FPSLREB Decisions

Grievance referred to adjudication

[1]   Gilles Sainte-Marie had been employed with the Canada Customs and Revenue Agency (the employer) (formerly Revenue Canada) since 1984.   On December 12, 2005, the Agency changed its name again, becoming the Canada Revenue Agency.

[2]   In 1997, the grievor experienced certain difficulties and as a result, he was absent from his work from May 1997 to September 1998 due to illness. In winter 1998, the employer requested a medical assessment from Health Canada.   The doctor chosen by Health Canada indicated that the grievor could return to work as of February 1998.   The grievor challenged the validity of the assessment, and the employer requested a re-examination by the same doctor in May and again in August 1998.   This doctor confirmed that the grievor could return to work as of July 1998.   The employer required that he return to work on September 10, 1998.

[3]   On September 11, 1998, the grievor replied that he could not go back to work at the same place because of the work environment.   On September 11, 1998, the employer dismissed him for refusing to report to work.

[4]   On September 25, 1998, the grievor filed a grievance that was referred to adjudication in July 1999.

[5]   On April 1, 2005, the new Public Service Labour Relations Act, enacted by section 1 of the Public Service Modernization Act,  S.C. 2003, c. 22, was proclaimed in force. Under section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the former Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the former Act).

[6]   The hearing took place from May 25 to 28, 2004, from October 20 to 22, 2004, and on March 1 and 2, 2005.   The grievor was given an extension until June 1, 2005 to produce additional documents.

[7]   The long delay in fixing the hearing is due to the fact that the grievor had lodged a complaint with the Commission de la santé et de la sécurité du travail (CSST) du Québec.   The grievor claimed that he had been harassed at work and that his illness was the consequence of the employer’s actions.   In addition, he filed a grievance about the harassment, which was also referred to adjudication (PSSRB File No. 166-02-31984).   A number of applications for postponements were made to obtain documents and so that the CSST complaint and the appeal to the Commission des lésions professionnelles (CLP) could be heard. In view of the delay in the CLP proceedings, the parties finally proceeded before me as an adjudicator.

Background

[8]   At the outset of the hearing, the parties agreed to postpone the harassment grievance (PSSRB File No. 166-02-31984) filed by the grievor to a later date.   Thus, this decision solely concerns the dismissal case.

[9]   For a proper understanding of the facts, I believe that they must be placed in context.   The grievor worked with the employer’s collection service and, until 1996, his performance was excellent.   Although classified at a PM-02 group and level, the grievor frequently held an acting PM-03 position.   He handled complex files and in 1996 and 1997, he occasionally guided other employees.

[10]    In 1996, the employer tightened management rules. The grievor was asked to meet his schedules and his movements were watched.   He regretted the situation and found the work environment oppressive, both for himself and for other employees.   Along with his work, he acted as a union representative and confronted management in some cases.   The lack of follow-up, particularly in the cases of two co-workers whom he represented, considerably exasperated him. In May 1997, he left work and consulted a doctor.   The latter found that he was experiencing burn out. He put him on sick leave and referred him to a specialist.

[11]   The grievor was to return to work in January 1998, but his specialist extended his disability period until May 1998 and then summer 1998.   In February 1998, the employer requested another assessment and referred the grievor to a doctor chosen by Health Canada.   This doctor determined that the grievor could return to work.   In his opinion, the grievor’s difficulties were more related to a labour relations issue than to the performance of his duties.   During his disability, the grievor corresponded with the employer about the cases of the grievors whom he was representing. The grievor challenged the diagnosis of the doctor chosen by the employer and emphasized that this doctor did not have his entire medical records.

[12]   The employer agreed to send the grievor back for a second assessment by the same doctor.   The doctor again assessed that the grievor was fit to return to work. This report was challenged by the grievor, and the employer sent the grievor back for a third assessment, again by the same doctor, in July 1998.   The doctor maintained his diagnosis, and the employer requested that the grievor return to work at the end of summer 1998.

[13]   The grievor saw his specialist in August 1998. The latter agreed to return to work, but at another location.

[14]   After several exchanges of correspondence, the employer required that the grievor return to his workplace.   The grievor did not report to work and was dismissed.

Summary of the evidence

[15]   Renée-France Bouliane has been a manager in the collection service since June 1997. The grievor had left work because of disability in May 1997. In summer 1997, Ms. Bouliane read the grievor’s file. Correspondence was exchanged with the grievor regarding the paperwork for his sick leave and vacation leave and that of another employer whom the grievor was representing (Exhibits E-1 to E-3) who was also on disability leave.

[16]   In July 1997, the grievor sent the CSST a copy of a claim form for compensation for 14 days.   He maintained that he had been ostracized and had been subject to undue pressure by his supervisor, Patrice Allard (Exhibits E-4 to E-7).

[17]   In November 1997, Ms. Bouliane was informed that the CSST had not accepted the grievor’s application for compensation (Exhibit E-9).   On January 29, 1998, Ms. Bouliane noted that the most recent medical certificate submitted by the grievor called for his potential return to work on January 5, 1998.   She told the grievor that he should see Dr. Laperrière (the psychiatrist chosen by Health Canada) for a medical assessment (Exhibit E-10).

[18]   Ms. Bouliane sent Dr. Laperrière a letter informing him of the grievor’s earlier work situation (problems with his work performance and the oppressive situation that he had criticized both in relation to himself and for the co-worker on disability leave whom he was representing (Exhibit E-11).

[19]   In February 1998, Ms. Bouliane read the findings of Dr. Laperrière’s medical report. The latter had determined that the grievor had no medical problem that would prevent him from returning to work. In his opinion, the grievor had labour relations problems requiring an administrative resolution (Exhibit E-12).   Ms. Bouliane explained the situation to the grievor and requested that he return to work on March 11, 1998 (Exhibit E-13).

[20]   The grievor sent a copy of the certificates issued by his psychiatrist, Dr. Ouellette.   His view was that the employer’s demands were excessive and posed an obstacle to his recovery (Exhibits E-14 and E-15).

[21]   Ms. Bouliane wrote to the grievor asking him to return to work on March 23, 1998, based on the Health Canada doctor’s assessment. (Exhibit E-16). However, she told him that, if he were to authorize access to the records of his treating physicians, he might be granted sick leave for the time it took to obtain a second medical assessment from Dr. Laperrière, the doctor chosen by Health Canada (Exhibit E-16). The grievor gave authorization to access his medical records and submitted that Dr. Ouellette still considered him unfit to return to work (Exhibits E-17 and E-18).

[22]   On June 2, 1998, the findings of Dr. Laperrière’s second assessment were forwarded to the employer. The diagnosis that the grievor could return to work was upheld (Exhibit E-19).   Ms. Bouliane demanded he return to work on July 6, 1998. In her call to return to work, she indicated that the work schedule and a remedial plan would be discussed (Exhibit E-20).

[23]   The grievor wrote that he could not return to work before September 1998.   He repeated that his disability was the result of the undue pressures imposed by his superiors, primarily Mr. Allard.   He challenged the validity of Dr. Laperrière’s assessment and argued that the latter did not have all the fact in his possession to make an assessment (Exhibit E-21).

[24]   In view of these facts, Ms. Bouliane agreed to a third medical assessment by Dr. Laperrière.   It was scheduled for July 30, 1998,   (Exhibit E-22). The grievor replied that he could not appear for the assessment at the end of July; he needed some rest and he asked to have the assessment postponed until September and criticized the quality of Dr. Laperrière’s assessments (Exhibit E-23).

[25]   The employer postponed the medical assessment to the end of August and sent a letter to the grievor who replied that he would be present for the medical assessment (Exhibits E-24 and E-25).   After the assessment, Dr. Laperrière confirmed his previous diagnosis (Exhibit E-26).

[26]   In view of the findings from the third medical assessment on August 24, 1998, Ms. Bouliane requested, in writing, that the grievor return to work on August 27, 1998, (Exhibit E-27).   The grievor did not report to work on that date.   The next day, August 28, 1998, Jeannine Desbiens, Assistant Director, wrote to the grievor and asked him to report to work when he received that notice (Exhibit E-28).

[27]   At the same time, on July 28, 1998, the grievor wrote a five-page letter to Danielle Vincent, Assistant Deputy Minister of the employer.   He said he deplored the collection service’s poor management. He noted the so-called “illegal” acts committed by one manager. He challenged Dr. Laperrière’s medical assessment and in conclusion suggested that he return to work in another sector, have a medical assessment by a different doctor and maintain his   wage insurance benefits (Exhibit E-30).

[28]   The Deputy Minister replied that, in light of the facts on file, she supported management’s decision (Exhibit E-31).

[29]   Ms. Bouliane said that she was very familiar with the grievor’s file and with that of his manager, Patrice Allard. The manager had imposed disciplinary measures on a co-worker of the grievor who, as union representative, did not accept this discipline.

[30]   With respect to the grievor’s criticisms of Dr. Laperrière, Ms. Bouliane asked the human resources service whether Dr. Laperrière had all of the relevant information in his possession that he needed to make a diagnosis.   It was true that she had sent Dr. Laperrière information on the grievor’s 1997 work assessment and on work-related incidents, but she said that this was only to put the grievor’s departure on sick leave in context.

[31]   In May 1998, Patrice Allard left and was replaced by Ms. Desbiens.   Ms. Bouliane had planned to meet with the grievor upon his return to the office and to introduce him to the new assistant director.   The purpose of this meeting was to discuss the grievor’s assessment reports and to prepare a work plan for July 1998.

[32]   In September 1998, she believed that the grievor was seeking to resolve labour relations issues instead of concentrating on returning to his regular duties in the collection service. She was informed of the correspondence that had been passed on to the Assistant Deputy Minister but thought that it confirmed that the grievor did not want to resume working in the collection service.

[33]   Danielle Vincent, Assistant Deputy Minister, testified that she had asked the human resources service about the grievor’s case after receiving the correspondence of August 28, 1998. She agreed with local management that Dr. Laperrière’s medical report should be considered.   She said that she had confidence in the doctors chosen by Health Canada, even though, on occasion, some union representatives had asked for a referral to other specialists.   As for the incident raised by the grievor, namely, a manager’s accessing an employee’s tax return, she agreed that things were stricter now and that a manager who wanted such access had to receive authorization from the deputy minister.

[34]   Dr. Laperrière testified as a expert witness.   He has practiced as a psychiatrist since 1969 and has conducted medical assessments on a regular basis since 1990.   At the request of Health Canada, he met with the grievor on February 5, 1998.   In his report of February 6, 1998, (Exhibit E-3), he noted that the grievor had talked to him about the deteriorating work environment since 1996, caused by a “cultural shift” in terms of the work.   In addition, in 1996, the grievor had been busy representing for more than six months, a co-worker who was facing a dismissal.   Dr. Laperrière also noted, [ translation ] “it seems that his stopping work followed a meeting with his superior.”   The latter allegedly refused [to believe] that a co-worker’s heart disease was caused by work.   Dr. Laperrière concluded that the grievor may have had a mild anxiety/depression symptomatology, indicating an adjustment disorder. At the time of the examination (February 1998), he concluded that this disorder had cleared up and recommended a return to work.   He noted, however, that the grievor had difficulties in his work relations, but that this was not a medical problem.

[35]   In April 1998, the employer asked him to prepare a new assessment using the medical reports issued by the grievor’s treating physicians.   He requested a copy of the grievor’s records from Dr. Bennett (a general doctor consulted by the grievor) and from Dr. Ouellette, a psychiatrist.   Dr. Bennett sent him the records along with the assessment report prepared by Dr. Ouellette on November 3, 1997, (Exhibit E-35).

[36]   On the basis of the new documents that he had obtained from the grievor’s doctor, but without a further examination, he produced a supplementary report on May 19, 1998.   In addition, he sent another copy of that report that added the following paragraph to the preamble (Exhibits E-38 and E-39) :  

[ translation ]

This supplementary report was prepared after I received a copy of the medical reports from the treating physicians, Dr. Robert Ouellette, psychiatrist, and Dr. Jean-Yves Bennett.

[37]   On July 30, 1998, Dr. Laperrière met with the grievor again and produced a third assessment report (Exhibit E-45).   After June 1998, he received the assessment reports of the psychiatrist treating the grievor (Exhibits E-40 to E-43).

[38]   Dr. Laperrière upheld the conclusions of his earlier reports, namely, that the grievor did not present any disabling symptoms but that he had in fact a labour relations problem.   Dr. Laperrière admitted that the grievor could have had an anxiety disorder but thought, however, that he could return to work after four to six weeks with psychological follow-up.   Physically, the grievor’s weight was the same in July 1998 as it had been in February 1998.   According to him, Dr. Ouellette had not mentioned conducting a mental examination of his patient.   Dr. Laperrière stressed that during his year of absence the grievor had continued to write to his employer and had handled the defence of some of his co-workers.

[39]   In cross-examination, Dr. Laperrière denied that he had had problems with some patients and been sidelined by Health Canada.   He stressed that he had stopped accepting assignments from Health Canada after they had refused to pay his fees in a case where he had appeared for two weeks.

[40]   Carole Gouin has been Director of Montreal Tax Services since 1998.   In 1997-1998, the service had 1,300 employees in eight divisions, including the collection division where the grievor worked, which had 230 employees.   In 1996-1997, three acting managers had headed the division: Patrice Allard, André Bissonnette and again Patrice Allard, until spring 1998.

[41]   Ms. Gouin had an opportunity to communicate with the grievor in 1997 to discuss the case of an employee that the grievor was representing. This employee operated a small investment firm while employed with Revenue Canada. He was accused of accessing the tax returns of several taxpayers without justification.   The employer viewed such access as illegal and excessive.   This employee’s supervisor was Patrice Allard.   During his investigation, the manager accessed the employee’s tax returns to verify the scope of his activities.   The grievor was offended by Patrice Allard’s actions. In July 1997, the grievor was on sick leave.   He told Ms. Gouin that some managers wanted “his head” (Exhibit E-46).

[42]   In August, September and October 1997, there were exchanges of correspondence between Ms. Gouin and the grievor.   The latter asked for his salary and that of his co-worker to be paid until a meeting had been held to resolve the situation. Ms. Gouin questioned the grievor about the allegations of harassment by managers; he refused to provide details.   In his view, this was part of his evidence.   Finally, on October 10, 1997, (Exhibit E-49), Ms. Gouin wrote to the grievor to inform him that she could not consent to the requests he had made as she could not establish a connection between his illness and his work.

[43]   She intervened with the grievor in September 1998, asking him to return to work (Exhibits E-50 and E-51).   Ms. Gouin said that she had kept informed of the grievor’s file and had discussed the results of the medical assessments with human resources management.

[44]   Ms. Gouin believed that the grievor could go back to work in September 1998 as the managers in his service were no longer the same ones as when he had left in May 1997.   She was informed of the grievor’s communication with the Assistant Deputy Minister, Ms. Vincent.   She thought that the grievor was posing conditions and still refusing to report for work.   She, therefore, had no choice but to dismiss him as of September 11, 1998.

[45]   Questioned about the fact that Mr. Allard had had access to an employee’s tax return, Ms. Gouin agreed that the policy is now stricter and that the Deputy Minister’s permission is required.   It is true that there had been a move by management to tighten up in 1997-1998. Employees had lacked supervision and conflicts had arisen among them. An internal consultant was hired to try to harmonize the activities and work environment for managers, team leaders and employees but the results of his work were unsatisfactory.

[46]   The grievor requested a transfer and other considerations in his letter of September 1998 (Exhibit E-30) just as in summer 1997 (Exhibit E-49), but Ms. Gouin maintained that it was difficult to transfer an employee on sick leave and that such a transfer could not be imposed.

[47]   To facilitate the hearing of the evidence, the grievor’s doctor testified immediately after Dr.  Laperrière’s testimony.

[48]   Called to testify for the grievor, Dr. Ouellette said that he had been a psychiatrist since 1979.   Since 1994, he had been a member of the Société des médecins experts.   He met the grievor in October 1997.   The latter had been absent from work for a number of months (since May 1997).

[49]   During the examination, he noted that the grievor was anxious.   The latter told him that he had had difficulties at work since 1995 and that in spring 1997,   he felt anxious and was having difficulty dealing with any stress whatsoever. Dr. Ouellette did not write an objective examination but noted that the patient did not have hallucinations and was not experiencing any loss of contact with reality.

[50]   Dr. Ouellette filed a descriptive card (Exhibit F-12), as well as notes from the meeting with the grievor (Exhibit F-13).   In November 1997, he produced an assessment report that he had sent to the grievor’s treating physician (Exhibit E-36).   Dr. Ouellette also referred to various reports that he produced about the grievor (Exhibits E-40 to E-43).

[51]   Referring to Exhibit F-13, Dr. Ouellette emphasized that in November 1997, the grievor’s ability to deal with stress had improved.   However, in January 1998, the grievor had returned from the holidays tired. In February 1998, his patient was distressed following his visit to Dr. Laperrière and after his meeting with a nurse from SunLife.

[52]   In March 1998, Dr. Ouellette suggested returning to work part time.   The grievor asked if he could wait until May, after the departure of the manager Patrice Allard with whom he had had problems.   However, at the end of May 1998, the grievor said he felt more disturbed and said, [ translation ] “everything that’s going on at work has deeply disturbed me ...”. On August 4, 1998, Dr. Ouellette decided to alter his therapy arrangements. He asked to have the employee’s meetings scheduled on a different day from those of the grievor’s co-worker, who was also a patient of Dr. Ouellette and who travelled in the same car to see the doctor. On this point, Dr. Ouellette indicated that the grievor had a great deal of empathy for his co-workers. He was ready to devote himself to helping and defending them.

[53]   On May 8, 1998, the grievor told Dr. Ouellette that he felt upset. The union had recommended that he file a harassment complaint against the employer and he was reluctant to do it.   Towards the end of May 1998, the patient felt a little better. He began to work on his boat (a sailboat).   However, he said that he did not have the strength to file a harassment complaint.

[54]   At the beginning of June 1998, the grievor said that he had put his boat in the water, but felt that he was slowing down and towards the middle of June he was affected by the state of his mother’s health.   Dr. Ouellette noted that the patient could not work. Dr. Ouellette thought that it would be good for his patient to get back his taste for leisure activities. The grievor went sailing towards the end of June 1998. Around July 3, 1998, the patient felt that his condition was improving.   The same was true on the visit of July 17, 1998.

[55]   At the end of July 1998, the grievor felt more stressed.   He received some documents from the employer informing him of his 1997   performance appraisal and of the fact that his disability benefit had been cut by his insurer.

[56]   On August 5, 1998, the grievor told Dr. Ouellette that he had had to meet Dr. Laperrière, who thought that he had a labour relations problem but was not unfit to return to work.   The employer asked him to return to work.   Despite that, the grievor said that he managed to go sailing and be more active.

[57]   At the beginning of September 1998, the grievor said he was upset.   He thought about meeting with the employer the next day to come to an agreement with the director.   Dr. Ouellette noted that the patient was upset. He was more afraid of going back to work than of losing his job, noted Dr. Ouellette.

[58]   In view of this, Dr. Ouellette said he had written a note to the employer. The doctor considered that the grievor [translation] “is fit to return to work. However, he shows such fragility from a psychiatric point of view that we firmly suggest, in his case, that he be assigned to another department.”

[59]   Dr. Ouellette said that he had continued to see the grievor after his dismissal.

[60]   Jean-Pierre Bonin is the president of the union local (approximately 800 members).   He explained that new managers were appointed in 1996.   Management insisted on adhering to the schedule and the deadlines. In addition, some professionals complained that the files were staying too long with management. The employer set up discussion workshops without much success.

[61]   At this time, the grievor asked to become involved with the union.   He was appointed as a union delegate and handled some cases, including that of another employee threatened with discipline.   Management accused the employee of accessing, without authorization, taxpayers’ tax deductions.   However, during the investigation, the director, Patrice Allard, apparently also accessed the employee’s tax returns.   The grievor challenged the director’s act; he wanted him to be penalized just as the employee was who had received a sanction equivalent to six weeks without salary.

[62]   Martin Girard is a tax collection professional.   He confirmed what the union president had said, that after 1995-1996, management methods had changed and that files moved more slowing between the management and the professionals.   According to him, the assistants and Mr. Allard did not know as much about collections as their predecessors. In the past, management had trusted the professionals but in 1996-1997 progress reports were requested to check on the progress of the files.

[63]   The grievor testified that he had begun working at the Department of National Revenue in 1984.   From 1984 to 1988, he was an information officer. He obtained a legal education, but did not completely finish his courses.   From 1990 to 1992, he acted as a collections officer and was also responsible for training. He was promoted to an acting PM-03 position, group and level. From 1992 to 1993, he took part in developing the departmental mission statement (Exhibit F-26).   One of the goals was to allow the employees to become involved instead of giving orders to verify and monitor.   In 1993, he received an excellent performance evaluation report from his director, Mr. Dauplaise (Exhibit F-19).

[64]   From 1994 to 1995, the grievor handled very complicated files. He gave lectures (Exhibit F-26) and dealt with pilot projects (Exhibit F-18). He made major seizures in some cases and in 1995 he handled international collections files.   The grievor received no disciplinary notices prior to 1995.

[65]   After 1995, the manager changed; Mr. Allard became the manager.   Communications became more complex. Employees had to speak with the team leader who went to the manager who went to the assistant director.   No one could go directly to the manager with complex files.   The workload was heavier and no answers could be obtained quickly.   The managers had less expertise in terms of content and in some cases the grievor did not agree with their actions.

[66]   The grievor had discussions with Mr. Ladouceur, a team leader, about certain incidents and the latter told him: [ translation ] “after the holidays, it will be your turn.”   Subsequently, the grievor felt watched and surrounded.   He could no longer go talk to the Department of Justice professionals as he had done before.   At the end of 1995, he applied for a transfer (Exhibit F-29); the answer was no.

[67]   After the holidays, in January 1996, the grievor received some criticism from managers Messrs. Forget and Ladouceur.   They said that he was not available and did not follow the inventories.   The grievor asked to see their notes. According to the grievor, Exhibit F-30 shows that the managers systematically consulted his files, which was contrary to the usual practice in his opinion.

[68]   At the end of 1997, the grievor handled the case of a co-worker who had been investigated by Mr. Allard.   This employee was accused of having unauthorized access to tax returns. This employee had an investment business and accessed individuals’ files.   Management saw in this a conflict of interest and an illegal practice.   During discussions with management, the union suspected Mr. Allard of checking the employee’s tax return. The grievor was offended; he wanted the director to be punished as well because he had no authorization to access the employees’ files.   Management indicated that this was a mistake in good faith even if the director could have received the deputy minister’s authorization.

[69]   In April 1997, the grievor took two weeks’ vacation.   He went to Florida with his former director, Mr. Thibault, and two other people to bring a sailboat back to Montréal.   The sailboat was in poor condition and broke down after a few days. The grievor was disappointed not to have been able to bring the sailboat back to Canada because he was the one with the most navigation experience.   Upon his return from vacation, the grievor felt tired and disappointed.

[70]   Mr. Ladouceur was replaced by Lorette Kucick and the grievor had the impression that she was closely monitoring him.   In May 1997, the grievor was informed that one of his co-workers was in hospital following a heart attack. He hastened to visit him and the latter told him that work had made him sick.   He asked the grievor to pass this message on to his team leader, Alain Dion. Around June 3, 1997, the grievor sent the message to Mr. Dion but the latter answered that the employee’s heart attack had instead been caused by problems with his wife and not work.   The grievor was upset by the answer and the lack of sympathy towards the employee.   He felt uncomfortable and consulted a doctor.   At this time, he had the perception that he had fought for nothing and that nothing was succeeding in his attempts to defend his co-workers.

[71]   The consulting physician, Dr. Bennett, told the grievor that he was exhausted and that he could not return to work.

[72]   The grievor said that he felt worn out. He wondered why everything was so hard.   At work, he felt watched and isolated. His co-workers no longer consulted him.

[73]   After a few weeks’ absence, he met with a psychiatrist, Dr. Ouellette. He explained his feelings about work. The environment was very difficult for him and for some of his co-workers. He said: [ translation ] “The energy and the exchanges among professionals have been destroyed.”

[74]   Concerning the period between November 1997 and June 1998, he said that he had met regularly with Dr. Ouellette.   His exchanges with the latter appear in the meeting reports produced in a bundle (Exhibit F-13).

[75]   On the advice of his doctor, the grievor resumed certain leisure activities, especially with his sailboat in summer 1998.

[76]   In summer 1998, when the employer asked the grievor to meet with Dr. Laperrière again, he said that he felt harassed; he wanted to have time to relax so that he could recuperate. He therefore asked the employer to move the meeting to another time.

[77]   The employer asked the grievor to return to work in September 1998 based on Dr. Laperrière’s examination report.

[78]   The grievor therefore saw his doctor (Dr. Ouellette) and the latter confirmed that the grievor could return to work on September 11, 1998.   However, he expressed some reservations about his fragility and panic and suggested that the grievor changed workplace (Exhibit F-14).

[79]   The grievor confirmed that he had written to Ms. Vincent and Ms. Gouin to remind them of the work environment that prevailed when he left on sick leave and he suggested various remedies, including a medical reassessment, maintenance of his benefits and a gradual reassignment to a sector where his abilities could be put to good use (Exhibit E-30).

[80]   The grievor said that he did not want to return to work in his position.   He challenged the employer’s approach and deplored the fact that it did not resolve the work environment situation.   When the grievor learned of his dismissal for not reporting to work, he waited a few weeks to react. Finally, the union advised him to file a grievance.

[81]   The grievor filed various documents relating to department policy, his previous achievements (Exhibits F-66 and F-35), notes of appearance before the Commission des lésions professionnelles (CLP) (Exhibit F-22) and the occupational health assessment standards (Exhibit F-33).

[82]   Ms. Fraser is the grievor’s spouse.   She confirmed that, beginning in 1995, he seemed preoccupied by his work. He no longer talked about the files he was working on and just told anecdotes.

[83]   Ms. Fraser confirmed that her spouse had returned disappointed from his vacation in 1997 when he had failed in his attempt to bring a sailboat back from Florida.

[84]   During his absence for illness, the grievor often sat without talking.   Everything seemed difficult to him, even going to get some milk.   In summer 1997, he did not put his sailboat in the water.   She noted some progress in spring 1998 and, in the summer of that year, he finally began to pay attention to his sailboat and made a few excursions.

[85]   On some occasions, her spouse talked to her about the problems of his co-workers, primarily the case of one of these co-workers. In summer 1998, he also talked to her about Dr. Laperrière and that he had been asked to return to work.

Summary of the arguments

For the employer

[86]   The employer argued that the grievor showed insubordination in refusing to report to work and that he had to provide a valid reason to justify such a refusal.

[87]   It is true that the grievor handled important files from 1990 to 1996.   However, from the time that the managers exercised greater control over the handling of the files, deadlines and time spent on them in the grievor’s file, the latter felt surrounded.

[88]   Along with his work, he performed union duties and reported the actions of Mr. Allard and certain other persons.

[89]   The grievor left because of illness in May 1997. It was only in the winter of 1998 that the new manager, Ms. Bouliane, requested that the grievor see a doctor chosen by Health Canada.   According to the grievor’s medical certificate, his return to work was planned for January 1998, but was later postponed.

[90]   From the outset, the grievor challenged Dr. Laperrière’s examination concluding that he had labour relations problems that could not be resolved by medical discussion.

[91]   In view of the grievor’s challenge, Ms. Bouliane sought a second medical report from Dr. Laperrière in May 1998 and another in August 1998.

[92]   After the conclusions of Dr. Laperrière’s reports, Ms. Bouliane requested that the grievor report to work.

[93]   The grievor did not speak to Ms. Bouliane but wrote instead to the Deputy Minister, Ms. Vincent.   At the last minute, he said that he could report to work, but put conditions on his return and requested to be transferred somewhere else.   He said that he was unable to hold the same position.

[94]   The grievor’s doctor wanted his patient’s well being. He took into account the fact that the grievor had been in conflict with Mr. Allard and agreed to delay the grievor’s return to work until June 1998, after the departure of Mr. Allard.   His return was subsequently postponed to summer 1998.

[95]   The grievor said that he was unable to return to the same workplace and did not show up to meet with the employer.

[96]   The employer alleged that it had acted reasonably and that the grievor was the author of his own misfortune.

For the grievor

[97]   In his opinion, the grievor claimed that he was considered as an excellent employee until 1995-1996.

[98]   According to the grievor, the new managers had less experience than their predecessors. On several occasions he met with Messrs. Allard and Forget and he found that they exerted too much control. They supervised the grievors more closely, leaving little room for initiative.

[99]   The grievor said that he was justified in reporting Mr. Allard’s actions with respect to accessing a file.

[100]   The grievor took up the defence of those grieving management supervision.   Upon his return from his ten-day vacation in April 1997, he learned that one of his co-workers was in hospital following a heart attack. He visited that co-worker who told him to give a message to the employer, saying that it was because of the employer’s pressure that he fell ill.

[101]   The grievor met with Mr. Dion, the hospitalized grievor’s manager. Mr. Dion retorted that the grievor’s illness was related to marital problems rather than work. The grievor was offended by this response. He was upset to find so little empathy among the managers.   He visited a doctor and left on sick leave.

[102]   The grievor met with a general doctor in May 1997 and saw a specialist in fall 1997.   His return to work was planned for January 1998. The employer asked for a medical assessment in January 1998.   The grievor challenged the quality of the assessment as the specialist chosen by Health Canada did not have all his medical records.   Moreover, the employer sent him a history and notes concerning the grievor’s conduct at work.   In view of these facts, the employer asked for a second report and would request a third report following an examination in August 1998.

[103]   The insurance company paid the grievor disability benefits until September 1998.   The grievor’s specialist did not consider him fit to return to work before September 11, 1998, and then only if he changed workplace.

[104]   There should have been a duty on the employer to take accommodation measures for the grievor’s return to work.

Reply

[105]   The employer replied that Dr. Ouellette did not specify such measures and referred to Canada (Attorney General) v. Boutilier, [1999] 1 F.C. 459, to show that I have no jurisdiction over issues involving human rights.

Reasons

[106]   It should be noted that, in this case, the grievor also filed a harassment grievance (the hearing was postponed) and filed a complaint with the CSST (still pending).

[107]   I do not have to explain here the reasons for the grievor’s departure.   I note that there were work-related difficulties back in 1996-1997.   The grievor’s spouse testified that he lacked motivation and felt less important.   The grievor said that the new managers had a different management culture characterized by increased supervision.   His evidence in this regard was confirmed by Martin Girard, a colleague of the grievor.

[108]   The grievor became involved in union activities to defend the interests of his co-workers. He reported the actions of certain managers, primarily Mr. Allard.

[109]   In April 1997, the grievor took two weeks of vacation. He went to Florida with his former boss, Mr. Thibault and two others to bring a sailboat back to Montreal.   The experience was unfortunate because the sailboat had mechanical defects. When he returned, the grievor was somewhat disappointed because he had failed and he felt somewhat responsible for the expedition.   A manager’s lack of sympathy for a hospitalized employee further affected the grievor. In these circumstances, he left in May 1997 on sick leave.

[110]   Was the grievor insubordinate when he refused to return to work in September 1998 or did he have valid reasons for his refusal? Was the grievor able return to work in September 1998? Could he perform the same duties or work in the same place?  

[111]   The doctors’ testimony, although seemingly contradictory, agrees on a number of points. Dr. Ouellette expected a return to work for January 1998, but the return date was changed to April, then July and finally to September 1998. Around the same time, Dr. Laperrière thought that a return to work was possible under medical supervision.   In his view, Dr. Ouellette saw a need for additional treatment before the return to work.

[112]   It was to be expected that Dr. Laperrière would note a satisfactory improvement by the grievor in February 1998 as his sick leave had begun in May 1997.   In his testimony, Dr. Laperrière admitted that the grievor might, after February 1998, require treatment and medical support but without being absent from work.

[113]   Furthermore, a month later, Dr. Ouellette told the grievor that he could return to work in May 1998 as new managers would be there.

[114]   It was then that the grievor told him that things were still not good in the office.   He was in a state of panic in May 1998, and Dr.  Ouellette recommended that he have some fun, motivate himself and go sailing so that he could return to work later.

[115]   In summer 1998, the grievor regained his taste for leisure pursuits; he went sailing and talked to his spouse about couples’ vacations.   Again I find it normal that Dr. Laperrière’s examination in August 1998 would reaffirm that the grievor could resume his work.

[116]   In his communications with the employer (Exhibits E-21, E-23 and E-30), the grievor challenged the quality of Dr. Laperrière’s assessment and argued that the doctor did not have all the information from his records.   I do not think that this is determinative as the employer did not insist on a return to work in February 1998, as Dr. Laperrière had recommended.  

[117]   In August 1998, Dr. Laperrière had Dr. Ouellette’s medical reports. He cannot claim that he did not have sufficient information to make a diagnosis on that date.

[118]   The evidence submitted and the documents filed at the hearing confirm Dr. Laperrière’s opinion that the employee had labour relations problems.

[119]   The grievor criticized the labour relations problems in writing.   Thus, in the letter of August 28, 1998, that the employee sent to the Deputy Minister (Exhibit E-30), he referred on page 1 to three labour relations problems and on page 2 he wrote the following:

[translation]

…

The 1996-1997 period during which I was responsible for deciding on the dismissal of an employee exhausted me.   The harassment finished me off.   I went to see a doctor at the Desjardins Complex for various health problems and he immediately diagnosed burnout.   I consulted a specialist who I later learned was a leading figure in the field and he diagnosed burnout and depression.

…

At the end of page 2, he challenged the quality of Dr. Laperrière’s medical assessment as he had not had all his medical records.

[120]   At page 4 of this letter, he proposed the following protocol for his return to work:

[translation]

Could I therefore propose the following:

1-	We will do a counter medical assessment according to a protocol accepted by all parties.
2-	We will start preparations for a return to work in a sector where my qualifications and abilities can be useful and appreciated.
3-	Dr. Laperrière’s medical assessment is suspended pending the results of the third-party assessment.   Benefits are maintained during this period and during my gradual reinstatement.

If these proposals are not agreeable to you, our separation will take place by mutual consent, which is definitely not what I want since, like many others, I was fully content in the Public Service of Canada until the arrival of Patrice Allard.

If you feel the same, all that remains is the harassment complaint or dismissal.   The two options are random. I have nevertheless thought a great deal about them and in detail.

I think that it would be extremely important for us to meet without any distorting filters so that we could informally discuss the situation as if starting from scratch.   Please excuse my impatience in advance but I think it would be worth it.

I am available whenever and wherever you wish except until Thursday, September 3, which is the least amount of time it will take me to bring my beloved sailboat back, which goes at only two to three knots against the wind and is dependent on the winds…

…

[121]   Dr. Ouellette confirmed the grievor’s concern to defend his co-workers.   In April 1998, he changed the grievor’s appointment schedule so that he would not appear for his doctor’s appointment at the same time as another employee (the grievor’s co-worker). He thought that the grievor had great empathy in supporting his colleagues and that this might affect him.

[122]   The same phenomenon occurred in April 1997 when the expedition failed to return the sailboat from Florida.   The grievor felt responsible and was affected by the failure, as his spouse confirmed.

[123]   Did the grievor provide sufficient reasons for his refusal to return to his job in September 1998?   The employee submitted that he could not return to his former position, which is the position that the employer was offering to him. Was he right to refuse to come back to work? In my opinion, no. Dr. Laperrière thought that he was fit to resume his former work and Dr. Ouellette suggested another position, but did not require this. The evidence shows that, in May and June 1998, the grievor’s doctor anticipated that he would return to work in the same position.

[124]   At the interview on September 9, 1998 (Exhibit F-13), Dr. Ouellette wrote the following:

[translation]

…

Sun Life is supposed to send us a letter to clear things up …

I told the patient that the probable return to work should be part time on April 14.   Asked to wait until May, after the director’s departure.

…

[125]   The tenor of this conversation clearly indicated that the return would be to the same work location since the grievor had asked to wait for Mr. Allard to leave.

[126]   In a letter dated June 22, 1998, (Exhibit E-40), Dr. Ouellette wrote the following to Dr. Laperrière:

[translation]

…

However, the date for the return to work had to be moved to August 18, 1998, in view of the major residual symptoms in the form of difficulties concentrating, general intolerance of stress, significant depressive tendencies with an inability to handle his life of leisure. We encouraged Mr. Ste-Marie to engage in certain activities aimed at re-establishing his method of functioning with the goal of his returning to work as quickly as possible.   You will understand, dear Dr. Laperrière, that our patient and we ourselves are doing our utmost to bring about Mr. Ste-Marie’s return to normal functioning.   However, this return is currently hindered by the presence of disturbing symptoms and we think that Mr. Ste-Marie will be able to reintegrate   his position in about August or at the latest at the beginning of September 1998.

…

[emphasis added]

[127]   In this letter of June 1998, as in the report of March 9, 1998, the attending physician talks of the grievor’s return to work in his workplace.

[128]   In his report of September 1998, Dr. Ouellette talked about returning to another position.   What happened between June and September 1998 to make his doctor suggest a return to work, but in another position?   Nothing in the evidence indicates that the grievor’s health had deteriorated during the summer.

[129]   After getting some rest in summer 1998, the grievor sent a letter to the Deputy Minister and asked her to start discussions on the issue of departmental labour relations. However, the issue to be addressed in this case is whether he can return to work.

[130]   I have examined the opinions of two psychiatrists. As I mentioned earlier, these opinions overlap and are not in total contradiction.   What differs is the approach taken by the two specialists. Dr. Laperrière noted that there were labour relations problems that the grievor should try to resolve.   He agreed, however, that the grievor could return to work, but might need to keep in contact with his doctor.

[131]   Dr. Ouellette, however, expressed concern for his patient’s health.   He noted that the grievor was nervous and showed a degree of fragility. He therefore suggested that he be transferred to another work location.

[translation]

…

For our part, from a mental health point of view, we consider Mr. Ste-Marie fit to return to work.   However, he displays such fragility from a psychiatric standpoint that we strongly suggest in his case that he be assigned to a different department than Revenue Canada.   At the time of our assessment, he exhibited a state of panic and anxiety disorder such that it is not desirable that he return to work in the same working conditions as before.

In the interests of our patient, we therefore suggest a change of location and working conditions and we hope that the situation will be understood by his employer. We will see Mr. Ste-Marie again in therapy over the coming weeks and months in order to complete his treatment.

…

[132]   The grievor submitted in argument on the transfer that the employer had a duty to take steps to accommodate him.   The grievor was referring to an issue related to human rights cases, which is separate from my powers as an adjudicator because I have no jurisdiction over this issue, as is indicated in Boutilier (supra).   In the present case, it is up to the grievor to show that he has the right to refuse to return to work in his former position.

[133]   In this case, the grievor’s doctor did not present any objective fact that justified the grievor’s refusal to report to his workplace and his request for a transfer.   The doctor referred to reluctance on the grievor’s part. In this sense, a return to work in the context presented by Ms. Gouin, with a meeting to discuss his duties and in a context where the former managers had been replaced, could have been beneficial for the grievor.   The grievor could also have discussed the possibility of a transfer in the short or medium term without making it an immediate requirement.

[134]   Furthermore, Dr. Lafrenière admitted that the grievor might need medical follow-up after returning to work. Some difficulties might persist.

[135]   The employee was told in writing on several occasions to report to work or he would have to suffer the consequences.

[136]   The grievor preferred not to return to work in his position as long as the labour relations issues had not been settled.   This was his choice and he must bear its consequences.

[137]   In fact, I find that the grievor required as a condition of his return to work a transfer to another workplace. His approach amounts to a request for reparations and accommodation that would be owed to him by the employer to repair the wrong it had done to him by being, in the grievor’s opinion, the cause of his burnout.   In his letter of September 19, 1998, (Exhibit F-9), the grievor wrote as follows:

[translation]

The position of my treating physician and myself is not a refusal to return to work but a refusal to return to work in a place that was the direct cause of my burnout and depression, which were essentially the result of illegal and discriminatory acts committed by some of your agents.

It is a fact that in lesser circumstances you have recognized, in the case of some employees, their right to a healthy work environment.

Perhaps I do not deserve such treatment. However, it is a fact established by third parties whose credibility is unassailable that I was declared by a former director [translation] “among the best employees that I have ever had” and also by the Department of Justice as an employee whose departure [translation] “will be a great loss to the Department.”

It is unacceptable that the person who raised the commission of serious and even illegal acts or omissions should be the object of discipline. You know, since you have already assented to it, that I am devoted to promoting the interests of citizens, the Department, and the Government by all legitimate means.

I will not relinquish this duty.

…

[138]   The grievor may feel justified in requiring the employer to do certain things.   He should then debate these issues in a labour relations context through a grievance or a complaint, but he cannot turn this into grounds for refusing to report to work.

[139]   The “obey now, grieve later” concept definitely applies here. In Petrovic v. Treasury Board (Natural Resources Canada), PSSRB File No. 166-02-28216, (1998) (QL), the adjudicator submitted that the employer had clearly told the employee to report to work but the latter had replied that he thought that his employment had not ended as long as his grievance concerning an extension of leave had not been the subject of a decision. The adjudicator found that the employee should have returned to work and then awaited the findings with respect to his grievance.

[140]   The grievor had been warned on several occasions by the employer. He knew the consequences of refusing to return to work.

[141]   Given the context of this case, the testimony and the documentary evidence, the fact that at the last minute his doctor confirmed his fitness to work but suggested that a change of workplace cannot constitute a valid reason for refusing to return to work.

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

Order

[143]   The grievance against the dismissal (PSSRB File No. 29158) is dismissed.

March 21, 2006.

P.S.L.R.B. Translation

Jean-Pierre Tessier,
adjudicator