The grievor had been injured and was being accommodated. When she refused to take on school yard supervisory duties that were outside her medical restrictions, she was disciplined. The grievance was upheld, but only minimal damages were awarded.
After returning to work following a significant injury, a worker grieved when she felt pressured to perform tasks beyond her physical capabilities.
V.C. was a teacher employed by a district school board. In the fall of 2008 she suffered a wedge fracture to her spine when she was thrown from a horse.
She returned to work on Sept. 22, 2008, teaching three or four days a week. V.C. took Wednesdays off and additional time to rest as needed.
As she experienced difficulty standing at this point, V.C. performed her classroom duties while sitting as much as possible.
Information about her medical restrictions was sparse and contained in two medical notes. She was directed to “avoid stairs and rapid movements” and she was to remain on modified duties for seven weeks.
Throughout the period, V.C. was medicated with codeine-based analgesic and anti-inflammatory medications. She moved slowly and carefully to avoid pain and found herself to be very tired in the afternoons.
V.C.’s ability to manage supervisory duties soon became an issue after she returned to work.
Supervising students during lunch periods and while outside on school property was a responsibility shared by the staff. While V.C.’s name continued to appear on the schedule after her return to work, other teachers and the Principal covered for her.
However, by about the middle of October, the Principal began to ask V.C. if she could pick up some supervisory duties.
Supervisory duties a problem
It was suggested to V.C. that she could manage yard supervisory duties while sitting on a planter in the schoolyard. According to V.C., by the end of October, the Principal was not asking her anymore if she was able to perform supervisory duties. Instead, the Principal was saying, “I need you to…”
V.C. experienced some difficulty walking both to and from the schoolyard to perform her assigned supervisory duties. She also had reservations about being assigned to supervise a Primary Special Needs (PSN) class, even with the aid of an educational assistant.
At the end of October, V.C. made her concerns known to the union. The union contacted the Principal. V.C. also wrote out a more detailed description of her physical limitations and requirements. She had her doctor sign the document, which she then delivered to the Principal.
At that point, the employer enlisted the services of its Employee Wellness Co-ordinator who reviewed V.C.’s restatement of her limitations.
The co-ordinator recommended a number of accommodations for V.C., including providing her with a wheelchair, which was later provided. The co-ordinator then faxed a list of the proposed accommodations directly to V.C.’s doctor and asked if the proposed accommodations would enable V.C. to perform some supervisory duties. The doctor responded with information about the nature of the injury and the degree of pain experienced by V.C.
On Nov. 3, a new schedule came out assigning V.C. to supervisory duties in the PSN class. V.C. refused.
On Nov. 11, the Principal was compelled to excuse herself from the PSN to deal with a medical emergency. The Principal asked V.C. to cover for her. Unaware of the circumstances, V.C. refused. According to V.C., the Principal then responded to V.C.’s refusal by threatening to write her up if she refused the assignment.
V.C. grieved, alleging that the employer failed to accommodate her disability. V.C. also alleged that the employer improperly obtained her medical information without her consent and that the Principal had harassed her.
Injury to self-respect
The union said the employer should be compelled to pay V.C. $7,500 to $10,000 in compensation for injury to her dignity and self-respect.
The grievance was allowed, in part.
The Arbitrator agreed that the employer discriminated against V.C. This happened when the employer assigned V.C. to regular supervisory duties in the PSN class despite being advised of V.C.’s difficulty with walking.
If the Principal had doubts about V.C.’s restrictions at that point, the proper course of action, the Arbitrator said, would have been to request additional documentation. That wasn’t done.
The Principal’s threat to write up V.C. was also a violation of the Human Rights Code, the Arbitrator said. However, in view of the extenuating circumstances in that particular case, the Principal’s behaviour did not approach the standard of harassment.
The Arbitrator also agreed that the employer violated the Municipal Freedom of Information and Privacy Act, when the co-ordinator directly contacted V.C.’s doctor.
The employer was ordered to pay V.C. $500.
“The employer improperly collected additional medical information without [V.C.’s] consent, but that information revealed nothing significant that had not already been disclosed. [V.C.] was made to feel like she was not doing her job and she cried in front of her students, but the resulting humiliation was much less than in Palangio. The grievor remained employed throughout. She lost no income and received no discipline. The employer’s delay in accommodating her disability did not cause any deterioration in health or quality of personal life. The failure to accommodate lasted no more than a few weeks.”
Reference: Ottawa-Carleton District School Board and Elementary Teachers’ Federation of Ontario. Richard Brown — Sole Arbitrator. Howard Goldblatt for the Union. Stephen Bird for the Employer. Dec. 16, 2011. 19 pp.
