FPSLREB Decisions

Grievances referred to adjudication

[1]   On May 2, 2002, Guy Lévesque filed a grievance with his employer challenging its decision on April 8, 2002 to refuse his application for leave under clause 17.17 of the collective agreement. The grievance was referred for adjudication by the Public Service Staff Relations Board (“the Board”) on July 19, 2002 as file no. 166-34-31393.

[2]   As corrective measures, Mr. Lévesque wants to be given six months’ leave with pay, under clause 17.17 of the collective agreement and to be reimbursed for all sick leave used since August 1999.

[3]   On March 25, 2002, Mr. Lévesque filed a grievance with his employer concerning the latter’s failure to offer him appropriate corrective measures following a harassment complaint. This grievance was referred for adjudication by the Board on July 19, 2002 as file no. 166-34-31394. In this grievance, Mr. Lévesque   seeks the following corrective measures:

[Translation]

I request six months’ leave with pay as recommended by my physician and Health Canada; I also request reimbursement of all sick leave since August 1999.

[4]   A hearing into the two grievances was held on January 14 and 15, 2003 before an adjudicator assigned by the Board and a decision was rendered on March 30, 2003 (2003 PSSRB 18).

[5]   An application for judicial review was filed with the Federal Court and a hearing was held on May 25, 2004. The Honourable Judge Shore rendered a decision on May 31, 2004 (2004 FC 789). In that decision, the Honourable Judge Shore explains that:

. . .

[16]     Guy Lévesque is not disputing the decision on grievance 166-34-31394, but is only disputing the decision on the second grievance.

. . .

[6]   The Honourable Judge Shore made the following order:

. . .

THIS COURT ORDERS that the decision of the Board Member be set aside and that the matter be remitted to the Public Service Staff Relations Board for determination by another panel.

. . .

[7]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, such references to adjudication must be disposed of in accordance with the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the “former Act”).

[8]   At the commencement of the hearing on May 5, 2005, the issue of whether the decision on file no. 166-34-31394 was res judicata was submitted to the parties. The parties and the undersigned agreed that the portion of the Board decision on March 30, 2003 that related to file no. 166-34-31394, wherein the adjudicator dismissed the grievance filed on May 25, 2002, is res judicata, the Honourable Judge Shore having noted in his judgment that the decision in respect of that grievance was not disputed. Accordingly, the present decision deals solely with file no. 166-34-31393 about the May 3, 2002 grievance concerning the refusal to grant leave under clause 17.17 of the collective agreement. The grievance is worded as follows (Exhibit G-7):

[Translation]

I am filing a grievance concerning the decision of K. Cochrane dated April 8, 2002 to refuse my request for leave under clause 17.17 of the collective agreement for the CS group.

CORRECTIVE MEASURES REQUESTED

6 months’ leave with pay under clause 17.17 as recommended by my physician and Health Canada and reimbursement of all sick leave since August 1999.

[9]   At the hearing, the parties agreed to proceed without simultaneous translation, although some documents are written in English and the witness called by the employer was to testify in English.

Summary of the evidence

[10]   The collective agreement for the Computer Systems Group (code: 90550/2000; expiry date: April 30, 2002) was signed on April 10, 2001 by the Canada Customs and Revenue Agency and the Professional Institute of the Public Service of Canada. The following clauses of the collective agreement apply specifically to this grievance:

ARTICLE 16

SICK LEAVE

[…]

16.02 Granting of sick leave

An employee shall be granted sick leave with pay when he is unable to perform his duties because of illness or injury provided that:

(a) he satisfies the Employer of this condition in such a manner and at such a time as may be determined by the Employer;

 and

(b) he has the necessary sick leave credits.

16.03 Unless the employee is otherwise informed by the Employer, a statement signed by him stating that because of illness or injury he was unable to perform his duties shall, when delivered to the Employer, be considered as meeting the requirements of clause 16.02(a)

[…]

**ARTICLE 17

OTHER LEAVE WITH OR WITHOUT PAY

17.01 In respect to applications for leave made pursuant to this Article, the employee may be required to provide satisfactory validation of the circumstances necessitating such requests.

[…]

17.17 Leave with or without Pay for Other Reasons

At its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement.

[11]   Mr. Lévesque has been employed with the Canada Customs and Revenue Agency (“the Agency”) since 1997 as a Data Base Analyst (CS-03). He did not present any serious health problems prior to August 1999, he enjoyed an active family and social life in which he was very much involved and he engaged in many sports.

[12]   The situation changed in August 1999 as a result of the objections made by an Agency client to Mr. Lévesque’s decision to take two weeks of his annual vacation leave during that month. Although he moved his vacation weeks, upon his return to work, Mr. Lévesque was taken off the project that he had been working on with this client. He was then made subject to the conditions set out in a letter dated September 13, 1999, detailing the employer’s expectations for him. From that time on, Mr. Lévesque viewed the employer’s actions toward him as harassment.

[13]   A grievance was filed by Mr. Lévesque on October 13, 1999 calling for an investigation into the alleged intimidation and harassment (abuse of authority) committed toward him by two of his superiors. The investigation report on the harassment complaint was completed on May 29, 2000, and Assistant Commissioner Ken J. Cochrane, in his correspondence of June 30, 2000 (Exhibit G-2), informed the complainant that the allegations of abuse of authority had been sustained. The employer acknowledged at the hearing that Mr. Lévesque had been the victim of an abuse of authority over a period of approximately two months, i.e., September and October 1999.

[14]   The fact that those implicated in the harassment grievance moved to other buildings meant that contact between Mr. Lévesque and those identified as the harassers could be avoided. Mr. Lévesque had no contact with them after his complaint on October 13, 1999.

[15]   As a result of the harassment that he had suffered,   Mr. Lévesque had problems involving an inability to concentrate, a lack of motivation, sleep difficulties and panic attacks. He feared at the time that he would lose his job. Because of his health problems, he was absent from work intermittently from October 1999 on. He was referred by his family doctor to Dr. Hendrik J. Bütter, a psychologist.

[16]   Dr. Bütter met with Mr. Lévesque periodically on a regular basis beginning on October 5, 1999. The diagnosis was anxiety caused by workplace harassment. On January 23, 2001, Dr. Bütter indicated in his correspondence that his patient was less anxious and depressed but was still fragile (Exhibit G-3). He recommended psychosocial therapy to attempt to resolve the anxiety and depression.

[17]   Dr. Bütter testified that Mr. Lévesque’s symptoms of anxiety were still present and that it was difficult to predict whether a person presenting such symptoms would be fully recovered in the near future. Mr. Lévesque’s prognosis was promising, and psychosocial therapy might lessen his anxiety and depression. At the beginning of the treatment, it was decided to use a non-medicinal, therapeutic approach. Therapy with medication was later added to his treatment.

[18]   Dr. Bütter talked with Martin Ranger, an Employment Relations Officer for the Professional Institute of the Public Service of Canada, about whether psychosocial therapy should be requested for Mr. Lévesque in the context of a sabbatical leave with pay for one year. According to Dr. Bütter, if psychosocial therapy were given when Mr. Lévesque was not facing work-related stress factors, it could heal the damage he suffered from the harassment. A request for compensation was sent by Mr. Ranger to Chantal Butler, a Human Resources Advisor for the employer. Mr. Ranger wrote as follows in his letter of February 15, 2001, (Exhibit G-3):

[Translation]

. . .

We are therefore asking for compensation equivalent to one year’s leave with pay, leave that Mr. Lévesque could take as needed in order to combat his anxiety.

. . .

[19]   Dr. Bütter discussed his recommendation on March 1, 2001 with Léonard Courchesne from the employer’s Labour Relations Division. He agreed to decrease the length of the sabbatical leave to six months. He confirmed his position to Mr. Courchesne in writing as follows (Exhibit G-11):

. . .

            Pursuant to our telephone conversation 1 st of March 2001 regarding the utilization of Mr. Levesque’s six-month sabbatical leave, I am proposing that he stays in therapy during the forthcoming year and that this six-month period will be used with therapeutic involvement that will provide him with stress and anxiety management and self-development growth exercises.

. . .

[20]   The employer asked the Occupational Health and Safety Agency to assess Mr. Lévesque’s fitness for work. The correspondence in that regard, dated April 23, 2001, states (Exhibit G-4):

. . .

Mr. Lévesque has been an employee of the Information Technology Branch at Canada Customs and Revenue Agency since September 1997. In October 1999, Mr. Lévesque filed an harassment complaint for intimidation and abuse of authority against his two supervisors. In June 2000, the investigator’s final report concluded that Mr. Lévesque had been a victim of abuse of authority.

Since the complaint was filed, Mr. Lévesque took the following amount of hours of leave:

medical appointments:	52 hours
sick leave uncertified:	71.25 hours
sick leave certified:	52.5 hours
vacation:	204 hours
meeting with union:	20.5 hours

Mr. Lévesque has placed a request for a 6-month period of leave with pay to be taken as needed. You will find attached copies of letters submitted by Dr. Hendrik J. Bütter, Ph.D., C.P.P.Q., from the University of Ottawa in regards to Mr. Lévesque’s medical condition.

Senior management is requesting that Mr. Lévesque be assessed in order to determine if the employee is fit to work, if there are any restrictions that we should be aware of and if the 6-month period of leave should be a continuous or intermittent period. Please note that Mr. Lévesque has requested to be seen by a doctor who is fluent in the french [sic] language.

. . .

[21]   Dr. R.C. Spees assessed Mr. Lévesque and endorsed Dr. Bütter’s recommendation. He set out his recommendation in the conclusion to his report of May 28, 2001 (Exhibit G-5) and suggested treatment with a low-dose medication:

. . .

MENTAL STATUS EXAMINATION

. . . At the present time, I would suggest that we support this psychologist’s request for certain rest periods for at least the next six months. This patient seems to build up stress levels that become unmanageable over a period of a week or more and does need a day off from time to time to recover. He is a good prognosis patient who will, in all likelihood, be doing quite well within a year.

[…]

[22]   The employer was informed of the conclusions of the medical assessment in a letter from Dr. Lisa Taras of the Occupational Health and Safety Agency on July 10, 2001. Dr. Taras wrote as follows (Exhibit G-5):

. . .

At your request, Mr. Lévesque had a fitness to work evaluation, which included an assessment by one of our consultant specialists. It is our joint opinion that Mr. Lévesque is well enough to work.

In your letter, you indicated that Mr. Lévesque had requested a 6 month period of leave. From a medical perspective, there is no indication that it would be helpful for him to take such a leave on a continuous basis. Therefore, it can be taken intermittently.

. . .

[23]   Teri Carucci was appointed Assistant Director, Human Resources in the Computer Science Division in mid-July 2001. She handled the follow-up on Mr. Lévesque ’s file from then on and kept Mr. Cochrane informed about it. She read Dr. Taras’ correspondence dated July 10, 2001, which was in the file, and discussed its conclusions with her.

[24]   She attended a meeting with Messrs. Cochrane, Lévesque and Ranger on December 18, 2001 in an effort to find a solution to Mr. Lévesque’s case. The problem of the absences due to anxiety and stress was addressed and his eligibility for benefits from Sun Life and the Workplace Safety and Insurance Board (WSIB) was discussed. Following Ms. Carucci’s testimony, the parties referred to the WSIB policy but the text of this policy was not produced or studied. The day after this meeting, Mr. Ranger sent the employer written confirmation of his doubts concerning the availability of Sun Life and WSIB benefits for the anxiety and stress that had caused Mr. Lévesque’s absences. He concluded as follows (Exhibit E-1):

. . .

It is my opinion that Mr. Lévesque’s paid leave request must proceed under section 17.17 of the collective agreement “Leave with or without pay for other reasons: At its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement”.

. . .

[25]   Ms. Carucci made attempts by telephone to verify Mr. Lévesque’s eligibility to receive benefits from these organizations, but these efforts proved unsuccessful. The advisors at Sun Life and the WSIB did not want to elaborate on this issue without a formal request from Mr. Lévesque. After checking with the Agency’s human resources and labour relations specialists, Ms. Carucci helped draft Mr. Cochrane’s response to Mr. Lévesque’s request on April 8, 2002, (Exhibit G-6).

[26]   The employer offered to reimburse Mr. Lévesque for his sick leave credits (102.75 hours) and is prepared to waive its requirement that the absences for the medical appointments up to March 31, 2002 (104.75 hours) be claimed as sick leave due to illness. It was explained in the testimony of Ms. Carucci that the offer to reimburse the sick leave credits covered only the period between August 1999 and March 31, 2001, whereas the leave for medical appointments applied up to March 31, 2002. Mr. Cochrane explained this in his correspondence:

. . .

This represents a total of 207.5 hours, which spans the period of the harassment, the time from the filing of the complaint to issuance of the final report and a period of nine months after the report to allow for readjustment. Please be advised, that from April 1, 2002, medical appointments related to the on-going treatment of the medical condition must be taken as sick leave.

. . .

[27]   In his reply of April 8, 2002, Mr. Cochrane explained his conclusions regarding the rest of Mr. Lévesque’s request as follows:

. . .

The last remaining issue would be the request for Leave with Pay for other reasons. At our request, Mr. Levesque was evaluated by Health Canada. The result of the evaluation was that Mr. Levesque was fit for work; that is, he did not need the six-month period of leave. However, the evaluation also stated that Mr. Levesque could benefit from leave taken on an intermittent basis. The type of leave taken was not specified in the assessment from Health Canada.

In reviewing the collective agreement, Article 17.17 states, “At its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement”. Mr. Levesque has requested leave due to illness, which is addressed in the collective agreement under Article 16. It is, therefore, my decision to deny Mr. Levesque’s request for six (6) months of Leave with Pay for other reasons.

Mr. Levesque’s absences should continue to be taken as sick leave under Article 16 of the collective agreement. It should also be noted that Mr. Levesque’s medical appointments should be taken as sick leave since they are to address a continuing condition rather than annual checkups. I do not intend, however, to apply this direction retroactively.

[…] Based on a discussion with Dr. Taras from Health Canada, I have asked Ms. Teri Carucci, Assistant Director, Human Resources to make arrangements with Mr. Levesque for a medical re-evaluation. Ms. Carucci will be in touch with Mr. Levesque to make the necessary arrangements.

I also believe that Mr. Levesque should pursue his claim through the Workers’ Safety Insurance Board (WSIB) noting that the investigation determined that the harassment allegations were founded and with Sun Life due to the ongoing medical problems. These two organizations are the insurance providers for the Government of Canada; therefore, Mr. Levesque would be entitled to make claims to both of these organizations. The new assessment by Health Canada may be of assistance in supporting his claim to these organizations.

. . .

[28]   Mr. Lévesque grieved the employer’s decision on May 2, 2002 (Exhibit G-7). Assistant Commissioner, Human Resources, D.G.J. Tucker provided the employer’s response at the final level of the grievance procedure on July 5, 2002. He wrote as follows (Exhibit G-7) :

[Translation]

. . .

You have applied for leave with pay because of the state of your health and for medical appointments. Your collective agreement specifically provides for sick leave in Article 16 where an employee is unable to perform his duties because of illness or injury. Consequently, it is these specific provisions that must be applied rather than general provisions like those in clause 17.17.

Concerning your application for regular absences for treatment, the policy on leave with pay provides that such absences must be charged against your sick leave credits.

Management has allowed you to take leave as recommended by the doctors and in accordance with the provisions of your collective agreement. Therefore, there is no reason to reimburse you for your sick leave since August 1999.

Also, from my review of the facts, I am satisfied with the steps taken by management in relation to your harassment complaint and it is my opinion that management has complied with the provisions of the Policy on the Prevention and Resolution of Harassment in the Workplace.

. . .

[29]   Dr. Bütter explained that, at the time of the hearing, Mr. Lévesque continued to show the symptoms of chronic stress disorder as well as moderate anxiety and depression symptoms. Mr. Lévesque’s health has been stable since May 2002, when Dr. Bütter wrote to the federal Member of Parliament in an attempt to resolve the impasse between his client and his employer. Mr. Lévesque feels that the employer has been inflexible in continuing to demand a medical note for every absence due to illness or medical appointments (Exhibit G-8; July 4, 2002). Mr. Lévesque explained that the employer doubted that his absences were caused by anxiety and showed its inflexibility by refusing to advance him sick leave credits (Exhibit G-9; December 16, 2002).

Summary of submissions

For the grievor

[30]   Mr. Lévesque was the victim of harassment and his health was affected as a result. He still suffers from the aftermath of a chronic stress disorder and, according to Dr. Bütter, exhibits moderate anxiety and depression. The employer is responsible for the harm done to Mr. Lévesque, and the adjudicator has the power to intervene by imposing a remedy.

[31]   From September 1999 to the date of the grievance, Mr. Lévesque used about one day a week of his accumulated sick leave credits for absences caused by his inability to perform his duties because of his anxiety. He has exhausted his accumulated sick leave and has had to use his other benefits to manage the consequences of the harassment he endured.

[32]   In his grievance, Mr. Lévesque requests two corrective measures:

(1)	to be reimbursed for the sick leave credits that he used from September 1999 to the date of the grievance; and
(2)	to have credited to his bank of sick leave credits the equivalent of six months’ credits for days of absences, based on clause 17.17 of the collective agreement.

[33]   He requests reimbursement of the sick leave credits because it was the harassment that caused him to be unfit for work. The employer is responsible for the situation because it is supposed to provide a workplace free of harassment and it must repair the harm caused to Mr. Lévesque. In the case at hand, the harassment has been proved, and the employer must be held responsible for its negative impact on Mr. Lévesque. In Re Toronto Transit Commission and A.T.U., 78 C.L.A.S. 435 (2004) (QL), the adjudicator held the employer liable for the negative impact of harassment on an employee and ordered it to reimburse the sick leave credits that had been used.

[34]   In a case of absence for illness (stress caused by sexual harassment in the workplace), the decision in Re Her Majesty in Right of Province of Manitoba and Manitoba Government Employees’ Association (1993), 32. L.A.C. (4th) 190 explains that the objective of an arbitrator making an award of damages resulting from a violation of the legislation or the collective agreement ought to be to restore the grievor to the position in which he would have been had the collective agreement not been violated. The adjudicator ordered the restitution of the sick leave credits used during the period in question. A similar kind of remedy was granted by the Board in a sexual harassment case in Gendron v. Treasury Board (National Defence), PSSRB file nos. 166-2-22152 to 22164 (1994) (QL). Reimbursement of the sick leave and annual vacation credits used by the grievor was ordered in Lavigne v. Treasury Board (Public Works), PSSRB file nos. 166-2-16452 et al. (1988) (QL). Reimbursement of the sick leave credits of an employee who had suffered sexual harassment was held to be reasonable compensation in Re The Queen in Right of Newfoundland (Newfoundland Farm Products Corp.) and Newfoundland Association of Public Employees (1988), 35 L.A.C. (3d) 165.

[35]   Concerning the request to have the equivalent of six month’s leave credited to him pursuant to clause 17.17 of the collective agreement, Mr. Lévesque submitted that the collective agreement does not provide for remedial measures where the employer is responsible for the harm done to an employee. Clause 17.17 resolves situations that are not covered by the collective agreement and should be applied in this case.

[36]   Although the application of this clause falls within the discretion of the employer, the latter must exercise this discretion in a way that is not arbitrary, in bad faith or frivolous. In this case, the employer exercised its discretion arbitrarily by refraining from conducting an in-depth investigation and by not taking all the facts into account. The employer refused to consider the reasons for Mr. Lévesque’s absences. These reasons, which relate to the nature of the illness, should be taken into consideration by the employer so that its investigation can be complete in accordance with the principle laid down in Re Meadow Park Nursing Home and Service Employees International Union, Local 220 (1983), 9 L.A.C. (3d) 137.

[37]   The employer must conduct a serious and painstaking investigation into the reasons for an employee’s absences before making its decision. Failure to do so is sufficient to show that the employer has been unreasonable. This principle, which is explained in Critch v. Treasury Board (Transport Canada), PSSRB file no. 166-2-13526 (1983) (QL), was not followed in this case as the employer failed to check the policies, limitation issues and definitions applicable to claims made to Sun Life and the WSIB. Acting without this information, the employer denied the leave without knowing the potential impact on the grievor.

[38]   The adjudicator in this case must intervene in view of the employer’s bad faith in refusing the leave application under clause 17.17 of the collective agreement. The remedy sought is not accommodation for Mr. Lévesque’s incapacity, but a corrective measure to redress the harm that he suffered.

For the employer

[39]   Mr. Lévesque was declared fit to work in the evaluation of July 10, 2001, pursuant to the expert opinion of Dr. Spees (Exhibit G-5). According to Dr. Taras, of the Occupational Health and Safety Agency, there was no medical indication showing that it would be beneficial for Mr. Lévesque to take six months’ continuous leave. Dr. Spees recognized that the patient seemed to build up stress levels that became unmanageable over a period of a week or more and that he needed a day off from time to time to recover.

[40]   Mr. Lévesque’s initial application for a year’s leave with pay (Exhibit G-3) was reduced to six months after Dr. Bütter had discussed the matter with Mr. Courchesne from the Labour Relations Division in March 2001. The application was evaluated by Ms. Carucci, who had to complete the file for the Assistant Commissioner (Mr. Cochrane). The questions related to this application were discussed by the employer and Mr. Lévesque, represented by Mr. Ranger, at the meeting on December 18, 2001. Mr. Lévesque’s application raised questions at that time about the applicability of clause 17.17 when Article 16 provided for a sick leave system. The discussion also touched on the benefits from Sun Life and the WSIB for which Mr. Lévesque might be eligible.

[41]   Further to Mr. Ranger’s questions about the Sun Life and WSIB insurance plans that were submitted to the employer on December 19, 2001, Ms. Carucci consulted the two organizations and the resources available in the employer’s Labour Relations and Human Resources services. She recommended that Mr. Lévesque make a formal application to the two organizations to have his eligibility for those plans assessed. According to Ms. Carucci’s communications with Sun Life and WSIB advisors, it was possible that Mr. Lévesque would be eligible for benefits and it was worth verifying this possibility by filing applications with these organizations. This recommendation was repeated by Mr. Cochrane in his offer on April 8, 2002 (Exhibit G-6).

[42]   The grievance filed by Mr. Lévesque challenges Mr. Cochrane’s decision to deny him leave under clause 17.17 of the collective agreement (Exhibit G-7). The adjudicator is not dealing with an action for damages arising from the harassment suffered by Mr. Lévesque or with a harassment grievance. The only issue submitted to the adjudicator’s jurisdiction relates to the application of clause 17.17 of the collective agreement and, according to the principle laid down in Burchill v. Attorney General of Canada, [1981] 1 F.C. 109, an adjudicator cannot alter the nature of the grievance with which he is seized.

[43]   The leave for which Mr. Lévesque has applied is intended to make it possible for him to receive treatment for the psychological harm done to him or allow him to recover when his stress levels become too high. Such leave necessarily falls into the category of sick leave as provided for in clause 16.02 of the collective agreement.

[44]   When the reason for the absences is included in the definition of sick leave, the jurisprudence explains that it is the clauses specific to sick leave that must be applied. The residual or general clauses are not meant to be applied in preference to the specific clause for sick leave. Sick leave that is covered by specific clauses takes precedence over the clauses relating to discretionary leave. The following decisions have explained these principles:

• St-Jacques v. Treasury Board (Public Service Commission), PSSRB file no. 166-2-13467 (1983);
• Nandy v. the Treasury Board (Royal Canadian Mounted Police), PSSRB file no. 166-2-15442 (1987) (QL); 
• Clark v. Treasury Board (Transport   Canada) , PSSRB file no. 166-2-23892 (1994) (QL);
• Griffith v. Treasury Board (Revenue Canada – Customs and Excise) , PSSRB file no. 166-2-25986 (1995) (QL);
• Damer v. Treasury Board (Transport Canada) , PSSRB file no.
  166-2-25623 (1995) (QL);
• Tremblay v. Treasury Board (Agriculture Canada) , PSSRB file no.
  166-2-16894 (1988) (QL);
• Bouchard v. Treasury Board (Veterans Affairs Canada) , PSSRB file no. 166-2-28640 (1999) (QL).

[45]   Where the adjudicator finds that the leave is in the nature of sick leave, he must apply the specific clause in preference to the general clause on discretionary leave. At that point, he does not have to ask whether the employer exercised its discretion in good faith because the clause dealing with leave for other reasons cannot apply. In this case, the adjudicator does not have to assess whether the refusal to grant leave on the basis of clause 17.17 flowed from a good-faith exercise of its discretion, because the leave clearly comes under sick leave.

[46]   In the alternative, should the adjudicator find that leave for other reasons is applicable, the employer exercised its discretion in good faith after conducting a serious investigation with its own human resources and labour relations advisors in seeking to verify Mr. Lévesque’s eligibility for the benefits covered by Sun Life and the WSIB.

[47]   The decisions submitted by Mr. Lévesque do not apply to this case because they were made in relation to anti-harassment grievances or in cases where the circumstances were different from those in this grievance.

Reply

[48]   The nature of the grievance is to be interpreted liberally and the corrective measure requested (leave according to clause 17.17) is in the nature of a claim for damages. Compensation based on clause 17.17 is the only one that makes the employer accountable for what happened to Mr. Lévesque.

[49]   In this case, the employer is responsible for Mr. Lévesque’s health problems and in these circumstances adjudicators have ordered the employer to compensate the employee for the sick leave taken. The following decisions support this principle:

• Grignon v. Treasury Board (Veterans Affairs Canada) , PSSRB file no.
  166-2-27602 (1997) (QL);
• Black v. Treasury Board (Canadian Employment and Immigration Commission) , PSSRB files nos. 166-2-17248 and 166-2-17249 (1988) (QL);
• Labrèche v. Treasury Board (Department of External Affairs) , PSSRB file nos. 166-2-19920 and 166-2-19986 (1990) (QL).

Reasons

[50]   The evidence shows that Mr. Lévesque suffered health problems that were caused by the harassment that he endured in September and October 1999. He had to be absent because his anxiety and depression led to a chronic stress disorder. Mr. Lévesque has to take leave when his stress level becomes too high after working for a week or more. As this situation has persisted since 1999, Mr. Lévesque has exhausted all his accumulated sick leave credits.

[51]   On February 15, 2001, the bargaining agent claimed compensation equivalent to a year’s leave with pay that Mr. Lévesque could take as needed to combat his anxiety, and reimbursement of the sick leave credits that he had used since August 1999 (Exhibit G-3). The nature of this leave was due to illness, to allow Mr. Lévesque to manage his anxiety when its level made him unable to perform his duties. This understanding of the claim for the equivalent of six months’ leave (the claim having been reduced from one year to six months by Dr. Bütter) is shared by Dr. Spees, who explains that these credits could be used to permit Mr. Lévesque to manage his stress levels when he needed a day off from time to time to recover (Exhibit G-5). Dr. Taras endorses this position, explaining that from a medical perspective there was no indication that it would be helpful for him to take such leave on a continuous basis and, accordingly, it could be taken intermittently (Exhibit G-5).

[52]   On the other hand, Dr. Bütter’s testimony states that the reason for Mr. Lévesque’s leave is to enable him to have psychosocial therapy to try to eliminate his psychological injury when he would not be subject to workplace stress. His symptoms of anxiety and depression mean that Mr. Lévesque is not performing at 100% at work, although he is still fit for work, except on days when his stress level is unmanageable. The purpose of the leave would therefore be to create an atmosphere free of work-related stress, one more conducive to the success of the psychosocial therapy. Dr. Bütter prefers a continuous period of leave (Exhibit G-11) but does not seem closed to the idea of it being taken intermittently (Exhibit G-12).

[53]   The nature of the leave is clearly for medical reasons, either to recover when stress levels make Mr. Lévesque unable to perform his duties or for therapy to heal his psychological injury. Sick leave is covered by clause 16.02 of the collective agreement, which specifically provides for it. The cause of the illness or injury is not a factor to be considered in order for clause 16.02 to be applicable and the fact that the employer may or may not be held responsible cannot affect the interpretation or the application of Article 16 of the collective agreement.

[54]   Clause 16.02 reads as follows:

ARTICLE 16

SICK LEAVE

. . .

16.03 Granting of Sick Leave

An employee shall be granted sick leave with pay when he is unable to perform his duties because of illness or injury provided that:

(a)	he satisfies the Employer of this condition in such a manner and at such a time as may be determined by the Employer;
	and
(b)	he has the necessary sick leave credits.

[55]   Thus, the fact that the moderate symptoms of anxiety and depression afflicting Mr. Lévesque arose from the harassment that he suffered at work does not mean that his resulting absences from work are not covered by clause 16.02 of the collective agreement. This conclusion means that leave for such absences cannot be considered under clause 17.17, which deals with leave for other reasons.

[56]   The Board’s decisions holds that the residual clauses concerning leave for “other reasons” cannot take precedence over the specific clause dealing with sick leave. The following Board decisions are all based on the principle that a clause in a collective agreement covering a specific situation takes precedence over a general clause: St-Jacques v. Treasury Board (Public Service Commission) (supra); Nandy v. Treasury Board (Royal Canadian Mounted Police) (supra); Griffith v. Treasury Board (Revenue Canada – Customs and Excise) (supra); Damer v. Treasury Board (Transport Canada) (supra); Tremblay v. Treasury Board (Agriculture Canada) (supra); and Bouchard v. Treasury Board (Veterans Affairs Canada) (supra).

[57]   In Clark v. Treasury Board (Transport Canada) (supra), the grievor had applied for leave with pay for other reasons because, in his opinion, the circumstances of his fatigue were attributable to the employer. That situation is similar to this case in which Mr. Lévesque argues that the employer is responsible for the deterioration of his health. In the decision in Clark (supra), the adjudicator’s conclusion was as follows:

. . .

          I believe that the decisions in Parkes (supra) and Nandy (supra) are more closely related to the issues at play in the instant case. In both those cases, the adjudicators concluded that there was a specific provision of the collective agreement which applied to the request of the grievor and that the "special leave" provision, also referred to as the "catch-all" or the "residual" provision, simply had no application. . . .

. . .

[58]   I agree with this conclusion and, applying it to this case, I find that clause 17.17 of the collective agreement, which Mr. Lévesque wants to apply, is not applicable to the facts of this case, which show that the leave requested is in the nature of the sick leave covered by clause 16.02 of the collective agreement. Thus, clause 17.17 cannot be applied to this case, because the employer can exercise its discretion to grant this leave only for purposes other than those indicated in the other clauses of the collective agreement.

[59]   In the alternative, even if I had found that clause 17.17 could be applied to this case, I would decide that the investigation conducted by the employer to determine whether the leave applied for could be granted on the basis of clause 17.17 was done in good faith, in a manner that was neither arbitrary nor frivolous. The employer’s investigation into this matter was serious and painstaking. The fact that it extended its investigation to other factors, namely, the possibility of alternatives, apart from the collective agreement, that were available to Mr. Lévesque, from Sun Life and from the WSIB, does not show bad faith in the exercise of the discretion conferred by clause 17.17 of the collective agreement, nor that it acted frivolously or arbitrarily. Thus, although the employer’s investigation into other alternatives could have been more complete if it had verified in more detail the claimant’s rights, eligibility policies and other factors pertinent to the benefits offered by Sun Life and the WSIB, I find no evidence in this that supports the grievor’s allegations.

[60]   Thus, Mr. Lévesque did not show me how the employer allegedly acted in bad faith, frivolously or arbitrarily in determining that clause 17.17 of the collective agreement could not be applied in his case or in the investigation preceding that decision.

[61]   A large part of the submissions by the bargaining agent on behalf of Mr. Lévesque were made in order to convince me that the employer has a duty to redress the harm that the harassment caused the employee. According to Re Her Majesty in Right of Province of Manitoba and Manitoba Government Employees Association (supra), the adjudicator’s power to restore the grievor to the position in which he would have been depends upon a finding that the legislation or the collective agreement has been violated. In this case, the grievor did not show that the harassment, in the form of an abuse of authority, he suffered violated a clause of the Act or the collective agreement, and he provided no explanation in that regard in his arguments. In the absence of evidence to that effect, I have no jurisdiction to restore the grievor to the position in which he was before he was the victim of harassment in the form of an abuse of authority. Furthermore, I cannot see how reimbursing the leave credits used since August 1999 could constitute a remedy for the wrongful application of clause 17.17, as alleged in the statement of grievance. The “loss” of sick leave credits could not be a “consequence” or a “harm” flowing from the allegedly incorrect application of this clause, but flows instead from the harassment of which the grievor was the victim, as the case was presented to me by the parties in their submissions.

[62]   In the alternative, the issue of the employer’s duty to compensate Mr. Lévesque for the wrong done to him as a result of the harassment he suffered was the subject of a grievance filed on May 25, 2002, which was referred to adjudication as PSSRB file no. 166-34-31394. This grievance is now res judicata, having been dismissed by the adjudicator on March 3, 2003 (2003 PSSRB 18). In its judgment of May 31, 2004, the Federal Court noted that Mr. Lévesque had not challenged the decision in that regard. Thus, I have no jurisdiction to decide about the employer’s alleged failure to offer appropriate corrective measures to Mr. Lévesque following the harassment that he endured, which is the subject of the grievance in PSSRB file no. 166-34-31394.

[63]   The doctrine of res judicata does not apply to the employer’s refusal to grant leave under clause 17.17 of the collective agreement, a matter that was not raised in the grievance dealt with in file no. 166-34-31394.

[64]   The situation is different with regard to the reimbursement of the sick leave credits used since August 1999, which, in the grievances considered in the two files (166-34-31393 and 166-34-31394) is characterized as the corrective measure requested. Since this issue is res judicata (the substance of the corrective measure being identical, the parties to the dispute being the same and the demands arising from the same events), Mr. Lévesque cannot submit the issue to another adjudicator. Consequently, res judicata must apply with respect to this issue rendering a decision on it in file no. 166-34-31393 impossible.

[65]   For these reasons, I make the following order:

Order

[66]   I am without jurisdiction in relation to the grievance submitted in PSSRB file no. 166-34-31394 as this grievance is res judicata.

[67]   The grievance in PSSRB file no. 166-34-31393 is denied.

October 31, 2005

P.S.L.R.B. Translation

Léo-Paul Guindon,
adjudicator