FAQ's Cases - Stewart McKelvey

CHRONOLOGY OF KEY EVENTS[11] The applicant was off work with an injured back in August 2005. He testified thathe also injured his back in December 2006 and at the beginning of 2007 and that hetold Mr. Castellano of this injury. The applicant was clearly of the view that thedifficulties he had with his back were attributable to the demanding nature of his jobpicking orders. The applicant was of the further view that he was assigned particularlychallenging jobs including picking orders for “Enzo’s Truck”.[12] Mr. Castellano acknowledged that the applicant told him in early 2007 that hehad back pain. He testified that it was not unusual for order pickers to have occasionaldifficulties, including difficulties with their backs, given the physically demanding natureof their jobs.2012 HRTO 1455 (CanLII)[13] Mr. Castellano testified that he had an established informal system ofaccommodation. He testified that his practice as a supervisor was to accommodateemployees who informed him that they had an injury or pain by allowing them to carryout the jobs and tasks they felt they were capable of doing and by choosing not to carryout tasks they were unable to. He testified that he would usually talk to the employeeexperiencing a problem and have them identify what they felt they could and could notdo. He testified that an employee would only be expected to provide a doctor’s note ifan injury was serious or persisted and that in these cases he would follow the directionsprovided in the medical note. He testified that he would confer with human resources, ifrequired.[14] Mr. Castellano testified that he recalled accommodating the applicant in early2007 when the applicant identified that he was having back pain by telling him to carryout only the duties he felt he was able to do.[15] On April 23, 2007 the applicant submitted three medical documents to therespondent. One was a doctor’s note stating that “due to a severe spinal condition Ihave advised Mr. Lagana to perform modified duties until further notice. He will be re-5