BOARD OF INQUIRY {Human Rights Code) IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended; AND IN THE MATTER OF the complaint by Dawn Metsala dated March 9, 1993, alleging discrimination in employment on the basis ofhandicap. BETWEEN: Ontario Human Rights Commission -and- Dawn Metsala Complainant -and- Falconbridge Limited, Kidd Creek Division Respondent DECISION Adjudicator: Mary Anne McKellar Date: February 8, 2001 Board File No.: BI-0210-99 Decision No.: 01-005 Board ofInquiry {Human Rights Code) 505 University Avenue 2nd Floor, Toronto ON M5G 2P3 Phone (416) 314-0004 Toll free 1-800-668-3946 Fax: (416) 314-8743 TTY: (416) 314-2379 TTY Tollfree: 1-800-424-1168 1 APPEARANCES ) Ontario Human Rights Commission ) Jennifer Scott, Counsel ) ) Dawn Metsala, Complainant for herself ) ) Falconbridge Limited, Respondent Jim Simmons, Counsel ) ) • 2 INTRODUCTION This decision deals with a complaint dated March 9, 1993 ("the Complaint"), in which Dawn Metsala ("the Complainant") alleges that the Respondent Falconbridge Limited (Kidd Creek Division) ("Falconbridge") unlawfully discriminated against her in her employment on the basis of handicap. The sections of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended ("the Code") alleged to have been contravened are ss. 5(1) and 9. THE ISSUE The case focused primarily on the issue of whether Falconbridge took adequate steps to accommodate the Complainant's return to work following a period of medical leave. DECISION Falconbridge contravened the Code when it failed to return the Complainant to work in accordance with her medical restrictions on or about June 30, 1992. The Board's remedial orders in respect ofthis contravention are found at the end ofthis decision. THE FACTS This recitation offacts is based on the testimony ofthree witnesses called by the Commission: Dawn Metsala, Dr. Dave Huggins, and Julie Berlingeri. Falconbridge called five witnesses: Carol Dunn, George Rodda, Dennis O'Hare, Anne MacGregor, and Pat Murphy. The Complainant grew up in Timmins, Ontario. After completing high school, she undertook two years of training as a nurse's aide in Toronto. She then returned to Timmins and commenced working for Falconbridge as a steno-clerk on February 1, 1972. 1 • Falconbridge is the largest employer in the Timmins area. In 1992, it employed approximately 2400 persons. As the Board understands it, Falconbridge's Timmins operations involve both mining ore (the mine site) and refining the ore to extract the precious metals (the metallurgical site). During her employment with Falconbridge, the Complainant always worked out ofthe metallurgical site, and until December 1989, always performed clerical duties in an office-type environment. Following her initial employment as a steno-clerk in the zinc cell house, she was promoted to the position of planning clerk in November 1975. On May 4, 1988, she obtained a position as payroll clerk. The Complainant testified that the payroll clerk's job involved a fair bit of overtime work and pressure to complete tasks in accordance with inflexible deadlines. Falconbridge's witnesses agreed with this characterization ofthejob. In early December 1989, the Complainant approached Carol Dunn, a human resources representative. The Complainant indicated that she was experiencing stress related to herjob and asking to be transferred. Dunn recalled suggesting that the Complainant speak to her supervisor. The Complainant recalled Dunn advising her that she would have to wait for a vacant job to be posted and that Dunn would keep an eye out for one. The Complainant did not speak to her supervisor and nojob was posted prior to her commencement ofdisability leave on December 11,1989. She did not return to full-time work until December 6, 1993. Dr. Huggins, the Complainant's family physician diagnosed her as suffering from reactive depression. He treated her throughout the period of her disability leave. Additionally, she saw other specialists from time to time, one ofwhom diagnosed her as suffering from chronic fatigue syndrome. Her symptoms included fatigue, confusion, poor recall and an inability to concentrate. Under the terms ofher employment with Falconbridge, the Complainant's income as fully replaced during the first six months ofher leave by benefits from the short-term disability plan. Benefits under this plan are not provided through an insurance carrier: rather Falconbridge self-funds them. At the end ofthat six-month period, the source and level ofthe Complainant's income replacement benefits changed. For the next two years, long-term disability benefits equivalent to 66% ofher salary were provided by an outside insurer. Pursuant to that plan, the eligibility criteria change after an employee has been in receipt of long-term disability benefits for two years. Although initial eligibility for benefits is dependent on an employee's unfitness to perform her own job, continued eligibility is dependent on her unfitness to perform anyjob. Although she commenced an unsuccessful appeal of the insurance company's decision, the Complainant's long-term disabilitybenefits were cut offeffective June 30, 1992. As noted above, during the course ofher leave the Complainant had been attended by Dr. Huggins, and had additionally consulted various medical specialists. Dr. Huggins, grew up in Timmins, and, following the completion ofhis medical studies, returned there to practice. Many ofhis patients were Falconbridge employees, and he claimed to have a good working relationship with George Rodda, Falconbridge's supervisor ofoccupational health and rehabilitation services. Dr. Huggins completed a Certificate of Fitness in respect ofthe Complainant on June 26, 1992. This pre-printed form is prepared by Falconbridge and provides spaces for information to be filled in by the medical practitioner. The certificate completed by Dr. Huggins indicates that he treated the Complainant for a non-occupational illness and last saw her on June 26, 1992. In the space where Dr. Huggins was to indicate whether the Complainant was fit for her regular job, he checked the box "No". Although space was provided in this section ofthe form, he did not indicate when the Complainant might be available for her regular duties, nor did he indicate how long a period of time she might work with limitations. Under the heading, "Work restrictions: this patient has the following limitations", he wrote, "Recommend XA day, non-intense office work - - if available". #