The following day, a Senior Manager of Zayo wrote to Paul Picard requesting he gather details on what the issue was so that the customer could be informed. Furthermore, the customer was not pleased with the cost of the installation which it felt should have been less had Zayo and its employees been properly prepared and informed of the scope of the installation of service.
[16] By email, the next day, Mr. Picard asked Ms. Karimi for her feedback on what the issue was on this file, as the customer had indicated that the installation could have been handled better. Notable from Ms. Karimi’s reply is that she considered the installation successful because the customer did not suffer any downtime. Mr. Picard also communicated with a co-worker of Ms. Karimi’s, who had also worked on the service installation. In an email to Mr. Picard, the co-worker indicated that the work was very complex, that he did not work directly with the customer, and thus had no comment on the customer’s view of the service. He added that there was always room for improvement and the company could use the customer’s feedback to try to make their next experience better.
[17] Mr. Picard wrote back to the Senior Manager indicating that he had spoken with Ms. Karimi and another co-worker, that there were issues with the installation, and that his group had not been aware of all the changes needed. Furthermore, Mr. Picard indicated that Ms. Karimi could improve her communication, and that she had admitted as much during a coaching session he held with her. Mr. Picard also indicated that they had received a subsequent email from the customer thanking Ms. Karimi for her help, and that everything was working. The Senior Manager replied back with a thank you to Mr. Picard and made it clear he was not looking for anyone to punish or point fingers at, but rather, an opportunity for improvement.
[18] Mr. Picard, in his testimony, indicated that he took customer complaints very seriously, as the company had experienced and was still experiencing difficult times financially when he was employed there, and it could not afford to lose any customers. While he could not recall the specifics of any meeting with regards to this incident that occurred between him and Ms. Karimi, he did indicate that he would have met with Ms. Karimi in his cubicle, and that it was his usual practice to follow-up discussions with an email to confirm what had been discussed. Mr. Picard indicated that part of his responsibilities were to follow-up with employees about customer complaints, in order to address performance issues, provide coaching, lead, guide and correct. Finally, no other actions were taken as a result of this incident.
[19] The DEL matter arose in March 2006 and involved a customer whose service installation was in jeopardy of not being completed in time by Zayo. Ms. Karimi cited this instance as evidence of unfair criticism, since she had done all she could on this file and she was not to blame for any errors. Through a series of emails between Ms. Karimi and Mr. Picard, Ms. Karimi brought to his attention that there would be consequences for both the client and Zayo if the service could not be installed the next day. Ms. Karimi requested that Mr. Picard escalate the matter, as she took the position she did not have the authority to do so. Mr. Picard suggested that Ms. Karimi escalate the matter and subsequently told Ms. Karimi who she should get in contact with. The email exchange continued, with Ms. Karimi indicating she could not escalate, as escalation had to be from manager to manager. Mr. Picard then requested that another employee take over the file. On March 29, 2006, after Mr. Picard had asked Ms. Karimi to give the details of the DEL matter over to her colleague, Ms. Karimi wrote to that colleague and indicated there was “…no guaranty [sic] that we can get a tech without a higher push”.
[20] Mr. Picard subsequently, in a discussion with Ms. Karimi, raised Ms. Karimi’s performance on this customer file as an example of a file that demonstrated Ms. Karimi’s need to improve her performance. On April 12, 2006, Mr. Picard wrote to Ms. Karimi indicating that he was following up on discussions the two of them had with regards to Ms. Karimi’s need for improvement on her performance. DEL and another customer (ABXL, discussed below) was mentioned in the email. Specifically, Mr. Picard wrote that Ms. Karimi’s performance was below standard, that she needed to take accountability for the status of her orders, to ensure that the customer and sales teams were proactively communicated with, and that she should focus on making improvements.
[21] The ABXL customer incident occurred in March and April 2006, and involved a customer service request that had been dealt with incorrectly by another employee of Zayo, at the incoming customer ordering stage. It appeared that another employee had mistakenly coded or processed the file initially, and had not forwarded it properly to the CTAC Department. Thus, the customer was not going to have installation on the day it had requested and needed it. Ms. Karimi had received the file on March 22, 2006.
[22] Ms. Karimi gave evidence that she was not to blame for any errors on this customer file, and that management was at fault for not paying closer attention to the order requirements. Mr. Picard testified that he was concerned as the customer had spoken to Ms. Karimi on March 30, 2006 and thus, Ms. Karimi should have done a better job at keeping the customer informed of the status of its requested service.
[23] No other witnesses gave evidence regarding how or whether, when compared to Ms. Karimi, they were treated differently by Mr. Picard in respect of any mistakes or issues on customer installations and files.
Punctuality emails
[24] Ms. Karimi also alleges that she was singled out and frequently criticized for her lack of punctuality in front of other employees. According to Ms. Karimi, this did not occur to other employees. The evidence showed that on two occasions, April 20, 2006 and April 24, 2006, Mr. Picard wrote to Ms. Karimi after her 8 am start time had come and passed and indicated to her that she was to call if she was going to be late. It was Mr. Picard’s testimony that it had been his practice to send follow-up emails after having had conversations with employees about performance issues. In the email of April 24, 2006, Mr. Picard followed up on a conversation he had with Ms. Karimi that day, where he wrote that should she not be able to make it for 8 am, they could discuss and try to adjust her shift schedule if that was needed. Mr. Picard testified that Ms. Karimi was the only employee scheduled, and on duty, between 8 am and 9 am.
[25] Ms. Karimi replied by email to Mr. Picard stating that the April 24, 2006 conversation had not occurred in private, that she felt she was being singled out for being late, and this had an impact on her health. Mr. Picard replied back on the same day, indicating that their discussions had been in private. Mr. Picard testified that others would not have been able to hear discussions in his cubicle, even if the volume of the conversation was louder than average, because his cubicle had higher walls than others, it was surrounded by empty cubicles, and because of where the Internet Department was located.
Other Alleged Unfair Criticism
[26] On April 12, 2006, Mr. Picard sent an email to Ms. Karimi outlining very briefly a number of performance issues, including the observation that Ms. Karimi had been found asleep at her desk which was not acceptable. Mr. Picard testified that he had been walking around the cubicle area and had found Ms. Karimi with her arms folded and head down, and that she had been startled when she woke up. Ms. Karimi testified that she had not been asleep. Rather, she was not feeling well and had her arms folded, with her head on her arms. No further actions were taken by Mr. Picard or management as a result of this incident.
[27] During a meeting on April 25, 2006, Ms. Karimi complained to Mr. Picard about his treatment of her. According to Ms. Karimi, Mr. Picard told her that it would not help her to go to her union to discuss employment issues. Ms. Karimi grieved this incident to her union. Mr. Picard denied that he had told Ms. Karimi not to go to the union. The grievance was denied and not subsequently pursued by the union.
[28] In an email on April 26, 2006, with the subject line “Disruptive Behaviour”, Mr. Picard wrote to Ms. Karimi, indicating that the day previous marked the second occasion on which Ms. Karimi had yelled at him during a discussion, that there were mutual respect policies in place, and that yelling was not acceptable. Mr. Picard wrote that the “yelling episodes” disrupted the team, that this type of behaviour had been discussed previously, that Ms. Karimi needed to work on controlling her anger, and that should she wish to discuss issues in a calm manner, a time could be arranged to do so.
[29] Only one witness recalled there ever having been yelling between Ms. Karimi and Mr. Picard. Mr. Muktar was a colleague of Ms. Karimi’s. He worked for the Data Group while Ms. Karimi worked for the Internet Department. Both groups reported to Mr. Picard. Mr. Muktar’s cubicle was closest to Mr. Picard’s. Mr. Muktar indicated that he had one recollection of Ms. Karimi going to Mr. Picard’s cubicle, after which Mr. Picard could be heard yelling at Ms. Karimi. Under cross-examination, he indicated that Ms. Karimi was probably yelling too, and furthermore, that he could not hear what subject matter the yelling was about.
[30] Except for Mr. Muktar, no other witnesses gave any evidence with regard to any yelling or any excessively loud discussions between Ms. Karimi and Mr. Picard.
[31] According to Ms. Karimi, her interactions with Mr. Picard caused her much stress and anxiety and resulted in her having to go on short term disability benefits for ten days beginning April 27, 2006. She returned to work on May 8, 2006.
B. Assignment of an overwhelming volume of tasks and tasks beyond disability-related physical limitations
[32] Upon her return on May 8, 2006, Ms. Karimi claims Mr. Picard overwhelmed her with a large volume of work. The evidence tendered on this point was an email Mr. Picard sent to all members of the Internet Department (including Ms. Karimi), wherein he asked other members of the team to return Ms. Karimi’s orders to her, along with an indication of their status. The email went on to thank everyone for covering the orders on top of their regular workload, and further thanked everyone for their teamwork and customer service.
[33] That same afternoon, Ms. Karimi testified, Mr. Picard also assigned her the task of router inventory which involved heavy lifting, that she could not perform based on her physical disabilities. Ms. Karimi had a previous medical restriction which limited her physical abilities. This task involved providing assistance to Peter Allaert, who had been Ms. Karimi’s manager from 2002 – 2005, and at the time of the request was the Senior Manager of the Internet Provisioning Group. Mr. Picard indicated to her that the task was a good fit due to Ms. Karimi’s morning shift. Ms. Karimi replied to Mr. Picard by email, that due to her back and wrist condition it was not a suitable task for her. She went on to indicate that if the assistance did not require heavy lifting, she would be happy to help.
[34] Mr. Picard had been unaware that Ms. Karimi had any medical limitations. Upon receiving Ms. Karimi’s email, Mr. Picard wrote to Mr. Allaert, asking if there was a medical note on file and also enquired what the lifting requirements were for the task. The following morning, May 9, 2006, Mr. Picard also wrote to a Senior Manager in Human Resources (HR) asking if there was a medical note on file with respect to Ms. Karimi’s medical conditions. Later that same day, prior to receiving the medical confirmation from HR, Mr. Picard wrote to Ms. Karimi with more details on the types of routers that he required someone to handle on the morning shift. Those details had been provided by Mr. Allaert. Mr. Allaert had written to Mr. Picard that the equipment was identical to the equipment that Ms. Karimi was currently handling, and he provided a manual which set out the specifications of each type of router, including physical size and weight.
[35] On May 10, 2006, Mr. Picard was provided confirmation from HR that there was a medical note on Ms. Karimi’s file confirming she had some restrictions. Both Mr. Picard and Mr. Allaert testified that the routers involved were the same ones that Ms. Karimi had already been provisioning and handling since 2000. Mr. Allaert agreed that the assistance request came from himself, and that it was Mr. Picard who had assigned the employee. Ms. Karimi testified that despite confirming that she had a doctor’s note in her employee file regarding her physical limitations, Mr. Picard repeated his request that she engage in work relating to router inventory. Ms. Karimi added that this function was normally performed by another department.
[36] Mr. Picard’s testimony was that the 8 am shift was a less busy time in the call centre, and that he tried to keep employees productive. He selected Ms. Karimi to assist with router inventory because of her 8 am start time. He indicated the task was a “shift specific” task, as opposed to a person specific task. Had someone else been working during that shift, they would have been assigned the task.
[37] A week after the initial task assignment had been made, on May 16, 2006, Ms. Karimi and Mr. Allaert were still discussing the task. Mr. Allaert indicated that he would ensure there was no heavy lifting involved, and that the routers would be brought to her desk and removed from her desk upon being dealt with. These discussions, via email, led to Ms. Karimi indicating that due to her own workload, she could not assist. Evidence from Ms. Karimi and Mr. Picard confirmed that Ms. Karimi did not end up performing the task.
[38] The next incident giving rise to an allegation of discrimination occurred almost one year later.
C. Reassignment and denial of training opportunities
[39] On April 23, 2007, Ms. Karimi was temporarily reassigned from the Internet Department to the Design Department. At the time of her reassignment, Ms. Karimi was still the only female employee in the Internet Department. Zayo submits that the manager of the Design Department, Tim Richardson, requested that an employee with internet experience be moved into the department to do cross-training. Emails from Anna Di Nuccio, Mr. Richardson’s Director, show that some responsibilities from the Internet team had been moved to the circuit design team a year earlier. In the Calgary office, a decision was made to train someone to do the work. Now, the goal was to align Toronto’s operations with Calgary and the thought was it would be easier to bring someone in with the knowledge and skillset rather than train a new individual from scratch. Furthermore, it was felt this would be a good developmental opportunity and Ms. Karimi would be a good candidate for it. Tim Richardson, Peter Allaert, Paul Picard and Anna Di Nuccio testified to the reasoning behind the assignment, i.e. to align operations in Toronto with Calgary, to introduce skillsets from the Internet Department, to expand the work and expertise in the Design Department, and to cross-train individuals. As Ms. Karimi had expressed a desire to develop her skills, a decision was made to offer her the opportunity to be temporarily reassigned to the Design Department. According to Zayo, Ms. Karimi was under no obligation to accept the temporary reassignment, but voluntarily agreed to it, along with her union.
[40] While Ms. Karimi expressed some concern, via email, to her union officials in going to the Design Department on the re-assignment, she asked the union officials not to convey that to management, as she did not want to appear to have been forced to take the position. She indicated she would accept the re-assignment. A union official did indicate informally to management that Ms. Karimi was not interested in expanding her skills, but, the union and Ms. Karimi took no further steps to discuss the matter with Zayo management. Thus, Ms. Karimi never informed management that she did not want to take the temporary assignment.
[41] She claims that while her collective agreement provided for reassignments based on seniority, she was selected by Mr. Picard for the reassignment despite having more seniority than other male colleagues in the Internet Department. The testimony of shop steward Dylan Gadwa, and the documentary evidence of union officials Camilla Leblanc and Ken Burton, indicated there was no seniority requirement when it came to temporary assignments within the collective agreement. The documentary evidence consisted of emails between Ms. Karimi and her union officials, wherein they provided their interpretation of the applicable collective agreement provisions. Mr. Gadwa was both a colleague of Ms. Karimi’s, working within the same occupational classification, and in the same workgroup.
[42] Ms. Karimi was concerned about her seniority rights and status, should there be lay-offs in the Design Department. She sought assistance from her union in order to confirm her rights. Zayo submits that its HR Department made it clear to Ms. Karimi that as the reassignment was temporary she was still part of the Internet Department. Zayo further confirmed that should there be any restructuring at Zayo, such as lay-offs in the Design Department, Ms. Karimi would return to her home position/department. Ms. Karimi had also expressed a concern that she would have lower seniority within the Design Department as she was the newest member of that group.
[43] According to Ms. Karimi, Mr. Picard told her that on reassignment her skill set would be used, and that she would get training and development opportunities. However, Ms. Karimi claims she was assigned unskilled tasks and was denied training opportunities afforded to male colleagues. Specifically, she claims that male colleagues in the Internet Department received further training that Ms. Karimi missed by virtue of being in the Design Department. Furthermore, she argues she was not afforded training equivalent to her male colleagues in the Design Department.
[44] Zayo submits that the reason why Ms. Karimi was not getting formal or course delivered training was because part of the rationale for the temporary assignment was to provide internet knowledge to the Design Department. However, she did receive informal training in the form of job shadowing. Zayo also submits that, while Ms. Karimi wanted to do more complex design work, she failed to appreciate or accept that before she could learn the more complex work, she first had to learn the less complex design work.
[45] Tim Richardson testified that the method of training that was primarily given in the Design Department was side-by-side shadowing or training. There was no formal training program or series of courses that one ordinarily took to work in the Design Department. There may have been the occasional course when a new technology or product was involved. Mr. Richardson further testified that all others in the Design Department would have been trained the same way, that is, via side-by-side training. Ms. Karimi provided evidence that she was not happy with this form of training, and that she preferred instructor-led courses or courses that came with some sort of certification; she found it difficult to learn by spending time with co-workers. That being said, the parties led no evidence of any training that had been offered to others in the Design Department, either prior to Ms. Karimi joining the department or during her time there, and that had been denied to Ms. Karimi. There was uncontradicted evidence introduced during the hearing showing that Ms. Karimi was trained the same way as any individual who had previously joined the group or would join the group.
D. Demotion/Rebalancing
[46] Ms. Karimi claims she was demoted to the position of a Level 1 CT on November 28, 2007. Zayo described the transfer as a rebalancing of the workforce. Ms. Karimi claims, based on seniority, that more junior male colleagues should have been demoted before her.
[47] According to Zayo, the work change was a form of business-related “rebalancing” carried out pursuant to the collective agreement. The rebalancing was announced to the Internet Department via an email on November 14, 2007. Under the rebalancing exercise, two employees were moved from the Internet Department to the Order Management group because there was a need for additional resources in that group. In accordance with the provisions of the collective agreement, in the absence of volunteers for the rebalancing, the junior employees (those with the lowest seniority) in the affected department were rebalanced to the other area. Ms. Karimi and a male colleague, as the two most junior employees in the Internet Department, were rebalanced. As the new work they would be performing was at a different classification from their previous jobs, they were reclassified from CT2s to CT1s. However, they benefitted from salary protection, ensuring that Ms. Karimi would continue to be paid as a CT2.
[48] Ms. Karimi filed a grievance over the rebalancing, but it was withdrawn by her union after Zayo and the union discussed the matter at a grievance meeting and the union was satisfied that the rebalancing had been carried out in accordance with the provisions of the collective agreement.
[49] While Ms. Karimi’s complaint alleged she was higher up the seniority list and thus, should not have been rebalanced, during her testimony, she acknowledged that she was indeed one of the two most junior employees on the seniority list. This was also confirmed by the testimony of Mr. Gadwa, who was her union representative at the time.
[50] Mr. Picard testified that he played no role in who got rebalanced as the exercise was based on seniority. Furthermore, he did not have a role in making the decision to rebalance, as that decision was made by a higher level of management within Zayo.
[51] Jennifer Bazinet, Manager of Service Delivery – Data and Internet, testified that rebalancing occurred because the Order Management group was going to be taking on additional functions, some of which had been previously performed by the CTAC Department. The Order Management group fell under her area of responsibility. Under the rebalancing, some of the tasks performed by CTAC at the completion of an order would now be done by the Order Management group. The tasks in question were similar to work already being performed by Order Managers (OM), and Zayo felt it was more appropriate for it all to be handled by the Order Management group. The transfer of tasks from CTAC to the Order Management group necessitated the rebalancing of employees between these groups.
[52] After the rebalancing, Ms. Bazinet became Ms. Karimi’s direct manager in the Order Management group. Ms. Bazinet described Ms. Karimi as having been reluctant and at times contradictory when it came to training. There were times when Ms. Karimi would say she needed training. At other times she indicated she knew what she was doing and did not need training, as she had worked in CTAC when the Order Management group did not even exist, and CTAC had performed a similar function. However, Ms. Bazinet testified that the work in the Order Management group was different with different systems, different methodologies and different groups.
[53] The training provided was job shadowing or side by side, with experienced OM’s sitting with less experienced OM’s as they performed basic orders. Then, gradually, the number of orders and the complexity of orders would be increased for the new OM. This is how all new OM’s were trained. The other employee rebalanced at the same time as Ms. Karimi was trained in the same way. Ms. Bazinet testified that there had been in the past another employee from CTAC who had been rebalanced in, for whom it had taken about a year to learn the job. Ms. Karimi was progressing slowly compared to others, according to Ms. Bazinet.
[54] Ms. Bazinet described how at various points in time, several months after Ms. Karimi had started in the section, Ms. Karimi had asked for several orders to be reassigned, as Ms. Karimi was not working with the specific technologies. Ms. Bazinet felt that at that point in time, Ms. Karimi was behind where she should have been in her knowledge, as she was still working on basic orders. Furthermore, the volume of orders that Ms. Karimi was working on was minimal, compared to how many Ms. Bazinet thought she should have been taking on. Finally, Ms. Bazinet testified as to errors and mistakes that Ms. Karimi made in handling some files during this period, which Ms. Bazinet described as basic errors tied to knowing the function of the job. Ms. Bazinet found it discouraging that two months into the position, Ms. Karimi was making such errors.
[55] Ms. Bazinet testified that in conversations with Ms. Karimi, Ms. Karimi expressed the view that the work was below her skill level. Ms. Bazinet attempted to reassure Ms. Karimi that the decision to move her had not been personal, but a business decision.
E. Failure to accommodate and retaliation
[56] Following Ms. Karimi’s demotion/rebalancing, she began experiencing symptoms of depression. In or about April 2008, she went on sick leave and, following a brief return to work for one week, went on short-term disability from around July 8, 2008.
[57] One day in early October 2008, Ms. Karimi provided Zayo with three separate medical notes, which can be summarized as follows:
A July 2008 note indicating that Ms. Karimi required modified duties on a permanent basis;
A note dated September 2, 2008, indicating that Ms. Karimi could not work for the foreseeable future at her usual workplace; and,
A note dated October 2, 2008, from Dr. Aaron Malkin indicating that she could gradually return to work by the end of that month. This note indicated that it would be necessary for Ms. Karimi to work from home in order to return to work.
Zayo relied on the most recently dated note in assessing possible accommodation for Ms. Karimi and ultimately found that it could not accommodate Ms. Karimi working from home. She remained on short-term disability benefits for approximately 8 months, until March 2009.
[58] According to Zayo, it could not accommodate Ms. Karimi’s request to work from home because of operational requirements. Zayo indicated that Ms. Karimi had only received three months of training on her new duties prior to her sick leave, which was not enough training to enable her to perform the work independently. She had also been progressing in her training very slowly.
[59] Mr. Van Horne, who had held various HR positions within Zayo, including as an HR Advisor and Senior Manager of Labour Relations, gave evidence on behalf of the Respondent. Mr. Van Horne testified that Ms. Karimi’s accommodation request could not be met, and that she also did not qualify for the Teleworking Policy. However, he acknowledged that the company’s Workplace Accommodation Policy did allow for an employee to work from home. The two policies were separate and independent from each other.
[60] Ms. Bazinet and Mr. Van Horne discussed the accommodation request together, before communicating to Ms. Karimi. Ms. Bazinet testified that Ms. Karimi did not meet some of the key criteria under the Teleworking Policy such as; (i) that the employee be a self-motivated worker; (ii) that the employee does not require a high level of supervision; (iii) that the employee be comfortable working in isolation, and; (iv) that the employee’s past and current performance must meet or exceed expectations. Ms. Bazinet testified that:
Ms. Karimi was not able to work independently without a high level of supervision;
Ms. Karimi had not been fully trained;
the training was not in a classroom environment, as it was on the job training which would require Ms. Karimi to be in the office;
the training usually took 6 months or more;
Ms. Karimi had performance issues during her first 3 months and would need the immediate support of her peers to help her as she learned the process, and how to handle any problems with orders that might arise.
[61] Under the Workplace Accommodation Policy, similar criteria were considered to find that Ms. Karimi could not be accommodated to work from home under that policy either.
[62] For these reasons, Zayo made the decision that Ms. Karimi could not be accommodated to work from home.
[63] Furthermore, Ms. Bazin