In Ottawa-Carleton District School Board (2012), 216 L.A.C. (4th) 333 (Weatherill), a long service teacher suffered from several allergies, a light-sensitive condition involving her eyes, and a sciatic condition which impacted her mobility. These disabilities had been accommodated for a number of years without significant problems and without a negative impact on the employee’s teaching ability. The disabilities also had little effect on the employee’s attendance.
The previous principal was replaced by an interim acting principal, who was in turn to be replaced by a new principal at the beginning of the following school year. The acting principal spoke with the employee toward the end of the school year regarding her continuing need for accommodation. She requested, and the employee agreed, to provide a medical certificate setting forth her need for accommodation. The arbitrator concluded that given the arrival of a new principal, the request for a new medical certificate was perfectly appropriate. However, such a certificate was never provided.
The new principal, and certain other management, engaged in a course of conduct that the arbitrator considered to constitute harassment. It began with the suggestion that the employer might have to relocate the employee, possibly to another school, to ensure that she was not subject to having to use an elevator in the event of a fire drill. On the first day of school, the new principal and the Superintendent of Instruction attended the employee’s classroom and took photographs of what they considered to be the disorganized condition of her classroom. That afternoon, the principal provided the teacher with a letter setting forth a number of concerns. The arbitrator commented that the employee’s reaction to the letter “– one of near panic – was understandable; an experienced Teacher who, I find, was in fact prepared for the first day’s class in a room which, if somewhat messy, was suited to her needs and methods, was being treated in a manner which understandably offended her, and required to produce a medical certificate which she felt would be used as an excuse to remove her from the school.”
Although there were parent complaints registered with the new principal, the arbitrator gave these relatively little credence. He concluded that the employer’s approach displayed a clear animus against the employee. He found that this was also reflected in the treatment accorded the employee when she subsequently returned to work following an illness of some six weeks. In discussions with the employee’s union representative, the employer’s Wellness Officer made several disparaging comments and suggested that she should “just retire”.
The employee was suspended following the receipt of two student complaints that were never substantiated. The suspension letter, which was ultimately rescinded, instructed the employee that she was “not to communicate with any members of the school staff, parents or students of the school about any of the concerns mentioned above, either directly or indirectly. The arbitrator commented that the “gag order” was beyond the authority of the employer, and in any event, would have amounted to an abuse of such authority.
The arbitrator found that the employer had engaged in a course of harassment “by reason of her disabilities.” The employee was compensated for all lost earnings and benefits and her “lost” sick days were reinstated. She was also awarded $20,000 general damages for pain and mental stress. A claim for punitive damages was rejected.