FAQ's Cases - Stewart McKelvey

[77] The applicant did contend that he was cleared to return to work on June 18,pursuant to the May 31 note from his doctor and the respondent failed in its duty toaccommodate him after this date. However, following his May 31 note the applicant’sdoctor provides a functional abilities form on June 8 indicating that the applicant wasunable to work, provides no date of expected return and indicates that the applicantwould be subject to a further assessment in mid-June. The functional abilities form doesnot identify the applicant’s abilities and restrictions. In my view the applicant has notshown that he had medical clearance to return to work on June 18 or, as importantly,what his functional abilities and limitations were at that time that the respondent wouldneed to accommodate. Information about the applicant’s restrictions was not provideduntil June 28 when the applicant’s doctor indicates that the applicant is able to return tolight duties with modified hours.2012 HRTO 1455 (CanLII)[78] I do not find that the respondent failed in its duty to accommodate the applicant inJune given its efforts to find a modified position for the applicant and the fact that theapplicant does not provide medical information about what work he could do upon hisreturn to work until June 28.3) Did Mr. Castellano subject the applicant to harassment during their meeting onMay 22?[79] The applicant detailed his allegations regarding his meeting with Mr. Castellanoin his September 24, 2007 letter to Mr. Zbaraschuk.The applicant identified Mr.Castellano as making the following comments during their May 22 meeting:“How do you know you didn’t hurt your back building your pond?”“When you applied for this job I was supervisor, I would never have hiredyou because of your age”.“When I became supervisor I could have let you go because you did notmeet my numbers”“When you get back to full time duties you will be doing exactly the samething, nothing changes”24