Day v. Canada Post Corporation

Day v. Canada Post Corporation
Collection
Canadian Human Rights Tribunal
Date
2007-10-19
Neutral citation
2007 CHRT 43
File number(s)
T1121/0306
Decision-maker(s)
Jensen, Karen A.
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Between:
Tim Day
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Post Corporation
Respondent
Decision
Member: Karen A. Jensen Date: October 19, 2007 Citation: 2007 CHRT 43
Table of Contents
I. Introduction.
II. What Are the Facts That Give Rise to the Complaint?.
III. What Are the Issues In the Present Case?.
A. What are the Applicable Legal Tests in this Case?.
B. Analysis of the Issues.
(i). Was the Way that Canada Post Handled the Requirement to Wear Steel-Toed Boots Discriminatory?.
(ii). Did Canada Post discriminate against Mr. Day when it placed him on sick leave and removed him from the workplace in November of 2001?.
(iii). Was the requirement that EL5’s hand in preventative maintenance slips each Friday of the week discriminatory?.
(iv). Was the Denial of a Shift Change between Mr. Iroume and Mr. Day discriminatory?.
(v). Was the requirement that Mr. Day work the night shift discriminatory?.
(vi). Was the Termination of Mr. Day’s Employment with Canada Post discriminatory?.
(vii). Was the surplusing of Mr. Day’s EL5 position discriminatory?.
(viii). Was the deletion of the MAM11 position discriminatory?.
(ix). Was the assignment of Mr. Day to the relief letter carrier position discriminatory?.
(x). Was Mr. Day harassed on the basis of his disability?.
IV. What Is The Appropriate Remedy?.
A. Compensation for Pain and Suffering.
B. Compensation for Willful and Reckless Conduct
C. Interest
D. Legal Expenses.
I. Introduction [1] Tim Day is a registered electronics engineer. He has been working for Canada Post Corporation for nineteen years. In 1994, he became ill and was diagnosed with depression, anxiety disorder and an obsessive compulsive personality disorder. He returned to work in 1995. Since then, Mr. Day’s employment relationship with Canada Post has been difficult. He thinks that Canada Post has never accepted his psychiatric disability and has treated him differently from other employees because he is disabled.
[2] Mr. Day has raised ten allegations of discrimination during the time period from April 2001 to August 2006. The allegations relate to Mr. Day’s psychological fitness to work, Canada Post’s requirement that he work the night shift, the termination of his employment, and a number of other allegations involving negative differential treatment and harassment on the basis of his disability.
[3] Mr. Day invokes sections 7 and 14 of the Canadian Human Rights Act. Section 7 provides that it is a discriminatory practice to refuse to continue to employ an individual, or to differentiate adversely in relation to an employee on the basis of a prohibited ground of discrimination. Section 14 stipulates that it is a discriminatory practice to harass an individual on the basis of a prohibited ground of discrimination.
[4] Of the ten allegations of discrimination made by Mr. Day, one is substantiated. Canada Post treated Mr. Day differently from non-disabled employees when it placed him on sick leave and removed him from the workplace in November of 2001. Although the evidence supported Canada Post’s decision to remove him from the workplace, the Corporation failed to treat Mr. Day with dignity and respect throughout the accommodation process. Mr. Day’s other allegations were not substantiated.
[5] After a brief overview of the facts that gave rise to the complaint, I will set out Mr. Day’s allegations and then address them in turn. Finally, I will provide my reasons for the remedy that I have ordered.
II. What Are the Facts That Give Rise to the Complaint? [6] Mr. Day was hired as a mechanic by Canada Post in April of 1986 in the Technical Services department at the Glanford Mail Processing Plant (GMPP) in Victoria. In 1992, he was promoted to an EL5, a technical specialist position in Technical Services. EL5’s perform the most difficult repair and maintenance work on the machines at Canada Post. They are also required to supervise up to twenty employees.
[7] In the fall of 1995, Mr. Day experienced a major depressive episode. He was off work for ten months. He returned to work on a gradual basis, but his reintegration did not go entirely smoothly. He had problems with Canada Post management over a number of issues in the workplace.
[8] One issue involved the requirement to wear steel toed boots. The repair and maintenance of machinery can be dangerous work. For that reason, Canada Post requires its Technical Service employees to wear steel toed boots on a continuous basis. Mr. Day cannot do so because of a foot condition. Although Canada Post accommodated his foot condition, Mr. Day thought that the way Canada Post handled the process was discriminatory.
[9] Another dispute between Mr. Day and Canada Post involved the requirement to work shifts at Canada Post. When he was promoted to the EL5 position in 1992, Mr. Day worked the afternoon shift only, from 3 p.m. until 11 p.m.
[10] In 1997, Canada Post implemented a rotating shift system; from then on all EL5’s, with the exception of the EL5 who held the electronics specialist position, were required to rotate through the following three shifts on a twelve week basis:
the day shift, known as Shift 1 which was, at the time of the complaint from 7 a.m. until 3 p.m.; the afternoon shift, known as Shift 2, which was from 3 p.m. until 11 p.m.; and the night shift, known as Shift 3, which was from 11 p.m. until 7 a.m.
[11] Mr. Day had difficulty with the night shift at Canada Post. From 1996 until the fall of 2001, Mr. Day and his doctors were of the view that working nights aggravated his symptoms of depression. During that period, Canada Post relieved Mr. Day of the obligation to work the night shift whenever he produced a note from his doctor indicating that he could not work nights. He did so on every occasion that he was scheduled to work nights during that period, although he attempted to work a few shifts on two occasions.
[12] In the fall of 2001, Mr. Day was scheduled to work night shift again. As before, he produced a note from his doctor indicating that he was unable to work night shift. This time, however, Canada Post questioned whether Mr. Day needed to be relieved from the night shift on an ongoing basis. Canada Post temporarily accommodated Mr. Day on the afternoon shift and passed the note on to Medisys, the medical consulting firm that handled Canada Post’s occupational health and safety issues, for further investigation.
[13] Medisys requested additional medical information. Mr. Day was sent for an Independent Medical Examination (an IME) with Dr. Miller, a psychiatrist in Victoria. On October 11, 2001, Dr. Miller reported that Mr. Day was suffering from major recurrent depression with incomplete remission. He recommended a change in Mr. Day’s medication and cognitive behavioural therapy. Dr. Miller stated that shift work was likely to worsen Mr. Day’s mental state. He was also concerned that there were issues of workplace safety if Mr. Day’s workplace disputes were allowed to drag on unresolved.
[14] On November 16, 2001, Canada Post thought that Mr. Day’s psychological health had deteriorated to the point that he posed a threat to workplace safety. He was sent home at the end of his shift with a letter stating that he was not fit for work and would be placed on sick leave.
[15] Mr. Day returned to the workplace on November 21, 2001, with a medical note attesting to his fitness to work. Canada Post did not accept the note and Mr. Day was escorted from the workplace. His supervisor, Mr. Bob Ormerod, informed him he needed confirmation from his doctor that he was complying with Dr. Miller’s treatment recommendations and that he was fit to return to work.
[16] On December 3, 2001, Mr. Day’s doctor confirmed that Mr. Day was following the treatment recommended by Dr. Miller and that he was progressing well on it. He stated, however, that Mr. Day should work day shift only.
[17] Dr. Hamm, the Medisys doctor, disagreed with Mr. Day’s doctor that permanent accommodation on day shift was needed. Dr. Hamm thought that Mr. Day was likely to continue to improve on the new drug regime. His symptoms of depression would then go into remission and he would be able to work all three shifts, including the night shift. He provided his opinion to Canada Post in a document known as a Field Report dated December 4, 2001.
[18] Mr. Day returned to work on December 11, 2001. He was not scheduled to go on night shift until April of 2002. Before that date however, several events occurred which caused Mr. Day concern.
[19] On January 16, 2002, Canada Post served Mr. Day with a 24 Hour Notice of Interview to discuss his failure to satisfactorily administer the preventative maintenance system. Preventative maintenance is done on the machinery at Canada Post to ensure that it is in good working order. Mr. Day was required to provide information regarding the completion of these duties. He refused to do so, and was disciplined as a result.
[20] Also in January of 2002, Mr. Day requested permission from Canada Post to switch his twelve week block of afternoon shifts with a fellow EL-5 who was due to go on days. Canada Post denied his request.
[21] Sometime around April 10, 2001, Mr. Day provided a note to Canada Post from his doctor indicating that, for medical reasons, he was advised not to work nights. Mr. Ormerod, the Superintendent of Engineering and Technical Services in Victoria, informed him that a doctor’s note would not suffice to excuse him from working the night shift. He also stated that the medical information to date indicated that he was capable of working nights and was expected to do so.
[22] Mr. Day worked part of the night shift on several occasions. Then on April 25, 2002, he left before his shift was over and called in sick the next day. He was suspended for three days without pay for his refusal to work the night shift.
[23] On May 27, 2002, Canada Post terminated Mr. Day’s employment. The reason cited for the termination was his failure to report for work or to provide an acceptable reason for not doing so.
[24] Mr. Day grieved his discharge. A settlement agreement was reached pursuant to which Mr. Day returned to work on a gradual basis on May 16, 2003. He worked day shift only.
[25] In 2004, Canada Post determined that Technical Services was overstaffed by two positions. On September 23, 2004, Canada Post informed the union that two EL5 positions would be declared surplus. This would result in the elimination of Mr. Day’s position.
[26] Mr. Day became consumed with a desire to prove that his position had been eliminated because he was disabled. His symptoms of depression and anxiety increased. He went on sick leave again on October 27, 2004.
[27] On November 1, 2004, Mr. Day’s position and that of another EL5 were declared surplus. Mr. Day was informed that he had been transferred to a PO4 position, which is a mail sorter position in the Glanford Mail Processing Plant in Victoria. Mr. Day has never worked in this position since being on sick leave from October 27, 2004.
[28] In March of 2005 while on sick leave, Mr. Day applied for a vacant MAM11 position in the Technical Services Department in Victoria. This is a mechanics’ position. Mr. Sarbjit Sangha, Manager of Technical Services for Vancouver and Victoria, subsequently informed Mr. Day and his union that the MAM11 position had been deleted. Therefore, Mr. Day was not eligible for the MAM11 position.
[29] In May of 2006, Mr. Day bid on a letter carrier position in Victoria. Although he was successful in obtaining the route that he requested, he lost it in a subsequent route re‑organization. Ultimately, he was assigned to a relief mail carrier position, a position with which he was not happy.
[30] Mr. Day has been seeing a psychiatrist, Dr. David Swan, in Victoria since September of 2002. Dr. Swan testified that after trying a number of medications, he decided that Mr. Day’s depressive disorder would not respond completely to medication; he continues to have symptoms that will not remit completely. However, Dr. Swan testified that Mr. Day has been fit to return to work on day shift since November of 2004.
[31] Mr. Day’s obsessive compulsive personality disorder manifests itself in high expectations of himself and others. When his or someone else’s performance falls short of these expectations, it can generate feelings of frustration, anxiety and depression. He tends to dwell on issues that bother him. The disorder does not, however, affect Mr. Day’s ability to act responsibly in the workplace. It does not affect his ability to perform the functions of his job.
III. What Are the Issues In the Present Case? [32] The following questions must be answered in the present case:
Did Canada Post discriminate against Mr. Day with respect to the requirement to wear steel toed boots in April of 2001? Did Canada Post discriminate against Mr. Day when it placed him on sick leave and removed him from the workplace in November of 2001? Did Canada Post discriminate against Mr. Day with regard to the preventative maintenance reports in January of 2002? Was the denial of Mr. Day’s request to exchange shifts with a co-worker in January of 2002 discriminatory? Was the requirement that Mr. Day work the night shift in April 2002 discriminatory? Was the termination of Mr. Day’s employment with Canada Post in May of 2002 discriminatory? Did Canada Post discriminate against Mr. Day in November of 2004 when it eliminated his EL5 position? Was the deletion of the MAM11 position in March of 2005 discriminatory? Was the assignment of Mr. Day to the relief letter carrier position in 2006 discriminatory? Was Mr. Day harassed on the basis of his disability?
A. What are the Applicable Legal Tests in this Case? [33] When discrimination is alleged, the complainant must first establish a prima facie case of discrimination (Ontario Human Rights Commission et al v. The Borough of Etobicoke, [1982] 1 S.C.R. 202). A prima facie case is made out when the complainant presents evidence that covers the allegations made and which, if believed, is complete and sufficient for a decision in favour of the complainant, in the absence of an answer from the respondent (Ontario Human Rights Commission and O’Malley v. Simpson Sears Ltd. [1985] 2 S.C.R. 536).
[34] Once a prima facie case is established, the onus then shifts to the respondent to provide a satisfactory explanation that demonstrates either that the conduct did not occur as alleged or was non-discriminatory (Morris v. Canada (Canadian Armed Forces) 2005 FCA 154 at para. 26). 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.)).
[35] Conduct may be found to be non-discriminatory if the employer establishes that it is based on a bona fide occupational requirement (a BFOR). A BFOR is a rule or practice established in the honest belief that it is necessary to accomplish a valid workplace goal. A requirement will qualify as a BFOR only if the employer establishes that accommodation of the individual’s needs would impose undue hardship considering health, safety and cost (ss. 15(1(a) and 15(2) of the Act).
[36] In determining whether a BFOR has been established within the meaning of the CHRA, the Tribunal bears 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)).
B. Analysis of the Issues (i) Was the Way that Canada Post Handled the Requirement to Wear Steel-Toed Boots Discriminatory? The Prima Facie Case
[37] In 1993, Mr. Day provided a medical note indicating that he had a foot condition that prevented him from wearing steel toed boots on a continuous basis. His practice was to wear running shoes and change to steel toed boots only in areas where there was a risk of injury.
[38] In January of 2001, Mr. Steve Clark, the Coordinator of Technical Services issued a memorandum to all Technical Service employees indicating that they were required to wear steel toed boots at all times in the Technical Services Department.
[39] Following the release of the memo, Mr. Day was asked to update his medical note. Canada Post issued him a 24 Hour Notice of Interview to discuss his inability to wear steel toed boots. After it was determined there were no alternatives to steel toed boots that Mr. Day could wear on a continuous basis, he was permitted to continue his practice of wearing running shoes in the plant.
[40] Mr. Day took no issue with the ultimate resolution of the problem. Rather, he complained that the process of having to provide updated medical information, to attend an interview with Canada Post and to look for other boots constituted negative differential treatment on the basis of disability. He felt that Canada Post used the excuse of the steel toed boot requirement to single him out for negative treatment because he was disabled.
[41] Mr. Iroume, a co-worker of Mr. Day, testified that there were other employees who wore running shoes from time to time in the plant. They were not required to attend an interview about this.
[42] Mr. Day has established a prima facie case that the issuance of a 24 Hour Notice of Interview for his inability to wear steel toed boots constituted adverse differential treatment on the basis of disability. Mr. Day was led to believe that he might be disciplined for being unable to wear steel toed boots. He was also required to look for steel toed boots that he could wear on a regular and continuous basis when there were apparently other employees who did not always wear steel toed boots.
The Respondent’s Explanation
[43] I am satisfied that Canada Post’s actions with regard to the steel toed boot requirement were based solely on a legitimate safety concern. The repair and maintenance of the large machinery at Canada Post puts workers at risk of injury. Steel toed boots provide protection against injury. Mr. Clark was under orders from the National Health and Safety Committee to vigorously enforce the requirement. He needed to determine if, eight years after the most recent medical information, Mr. Day’s foot condition was still a problem. Mr. Clark also needed to determine if there was any other protective footwear that Mr. Day could wear on a more continuous basis.
[44] The fact that the clarification of Mr. Day’s accommodation needs was done by way of the 24 Hour Notice process does not, in my view, render it adverse differential treatment. Mr. Clark explained that at Canada Post, 24 Hour Notices and Interviews do not constitute disciplinary action. Rather, they provide an opportunity for Canada Post to discuss concerns with an employee and for the employee, and his or her union representative, to respond to these concerns. If a satisfactory resolution to the problem is arrived at during the interview, disciplinary action does not follow and the notice is not placed in the employee’s personal file. A satisfactory resolution of Canada Post’s concerns was achieved in Mr. Day’s case. He was fully accommodated.
[45] While it may be true, as Mr. Iroume testified, that the Technical Service employees do not always wear their steel toed boots, Mr. Day and Mr. Clark gave evidence that Mr. Day was the only Technical Service employee who had a regular and consistent practice of wearing running shoes and changing to boots only in certain areas of the plant.
[46] I accept Mr. Clark’s explanation that it was Mr. Day’s regular practice of wearing running shoes that prompted him to question whether anything could be done to increase the amount of time that he spent wearing protective footwear. He did not target Mr. Day for negative treatment based on his disability; he had a genuine health and safety concern that he needed to raise with Mr. Day.
[47] Canada Post has, therefore, provided a satisfactory explanation with regard to Mr. Day’s first allegation.
(ii) Did Canada Post discriminate against Mr. Day when it placed him on sick leave and removed him from the workplace in November of 2001? The Prima Facie Case
[48] On November 16, 2001, Mr. Day was due to attend an interview regarding work performance concerns that Canada Post had raised in a 24 Hour Notice of Interview. Instead, the interview was cancelled before it began. Mr. Day was sent home at the end of his shift with a letter saying that he was being placed on sick leave.
[49] Mr. Day testified that he was shocked at being placed on sick leave. He did not feel ill. He thought it was part of Canada Post’s plan to get rid of him because he was disabled.
[50] On November 21, 2001, Mr. Day returned to work with a note from his doctor indicating that he was well and able to work. He worked the shift, but at the end of it he was approached by Mr. Ormerod who called his name out from across the plant floor. When Mr. Ormerod reached Mr. Day, he told Mr. Day that he should not be at work, that his doctor’s note was insufficient, and that he was to leave immediately. Mr. Ormerod then escorted him from the building. Mr. Day testified that he was very embarrassed by this incident.
[51] Mr. Day testified that one of the most upsetting parts of this series of incidents for him was the fact that he did not understand the reason that he was being sent home. The letter he was given on November 16, 2001 indicated that Canada Post had a bona fide concern with respect to his fitness for duty based on observations and the professional opinion of Dr. Hamm.
[52] The letter from Canada Post given to Mr. Day on November 21, 2001, the day that he was escorted from the workplace, indicated that he would not be permitted to return to work until he provided medical proof that he was following the course of treatment recommended by Dr. Miller in the IME Report.
[53] However, neither Mr. Day nor his doctor received Dr. Miller’s IME Report until November 23, 2001, and it was not until his union representatives met with Canada Post on November 28, 2001 that Mr. Day became aware that Canada Post thought he posed a safety risk at work.
[54] Mr. Day testified that he had never been violent towards himself or others in the workplace. He stated that if he was a risk at all it would be with respect to his own safety. He stated that although he was upset about the interview on November 16, 2001, his behaviour was slow rather than agitated because he had taken anti-anxiety medication to calm himself. He thought that Canada Post was not justified in placing him on sick leave or removing him from the workplace in November of 2001.
[55] I find that Mr. Day has established a prima facie case under s. 7(b) of the Act that he was treated adversely in the course of employment on the basis of his disability. Mr. Day was deemed by Canada Post to be a safety risk and unfit to work when his own physician was of the view that he was, in fact, able to work. He was denied the right to return to work even though he had presented proof of his fitness. He was subjected to a humiliating removal from the workplace in front of his peers. Neither he nor his physician was provided with the information they needed to address the concerns that gave rise to Canada Post’s removal from the workplace.
The Respondent’s Explanation
[56] Canada Post argued that the evidence at the time indicated that Mr. Day posed a serious risk to his own safety and to the safety of others in the workplace. It would have constituted undue hardship to have permitted him to remain in the workplace or to have informed him of the full extent of the reasons for his removal. Therefore, placing Mr. Day on sick leave and refusing to permit him to return to work in November 2001 constituted a BFOR, according to Canada Post.
[57] According to sections 15(1)(a) and 15(2) of the Act, the Complainant’s removal from the workplace cannot be considered to be based on a BFOR unless the Respondent can establish that accommodation of his needs would impose undue hardship, having regard to health, safety and cost.
[58] Risk is a factor to be considered in determining whether undue hardship would result from the accommodation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (Grismer), [1999] 3 S.C.R. 868, at para. 30). Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations (Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) (1990), 12 C.H.R.R. D/417at para 62).
[59] I find that the evidence in the present case established that on November 16, 2001, both the severity and magnitude of the risk to Mr. Day’s safety and/or the safety of others in the workplace was such that Canada Post had no other option than to send Mr. Day home.
[60] Dr. Miller’s report indicated that Mr. Day’s psychological health was very unstable at that time. He was concerned that Mr. Day might become violent if his workplace grievances could not be resolved.
[61] One day prior to sending him home on sick leave Canada Post had issued Mr. Day with a 24 Hour Notice of Interview detailing a list of concerns about Mr. Day’s work performance. Ms. Jenica Epp, the Medisys nurse, testified that Mr. Day came to see her before his interview on November 16, 2001. She testified that he was tense, anxious-looking and distraught. She stated that he had a pronounced eye and facial tick. She was uncomfortable and frightened in his presence.
[62] Mr. Clark also testified that in the weeks prior to November 16, 2001, he noticed that Mr. Day was more agitated and tense than usual. Mr. Clark stated that he was concerned about Mr. Day’s psychological stability at that time.
[63] I accept that Canada Post has an obligation to assure the safety and well-being of all the employees on its premises. Therefore, employees who pose a safety risk to themselves or others are removed from the workplace and are not permitted to return until they have established, by way of acceptable medical evidence, that they no longer pose such a threat. Accommodating Mr. Day in the workplace would have constituted undue hardship in that it would have exposed others and/or Mr. Day to the serious potential of significant harm.
[64] Before permitting Mr. Day to return to work, Canada Post needed assurances from Mr. Day’s physician that he was receiving the treatment recommended by Dr. Miller and that he was no longer a safety risk. Neither of the notes provided by Mr. Day provided that assurance. Again, given the magnitude and severity of the risk to worker safety in this case, I find that it would have created undue hardship to have permitted Mr. Day to return to work on November 21, 2001.
[65] However, the inquiry as to whether the duty to accommodate has been met does not end there. There is both a procedural and a substantive component involved in the duty (Meiorin, at para 66). The Supreme Court has directed that the procedure adopted to assess the issue of accommodation should be considered separately from the substantive component when determining whether or not the duty has been discharged.
[66] A failure to meet one of the two components does not necessarily result in a violation of the Act. Both the procedure of the inquiry and the substantive results of those inquiries should be considered when determining whether an employer has met its obligations under the Act (Meiorin, at para 66; Datt v. McDonald’s Restaurants of Canada Ltd. 2007 BCHRT 324; Gordy v. Painter's Lodge (No. 2), 2004 BCHRT 225)
[67] In Irvine v. Canadian Armed Forces (CAF), 2005 FCA 432, the Federal Court of Appeal indicated that the procedural component of the duty to accommodate requires a fair assessment of the available medical evidence in relation to the complainant’s fitness for duty.
[68] Fairness in the accommodation process is not, in my view, limited to a fair assessment of the complainant’s fitness for duty. Rather, the notion of fairness extends to all facets of the accommodation process. It requires that the inherent worth and dignity of the individual be respected throughout the process to the point of undue hardship (Meiorin, at para 62).
[69] The question in the present case then is whether Mr. Day was treated fairly in the application of the standard identified above, that is removal from the workplace when there is a risk of violent or dangerous behaviour. For the following reasons I find that he was not.
1. Neither Mr. Day, nor his physician was provided, on a timely basis, with a copy of the IME Report which formed the basis of the decision to send Mr. Day home.
[70] Mr. Day was seen by the IME psychiatrist, Dr. Miller, on October 11, 2001. On several occasions in early November, Mr. Day requested the IME Report from both Canada Post and Medisys. His requests went unheeded; the report was not sent to Mr. Day’s doctor until November 20, 2001.
[71] Mr. Ormerod explained that the IME report was sent to Mr. Day’s doctor on November 20, 2001. As a result of a problem with the doctor’s fax machine, the report did not reach Mr. Day’s doctor until November 23, 2001. However, no explanation was provided as to why the Report was not sent to Mr. Day’s physician prior to November 20, 2001.
[72] As a result of the failure to provide the IME Report on a timely basis, Mr. Day had no idea until November 23, 2001, when his doctor received the Report, that Dr. Miller thought he was not receiving proper treatment for his depression and that there was a concern about his safety at work. He felt completely blind-sided by the notice that he was unfit for work.
[73] As a further result of Canada Post’s failure to provide Mr. Day with the information he needed on a timely basis, he suffered the embarrassment of being escorted from the building on November 21, 2001, because his doctor’s note did not respond to Canada Post’s concerns. Again, Mr. Day had no idea what Canada Post was looking for because his doctor had not yet received the IME report.
[74] It cannot be said with any certainty if the delivery of the IME Report to Mr. Day’s doctor on a timely basis might have produced a different result in this case. However, based on Mr. Day’s statement that he began the treatment recommended by Dr. Miller immediately upon receiving the report, and his doctor’s statements that he responded well to the medication, it is entirely conceivable that the whole series of events in November might have been avoided had the report been provided right after it was received by Medisys.
2. Mr. Day’s doctor was not informed that Mr. Day was being placed on sick leave on November 16, 2001
[75] Mr. Ormerod and Mr. Clark, who were Mr. Day’s supervisors, testified that Mr. Day was not informed about the Corporation’s concerns with respect to his safety, nor did they involve him in the decision to send him home on November 16, 2001 because they were worried that this would further upset him. Mr. Clark stated that he said nothing to Mr. Day because no one likes to hear that he is considered to be a safety risk. I accept that on November 16, 2001 Canada Post was facing a critical situation, and that a difficult judgment call had to be made about what information to provide to Mr. Day. Therefore, the decision not to inform Mr. Day of the full extent of the reasons for his removal may have been justified.
[76] However, Canada Post did not provide a satisfactory explanation as to why Mr. Day’s doctor was not informed that there were serious concerns about his mental health and that he was thought to pose a safety risk to himself or others on November 16, 2001. Mr. Ormerod stated that information regarding an employee’s mental health and safety should not be provided directly to the employee by his or her employer, but by a medical person.
[77] Why then were Canada Post’s serious concerns regarding Mr. Day’s mental health not immediately communicated to Mr. Day’s physician?
[78] Dr. Hamm stated that he did not inform Mr. Day’s doctor about what had happened on November 16, 2001, because he did not think that the situation was an emergency. He simply thought that Mr. Day needed to be at home where he could compose himself. In my view, however, if the situation was urgent enough to send Mr. Day home without notice to him about the full extent of the reasons, then it was urgent enough to alert Mr. Day’s doctor. After all, Mr. Day’s own health was potentially at risk. Dr. Miller’s report was vague with respect to Mr. Day’s potential for violence. It certainly could be interpreted to mean that he might direct the violence toward himself. The failure to inform Mr. Day’s doctor that he was being sent home because he posed a safety risk shows, in my view, a rather callous disregard for Mr. Day’s well-being.
[79] I find, therefore, that Canada Post did not treat Mr. Day fairly in November of 2001; he was treated as a safety risk rather than as a human being whose needs for information and support should be respected. Although accommodating Mr. Day in the workplace was not possible given the safety risk that he posed, Canada Post did not provide a satisfactory explanation as why it did not provide Mr. Day and his physician with timely disclosure of the IME and the Field Report. Similarly, it was not established that informing Mr. Day’s physician of Canada Post’s concerns with respect to his safety would have caused undue hardship.
[80] As a result, Canada Post did fulfill the procedural component of the duty to accommodate. Although a failure to fulfill the procedural component of the duty to accommodate will not necessarily result in a violation of the Act, I think that in this case the impact of the failure, both in terms of the outcome of the events in November 2001 and its impact on Mr. Day’s dignity and self-worth, warrant such a finding. Canada Post failed to establish, pursuant to ss. 15(1)(a) and 15(2) of the Act, that it accommodated Mr. Day’s needs to the point of undue hardship. Mr. Day’s allegation with regard to the November events is therefore substantiated.
(iii) Was the requirement that EL5’s hand in preventative maintenance slips each Friday of the week discriminatory? The Prima Facie Case
[81] As an EL5, Mr. Day was required to assign and supervise preventative maintenance (pm) duties on the day shift. The work was assigned on Mondays. It was expected to be completed by the end of the week unless the work was extensive or the plant was busy. Reports regarding the status of the work (pm slips) were entered into a computerized system that monitored the preventative maintenance work done on machines all across Canada. The EL5’s collected the pm slips for the employees that they supervised on the day shift and handed them in along with their own.
[82] From 1999 to 2001, the EL5’s could submit the pm slips to management for input into the computer system on the following Monday, after the work was assigned. That policy changed some time in 2001. By the time Mr. Day reached the day shift in January of 2002, the expectation was that EL-5’s would submit the pm slips on the Friday of the same week that the work was assigned.
[83] Mr. Day disagreed with the change in policy. He also disagreed with the manner in which the change was implemented. He thought that it was part of Canada Post’s campaign to treat him differently because he was disabled.
[84] Mr. Day did not hand in the pm slips for his subordinates on Friday, January 11, 2002 as required. He handed in only his own. Canada Post subsequently issued Mr. Day with a 24 Hour Notice of Interview to discuss his failure to satisfactorily administer the pm system.
[85] At the interview, it was pointed out to Mr. Day that he was not being singled out; all of the EL5’s were required to hand in their own and those of their subordinates on Friday. Mr. Day continued to hand in only his own pm slips. As a result, he was suspended for three days without pay.
[86] Mr. Iroume testified on behalf of Mr. Day. He stated that when he came onto days in April of 2002, he too failed to hand in all of the pm slips on Friday. He was also given a 24 Hour Notice of Interview and told to hand the pm slips in on time. Mr. Iroume testified that following the interview, he conformed to Canada Post’s requirements. He stated, however, that Canada Post issued him with a 24 Hour Notice and then interviewed him solely to make Canada Post’s actions with respect to Mr. Day seem legitimate.
[87] Mr. Iroume’s evidence on this point was not credible. He admitted that prior to the interview he was not complying with the requirement; he was only handing in about 15% of the pm slips for his shift. After the interview, when he was given a direct order by Canada Post to get the pm slips in, that figure moved to 60 to 70%. Mr. Day, however, did not comply with Canada Post’s directive. Accordingly, he was disciplined.
[88] There was no credible evidence to support the contention that Mr. Day was treated differently from other employees on the basis of his disability with regard to the preventative maintenance system. Therefore, Mr. Day has failed to establish a prima facie case on this ground.
(iv) Was the Denial of a Shift Change between Mr. Iroume and Mr. Day discriminatory? The Prima Facie Case
[89] In January of 2002, Mr. Day attempted to switch his twelve week block of afternoon shifts with Mr. Guido Iroume, a fellow EL-5 who was due to go on days. Mr. Iroume preferred afternoons and Mr. Day preferred day shift for family and health related reasons. The request was denied.
[90] Mr. Day testified that switching an entire twelve week shift block was a common practice at Canada Post. Mr. Iroume testified that while shift exchanges were common, the frequency of the practice diminished after the release of an arbitral decision by Arbitrator Blasina in April of 2002. In that decision, Arbitrator Blasina held that the Corporation was required to rotate the EL5’s through all three shifts.
[91] Mr. Day argued that Canada Post’s denial of the shift exchange request constituted adverse differential treatment on the basis of his disability. However, neither Mr. Day nor Mr. Iroume provided examples of people who had exchanged an entire shift. Moreover, Mr. Iroume’s testimony strongly suggested that if there was such a practice, it changed after April 2002. At that point neither Mr. Day nor his colleagues were permitted to switch an entire shift block. There was no evidence to suggest that the denial of the shift exchange was based on Mr. Day’s disability.
[92] Counsel for Mr. Day argued that the denial of the request for a shift exchange constituted adverse effect discrimination since Mr. Day was unable, by reason of his disability to work the afternoon shift.
[93] Mr. Day however, testified that he did not have any trouble working the afternoon shift. He stated that at that point in time, he was looking to be relieved from the requirement to work night shift, not the afternoon shift. Therefore, I find that Mr. Day did not establish a prima facie case that the denial of his request for a shift change, or the requirement that he work the afternoon shift in January of 2002 constituted adverse differential treatment on the basis of disability.
(v) Was the requirement that Mr. Day work the night shift discriminatory? The Prima Facie case
[94] From 1997 until April of 2002, Mr. Day was relieved of the requir