FAQ's Cases - Stewart McKelvey

will at least attempt a modified return to work before ruling it out as an inappropriateaccommodation.[112] The fact that the applicant has a further concern that if he was to return to theafternoon shift his supervisor might not respect the requirements of his modifiedposition, even if based on past experience, does not, in my view mean that it isreasonable for the applicant to categorically refuse the respondent’s offer. Again Iwould note Mr. Zbaraschuk’s letter to the applicant dated August 31, 2007 whichaccompanied the respondent’s proposed return to work plan that indicates that Mr.Zbaraschuk had spoken to Mr. Castellano and that Mr. Castellano understood hisresponsibilities and would co-operate with administering the return to work plan asdesigned. The letter also clearly states that the applicant is to decline any task beyondhis medical restrictions and report it to his supervisor.2012 HRTO 1455 (CanLII)[113] Under these circumstances the applicant has, to use the language of Renaud, aduty to facilitate the implementation of the respondent’s proposal. If the applicant hasconcerns that the position is not being implemented as offered he, in my view, needs toaddress this after having returned to the position.[114] The applicant submits that to return him to work on the afternoon shift would beto return him to a poisoned work environment. It is well-settled law that the prohibitionagainst discrimination in employment under the Code affords employees the right to befree from a poisoned work environment. As noted in Smith v. Menzies Chrysler, 2009HRTO 1936, human rights jurisprudence has long accepted that the “emotional andpsychological circumstances in the workplace” which underlie the work atmosphereconstitute part of the terms and conditions of employment.[115] It is not clear to me that the situation in which the applicant was working in Apriland May 2007 rises to the level of a poisoned work environment even though I havefound that the respondent failed during this period to ensure that the applicant did notcarry out tasks beyond his medical limitations. I further note that I have found that Mr.Castellano did not harass the applicant on May 22 and so I do not accept an argument36