Culic v. Canada Post Corporation

Culic v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2007-01-24
Neutral citation
2007 CHRT 1
File number(s)
T1083/6405
Decision-maker(s)
Jensen, Karen A.
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DESD ROITS DE LA PERSONNE
SANDY CULIC
Complainant
- and - CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR DECISION
MEMBER: Karen A. Jensen
2007 CHRT 01 2007/01/24
I. WHAT IS THIS COMPLAINT ABOUT?
II. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THE COMPLAINT?
III. WHAT ARE THE ISSUES IN THIS COMPLAINT?
IV. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE?
V. WHAT ARE THE ALLEGATIONS WITH RESPECT TO THE PRIMA FACIE CASE? 5
VI. THE FIRST TIME PERIOD: JUNE 2000 - OCTOBER
A. ALLEGATION NUMBER 1 - Repeated questions during pre-shift meetings constituted adverse differential treatment
B. ALLEGATION NUMBER 2 - The requirement that Ms. Lipp provide medical information regarding her ability to perform the full-time postal clerk position constituted adverse differential treatment
C. ALLEGATION NUMBER 3 - Canada Post's repeated and negative communications with Ms. Lipp regarding her restrictions and the provision of medical information was discriminatory
VII. THE SECOND TIME PERIOD - MS. LIPP ASKS TO RETURN TO WORK
A. ALLEGATION NUMBER 4 - The refusal to permit Ms. Lipp to return to work until she had attended the IME's in Winnipeg was discriminatory
B. ALLEGATION NUMBER 5 - The imposition of disciplinary leave without Pay
VIII. WHAT IS THE TRIBUNAL'S CONCLUSION REGARDING LIABILITY?
IX. WHAT IS THE APPROPRIATE REMEDY?
A. An Order that Canada Post Return Ms. Lipp to Active Service
B. An Order that Canada Post Cease its Discriminatory Conduct and Address the Underlying Factors and Effects of the Conduct
C. Compensation for Lost Wages
D. Compensation for Pain and Suffering
E. Special Compensation - s. 53(3) of the Act 71
F. Letter of Acknowledgement
G. Costs
H. Interest
I. WHAT IS THIS COMPLAINT ABOUT? [1] This complaint is about whether Canada Post discriminated against Sandy Lipp (née Culic) on the basis of her disability and gender (pregnancy) in 2000 and 2001 at the Mail Processing Plant in Regina, contrary to section 7 of the Canadian Human Rights Act.
II. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THE COMPLAINT? [2] Sandy Lipp began work as a part-time postal clerk with Canada Post Corporation in Regina in 1991. Postal clerks carry out the important functions of sorting and dispatching mail in Canada.
[3] In 1995 and 1997, Ms. Lipp sustained injuries to her neck, shoulder and head areas. In March 2000, Canada Post acknowledged in a letter to Ms. Lipp that she was permanently partially disabled (PPD).
[4] As a result of her PPD status, Ms. Lipp had certain restrictions with regard to the tasks that she could perform as a postal clerk. One of these restrictions was that she could generally work only six hours per day.
[5] In June 2000, Ms. Lipp applied for a full-time postal clerk position on Shift 3, which is the evening shift at the Mail Processing Plant. Full-time postal clerks generally work eight hour shifts. Therefore, Canada Post required medical documentation establishing that Ms. Lipp could safely work past the six hour restriction that had been set out in her PPD letter.
[6] Ms. Lipp provided medical documentation from her physician stating that she could work full-time (eight hour) shifts on modified duties. Canada Post and Medisys, the medical consulting firm that handles Canada Post's occupational health and safety issues, had concerns about this information. Among those was the concern that the information did not provide an objective medical assessment of Ms. Lipp's restrictions and capabilities.
[7] Notwithstanding the concerns, Canada Post awarded Ms. Lipp the full-time position on Shift 3 in October 2000. She was permitted to work in that position on modified duties.
[8] Canada Post told her, however, that she would still be required to provide more medical documentation regarding her medical restrictions. Consequently, while she was working in the full-time position, Ms. Lipp was asked to attend an Independent Medical Examination (IME) in Regina. As a result of a miscommunication about the date, Ms. Lipp did not attend the IME in Regina in April of 2001.
[9] In that same month, Ms. Lipp went on disability leave. She was diagnosed as suffering from major depression and anxiety disorder.
[10] In the fall of 2001, Ms. Lipp informed Canada Post that she was fit and ready to return to work. Canada Post told her that before she returned to work, she would be required to attend two Independent Medical Examinations in Winnipeg. One of the IME's was with an occupational specialist and the other was with a psychiatrist.
[11] Ms. Lipp was pregnant at the time and told Canada Post that she could not travel as a result of difficulties that she was experiencing with her pregnancy. She refused to attend the IME's. Canada Post placed her on disciplinary leave without pay for her refusal to attend the IME's.
[12] On March 18, 2003, Ms. Lipp filed a complaint with the Canadian Human Rights Commission.
[13] Ms. Lipp also filed grievances alleging that Canada Post had violated the collective agreement by engaging in an unreasonable delay in returning her to the workplace, and in putting her on disciplinary leave without pay. On April 16, 2004, an arbitrator dismissed Ms. Lipp's grievances (Canadian Union of Postal Workers v. Canada Post Corporation (Re Culic) (16 April 2004), Regina, Union Grievance No's 820-00-00046 & 00051 (Norman).
[14] On September 28, 2005, Ms. Lipp's human rights complaint was referred to the Tribunal. Canada Post subsequently brought a motion requesting that the complaint be dismissed on the basis of the doctrine of res judicata. The Tribunal dismissed Canada Post's motion and ordered that the inquiry into the complaint proceed (Culic v. Canada Post Corporation 2006 CHRT 06).
III. WHAT ARE THE ISSUES IN THIS COMPLAINT? [15] There was no issue during these proceedings as to whether Ms. Lipp's head, neck, and shoulder problems constituted a disability, and thus, a prohibited ground of discrimination according to the Act. Similarly, there was no issue as to whether Ms. Lipp was pregnant in the fall of 2001, and that differential treatment on the basis of pregnancy would constitute differential treatment on the basis of sex.
[16] During the hearing, however, an issue was raised as to whether the complaint should include the allegation that in refusing to return Ms. Lipp to work in the fall of 2001, Canada Post discriminated against Ms. Lipp on the basis of her psychological problems, or her perceived psychological problems. In written closing argument, counsel for Canada Post indicated that he had no objection to the addition of this allegation in the complaint. Therefore, I have included it in the allegations in this complaint.
[17] On the second day of the hearing, counsel for the Respondent sought to have the Arbitrator's award entered into evidence. I ruled that the award was admissible on the basis that it was relevant to the issues raised in the complaint, and there was strong judicial authority supporting such a decision (Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465). I stated however, that I would reserve my decision as to what weight I would accord to the arbitrator's findings until the final decision in the matter. Given that the arbitrator's findings are relevant to Canada Post's explanation for the allegedly discriminatory conduct, I will address the weight that I have accorded them in the part of my decision that deals with Canada Post's explanation.
[18] The issues, therefore, in this case are:
Whether the requirements for medical information about Ms. Lipp's disability, including the requirement that Ms. Lipp attend an IME in Regina, were discriminatory; Whether the manner in which Canada Post handled its requirements for information was discriminatory; and, Whether the requirement that Ms. Lipp attend two IME's in Winnipeg before she could return to work in the fall of 2001 was discriminatory.
IV. WHAT MUST BE PROVEN TO ESTABLISH DISCRIMINATION IN THIS CASE? [19] It is a discriminatory practice, directly or indirectly, to refuse to continue to employ, or, in the course of employment, to differentiate adversely in relation to an employee on the basis of a prohibited ground of discrimination (CHRA, s. 7).
[20] The complainant has the initial burden of establishing a prima facie case of discrimination. The Supreme Court of Canada decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley) provides the basic guidance for what is required to make out a prima facie case. The Court stated that a prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent.
[21] Thus, the question that must be answered with regard to the prima facie case is whether there is credible evidence to support Ms. Lipp's allegations of adverse differential treatment, contrary to s. 7(b) and/or a refusal to employ or to continue to employ Ms. Lipp, contrary to s. 7(a) of the Act.
[22] If that question is answered in the affirmative, the onus then shifts to the Respondent to provide a reasonable explanation that demonstrates either that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. If a reasonable explanation is provided by the Respondent, it is up to the Complainant to demonstrate that the explanation is merely a pretext for discrimination (Basi v. Canadian National Railway Company (No.1) (1988), 9 C.H.R.R. D/5029 at para. 38474 (C.H.R.T.)).
[23] Conduct may be found to be non-discriminatory if, in accordance with s. 15(1) of the Act, it is established that it constituted a bona fide occupational requirement (BFOR). Section 15(2) of the Act stipulates that to be considered a bona fide occupational requirement, it must be established that accommodation of the individual would impose undue hardship considering health safety and cost.
V. WHAT ARE THE ALLEGATIONS WITH RESPECT TO THE PRIMA FACIE CASE? [24] Ms. Lipp's allegations relate to two distinct periods of time. The first set of allegations relates to the period from June 2000, when she applied for a full-time postal clerk position on Shift 3, until October 2001, when Ms. Lipp's disability leave ended. Ms. Lipp alleged that the following conduct on the part of Canada Post during the first time period constituted adverse differential treatment on the basis of her disability:
Repeated questioning about her ability to perform tasks during pre-shift meetings; The requirement that she provide medical information regarding her ability to perform to work as a full-time postal clerk including the requirement that she attend an IME in Regina; Repeated negative communication regarding her restrictions and the provision of medical information regarding her disability;
[25] The second set of allegations relates to the period from October 2001, when Ms. Lipp informed Canada Post that she wanted to return to work, until December 2001, when she was placed on disciplinary leave without pay for refusing to attend the IME's in Winnipeg. Ms. Lipp alleges that the following conduct on the part of Canada Post during the second time period constitutes adverse differential treatment on the basis of her disability and/or perceived disability and/or her sex:
(4 The refusal to permit her to return to work in the fall of 2001 until she had attended two IME's in Winnipeg;
(5.) The imposition of disciplinary leave without pay.
VI. THE FIRST TIME PERIOD: JUNE 2000 - OCTOBER 2001 A. ALLEGATION NUMBER 1 - Repeated questions during pre-shift meetings constituted adverse differential treatment [26] During the hearing, Ms. Lipp testified that she was singled out for questioning during pre-shift meetings about whether her medical restrictions would permit her to perform certain scheduled tasks. Pre-shift meetings are ten - fifteen minute meetings conducted by the shift supervisor prior to the start of each shift. Uncontested evidence established that the purpose of the meetings is to assign individual tasks to employees on that shift and to discuss general issues in the plant.
[27] In final argument, counsel for Ms. Lipp argued that the questioning of Ms. Lipp during pre-shift meetings constituted adverse differential treatment on the basis of her disability. Counsel for Ms. Lipp further alleged that the process by which tasks were assigned during pre-shift meetings was discriminatory because the schedules were computer-generated and did not take into account the functional limitations of employees. Therefore by its very nature, the process of scheduling employees necessitated the questioning of disabled employees about their abilities and this resulted in systemic discrimination against disabled employees.
[28] Canada Post objected to the fact that these issues had been raised for the first time during the hearing. It argued that the Tribunal should refuse to deal with them, given that their late disclosure had deprived Canada Post of an adequate opportunity to address the issues. Counsel for Canada Post said that had he known that the issue of the computer-generation of schedules was in question in this case, he would have called evidence specifically to deal with this point. Should the Tribunal agree to consider this allegation as part of the complaint, the fact that Canada Post was unable to call evidence on this issue because of its late disclosure would cause significant prejudice to Canada Post.
[29] I agree with the Respondent's position on this issue. As the Tribunal stated in Uzoaba v. Correctional Services of Canada (1994), 26 C.H.R.R. D/361, when considering whether to deal with allegations that do not form part of the initial complaint, the essential issue is whether the Respondent has been provided with adequate notice of the case that it has to meet, so as to comply with the requirements of procedural fairness. Subsequent decisions of this Tribunal have confirmed this point (see for example: Parent v. Canada (Canadian Armed Forces 2005 CHRT 37).
[30] Counsel for Ms. Lipp stated that the issue of pre-shift questioning was raised generally in the complaint form. There, Ms. Lipp stated that in July 1996, her doctor could not provide a date by which she would be fully recovered and able to return to regular duties. She then stated: Subsequently, CPC asked me on a monthly basis, in front of co-workers, if I still required accommodation and to have my doctor complete and submit Occupational Fitness Forms and questionnaires.
[31] In my view, the above-noted allegation in the complaint form is not specific enough to constitute notice to the Respondent that the issues of questioning during pre-shift meetings and the computer-generation of work schedules would be raised during the hearing. The evidence presented during the hearing indicated that pre-shift meetings occurred on a daily basis. Ms. Lipp testified that she was asked three or four times a week during pre-shift meetings about her ability to perform certain tasks. Thus, it seems to me that the statement made in the complaint form was not in reference to the allegations about pre-shift questioning or the computer-generated work schedules.
[32] Moreover, I was unable to find any other references in the pre-hearing material to the issue of pre-shift questions or the work schedule. In preparation for the hearing, the Complainant provided a cursory Statement of Particulars. The Respondent requested additional particulars. This was not provided.
[33] Rule 9(3) of the Tribunal's Rules of Procedure stipulates that, except with leave of the Tribunal, parties shall not be permitted to raise issues or adduce evidence during the hearing unless they have been disclosed prior to the hearing. During the hearing, counsel for the Respondent did not raise any objections to the admission of evidence on this issue. However, when counsel for the Complainant made the allegation for the first time in closing argument that the scheduling process and the pre-shift questioning were discriminatory, counsel for the Respondent raised his objections. I think it is fair to say that it may not have been until closing argument that counsel for the Respondent became aware of the use that was going to be made of the evidence on these points.
[34] The Respondent suffered prejudice as a result of the failure on the part of the Complainant to raise the issues of pre-shift questioning and the allegation of systemic discrimination based on the scheduling process prior to the hearing. As counsel for the Complainant herself stated, Canada Post provided no evidence about the scheduling process and in particular, it provided no evidence about any undue hardship that would result from adapting the computer program to obviate the need for questioning. The Respondent was not provided with sufficient notice that it was necessary to lead such evidence.
[35] Therefore, I will not consider the allegations of pre-shift questioning and systemic discrimination based on the scheduling process to be part of the complaint.
B. ALLEGATION NUMBER 2 - The requirement that Ms. Lipp provide medical information regarding her ability to perform the full-time postal clerk position constituted adverse differential treatment [36] Ms. Lipp acknowledged that when she applied for a full-time postal clerk position in June of 2000, Canada Post was entitled to ask for assurances from her doctor that she could safely perform the requirements of a full-time postal clerk. However, when her doctor wrote a note on June 29, 2000, indicating that she was fit to work an eight hour shift on light duties, the requirement for further medical information should have ended, according to Ms. Lipp.
[37] She argued that Canada Post had ample information at its disposal confirming the validity of the information provided in the doctor's note. In particular, Canada Post had transferred Ms. Lipp to the full-time position, and she worked in that position for six months. This, she argued, established that she could work full-time on modified duties. The insistence, therefore, that Ms. Lipp provide further medical information and attend an IME in Regina was unreasonable and imposed a burden upon her that other employees in full-time positions did not have to bear.
(1) Is there credible evidence to support this allegation?
[38] Ms. Lipp testified that when a full-time postal clerk position came up on Shift 3 she applied for it. As the most senior part-time postal clerk she was entitled to the position, according to the collective agreement. However, Ms. Lipp testified that after she applied for the position the Superintendent on Shift 3, Mr. David Slater, told her that she could not have the position because Canada Post needed someone who could perform the full range of duties in the full-time shift. She testified that Mr. Slater told her to get a doctor's note stating that she could work the eight hour shift.
[39] Ms. Lipp testified that she did this. She produced a note from her physician, Dr. Chooi, indicating that she could move: from part-time to full time (8 hours/day) from 29 June 2000 light duty.
[40] A month after she produced her doctor's note, Medisys informed Ms. Lipp that more information was needed than had been provided in the note. Medisys asked her to take a set of questions that had been formulated by a Medisys physician, Dr. Lori Koz, to her doctor. This was known as an Acquisition of Medical Information (AMI). Ms. Lipp was to return the AMI to Medisys by August 31, 2000.
[41] Ms. Lipp testified that she did not understand why she was required to produce more information about her ability to work full-time. She testified that prior to applying for the full-time position she had worked eight-hour shifts on numerous occasions, notwithstanding her six-hour work restriction. This was because Canada Post had either offered her the additional hours, or had scheduled her to work eight-hour shifts.
[42] Ms. Lipp testified that she wrote Mr. Slater a letter dated August 21, 2000, asking why she was required to have an AMI completed. She asked Mr. Slater whether Canada Post had considered the fact that she had regularly been working an eight hour shift when she was part-time, thereby demonstrating her ability to work eight hours a day.
[43] Ms. Lipp testified that she did not receive answers to any of her questions. However, she proceeded to have the AMI completed by her physician, Dr. Chooi.
[44] In the cover letter to Dr. Chooi, Dr. Koz stated that there would be a number of job duties in the full-time postal clerk position that Ms. Lipp could not do if she was restricted to light duties. Dr. Koz indicated that Canada Post wanted clarification as to what factors had changed such that Ms. Lipp was now able to increase her hours of work, but not her duties, specifically sorting oversize letter mail. Dr. Koz stated in her letter that Canada Post wished to determine whether Ms. Lipp could now participate in a gradual return to work plan toward the full duties of a full-time postal clerk.
[45] In his response to the questions posed by Dr. Koz in the AMI, Dr. Chooi indicated that Ms. Lipp needed to work full-time in order to get enough pay to cope with her financial situation. He indicated that Ms. Lipp could not sort oversize mail and that she had reached her maximum medical improvement at this point in time. Dr. Chooi also indicated that he felt Ms. Lipp would suffer physical harm if she undertook a gradual return to work.
[46] The information from the AMI was provided to Medisys. Medisys reviewed the information from the AMI and evaluated it in the light of Ms. Lipp's medical file. Medisys then provided what is known as a Field Report to Canada Post. Uncontested evidence established that Field Reports are designed to protect the privacy of the employee by providing Canada Post with only the information that is needed to provide appropriate workplace accommodations or to otherwise respond to medical concerns that have been raised by the employee.
[47] In a Field Report dated September 20, 2000, Dr. Lori Koz of Medisys indicated the information provided by Dr. Chooi was consistent with the previous information on the file. Dr. Koz further stated that given that Ms. Lipp had had her medical conditions for a number of years, the likelihood of a vast change in her restrictions at that point in time was unlikely. She stated that there might, therefore, be some merit in an IME.
[48] Ms. Lipp testified that on October 1, 2000, she was transferred to the full-time position on Shift 3. She testified that there was no indication from anyone at Canada Post or Medisys that her transfer to the full-time position was contingent upon the provision of any further medical information.
[49] Nonetheless, on October 18, 2000, Ms. Lipp was informed that she was required to attend an Independent Medical Examination (IME) in Winnipeg on October 30, 2000.
[50] Mr. Keith Jeworski, President of the Regina local of the Canadian Union of Postal Workers, testified that article 33.10(c) of the Collective Agreement provided that Canada Post could require an independent medical examination by a doctor selected by the Corporation. Mr. Jeworski testified, however, that IME requests were very uncommon in Regina at that time. Prior to Ms. Lipp, Canada Post had not, to his knowledge, made any other requests for an IME.
[51] Ms. Lipp asked Canada Post to reconsider the decision to send her to Winnipeg for the IME. Flying made her ill, and traveling by land on the highways was difficult for her because her first husband was killed on Highway One in an accident.
[52] Canada Post granted Ms. Lipp's request not to travel to Winnipeg and agreed to reschedule the IME at a later date in Regina. In the letter advising her that the appointment would be rescheduled, Mr. Dale Hippe, the Manager of Mail Operations, stated that Canada Post's ability to accommodate Ms. Lipp in any permanent modified duty position and particularly as it related to her pending promotion to full time status was dependent upon an understanding of her physical limitations and the impact of those limitations on Canada Post's Operations and Ms. Lipp's peers.
[53] Ms. Lipp testified that she worked in the full-time position on modified duties until April 2, 2001. She testified that she did not experience any difficulties performing the modified functions of her position. She did not take sick leave or any other time off to deal with problems arising from working full-time.
[54] On or about March 22, 2001, Ms. Lipp was informed that she was required to attend an IME in Regina on April 2, 2001, with Dr. Milo Fink. However, Ms. Lipp and Mr. Jeworski testified that, as a result of a miscommunication about a proposed change in the date of the appointment, Ms. Lipp did not attend the IME. Ms. Lipp subsequently went on sick leave. She testified that while she was on sick leave, she attended an IME appointment on July 30, 2001, that she had rescheduled after she missed the one in April. However, when she got to the appointment, she found that, unbeknownst to her, it had been cancelled.
[55] Ms. Lipp testified that she felt great emotional stress as a result of the demands to produce medical information and to attend appointments. She testified that it was difficult for her to arrange the appointments and to organize her schedule to attend them. She felt stress every time she received a letter requiring that she provide more medical information. She understood the need to provide medical information about her disability, but felt that Canada Post was asking her for medical information that was not necessary.
(2) The Tribunal's Findings and Conclusion Regarding the Prima Facie Case for Allegation # 2
[56] For the following reasons, I find that Ms. Lipp has established a prima facie case that Canada Post's insistence that she attend an IME in Regina constituted adverse differential treatment on the basis of her disability.
[57] While Ms. Lipp's testimony throughout the hearing was not always entirely credible, I find that the information she provided with regard to the above-noted allegations was credible. For example, her testimony that she had worked eight hour shifts on numerous occasions prior to applying for the full-time job was confirmed later by evidence provided by Mr. Slater indicating that between March and June of 2000, Ms. Lipp worked an eight hour shift on 22 occasions. Her testimony with regard to the above-noted allegations was straightforward, unembellished and consistent.
[58] Ms. Lipp provided medical information indicating that she could work full-time, but that she could not increase her duties beyond the modified duties that she had been performing. Canada Post then allowed Ms. Lipp to assume the full-time position on modified duties. She worked full-time for 6 months until she went on leave. There were no indications that Ms. Lipp was having any difficulty performing the modified functions of a full-time postal clerk.
[59] In spite of the fact that Ms. Lipp was working work full-time on modified duties, Canada Post continued to require that she provide more medical information to establish that she could do the job. She felt great emotional stress when she received requests to provide more information or to attend an appointment since they were communicated in such a way as to put her job security in question. Moreover, it was difficult for Ms. Lipp to provide the information and to attend the appointments.
[60] I find that Ms. Lipp has established a prima facie case that Canada Post's ongoing requirement to establish her fitness to work full-time constituted adverse differential treatment. She was treated differently from non-disabled employees in that her job security in the full-time position was contingent upon fulfilling the requirement, in a form acceptable to Canada Post, for satisfactory medical information about her disability. Given that the requirement stemmed from Canada Post's stated concern that her disability might prevent her from being able to perform the functions of a full-time postal clerk, I find that Canada Post's adverse differential treatment of Ms. Lipp was based on the fact that she is disabled.
(3) Does Canada Post have a reasonable explanation for its otherwise discriminatory practice?
[61] Once the prima facie case has been established, the onus then shifts to the Respondent to provide a reasonable explanation that demonstrates either that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory. Conduct may be found to be non-discriminatory if, in accordance with s. 15(1) of the Act, it is established that it constituted a bona fide occupational requirement.
[62] Canada Post has argued that the requirement to attend the IME was a bona fide occupational requirement. In order to establish this, Canada Post must demonstrate that accommodating Ms. Lipp in the full-time position without the information provided by the IME would impose undue hardship on Canada Post, having regard to health, safety and cost (s. 15(2) of the Act).
[63] In determining whether a BFOR has been established, it is helpful to keep in mind the principles set out by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U., [1999] 3 S.C.R. 3 (Meiorin) and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 (Grismer)).
(4) Does the evidence support the allegation that the requirement to attend an IME was a bona fide occupational requirement?
[64] Both Mr. Slater and Mr. Hippe testified about the events that led to the decision to require that Ms. Lipp attend an IME. Mr. Slater testified in a straightforward manner and candidly admitted that his recollection of the events was poor. He often said we would have or I would have before he provided his testimony of what he thought had occurred. Therefore, I have reduced the weight of his testimony in certain areas based on the fact that his recollection was poor and it appeared that he was, at times, trying to reconstruct what he would have done based on his review of the documentation during the hearing. However, I was impressed by the fact that Mr. Slater candidly admitted at times that there was a problem with the way things had been handled by Canada Post. Moreover, he did not appear to exaggerate or embellish any of the information he provided. Were it not for the fact that his memory of the events was so poor, I would have accorded his testimony significant weight.
[65] Mr. Hippe's memory of the events was somewhat stronger even though the extent of his involvement was less. He too testified in a straightforward and candid manner. His evidence with respect to this time period was internally consistent and held up well under cross-examination.
[66] I find, on a balance of probabilities and for the reasons that follow that the requirement that Ms. Lipp provide further medical information in the form of an AMI and that she attend an IME in Regina were bona fide occupational requirements.
(a) The Requirement for medical information from an AMI and an IME is rationally connected to the functions of the position.
[67] The first step in assessing whether the employer has successfully established a BFOR defence is to identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job (Meiorin, supra, at para. 57). The focus at this stage is not on the validity of the particular standard that is at issue, but rather on the validity of the general purpose.
[68] The evidence of Mr. Hippe and Mr. Slater was that Canada Post required objective medical information about employees' medical restrictions for a number of reasons: (1) to ensure that employees are able to safely perform the functions of their position; (2) to enable Canada Post to properly accommodate disabled employees; and, (3) to enable Canada Post to maximize the amount and variety of work that disabled employees could do within their restrictions.
[69] Mr. Slater testified that objective, concise medical information is needed from disabled or injured employees to enable Canada Post to ensure that they are safely working within their restrictions and that they are working productively.
[70] With respect to the third goal, Mr. Hippe testified that Canada Post requires employees to provide updated medical information whenever they change positions or their restrictions change so that Canada Post can determine how best to maximize the employee's work potential within their restrictions. Medical information about an employee's restrictions allows Canada Post to determine how to accomplish the goal of efficiency and productivity in the workplace without putting the safety and well-being of the individual employee or other employees at risk.
[71] On the basis of this evidence, I am satisfied that the requirement to provide medical information is rationally to the goals of employee safety, accommodation and productivity. Moreover, I am satisfied that all three goals are valid. Canada Post has an obligation to ensure that employee productivity and efficiency is achieved without compromising its obligation to accommodate disabled employees, and without putting employees' safety and health at risk. To do so, Canada Post requires medical updates on employees' restrictions as the restrictions change or as the work assignment changes.
(b) Canada Post required the additional medical information including the IME in the honest and good faith belief that it was necessary to achieve the above-noted objectives.
[72] Once the legitimacy of the employer's more general purpose is established, the employer must take the second step of demonstrating that it adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the complainant (Meiorin, supra, at para. 60). The focus at this stage in the analysis of the BFOR is on evidence of the subjective views of the respondent with regard to the particular standard, which in this case, is the requirement for more medical information.
[73] The evidence established that Canada Post formulated the requirement that Ms. Lipp provide additional medical documentation and attend the IME in Regina in the honest and good faith belief that this was necessary to accomplish the goals set out above.
[74] Mr. Slater and Mr. Hippe testified that neither the note from Ms. Lipp's doctor nor the Field Report from Dr. Koz provided them with them with the clear, objective medical information that they needed to ensure that Ms. Lipp was being safely accommodated in the full-time position.
[75] The Field Report from Dr. Koz of Medisys, dated September 20, 2000, indicated that a significant number of Ms. Lipp's medical concerns were based upon subjective information provided by Ms. Lipp to her doctor. Dr. Koz questioned whether a vast change in her condition was likely given that Ms. Lipp had been working under medical restrictions for a number of years. She stated that there might be some merit in an IME prior to taking a final look at how to accommodate Ms. Lipp within Canada Post.
[76] Mr. Hippe testified that the Medisys Field Report would have been discussed at a weekly case management meeting with superintendents. He stated that he would have had concerns, as a result of the Field Report, that even with the AMI results Canada Post still had insufficient information to be able to accommodate Ms. Lipp in the full-time position.
[77] Mr. Slater candidly admitted that it was unusual to require an employee to provide further medical information once she had already assumed the position. However, Mr. Slater's evidence was that Canada Post continued to be concerned about Ms. Lipp's long-term capacity to work past her 6 hour restriction. That was why she was required to attend the IME even after she had been in the full-time position for six months.
[78] I find that Canada Post required the additional medical information including the IME in the honest and good faith belief that it was necessary to achieve the goals of safely accommodating Ms. Lipp in productive work.
(c) The Requirement for additional medical information was reasonably necessary having regard to health and safety.
[79] The final step in determining whether the requirement for additional information is a BFOR requires Canada Post to demonstrate that it was reasonably necessary to accomplish the goals set out in step one. To do this, Canada Post must establish that it could not accommodate Ms. Lipp without experiencing undue hardship.
[80] Ms. Lipp argued that Canada Post had all the information it needed to establish that she could safely work full-time on modified duties. She argued that it would not, therefore, have created undue hardship to Canada Post to accommodate her in the position without the information from the AMI and the IME.
[81] Canada Post argued that it had an obligation to ensure that Ms. Lipp's health and safety would not be jeopardized by working past her restrictions. It further argued that the health and safety risks created by allowing Ms. Lipp to remain in the full-time position without this information would create undue hardship to Canada Post. I agree with this argument for the following reasons.
[82] Section 124 of the Canada Labour Code establishes that employers have an obligation to ensure that the health and safety at work of every person employed by them is protected (R.S.C., 1985, c. L-2, s. 124). The case law further indicates that when transferring an employee to another position, an employer is not only entitled to, but is also obliged to obtain reasonably complete medical information about the employee's condition to ensure that the employee can safely perform the functions of the position (Metropolitan Toronto (Municipality) and C.U.P.E., Loc. 43, Re (1991), 22 L.A.C. (4th) 216; Belliveau v. Steel Co. of Canada [1988] O.H.R.B.I.D. No. 11 (Q.L.) at para. 51; Mazuelos v. Clark 2000 BCHRT 1 at para. 46).
[83] Where the employee is seeking modified work, he or she has a corresponding duty to cooperate by providing the required information (Canada Post Corp. and Canadian Union of Postal Workers (Reniak Grievance) (1998), 73 L.A.C. (4th) 15). To the extent that the medical information provided by the employee is inadequate for the purposes of ensuring the employee's health or safety, an employer has the right to make further inquiries.
[84] The evidence in this case indicates that the work done by postal clerks can be physically demanding and repetitive. Mr. Hippe also testified that more is demanded of full-time postal clerks; they work longer hours than the part-time clerks and are expected to move through a greater range of duties. Mr. Slater explained that Canada Post rotated employees through as many different jobs as possible in mail processing to ensure that all employees had a good range of duties in order to avoid problems with repetitive strain. He testified that repetitive strain injuries at Canada Post were a concern.
[85] Ms. Lipp testified that her injuries involved rotator cuff problems, fibromyalgia, and cervical spine degeneration. Mr. Slater stated that, based on Ms. Lipp's medical conditions, there was a concern that going beyond six hours on