An Orangeville-based company failed to appropriately accommodate a woman hired to be the environmental assessment coordinator on GO’s Barrie line, the Ontario Human Rights Tribunal has ruled.
R.J. Burnside & Associates, instead, isolated the employee who suffered from a severe allergy, said tribunal vice-chair Naomi Overend, who then awarded $7,500 in damages for the employee who had been with the company for two months, before she was let go.
In her decision dated July 5, Overend said Debra Hayes, who worked as an environmental assessment (EA) coordinator for the company in September and October 2015 in the company’s Guelph office, experienced distress after having an asthma attack and after the company moved her to an office, which had a sign on the door saying “Do not enter unless given permission by Debra Hayes.”
Overend said this accommodation “did not respect the applicant’s dignity and .. serviced to further isolate her from her colleagues.”
The case that resulted in an 18-page ruling started on Sept. 1, 2015, on the first full day of work for Hayes.
She reacted to cat dander on a coworker’s clothes, she testified.
The Ontario Human Rights Code, in section 10(2) defines disability to include “any degree of physical disability, infirmity, malformation or disfigurement that is cause by bodily injury, birth defect or illness,” said Overend.
And although Hayes’ asthma itself isn’t a disability, her asthma “was symptomatic to a degree that it caused her distress and imposed functional limitations. This would constitute a disability for the purposed of the Code,” the vice-chair explained.
At Burnside, a nearby co-worker subsequently tried to remove cat dander from her clothes with a special brush, then later a vacuum tool.
Hayes had asked to have her coworkers use email to address issues, rather than have them drop by her workstation to avoid triggering an asthma attack.
There was some discrepancy as to the severity of her attacks, said Overend, with Hayes testifying wheezing, coughing, headaches and a hoarse voice. Hayes also testified things were getting “worse and worse” in September and migraine headaches were added to the mix throughout September.
She did not, however, seek medical help and her coworkers testified they never saw Hayes use an inhaler.
“I am not suggesting that the applicant did not use her inhalers at work, but simply that the situation was not so dire that she had to immediately seek relief in front of her coworkers,” said Overend.
Burnside’s office manager had followed up with Hayes about her asthma three times and included the Joint Health and Safety Committee and human resources, as she informed them where Hayes’ inhaler could be found.
But after a month at work as one of several EA coordinators, Hayes reported to management that she was unhappy and she raised other workplace issues, including ones regarding her coworkers. Overend
Management considered letting her work from home or moving her to an office.
On Oct. 1, 2015, Hayes was moved to an office, which resolved the pet dander issues, the ruling said.
“It is common ground that the applicant did not want to be moved to an office because she felt that it would cause resentment among her co-workers. In addition, she objected to the sign that was taped to the door,” Overend wrote.
“With reduced exposure to the allergen, the applicant’s asthma subsided. She testified about exposure to other environmental toxins (in particular, suspected mould) in her new workspace, which caused some breathing problems, but it would appear that she did not report this.”
Hayes also said the office was cold.
Performance issues were raised and Hayes tried to attribute them to her accommodation request, but in her ruling, Overend did not agree with that reasoning.
On Oct. 30, 2015, she was let go, two months into her six-month probationary period.
Hayes turned to the Ontario Human Rights Tribunal as she sought $20,000 in general damages and compensation of $116,432 for loss of income and benefits, loss of a bonus and other non-monetary remedies related to training.
Overend , however, awarded only $7,500 “for the injury to her dignity, feelings and self-respect.”
“The office and the sign were demeaning to her dignity,” said Overend. “I find that an award of $7,500 in compensation for injury to the applicant’s feelings, dignity and self-respect is appropriate given both the acts and the fact that she then was subject to this new work environment for almost a month.”