FPSLREB Decisions

I. Grievances referred to adjudication

1 Jodie Kerr-Alich (“the grievor”) has referred two grievances to adjudication. In her first grievance (PSSRB File No. 166-02-35957) she alleges that the employer has failed to accommodate her in the workplace and discriminated against her in violation of the collective agreement. Her second grievance (PSLRB File No. 566-02-54) concerns the termination of her employment.

2 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, the reference to adjudication concerning PSSRB File No. 166-02-35957 must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“the former Act"). The reference to adjudication concerning PSLRB File No. 566-02-54 will be dealt with in accordance with the provisions of the Public Service Labour Relations Act.

3 On June 11, 2004, the grievor filed the following grievance (PSSRB File No. 166-02-35957):

I am aggrieved that my employer has failed to ACCOMMODATE ME IN THE WORKPLACE, as prescribed in THE TREASURY BOARD DUTY TO ACCOMMODATE POLICY, human rights act and the canada labour code part 2. I have been discriminated by the employer as described in the collective agreement.

CORRECTIVE ACTION REQUESTED:

1/ THAT I BE REIMBURSED FOR all loss OF SALARY between February 11, 2004 And the date at which I return to work.

2/ HUMAN RIGHTS violations, I be awarded $5001 DOLLARS, and a further monetary settlement of loss of dignity and respect equal to and additional $5000.

3/ THAT proper Accommodation plans to reintegrate me back into the workplace start IMMEDIATELY, as specified by my medical documentation submitted on February 10, 2004 and then again on April 8, 2004.

That the following be implemented immediately, PDA, workplace reintegration plan, ergonomic assessment by a recognised certified practitioner (In accordance to the occupational physical therapist association)

That is also done in consultation with WSIB and the rehabilitation workplace officer.

4/ Until these requirements are met that any day in part or whole be paid under article 53, until all accommodation requirements are met.

[Sic throughout]

4 On May 30, 2005, the grievor filed a second grievance (PSSRB File No. 566-02-54):

I grieve management’s letter of termination dated May 20th, 2005, and signed by Brian St John, Manager Toronto OEICC.

CORRECTIVE ACTION REQUESTED:

That I be immediately re-instated with a contract of no less than one year. That I be reimbursed for any and all lost wages & benefits until I am re-instated. That all references to my termination be destroyed. That I be made whole.

5 The grievor also filed two complaints with the Canadian Human Rights Commission (CHRC). The first complaint was filed on June 21, 2004, and the second on December 26, 2005.

6 The parties agreed that Exhibits A-1(a) to (p) would be considered as a “Statement of Facts” in respect of both grievances. The grievor’s representative filed 17 exhibits, and the grievor testified on her own behalf. Counsel for the employer introduced 37 exhibits and called five witnesses.

7 The parties agreed, as well, that at all material times the grievor was on probation.

II. Summary of the evidence

8 On September 5, 2003, the grievor commenced working a specified term appointment as a service delivery representative, at the CR-05 group and level, with the Department of Social Development at the Ontario Employment Insurance Contact Centre located at 4900 Yonge Street, in Toronto, Ontario (“the Toronto OEICC’’). When she applied for this position the grievor lived in Brampton, Ontario, and met the employer’s “Who Can Apply” criteria, as set out in the employment poster (Exhibit E-3):

…

WHO CAN APPLY: Persons residing or working in the Greater Toronto Area who have a home or business postal code beginning with M or L1B – L1Z, L3P - L3T, L3X - L3Z, L4A - L4L, L4S – L4Z, L5A - L5W, L6A - L6M, L6P – L6Z, L7A – L7J, L9L, L9P, L9R, L9T – L9W, L0B, L0C, L0G – L0H.
Candidates must indicate their home or work address for the purpose of this competition.

…

9 Brian St. John, the Manager of the Toronto OEICC, testified that anyone who applied for the service delivery representative position but was not residing or working within the stipulated postal code areas was automatically screened out.

10 The letter of offer that the grievor received (Exhibit E-4) was for a specified period appointment from September 5, 2003, to March 5, 2004. She was scheduled to work 22.5 hours per week. From September 8 to October 24, 2003, the grievor received specific training with respect to employment insurance matters, following which she received training and coaching in her other duties. The grievor’s training and mentoring were specific to the service delivery representative position at the Toronto OEICC.

11 Mr. St. John stated that although there are employment insurance contact centres located across Ontario, some centres (i.e. Scarborough, Ottawa and Hamilton) are specialized, as they deal with specific employment insurance concerns with respect to the Canada Pension Plan and the Old Age Security Program. The grievor’s duties at the Toronto OEICC only required her to respond to telephone inquiries concerning general employment insurance income benefits or claims.

12 On January 19, 2004, the grievor sustained an injury at work, which was not disputed by the employer.

13 On February 5, 2004, the grievor faxed a medical certificate to the Toronto OEICC following an appointment she had had with her doctor, Adam Chen, on February 2, 2004 (Exhibit A-1(a)). Dr. Chen indicated that the grievor had been unable to work since January 19, 2004, due to a shoulder injury, and that he would follow up with her on a weekly basis.

14 As the grievor was unable to work, she applied for and was granted Workplace Safety and Insurance Board (WSIB) benefits as of January 19, 2004.

15 On February 10, 2004, the grievor was examined by Dr. Naomi Sato, who completed a WSIB “Functional Abilities Form for Timely Return to Work” (Exhibit A-1(b)). Dr. Sato indicated that the grievor had difficulty driving, that she could eventually work graduated hours and that she would need an ergonomic workstation.

16 Although the grievor was unable to work at this time, on February 13, 2004, the employer offered her, and she accepted, a renewal of her specified period appointment at the Toronto OEICC from March 5 to September 3, 2004 (Exhibit E-31).

17 On March 5, 2004, the grievor faxed to the Toronto OEICC another medical certificate from Dr. Sato (Exhibit A-1(c)) indicating: “Unable to return to work. Waiting for EMG study. Will reassess in 2 weeks.” (Exhibit A-1(c))

18 Mr. St. John testified that in early March 2004 he began discussing with the grievor, Christian Censoni (her team leader at the Toronto OEICC) and Susan Daly (a WSIB adjudicator) the possibility of preparing a return-to-work action plan that could accommodate the grievor’s limitations and reintegrate her into the workplace. Mr. St. John testified that he discussed with Joe Iocco, the Service Delivery Manager responsible for the Milton, Malton and Brampton centres, the possibility of accommodating the grievor. Staff at these centres performed basically the same functions as the grievor and were classified at the same group and level. Mr. Iocco indicated that he had a vacancy at the Milton Centre and agreed to accommodate the grievor. Mr. St. John testified that the grievor expressed an interest when he advised her that there was a position available at the Milton Centre, and that she agreed to report there.

19 On March 12, 2004, Mr. St. John, the grievor, Mr. Censoni and Jay Raikundalia (a union steward) met and agreed on the following “Return to Work Action Plan” for the Milton Centre (Exhibit G-3):

Return to Work Action Plan Jodie Kerr-Alich

…

… Jodie will report to the Milton Human Resources Centre as of Monday, March 15, 2004 for a 2 to 4 week assignment.

Jodie will continue her shift of 3 days per week working 4 hours per day. Jodie will work the first 2 weeks part time where she will follow up with an assessment with her doctor. Once the assessment is complete we will be provided with these results and at that point the assignment may be extended an additional 2 weeks. A second assessment will be conducted 2 weeks following the first one which will determine if Jodie is to return to the call centre performing her normal duties unless otherwise stated.

Jodie will report to Maida Jeric at the Milton HRC for 9:00 a.m. and will work 9:00 a.m. to 1:00 p.m.

20 The grievor testified that she had expressed concerns to Mr. St. John about the physical effects that commuting to the Toronto OEICC would have on her. She stated that she agreed to the Milton Centre assignment because it was only a half-hour drive from her residence.

21 Mr. St. John stated that the service delivery representatives at the Milton Centre perform basically the same duties that the grievor performed at the Toronto OEICC, except that they deal with inquiries from walk-in clients rather than over the telephone.

22 Maida Jeric, the Service Delivery Coordinator for the Milton Centre, confirmed that Exhibit E-16 contains detailed notes that she prepared concerning the grievor’s first day at work on March 15, 2004. Ms. Jeric’s notes indicate that the grievor complied with the March 12, 2004, “Return to Work Action Plan” (Exhibit G-3). Ms. Jeric explained that the grievor was scheduled to work Mondays, Tuesdays and Fridays from 09:00 to 13:00, that she would not be required to answer the telephone, use a headset or do data entry, and that she was free to move around the office as required. As well, her hours of work were reduced to 12 hours per week from 22.5. Ms. Jeric stated that on March 15, 2004, the grievor took breaks as needed, assisted a few clients and completed her four-hour shift.

23 Ms. Jeric further testified that the grievor had asked her if the following day (Tuesday, March 16, 2004) she could work from 08:30 to 11:30, as she had a physiotherapy appointment in Burlington at noon. Ms. Jeric agreed to her request.

24 Ms. Jeric stated that when she arrived at work on Tuesday, March 16, 2004, she listened to a voicemail message that the grievor had left her at 23:57 the previous evening. In her message the grievor stated that she had overdone herself at work and that she was going to the hospital because of the pain that she was in. The grievor also stated that she would contact Ms. Jeric after she received medical attention but would not be reporting for work the next day (March 16).

25 Ms. Jeric testified that although the grievor had indicated that she would contact her, she did not. Therefore, on Tuesday, March 16, 2004, at approximately 16:00, Ms. Jeric left a voicemail message at the grievor’s residence asking the grievor to call her. The next day Ms. Jeric called again and left another voicemail message requesting that the grievor contact the office. The grievor did not return either of Ms. Jeric’s telephone calls.

26 Ms. Jeric stated that she was short one staff member at the Milton Centre and when Mr. Iocco agreed to accept the grievor it was to accommodate the grievor, as well as to fill vacancies when other employees were absent.

27 Ms. Jeric concluded by stating that at no time did the grievor contact her and, therefore, she could not rely on her since the grievor did not keep her posted as to her medical status or provide a prognosis as to when she would be able to return to work.

28 The grievor, in response to Ms. Jeric’s testimony outlined in paragraphs 24 and 25 above, stated that: “She did not call. I saw my doctor and her recommendation was that I required a swivel chair at the Milton Centre. I called her at 3:00 p.m., and she called me back on March 18, 2004. I did not receive a call. I called her back and talked to her personally.” The grievor noted as well that she spoke to Mr. St. John on March 18, 2004, and he advised her not to report to the Milton Centre and that they would explore other possible work locations.

29 In cross-examination, when asked if she had kept notes of her telephone calls to Ms. Jeric, the grievor replied that she had not. She also conceded that she had not advised Ms. Jeric that her doctor had recommended a swivel chair. She stated that Ms. Jeric gave false testimony with respect to her evidence that she had not returned Ms. Jeric’s telephone calls.

30 Mr. St. John testified that on March 19, 2004, he informed the grievor, by telephone, that Mr. Iocco had determined that the Milton Centre “Return to Work Action Plan” (Exhibit G-3) was not operationally feasible because they (i.e. Mr. Iocco and Ms. Jeric) were not informed of the grievor’s medical status or when she would be able to return to work. Mr. St. John also informed the grievor that they would have to “…go back to the drawing board”, arrange a new plan and that he would contact her as soon as possible (Exhibit E-6).

31 On April 4, 2004, Mr. St. John accepted a secondment appointment and was due to return to the Toronto OEICC only in February 2005. Before he left, he met with Kerry Landry, who was to be the Acting Manager from April to August 2004, and advised him of the need to develop a new return-to-work action plan for the grievor.

32 In cross-examination, Mr. St. John was asked to clarify his responsibilities as a manager in a return-to-work situation. He stated that it is the employer’s duty to accommodate employees, but it is up to the employees to present themselves at the workplace. The duty to accommodate starts at the front door. Mr. St. John stated that temporarily relocating an employee is not a requirement under the duty to accommodate; it is a consideration - one of many considerations. Relocation falls short of a requirement but it is an avenue a manager can explore when possible. He stated that relocating the grievor to the Milton Centre for a two- to four-week period resulted from requests from the grievor and her bargaining agent that the employer look at alternate work locations.

33 Mr. St. John stated that the grievor cooperated at the meeting of March 12, 2004, which was held to develop the “Return to Work Action Plan” for the grievor’s relocation to the Milton Centre (Exhibit G-3).

34 When asked if the Milton Centre assignment ended because of the grievor’s absenteeism, Mr. St. John stated that it was partly because of that. He indicated that the Milton Centre is a small office and at the time there were operational problems due to lack of staff. The grievor did not help matters by not returning Ms. Jeric’s telephone calls to provide an update as to her medical status or to indicate when she might be able to return to work. He reiterated that the grievor only worked one four-hour shift on March 15, 2004, and was not heard from again by those working in the Milton Centre.

35 In re-examination, Mr. St. John stated that the Treasury Board’s Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service (Exhibit G-4) refers to the design and adaptation of the work environment, which includes the physical set-up and surrounding necessities (such as computers and headsets) to assist employees. A manager’s job is to ensure that the employees have the necessary tools to perform their duties and that they are able to work in a comfortable and safe environment. As well, a manager would be considerate in accommodating working hours, days of work, flexible start times, a relaxed dress code, etc., for example.

36 Mr. St. John stated that the Milton Centre “Return to Work Action Plan” (Exhibit G-3) was prepared in consultation with the grievor and Ms. Daly, who had previously advised the grievor by letter dated March 10, 2004 (Exhibit E-17): “…I have spoken at great length with both your physiotherapist and your physician. They advised you on March 5, 2004 that you were capable of returning to modified duties…”

37 On March 26, 2004, the grievor’s driver’s licence was revoked, as per Dr. Sato’s orders (Exhibit A-1(d)). In cross-examination, the grievor was evasive as to when her driver’s licence was reinstated. Later, she admitted that it was reinstated in July 2004, but she had not informed the employer.

38 The grievor testified that the WSIB discontinued her benefits as of April 2, 2004.

39 On April 2, 2004, a meeting was held by conference call with the grievor, Mr. Landry, Mr. Censoni, Mr. Raikundalia, Ms. Daly, Karen Bingham (a WSIB nurse), Joey Ferguson (the Manager of the Toronto OEICC’s Corporate Services Branch) and Cathy Bingham (a compensation advisor at the Toronto OEICC) to prepare a new return-to-work action plan. At this meeting, it was agreed that the grievor would report for work at the Toronto OEICC on April 5, 2004. The minutes of the meeting read as follows (Exhibit E-32):

…

We discussed Jodie’s work schedule and it was agreed that Jodie would report for duty at the OEICC on Monday April 05, 2004. Her schedule of work is Monday, Tuesday and Thursday each week for 4 hours per day. Jodie expressed concern about her ability to arrive for work on time for her normal 8:30 am start time. Kerry Landry offered Jodie start times of 8:45, 9:00 or 9:15 am instead. Jodie agreed and stated that she would arrive between 8:30 and 9:00 am. During this period, Jodie’s calls will not be timed and she was advised that, should she begin to feel pain or discomfort, she was to take any breaks she felt necessary. Jodie was also advised that she must advise her team leader immediately if she experiences pain or discomfort.

Jodie was advised that, should she be unable to report for duty, she is to call into the OEICC office between 7:30 and 8:30 am to advise the team leader of the reason for her absence. Jodie was also advised that, should she be unable to report for duty for reasons directly related to her WSIB claim, she is required to seek immediate medical attention and must provide documentation to both the WSIB and the OEICC that she did seek medical attention. Jodie was further advised that failure to provide satisfactory medical documentation could result in the denial of WSIB benefits.

Duties agreed to for the period April 05 to 08, 2004
It was agreed that on April 5th Jodie’s workstation would be looked at and adjusted to account for her reduced mobility.

Jodie’s duties would consist of reading bulletins and procedures to catch up on any changes and as a review. These documents are available on Lotus Notes, which is a software program. In order to access this program Jodie will be required to right click on a mouse and scroll through the program to read. There is no need for heavy use of a keyboard to access the system.

Duties agreed to for the period April 05 to 08, 2004 cont’d
Jodie was offered one-on-one coaching on any issues/procedures should she feel it necessary.

Duties agreed to for the period April 13 to 16, 2004
Provided that Jodie felt up to date on all the changes, she would spend the first 2 days listening into calls. This would require her to sit and wear a head-set. On day 3 Jodie would start to take calls, which would also require sitting and wearing a head-set. Jodie’s coach would be monitoring all of her calls on day 3.
Jodie is to provide WSIB with another Functional Abilities to Work form as she is seeing her physician on April 19th. She would be reassessed at that point and any adjustments required to her work plan would be made.

All parties agreed that this was an appropriate return to work plan.

[Emphasis in the original]

40 The grievor testified that at this meeting Mr. Landry took the position that her work location was at the Toronto OEICC. She stated that she tried to convince him that it was against her doctor’s orders for her to travel more than one hour each way, but Mr. Landry insisted that her employment was at the Toronto OEICC.

41 As agreed, the grievor reported to the Toronto OEICC on April 5, 2004, and worked a four-hour shift that day and a four-hour shift the next day. Late in the day on April 8, 2004, she sent an email to Mr. Landry (Exhibit G-17) advising him that she did not agree with the “Return to Work Action Plan” that had been prepared on April 2, 2004, “contrary to the comment that all parties agreed.” She advised him as well that it was her doctor who would decide on a return-to-work plan, and that the duties noted in the plan were contrary to her doctor’s orders. That same day, she provided the employer with a WSIB “Functional Abilities Form for Timely Return to Work” completed by Dr. Chen (Exhibit A-1(e)), in which he noted that Dr. Sato had advised the Ministry of Transportation that it was unsafe for the grievor to drive in view of her current injury, that long travel on the GO Train and the Toronto Transit Commission aggravated the grievor’s left neck and shoulder, and that she should limit her travel by public transportation to one hour each way. The grievor did not return to work at the Toronto OEICC until November 1, 2004.

42 The grievor submitted “Mapquest” driving directions sourced from the Web site of the same name, from her former residence on Maple Crossing Boulevard in Burlington to the Toronto OEICC (Exhibit G-10). The total estimated distance was 43.05 miles and the total estimated travel time was 48 minutes. She stated that, in reality, it would take her approximately two hours because of rush-hour traffic.

43 The grievor also submitted “Mapquest” driving directions from her current residence on Old York Road in Burlington that estimate a total distance of 47.48 miles and 55 minutes of travel time (Exhibit G-11). She stated, however, that it would take her over two hours driving her personal vehicle. She noted that by using the GO Train and the subway it would take approximately 73 minutes each way. When her driver’s license was revoked in March 2004 she had to use the Burlington Transit System to get from her residence to the GO Train, which added 25 minutes to her travelling time, making it approximately one hour and 38 minutes each way.

44 On April 16, 2004, Ms. Daly sent a letter to the grievor stating, in part, the following (Exhibit E-33):

…

During our April 2, 2004 teleconference your employer confirmed that they were attempting to locate other modified work for you during late March. They advised that they were not able to locate other areas which could offer you modified work and therefore I am granting entitlement to full loss of earnings benefits from March 22, 2004-April 2, 2004 inclusive.

During the April 2, 2004 teleconference call, several issues were discussed. It was re-emphasised to you the importance of attending physiotherapy in the community clinic program which requires daily attendance. You had originally started physiotherapy at a clinic in Mississauga. However, as your attendance was minimal, WSIB authorized you to change physiotherapy clinics to one nearer your home in order to facilitate improvement in attendance. The Burlington physiotherapy clinic has advised that your assessment was on March 16, 2004 and you attended treatment on March 17, 18 for the period of March 16-19, 2004. During the week of March 22-26, 2004 you did not attend physiotherapy on March 22, 23, 26 but did attend two days that week. During the week of March 29-April 2, 2004, you attended treatment on March 29, 30, April 1, 2, 2004. You did not attend on March 31, 2004. During the week of April 5-9, 2004 you attended on April 5, 7, 8 and did not attend on April 6, 2004 and the clinic was closed on April 9 due to the statutory holiday. On April 12, 2004 you did not attend physiotherapy but did attend on April 13, 2004. In previous telephone conversations, you had identified improvement in your condition which appears to be the result of attending physiotherapy treatment.

In the teleconference, you requested that your employer allow you to wear clothing outside the employer’s dress code. You had previously identified to WSIB that a barrier to your return to work was the employer’s dress code. The employer advised that you could wear pull on pants and that there really is not any dress code in your section. As your driver’s license had been revoked by your physician, alternative transportation was suggested to you so you could get into work. It was suggested that you take the GO train into Toronto and then the subway to your Toronto work location. You expressed concern with the distance to travel and it was noted that you are currently walking to physiotherapy and that you do not have an injury which would prevent you accessing public transportation such as a knee or back injury.

In your voicemail of April 8, 2004 you identified that the movement of the GO train was causing you pain and that you got off the train in Oakville and went to a walk in clinic. Thank you for providing the address of the walk-in clinic but in order to contact the clinic a name and a phone number would be appreciated. A FAF (Functional Abilities Form) was completed by Dr. Chen which identified standard restrictions for neck and left shoulder. He also identified that you should not use public transit in excess of one hour per direction. Depending on the GO train taken (regular or express) the travel on the train to Union Station varies from 43-57 minutes. You would then cross Union Station to the subway and take an approximately 20 minute ride to your work location. As the travel is broken up and your area of injury is a neck strain, it is deemed that the travel to and from work is within your restrictions. I am deeming that the modified duties offered by your employer at the accident location are within your restrictions.

During the April 2, 2004 teleconference call your employer agreed to change your work days from Monday, Tuesday, Friday to Monday, Tuesday, Thursday. You subsequently requested a change in your work hours as you were not sure if you could arrive for work at 8:30 a.m. I note that your usual work day prior to the accident started at 8:30 a.m. The employer agreed that you could arrive between 8:30 a.m.-9:00 a.m. and that your work duties beginning April 5, 2004 would consist of reading materials found in the computer system which would involve using a right mouse and scrolling down to read the materials. Your employer offered this as an opportunity for you to re-familiarize yourself with your work duties and be aware of any updates.

Your employer has sent to WSIB a copy of an e-mail you sent to them on April 8, 2004 stating that you did not feel that you could “carry out the duties as discussed as they were contrary to doctor’s orders”. As identified earlier, the duties are deemed by WSIB to be within your restrictions. I am granting entitlement for April 5 and April 6, 2004 based on four hours worked each day. There is no medical to support that you were totally incapacitated from working on these dates. Upon receipt of medical from the walk-in clinic further entitlement will be reviewed. I am granting full loss of earnings benefits for April 8, 2004 as this had been discussed in the teleconference so you could attend a doctor’s appointment and there is medical on file to support that you attended.

On the date of accident, January 19, 2004, you were an employee of HRSD-EI for 4 months and 15 days. Under WSIB policy 19-04-02, an employer is not obligated to re-employ an employee who was not continuously employed with the accident employer for at least one year at the time of injury. In this claim, your employer has on several occasions offered you accommodation in terms of changing your worksite to Milton, changing your work duties, changing your hours and days of work yet even with these accommodations you feel that you are unable to attend work. The usual healing time for a neck strain is 3 months from the date of accident.

…

[Sic throughout]

45 Mr. St. John testified that he contacted Ms. Daly to ensure that the WSIB agreed that by commuting to the Toronto OEICC the grievor was not going against her doctor’s orders that she limit her travel by public transportation to one hour each way. Ms. Daly replied that she agreed, since it was not continuous travel; that is, there was a break between the GO Train and the subway station.

46 On July 12, 2004, the grievor submitted a medical certificate from Dr. Esther Konigsberg (Exhibit A-1(f)) stating that she was “… available to return to work immediately on modified duties, for 4 hours daily.” As well, Dr. Konigsberg indicated that the grievor’s work location should be within one hour’s commuting distance by public transportation.

47 The grievor acknowledged that on July 23, 2004, she received the following email from Mr. Landry (Exhibit E-34):

…

The accommodations that were offered on April 2nd 2004, were deemed suitable by WSIB and therefore by us. In the phone call with WSIB you mentioned that your Doctor would not agree to the accommodation but no medical evidence was submitted to state that. We have nothing from any Doctor stating that the accommodation was unsuitable. I never once refused you an accommodation after the new FAF came in. The new FAF came in and we were waiting for the results of information of an appointment on April 19th 2004 ( I believe it was changed to a later date) after those results came in, on a letter dated May 28th 2004, WSIB did not change their decision and still believed that the modified duties were suitable. Management agreed with the information from WSIB. There was no medical evidence saying your modified duties should not be at the Contact Centre.

You then faxed a medical dated April 19th 2004 that says the patient is incapable of working form January 19th 2004 until July 27th 2004. there is no mention of modified duties on the faxed medical and nowhere does anything say you cannot work in your original position. If you do have another medical from back then stating these two facts then we will need a copy of it and also if possible a copy of the original fax confirmation if you have it in the event we did not receive it. That medical also had a note attached to your Team Leader Christian Censoni that you wrote stating “We can discuss modified duties upon my return.” The information you submitted was for you to be off sick, not for an accommodation.

When staff submit a medical that states they cannot work I can only go by what the medical states.

…

[Sic throughout]

48 On July 27, 2004, Dr. Chen completed another medical certificate in which he indicated that the grievor was incapable of working from January 19 to July 27, 2004, as a result of her injury (Exhibit A-1(h)).

49 In cross-examination, the grievor confirmed that she had moved to Burlington, Ontario, on September 1, 2003, and that because of the move, she no longer met the requirements in the competition poster (Exhibit E-3) to apply for the service delivery representative position at the Toronto OEICC, but the employer did not object. On June 30, 2004, she moved again, approximately 5 to 10 kilometres from her former residence. Both of the moves took her further west of the Toronto OEICC.

50 The grievor agreed that by moving to Burlington her residence was closer to McMaster University where she was pursuing a Bachelor of Arts degree. She confirmed that she was a part-time student from September to December 2003 and a full-time student obtaining some credits from January to April 2004. She could not recall if she took courses during the summer of 2004. From September 2004 to April 2005 she resumed her studies on a part-time basis. The grievor also agreed that McMaster University is located in Hamilton, Ontario. She agreed, as well, that her husband’s place of employment is in Hamilton.

51 In cross-examination, the grievor agreed that from January 19, 2004, to June 30, 2005, she neither sent out her résumé nor applied for a job with either the Government of Canada or private sector companies.

52 In reply, the grievor stated that the employer did not conduct an ergonomic assessment of her workstation at the Milton Centre. She stated as well that the “Return to Work Action Plan” prepared on April 2, 2004, to return her to the Toronto OEICC (Exhibit E-32) contravened her doctor’s orders that her travel by public transportation be limited to one hour each way.

53 Judith Risebrough, Senior Director, National Call Centre Operations, testified that the Toronto OEICC has approximately 150 employees whereas the Hamilton Call Centre has approximately 40.

54 Ms. Risebrough testified that the grievor did not possess the knowledge required to work at the Hamilton Call Centre, as the work is of a completely different nature. With that being said, however, even if the grievor could have performed the duties, the Hamilton Call Centre was under a reduced budget allotment and no term or indeterminate employees were being hired from January 29, 2004, to June 30, 2005. Ms. Risebrough also testified that telework was not an option due to computer and headset configurations.

55 Ms. Risebrough stated that on July 21, 2004, she reviewed the grievor’s personal file as a result of the grievance filed on June 11, 2004, and noticed the medical certificate from Dr. Chen indicating that the grievor was unable to work from January 19 to July 27, 2004 (Exhibit A-1(h)). Ms. Risebrough stated that she did not, however, monitor the file closely since she was aware that an assessment by Health Canada was being pursued.

56 On October 25, 2004, Ms. Risebrough sent an email to Lorraine Diaper, an acting regional union representative, which reads, in part, as follows (Exhibit E-28):

…

In order for a new contract to be offered, Ms. Kerr-Alich must be able to report at this time to her workplace at 4900 Yonge Street, Toronto Ontario.

Should Ms. Kerr-Alich’s [sic] be able to accept a reappointment, Heather Micieli will ensure that accommodations recommended by Health Canada are considered.

…

[Emphasis added]

57 At the request of Ms. Diaper, on October 26, 2004, Ms. Risebrough participated in a conference call (Exhibit E-21) with Ms. Diaper, the grievor and Heather Micieli, Acting Manager of the Toronto OEICC from August 2004 to February 2005.

58 In cross-examination, Ms. Risebrough stated that during this conference call, a discussion ensued concerning five other employees who had requested accommodation that the employer was unable to put in place due to budget cutbacks in some of the local offices. Ms. Risebrough stated that none of those employees had commuting restrictions; rather, they required specific tools or workstation set-ups to assist them in the performance of their duties.

59 Ms. Risebrough also stated that all the other recommendations that Health Canada made in respect of the grievor (noted below) could have been implemented at the Toronto OEICC. She concluded by stating that the employer had exhausted all of its options; there were no other work locations that could accommodate the grievor.

60 As previously stated, Heather Micieli was Acting Manager of the Toronto OEICC from August 2004 to February 2005. Ms. Micieli testified that to reintegrate the grievor into the workplace, she consulted with Human Resources. It was decided that the grievor would have to be assessed by a Health Canada doctor to determine what, if any, workplace modifications needed to be made to accommodate her. The reason an assessment was not scheduled earlier was because there was a medical certificate (Exhibit A-1(h)) on the grievor’s file indicating that she was incapable of working until July 27, 2004.

61 Ms. Micieli requested an expedited assessment by Health Canada. An appointment was scheduled for September 7, 2004, but was cancelled by the grievor. Another appointment was scheduled for September 14, 2004, and was again cancelled by the grievor. The next scheduled appointment was for September 16, 2004, which the grievor cancelled yet again. The grievor finally met with a Health Canada doctor on September 23, 2004 (Exhibit E-36), which, according to Ms. Micieli, delayed the process.

62 Ms. Micieli stated that on August 26, 2004, the grievor was offered and accepted a reappointment at the Toronto OEICC for the period from September 3 to October 1, 2004 (Exhibit E-18). The grievor, however, did not work during this time. On September 29, 2004, the grievor was offered and accepted another specified period appointment at the Toronto OEICC from October 1 to 29, 2004 (Exhibit E-19). That same day, Ms. Micieli wrote to the grievor (Exhibit E-20) to advise her that her specified period appointment would end on October 29, 2004, but a renewal could be considered if the grievor was capable of performing her duties as a service delivery representative.

63 Following the assessment by Health Canada, on October 22, 2004, Dr. J. Lloyd-Jones indicated that the grievor was fit to return to work, but the following accommodations were required (Exhibit A-1(i)):

1. initially, her work site should be no more than one hour commuting distance by public transportation;
2. she would need to work graduated hours;
3. she should be assigned modified duties; and
4. a proper ergonomic set-up of her workstation was required.

64 Ms. Micieli testified that she prepared notes following the October 26, 2004, conference call (Exhibit E-21). She stated that it was Ms. Risebrough’s view that there was a position available for the grievor at the Toronto OEICC and it was incumbent on the grievor to report there. In other words, the one-hour commuting restriction was not the employer’s responsibility; it was up to the grievor to present herself at the Toronto OEICC. Ms. Micieli noted that all the other accommodations mentioned in the Health Canada assessment (Exhibit A-1(i)) could be implemented.

65 The grievor, however, felt that commuting to the Toronto OEICC contravened the Health Canada assessment that limited her travel by public transportation to one hour each way.

66 On October 29, 2004, the grievor was offered and accepted another specified appointment for the period October 29, 2004, to March 31, 2005 (Exhibit E-22). The grievor agreed to report to the Toronto OEICC as of November 1, 2004, and an action plan was prepared that took into consideration the recommendations made by Health Canada (“Agreed Action Plan in Response to Health Canada Assessment dated October 22, 2004”, Exhibit E-24).

67 The grievor worked at the Toronto OEICC on November 1 and 4, but did not report for work on November 5, 2004. She was asked to produce a medical certificate to cover her absence, but she did not comply. That day (November 5), Ms. Micieli had made arrangements for an ergonomic assessment (Exhibit E-25), but it was cancelled due to the grievor’s absence.

68 On November 7, 2004, the grievor was involved in a car accident. She submitted a medical certificate from Dr. Konigsberg stating that she would be off work as of November 7, 2004, and it was uncertain to when she might return to work (Exhibit A-1(j)).

69 In cross-examination, Ms. Micieli was referred to Exhibit E-21, her notes of the October 26, 2004, meeting. She stated that Ms. Risebrough had advised the grievor and her bargaining agent representative that the employer was attempting to accommodate five other employees with disabilities in various local offices, but was unsuccessful in doing so as those offices were experiencing budget cutbacks.

70 Ms. Micieli noted that the department’s duty-to-accommodate specialist advised her that the grievor’s choice of a residential location was not the employer’s responsibility. In other words, the grievor’s one-hour commuting restriction by public transportation was not the employer’s responsibility. The issue was that the grievor had to be accommodated at the workplace: it was the grievor’s responsibility to present herself at the workplace and the employer’s responsibility to accommodate her once she arrived.

71 When Ms. Micieli was referred to the CHRC’s policy on Preventing Discrimination, and specifically to the section entitled What is Undue Hardship? (Exhibit G-6), she replied that she was not familiar with the policy. She stated that a job offer at the Toronto OEICC was considered reasonable since the employer was prepared to implement the accommodations recommended by Health Canada.

72 In reply, Ms. Micieli stated that the WSIB had agreed that the grievor’s commute to the Toronto OEICC was within the parameters of her doctor’s orders since it was not continuous travel. That is, the grievor would need to walk for approximately 10 minutes from the GO Train to the subway station.

73 Mr. St. John returned to his position as the Manager of the Toronto OEICC in mid-February 2005. He was advised that the grievor was on sick leave without pay and receiving employment insurance benefits.

74 On February 21, 2005, Mr. St. John had a telephone conversation with Jan Armstrong, a regional union representative. The conversation concerned further steps to be taken to reintegrate the grievor into the workplace. Ms. Armstrong asked him to contact Margaret Garey, Manager of the Brampton and Oakville centres, to discuss the possibility of accommodating the grievor since the Toronto OEICC was not within the one-hour commuting restriction. Mr. St. John stated that he questioned the validity of the one-hour commuting restriction because it had been several months since the restriction was suggested. He did, however, contact Ms. Garey but she informed him that she was overstaffed, that she had a budget deficit and that she was in the process of laying off some of her term employees. He also contacted Jan Potts, the Director of the Hamilton Call Centre, but she advised him that there was no position available in that office.

75 Mr. St. John testified that although the grievor’s specified period appointment was to expire on March 31, 2005, in late February he initiated a renewal of her appointment for the period from March 31 to June 30, 2005 (Exhibit E-8). He stated that the decision to renew the grievor’s appointment was based on the following:

1. the grievor would report to work at the Toronto OEICC;
2. she would undergo another fitness-for-work evaluation by Health Canada (since the last evaluation had been conducted in October 2004);
3. she would make herself available for an ergonomic assessment and, if necessary, any special equipment (such as a chair, keyboard, computer screen, desk, etc.) would be provided; and
4. initially, she would work flexible hours and shifts and then she would graduate to regular hours and shifts.

76 On March 11, 2005, Mr. St. John wrote to Dr. Jeffrey M. Chernin of Health Canada to request a follow-up evaluation and guidance on the following questions (Exhibit E-9):

…

1. Please comment on the feasibility for Jodie to commute to her normal place of work at 4900 Yonge Street. She reports the one way commuting time is 1 hour and 45 minutes.
2. What is the prognosis for her return to her contracted schedule of 22.5 hours per week?
3. Are there any other factors to be considered in accommodating her return to work?

…

77 Dr. Chernin replied that in order to perform a fitness-to-work evaluation the grievor would have to consent to release her medical information as well as consent to undergo such an evaluation (Exhibit E-10).

78 Mr. St. John stated that at this point he wanted to ensure that the grievor was indeed fit for work since the last evaluation had been done in October 2004. It was his responsibility to clarify this with the grievor and with Health Canada, and to determine what her restrictions were.

79 On March 11, 2005, the grievor signed an agreement to release her medical information and consented to undergo a fitness-to-work evaluation (Exhibit A-1(m)).

80 Mr. St. John stated that although the grievor verbally agreed with the action plan prepared after the Health Canada assessment (Exhibit E-12), she refused to sign it even though Mr. St. John forwarded two copies to her residence asking her to sign and return one copy as soon as possible (Exhibit E-13).

81 On April 22, 2005, Mr. St. John, Ms. Armstrong and the grievor met again and as a result of this meeting several changes were agreed to and another “Agreed Action Plan in Response to the Health Canada Assessment” (Exhibit E-14) was prepared. Again, the grievor verbally agreed to the plan but she then refused to sign it.

82 On May 12, 2005, Mr. St. John received a letter from Dr. Chernin with the following recommendations (Exhibit A-1(p)):

…

It is recommended that Ms. Kerr-Alich would be fit to commence a graduated return to the workplace at this time. However, we would recommend that this be in the Hamilton area, which is approximately only half an hour from her residence versus the one and three-quarter hours to Yonge Street. We would recommend that this accommodation in the Hamilton area be in place for a minimum of three months, at which time we would recommend that she be referred back for reassessment of her status. As regards the graduated return in the Hamilton area; it is recommended that she commence working four hours three times a week for the first week, increasing to six hours three times a week for weeks two and three and then, if no problems have arisen with either attendance or performance, increasing to 7.5 hours three times a week, which is her traditional work week. We would also recommend that her workstation be assessed from an ergonomic perspective to see that it is set up to the maximum ergonomic advantage. In this regard, you may contact our Workplace Health office in Hamilton which could provide some assistance in this regard.

…

83 Mr. St. John testified that he contacted Ms. Garey again about the possibility of accommodating the grievor. Ms. Garey repeated that she had no vacancies in either the Oakville or Brampton centres and that she was in the process of laying off some of her term employees.

84 Mr. St. John noted that he could comply with Dr. Chernin’s other recommendations (i.e. graduated hours, an ergonomic assessment, etc.) but there was no position available for the grievor other than at the Toronto OEICC.

85 Mr. St. John stated that he was at a loss as to what to do next since he had been unsuccessful in trying to reintegrate the grievor into the workplace. He contacted Terry Yelle, a human resources specialist, and following a conversation with her and some of his colleagues it was their opinion that either the grievor was “unwilling” or unable to commute to the Toronto OEICC.

86 On May 20, 2005, Mr. St. John informed the grievor that she was to be rejected on probation effective June 3, 2005 (Exhibit E-1), which was prior to the end of her specified period appointment:

…

Since you are unable to perform the functions of the SDR position at the Toronto OEICC, unfortunately we must reject you on probation. In accordance with Section 31(1) of the Public Service Employment Regulations, you will cease to be an employee at the close of business on June 3, 2005.

…

87 Mr. St. John explained that as a result of the grievor filing her grievance he received new advice from Ms. Yelle. It was decided to rescind the rejection on probation and substitute it with a non-renewal of term, and he so advised the grievor on July 14, 2005 (Exhibit E-2):

…

This is further to my letter dated May 20, 2005, advising you that you were rejected while on probation.

After reconsidering the present circumstances, I have determined that the decision to reject you while on probation was inaccurate. Consequently, the decision to reject you while on probation will be substituted with a non-renewal of term. This decision is as a result of your incapacity to report for work at the Toronto OEICC.

…

88 Mr. St. John stated that the rationale for substituting the rejection on probation with a non-renewal of term was because the grievor’s performance, quality of work and her absenteeism were not at issue. The stigma attached to an employee’s record of employment following a rejection on probation can curtail finding further suitable employment and can affect the amount and length of employment insurance benefits.

89 In cross-examination, Mr. St. John agreed that his letter to the grievor rejecting her on probation (Exhibit E-1) was not based on performance issues. The advice he initially received from Ms. Yelle was reviewed and it was decided to substitute the rejection on probation with a non-renewal of term.

90 Mr. St. John explained that the wording in the rejection on probation letter (“Since you are unable to perform the functions… at the Toronto OEICC… ”) was incorrect and that the wording in the non-renewal of term letter (“… as a result of your incapacity to report for work at the Toronto OEICC ”) was more appropriate.

91 Mr. St. John noted that the employer’s duty to accommodate the grievor started at the door - at the Toronto OEICC - and it was the grievor’s responsibility to present herself there.

92 Mr. St. John stated that temporarily relocating an employee is one consideration among many. In other words, whenever possible, an employee should be accommodated by a temporary relocation if a position within the employee’s field of expertise exists. He stated that finding the best fit for an employee goes beyond general management principles; it becomes a moral issue.

93 Mr. St. John testified that he reviewed with Human Resources the Treasury Board’s Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service (Exhibit G-4) to ascertain that he was cognizant of the employer’s responsibilities. He agreed that the definition of “accommodation” refers to what is required in the circumstances of each case to avoid discrimination. He did not agree with the grievor’s representative that absenteeism due to an injury is discrimination if a penalty is imposed. Mr. St. John stated that each case needs to be reviewed on its merits, as the policy is open to interpretation.

94 Mr. St. John noted, as well, that the policy states that “… accommodations must be made to the point of undue hardship… ” Undue hardship as a result of the grievor having to commute from her residence to the workplace was a “moot” point. The policy with respect to accommodation starts at the front door.

95 In re-examination, Mr. St. John stated that the policy refers to the design and adaptation of the work environment; the physical set-up, environmental concerns (such as heat, light and air quality) and the necessary tools to assist employees to perform their duties. It is a manager’s responsibility to provide the necessary tools and a work environment that reassures employees with disabilities that they are working in a proper and safe environment that will allow them to perform their duties without further risk to their health.

96 As far as telework is concerned, Mr. St. John stated that it was not possible because the computers and headsets are not accessible in remote locations.

97 The grievor testified that she worked at the Toronto OEICC on November 1 and 4, but did not report for work on November 5, 2004, because her injury was aggravated due to the fact that she had to commute by public transportation. On November 7, 2004, she aggravated her injury further following a car accident.

98 On February 1, 2005, the grievor submitted to the Toronto OEICC a medical certificate from Dr. Konigsberg stating that she would attempt to return to work on a trial basis as of February 14, 2005 (Exhibit A-1(l)).

99 On May 12, 2005, Dr. Chernin wrote to Mr. St. John (Exhibit A-1(p)) recommending a gradual return-to-work in the Hamilton area, as it was only a half hour commuting distance from the grievor’s residence compared to the one and three-quarter hours it would take her to get to the Toronto OEICC.

100 Mr. St. John confirmed that although Dr. Chernin recommended the Hamilton area, Ms. Potts had advised him that there was no position available at the Hamilton Call Centre. Ms. Garey had also advised him that the Oakville and Brampton centres were downsizing and laying off some of their employees. In terms of accommodations, Mr. St. John stated that he does not have the power to create a position.

101 In reference to her “Record of Employment” (Exhibit G-16), the grievor confirmed that it was issued with a code “D” (illness or injury). When asked by her representative what impact the employer’s decision not to renew her contract had had on her, she stated that it had caused her difficulties because her WSIB benefits had been discontinued as of April 2, 2004. As well, her employment insurance benefits, which were significantly less than her salary, had lasted only for a short time and the rest of the time she had received no income. She believes that the employer’s decision affected her emotional state and demonstrated that the employer did not care about her as an individual.

102 In cross-examination, the grievor stated that the only reason she agreed to report to work at the Toronto OEICC on November 1, 2004, was because she wanted to keep her job.

103 In reference to Exhibits G-10 and G-11, the “Mapquest” travel directions from the grievor’s former and current residences in Burlington to the Toronto OEICC, the grievor stated that she did not recall informing the employer that her driver’s licence had been reinstated.

104 When asked if she had applied for any positions or had sent out her résumé between June 11, 2004, and June 30, 2005, the grievor replied that she could not remember.

105 The grievor acknowledged that she had filed a claim with the WSIB for a recurrence of her injury after commuting on public transportation to the Toronto OEICC on November 1 and 4, 2004, but the WSIB rejected her claim.

106 In reply, the grievor stated that although the WSIB rejected her claim, she had no doubt the recurrence of her injury was work-related.

107 Michelle Ovenden, a compensation team leader at the Toronto OEICC, stated that the grievor’s “Record of Employment” (Exhibit G-16) was issued with a code “D” (injury or illness), as is the usual practice for an employee who is away from work in excess of five days due to medical reasons. For a rejection on probation, the appropriate code would have been “K” (other).

III. Summary of the arguments

108 The parties filed written arguments, the full texts of which are in the Board’s files.

A. For the employer

109 In summary, counsel for the employer argued that the first grievance (PSSRB File No. 166-02-35957) on the duty to accommodate should be dismissed for the following reasons:

…

1. The grievor has failed to establish that any duty to accommodate her was owed during the time frame of the first grievance; and
2. Notwithstanding (i) above, the employer made genuine good-faith attempts to accommodate the grievor during the time period of the first grievance.

…

110 With respect to the second grievance, counsel argued that:

…

A. Board has no Jurisdiction because the matters raised in the second grievance are a nullity.

…

The decision of the PSSRB in Reasner and Treasury Board (Transport Canada) dealt with a situation where the grievor was grieving a two-day financial penalty. By the time of the hearing, the sanction had been reduced to a written reprimand. As this was no longer the type of discipline contemplated by section 92 of the Public Service Staff Relations Act, the adjudicator found that he had no jurisdiction in the matter and dismissed the grievance.

The present case is analogous to Reasner, because the subject matter of the grievance (i.e. the letter of May 20, 2005) was rescinded prior to the referral to adjudication. It was replaced by the letter of July 14, 2005, [E-2], which specified a non-renewal of term. The case law clearly indicates that non-renewal of term is outside the jurisdiction of this Board.

Therefore, the second grievance ought to be dismissed for want of jurisdiction. The second human rights complaint, dated December 26, 2005, would also fail for want of jurisdiction. This is because the Board’s ability to hear and address the second human rights complaint only arises in the context of “any matter referred to adjudication”: section 226 of the Public Service Labour Relations Act. (“the PSLRA”).

B. In the alternative, the Board has no jurisdiction because the subject matter of the second grievance is not contemplated by section 209 of the PSLRA.

The letter of May 20, 2005 [E-1], advised the grievor that she was being rejected on probation. Accordingly, there is no “termination” under s. 209 of the PSLRA.

…

… the rejection on probation was done in good faith. All evidence points to the fact that this employer would have welcomed the grievor back at the workplace had she chosen to attend. There is no question of this situation being “performance related” or disguised discipline, such that there would be a potential element of bad faith on the part of the employer. Rather, the rejection on probation went to the fundamental requirement that the grievor attend at work so that she could be accommodated. Given her refusal or failure to do so, the employer was entitled to reject her on probation. A good faith rejection on probation is not within the jurisdiction of this Board.

Therefore, the second grievance ought to be dismissed for want of jurisdiction. The second human rights complaint, dated December 26, 2005, would also fail for want of jurisdiction. This is because the Board’s ability to hear and address the second human rights complaint only arises in the context of “any matter referred to adjudication”: section 226 of the PSLRA.

C. In the further alternative, the Board has no jurisdiction over the second grievance, because the rejection on probation was substituted by a non-renewal of term.

It is well settled that this Board has no jurisdiction to address non-renewal of term. A non-renewal of term is outside of the Board’s jurisdiction under s. 209 of the PSLRA.

Simply put, an employee who is appointed for a specified period ceases to be an employee at the expiration of that period by operation of what is now section 58 of the Public Service Employment Act, which states that:

“Subject to section 59, an employee whose appointment or deployment is for a specified term ceases to be an employee at the expiration of that term, or of any extension made under subsection (2).”

In the present case, the grievor’s last term contract expired on June 30, 2005. It was not renewed. Therefore, her employment ceased as a result of the lapse of time. It was not due to any termination.

Therefore, the second grievance ought to be dismissed for want of jurisdiction. The second human rights complaint, dated December 26, 2005, would also fail for want of jurisdiction. This is because the Board’s ability to hear and address the second human rights complaint only arises in the context of “any matter referred to adjudication”: section 226 of the PSLRA.

D. In the further alternative, in the event that this Board finds that it has jurisdiction to address the second grievance and the second human rights complaint, then:

(a) The grievor has failed to establish that the employer breached any duty to accommodate, as alleged in the second human rights complaint; and

(b) The grievor is not entitled to any damages under the second grievance.

(a) The grievor has failed to establish that the employer breached any duty to accommodate, as alleged in the second human rights complaint:

…

Therefore, the employer submits that the Action Plans for the grievor’s return to work, E-12 and E-14, represented a good faith attempt to accommodate the grievor in the workplace, and as such, the employer has not failed in its duty to accommodate, under any policy or plan, or under the Canadian Human Rights Act.

Accordingly, the employer submits that the second Human Rights complaint filed by the grievor should be dismissed. The grievor has failed to establish that the employer breached its duty to accommodate, in any way.

(b) The grievor is not entitled to any damages under the second grievance:

The letter of May 20, 2005 was dated five weeks and six days prior to the termination date of the grievor’s term contract. The grievor’s term contract was due to expire on June 30, 2005.

At the time of the May 20, 2005 letter, the grievor remained off work despite the employer’s offer to accommodate her at the OEICC. (Reference: evidence of Brian St. John, and E-12 and E-14).

Therefore, if the grievor has any damages arising from the May 20 letter (which are not admitted, but denied), they would be limited to the time period May 20, 2005 to June 30, 2005 and they should be reduced to zero as a result of the grievor’s refusal to attempt to mitigate her damages.

The law is well settled that the grievor had a duty to mitigate her damages. However, the grievor admitted on cross-examination that, during the whole time period of January 19, 2004 to June 30, 2005, she never looked for work. She never applied for any jobs that might have been internally posted with the government, or for any jobs elsewhere. She never sent out a resume. However, there was always work available for her at the OEICC should she have chosen to attend at the office and accept it. For the grievor to now say that she is entitled to damages because the workplace was too far from her home, when she never even attempted to find work that might be closer to her home, flies in the face of logic and is contrary to her legal obligation to reduce her losses by attempting to mitigate her damages.

Further, the grievor called no evidence regarding her damages and it is not open to the Board to create evidence for damages when none has been tendered.

In her second grievance, the grievor seeks that she be “re-instated with a contract of no less than one year”. However, the Board does not have jurisdiction to re-instate a term employee. That is because the Public Service Commission has the exclusive right of appointment under the Public Service Employment Act. Where a grievor cannot be re-instated without a new appointment, the Board cannot usurp the authority of the Public Service Commission.

Therefore, the grievor’s claim for re-instatement is outside the jurisdiction of this Board and ought to be dismissed. The grievor’s claim for damages covers a period of time when she refused to work at the employer’s place of business. Accordingly, the grievor is not entitled to damages. In the further alternative, if she is entitled to any damages, they ought to be reduced to zero given the grievor’s complete and abject failure to attempt to mitigate her damages.

The employer submits that the second grievance should also be dismissed. The employer further submits that the second human rights complaint of the grievor be dismissed to the extent of the Board’s jurisdiction granted to it under the Public Service Labour Relations Act.

…

[Emphasis in the original]

111 Counsel for the employer filed the following cases in support of her arguments: Canadian National Railway v. Brotherhood of Locomotive Engineers (2003), 118 L.A.C. (4th) 228; St. Paul’s Hospital v. Hospital Employees’ Union (2001), 96 L.A.C. (4th) 129; Christie v. Canada (Attorney General), 2004 FC 1383; Morin v. Treasury Board (Department of Fisheries and Oceans), 2006 PSLRB 35; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429; Pieters v. Treasury Board (Federal Court of Canada), 2001 PSSRB 100; Wright v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 139; Reasner v. Treasury Board (Transport Canada), PSSRB File No. 166-02-26260 (19950607); and Savic v. Canadian Food Inspection Agency, 2001 PSSRB 104.

B. For the grievor

112 In summary, the grievor’s representative replied as follows with respect to the first grievance:

…

36. This employer did not show that it has done everything that could reasonably be expected of it in trying to accommodate the grievor’s needs.
37. This employer did not demonstrate that it would have endured “undue hardship” i.e. excessive cost or expose other workers or members of the public to unacceptable levels of risk to their health, safety and general well-being.
38. Brown & Beatty states that “in order for the employer to avoid a finding of discrimination, they must show that they have done everything that could reasonably be expected of it in trying to accommodate that person’s needs”. Furthermore, “the court has said that in all cases where discrimination is alleged, whether it is intentional (direct) or unintentional (indirect), the employer must establish that the standards it has set for the job are “bona fide occupational qualifications”.
39. The standard the employer set (must report to 4900 Yonge Street) is not a “bona fide occupational qualification” otherwise, why would they relocate her to Milton.
40. By imposing this standard (must report to 4900 Yonge Street) to a disabled person, when applied to the Dekoning decision (166-2-22971 and 149-2-129 at Page 25), this right becomes discrimination because it ultimately imposed a penalty due to disability.
41. The employer did not fulfill its legal obligation to accommodate the grievor in this matter, therefore, this grievance should be allowed.

…

[Emphasis in the original]

[Sic throughout]

113 With respect to the second grievance, the grievor’s representative argued that:

…

- The adjudicator does in fact have jurisdiction to hear this grievance on it merits because the employer acted in bad faith and not in accordance with PSEA.

- If the employer is stating that the grievor’s incapacity to report to work is the employment related issue for the Rejection on Probation, it is the union’s submission that her inability to report to work while on probation fails under the Dekoning decision 166-2-2297 and 149-2-129. Pg. 25

“While the employer’s right to rejection probationary employees for cause, which could legitimately include absenteeism, applies equally to all probationary employees, when applied to an employee absent due to a disability, the right becomes discriminatory, because it imposes a penalty because of absenteeism due to disability which could not affect other members who are not disabled.

- It is the union’s position that the employer does not have a legitimate employment-related reason for their dissatisfaction with the suitability of the grievor.

- Therefore, in dealing with this grievance on its merits, the employer did not properly shift the burden of proof by establishing an employment reason.

- The employer did not act in good faith according to the definition of good faith in the Dhaliwal decision. Pr. 79. Therefore, acted in bad faith.

- Finally, it is the union’s submission that the actions of the employer by substituting one reason of termination Rejection on Probation with another reason of termination with the motivation remaining the same (incapacity to report to 4900 Yonge Street) is a clear example that this is a sham and camouflage.

…

FURTHER CORRECTIVE ACTION

In addition to the corrective action indicated in the two grievances, the union submits that the grievor also filed two human rights complaints. The first human rights complaint was filed before April 1, 2005 and the union agrees that the adjudicator has no jurisdiction over the matter. However, the second human rights complaint was filed after April 1, 2005 (December 2005) and according to Sec. 226 (1) of the Public Service Labour Relations Act (PSLRA).

This section of the Act deals with the powers of adjudicators. Specifically, Section 226 (1)g of the PSLRA allows adjudicators to interpret and apply the Canadian Human Rights Act. Section 226(h) allows adjudicator’s to give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act (CHRA).

Therefore, adjudicators will have the clear power to award two types of money damages provided under the CHRA:

1. Not more than $20,000 for pain and suffering as a result of the discriminatory practices pursuant to s. 53(2)(e) of the CHRA.
2. Not more than $20,000 for punitive damages if the respondent is deemed to have acted “willfully or recklessly” pursuant o s. 53(3) of the CHRA.

The union is requesting the maximum allowable in both categories for the single human rights complaint and is relying on the following decision:

Keays v. Honda Canada Inc. (2005) O.J. No. 1145, Ontario Superior Court of Justice, J.R. McIsaac J.

This concludes the union’s submissions respectfully submitted on behalf of the grievor.

…

[Sic throughout]

[Emphasis in the original]

114 In support of his arguments, the grievor’s representative submitted the following:Brown and Beatty, Canadian Labour Arbitration, Third Edition, at 7:6120; Guibord v. Treasury Board (Transport Canada), PSSRB File No. 166-02-25249 (19951208); Gendron v. Treasury Board (Department of Canadian Heritage), 2006 PSLRB 27; Mellon v. Canadian Human Rights Commission, 2006 CHRT 3; Dhaliwal v. Treasury Board (Solicitor General Canada – Correctional Service), 2004 PSSRB 109; Dekoning v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-22971 and 149-02-129 (19930302); Leonarduzzi v. Treasury Board (Transport Canada), PSSRB File No. 166-02-27886 (19990628); Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Penner v. Treasury Board (Transport Canada), PSSRB File No. 166-02-17493 (19880722); Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173; and Keays v. Honda Canada Inc., [2006] O.J. No. 560 (O.S.C.J.).

IV. Reasons

A. First grievance: failure to accommodate and discrimination

115 The grievor alleges that the employer has failed to accommodate her in the workplace contrary to the Treasury Board’s Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service (Exhibit G-4), the Canadian Human Rights Act (CHRA) and Part II of the Canada Labour Code. As well, she alleges that the employer discriminated against her in violation of the collective agreement. She seeks the following corrective action:

1/ THAT I BE REIMBURSED FOR all loss OF SALARY between February 11, 2004 And the date at which I return to work.

2/ HUMAN RIGHTS violations, I be awarded $5001 DOLLARS, and a further monetary settlement of loss of dignity and respect equal to and additional $5000.

3/ THAT proper Accommodation plans to reintegrate me back into the workplace start IMMEDIATELY, as specified by my medical documentation submitted on February 10, 2004 and then again on April 8, 2004.

That the following be implemented immediately, PDA, workplace reintegration plan, ergonomic assessment by a recognised certified practitioner (In accordance to the occupational physical therapist association)

That is also done in consultation with WSIB and the rehabilitation workplace officer.

4/ Until these requirements are met that any day in part or whole be paid under article 53, until all accommodation requirements are met.

[Sic throughout]

116 Clause 19.01 (of Article 19, “No Discrimination”) of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group (expiry date: June 20, 2007) reads as follows (Exhibit G-9):

ARTICLE 19

NO DISCRIMINATION

**

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

117 In essence, the issue to be decided is whether the employer failed to accommodate the grievor in the workplace and discriminated against her in violation of the collective agreement and the CHRA.

118 Given that the CHRC has issued what is commonly referred to as a “kick-back” under section 41 of the CHRA, I have jurisdiction to consider this grievance.

119 At the time the grievor applied for the service delivery representative position at the Toronto OEICC she met the criteria in the competition poster (Exhibit E-3) as to who could apply. She then moved twice, each time moving further west of the Toronto OEICC. By moving further west, the grievor knowingly accepted the fact that her travel time, whether by private vehicle or public transportation, would significantly increase. The employer, having been advised of her move, did not raise it as an issue.

120 On February 2, 2004, Dr. Chen diagnosed the grievor as unable to work following a shoulder injury that she sustained at work on January 19, 2004, and indicated that a prognosis for her return to work would be done on a weekly basis (Exhibit A-1(a)).

121 The grievor then applied for and was granted WSIB benefits.

122 On February 10, 2004, the grievor met with Dr. Sato and underwent a WSIB functional abilities test. It was determined that she had difficulty driving in traffic, that she could eventually work graduated hours and that she would require an ergonomic workstation (Exhibit A-1(b)).

123 On March 5, 2004, Dr. Sato determined that the grievor was still unable to return to work and that she would be reassessed in two weeks (Exhibit A-1(c)).

124 On March 12, 2004, Mr. St. John, the grievor, her bargaining agent representative and her team leader at the Toronto OEICC met to discuss reintegrating the grievor into the workplace. A “Return to Work Action Plan” (Exhibit G-3) was agreed to, stating that as of March 15, 2004, the grievor would begin a two- to four-week assignment at the Milton Centre. The employer agreed to the following: (a) the grievor’s hours of work would be reduced from 22.5 to 12; (b) that she would not be required to use a computer or do data entry; (c) that she would not be required to wear a telephone headset; (d) that she was free to move around the office as required; and (e) that, subject to a positive medical assessment from her doctor, she would return to her position at the Toronto OEICC.

125 Ms. Jeric testified that on Monday, March 15, 2004, the grievor asked, and was granted, an earlier start time for the next day. However, at 23:57 that evening, she left Ms. Jeric a voicemail message stating that she had overdone herself at work her first day, that she was going to the hospital and that she would contact Ms. Jeric later to inform her of her condition. She stated as well that the grievor had not, on her first day back at work, in any way deviated from the “Return to Work Action Plan” prepared on March 12, 2004 (Exhibit G-3).

126 Although the grievor testified that no ergonomic workstation assessment was done at the Milton Centre, based on the evidence before me I can only conclude that the employer could not possibly have conducted such an assessment since the grievor only worked there one day (a four-hour shift) and never returned. If the grievor had informed Ms. Jeric of her medical status or when she expected to return to work I have no reason to doubt that a date would have been set for an ergonomic assessment.

127 Ms. Jeric, who kept very precise notes, was a credible witness and there is no reason for me to doubt her testimony, as I believe she has no personal or professional interest in the outcome of this matter. I prefer Ms. Jeric’s testimony to that of the grievor. Ms. Jeric testified that she did not talk to the grievor after she left the Milton Centre on March 15, 2004, and as it is a small office, Ms. Jeric needed someone reliable. In her opinion, with which I agree, the grievor was not reliable.

128 Mr. St. John testified that Mr. Iocco also had concerns about the grievor’s absence, the uncertainty as to when she would return to the Milton Centre and the impact that had on operational requirements. Mr. St. John then informed the grievor of Mr. Iocco’s decision to rescind the “Return to Work Action Plan” prepared on March 12, 2004 (Exhibit G-3) and that they would look at other options.

129 In my view, the “Return to Work Action Plan” (Exhibit G-3) prepared for the Milton Centre did not fail solely on the grounds of the grievor’s absence, but also because of her failure to provide Ms. Jeric with pertinent medical information and a prognosis as to when she could return to work. Since Mr. Iocco had agreed to temporarily accommodate the grievor, he was well within his rights to rescind the agreement since the grievor’s actions led to operational concerns.

130 I also recognize that Mr. St. John, undaunted with the failure of the grievor to return to the workplace (to the Milton assignment), continued to explore other options. On April 2, 2004, he arranged a meeting with the grievor, her bargaining agent representative, Mr. Landry and Ms. Daly, among others, and they developed another “Return to Work Action Plan” (Exhibit E-32) to reintegrate the grievor at the Toronto OEICC.

131 I note that the “Return to Work Action Plan” of April 2, 2004, to reintegrate the grievor at the Toronto OEICC (Exhibit E-32) reduced the grievor’s work hours from 22.5 to 12 (three four-hour shifts) and that Mr. Landry agreed to variable start times from 08:45 to 09:00 to 09:15. There was to be a phased-in approach for the grievor to resume her full-time duties and her workstation was to be accommodated to suit her injury.

132 The grievor disputes that she agreed to this plan. On April 8, 2004, she submitted a medical certificate from Dr. Chen stating that Dr. Sato had recommended that the grievor limit her travel by public transportation to one hour each way. This was the first time that the employer was officially advised by a medical authority that the grievor needed to limit her travel time on public transportation to one hour each way as a result of her injury.

133 I place little credibility on the grievor’s testimony on this point since she worked according to the plan on April 5 and 6, 2004, and it was not until late in the day on April 8, 2004, that she sent an email to Mr. Landry (Exhibit G-17) stating that she did not agree with the plan and that:

…

… My doctor makes the decisions on my return to work plan as I noted in the meeting. I stated that I did not feel that I would be able to carry out the duties as discussed… .

…

[Emphasis added]

134 I agree with the observation of Sopinka J. in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970 at paragraph 44, that the duty to accommodate does not rest solely with the employer:

…

…When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

…

135 On April 16, 2004, Ms. Daly sent a letter to the grievor, which stated, in part, the following (Exhibit E-33):

…

… A FAF (Functional Abilities Form) was completed by Dr. Chen which identified standard restrictions for neck and left shoulder. He also testified that you should not use public transit in excess of one hour per direction. Depending on the GO train taken (regular or express) the travel on the train to Union Station varies from 43-57 minutes. You would then cross Union Station to the subway and take an approximately 20 minute ride to your work location. As the travel is broken up and your area of injury is a neck strain, it is deemed that the travel to and from work is within your restrictions. I am deeming that the modified duties offered by your employer at the accident location are within your restrictions.

…

136 It was Ms. Daly’s belief that the grievor’s travel time by public transportation conformed to her doctor’s orders since the travel was not continuous, and the employer accepted Ms. Daly’s premise. The grievor’s position, as expressed in her argument, was that commuting for approximately 73 minutes each way did not include the 25 minutes she travelled using the Burlington Transit System and therefore the travel time did, in fact, exceed her doctor’s orders.

137 As previously noted, it was the grievor’s decision to move on two separate occasions further west of the Toronto OEICC. It is safe to conclude then that both parties realized that the grievor’s residential moves would incur additional travelling time, regardless if the grievor chose to use public transportation or her own personal vehicle.

138 The issue raised by the employer concerning the grievor’s choice of a residential location is a red herring. She was entitled to apply for the job, which she did, and she was the successful candidate. The competition poster did not indicate that the successful candidate would have to continue to reside in a location that conformed to the postal codes set out in the competition poster. No evidence was adduced that the grievor had agreed to reside in an area covered by the stipulated postal codes and her decision to move was made at a time when she was not disabled. Her ability to report to work as a result of her disability is an issue that the employer must contemplate in the absence of any judgement regarding her decision to move.

139 In the Treasury Board’s Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, under Policy statement, Application and Definitions, it states the following (Exhibit G-4):

…

Policy statement

…

• designing all employment systems, processes and facilities to be accessible by building accommodation into workplace standards, systems, processes and facilities and
• accommodating individuals when such barriers cannot be removed. Such accommodation must be made to the point of undue hardship taking into consideration issues of health, safety and cost. Accommodation must also be based on the circumstances of each case and must respect an individual’s right to privacy and confidentiality.

Application

This policy applies:

1. with respect to accommodation within the workplace, to all departments and agencies and other portions of the Public Service listed in Part 1 of Schedule 1 of the Public Service Staff Relations Act for whom the Treasury Board is the employer…

…

Definitions

In this policy:

Accommodation/accommodate (adaptation/adapter) - refers to the design and adaptation of the work environment to the needs of as many types of persons as possible and, according to the Supreme Court of Canada, refers to what is required in the circumstances of each case to avoid discrimination. Several examples of accommodation are listed in the guidelines attached to this policy.

…

[Underlining added]

140 The policy is very clear that the employer must design employment processes, facilities and other relevant accommodations within the workplace for persons with disabilities, but be cognizant of the circumstances particular to each case to avoid discrimination.

141 I have concluded that this case is based, at least in part, on one of the enumerated grounds set out in the CHRA, thereby engaging the issue of human rights. The following are grounds enumerated in section 2 of the CHRA: race; national or ethnic origin; colour; religion; age; sex (pregnancy and childbirth are grounds deemed related to sex); sexual orientation; marital status; family status; disability; and conviction for which a pardon has been granted.

142 The grievor argued that the standard set by the employer (that she must report to the Toronto OEICC) is not a bona fide occupational qualification. By imposing this standard on a disabled person, it imposes a penalty which is discriminatory.

143 Although Mr. St. John testified that in his opinion accommodation starts at the front door, the employer did not in fact apply this standard to the grievor. If the employer in fact applied that standard, I would have concluded that the grievor was discriminated against.

144 Based on the evidence before me, it is obvious that the employer attempted to accommodate the grievor on a number of occasions and agreed to various accommodations in order to return the grievor to work, whether at the Toronto OEICC or any other office where a position might be available. Unfortunately, there was no position available at the Hamilton Call Centre and the Oakville and Brampton centres were laying off their term employees. It is well-established that the employer cannot be expected to create a position for the grievor if such a position would be of no value to it. As stated in Canadian National Railway: “… The duty of accommodation to the point of undue hardship clearly does not compel an employer to create a position which is of no productive use to it, regardless of its size or revenues… . ”

145 In this case, all the accommodations that the employer proposed (graduated and modified hours of work, ergonomic assessment, etc.) were agreed to by the grievor, her bargaining agent representative and the WSIB. It is significant to note that although the grievor was unable to work as a result of the injury that she sustained on January 19, 2004, the employer continued to extend her specified period appointments on several occasions, up until June 2005. This clearly demonstrates good faith and an honest attempt by the employer to reintegrate the grievor into the workplace.

146 All of the employer’s attempts to relocate the grievor, the return-to-work action plans and the renewal of her specified period appointments taken as a whole clearly demonstrate that there was accommodation to the point of undue hardship on the part of the employer. The employer canvassed directors in other call centres but there were no positions available. The grievor was unable to present herself at the Toronto OEICC where a position was available and where the employer could accommodate all the other recommendations made by Health Canada.

147 Therefore, I conclude that the employer has met its obligations to accommodate the grievor to the point of undue hardship as per the Treasury Board’s policy and the CHRA, and that it did not violate clause 19.01 of the collective agreement.

148 For all of the above reasons, this grievance is dismissed.

149 In the alternative, and notwithstanding the evidence adduced at the hearing and my reasons as stated above, I note that the grievor applied for, and was granted, employment insurance benefits based on a medical certificate signed by Dr. Chen (Exhibit 1-A(h)). The medical certificate is very clear: at section 2, it states: “Must be completed by a medical doctor or health practitioner acceptable to the Commission.” Dr. Chen’s comment under the heading of “Incapacity” reads as follows: “Unable to use [left] hand. No repetitive neck/body turning”, and he indicates that the grievor was incapable of working due to her injury from January 19 to July 27, 2004. This grievance was filed in June of 2004.

150 Dr. Chen’s comment was very specific: the grievor was incapable of working. There was no mention of commuting distance restrictions and no mention of modified or graduated hours and shifts. Simply put, because of her injury, Dr. Chen indicated that the grievor was incapable of working from January 19 to July 27, 2004.

151 For these reasons as well, the grievance is dismissed.

B. Second grievance: termination of employment

152 Firstly, in order to properly expedite the adjudication process, I would like to remind the parties that when an issue involving the interpretation or application of the CHRA is raised, subsection 210(1) of the Public Service Labour Relations Act (PSLRA)applies:

210(1) When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

[Emphasis added]

153 In this case, this was not done. Therefore, after the hearing the grievor’s representative was advised to contact the CHRC and file the appropriate documents. The CHRC subsequently advised the Board that it did not intend to make any submissions. I would note that as a result of the above, the rendering of this decision was delayed.

154 On May 20, 2005, Mr. St. John advised the grievor (Exhibit E-1) that she was being rejected on probation as of June 3, 2005, because she was “… unable to perform the functions of the SDR position at the Toronto OEICC.” [emphasis added]

155 On May 30, 2005, the grievor filed her second grievance:

I grieve management’s letter of termination dated May 20th 2005, and signed by Brian St. John, Manager, Toronto OEICC.

CORRECTIVE ACTION REQUESTED:

That I be immediately be re-instated with a contract of no less than one year. That I be reimbursed for any and all lost wages & benefits until I am re-instated. That all references to my termination be destroyed. That I be made whole.

[Sic throughout]

156 On July 14, 2005, Mr. St. John advised the grievor that her rejection on probation was being substituted with a non-renewal of term (Exhibit E-2):

…

After reconsidering the present circumstances, I have determined that the decision to reject you while on probation was inaccurate. Consequently, the decision to reject you while on probation will be substituted with a non-renewal of term. This decision is as a result of your incapacity to report for work at the Toronto OEICC.

…

[Emphasis added]

157 While Mr. St. John’s decision may, in the opinion of the employer itself, have been based on bad advice that he had received, he was clearly not acting in bad faith, as is obvious from his many attempts to reintegrate the grievor into the workplace, whether at the Toronto OEICC or other centres, modifying her duties and continuing to extend her specified period appointments even though she was unable to work for much of the period in question.

158 The grievor has argued that the decision in Dhaliwal is applicable to her situation. In Dhaliwal, I concluded that although there may have been an employment-related issue, the employer failed to abide by its own document, which established principles of fairness and defined good faith. I also concluded that the grievor had met his burden of establishing bad faith, as there was a lack of diligence by the employer that would have given the grievor an opportunity to discuss, defend or make the necessary adjustments to meet the requirements of his position.

159 In this case, Mr. St. John testified that the decision to reject the grievor on probation was not employment-related. After the grievor filed a grievance, he sought further advice and rescinded the rejection on probation. The employer acknowledged that there was no basis for the rejection on probation for employment-related reasons and therefore rescinded it. The grievor did not adduce, as in Dhaliwal, evidence to the effect that she was treated unfairly or in bad faith, or that there was a lack of diligence on the employer’s part. In this case, I have, on the basis of the evidence, concluded that the employer’s actions were not tainted by any bad faith. Therefore, I find Dhaliwal to be of no application to this case. In consequence, I do not agree with the grievor’s representative who argued that the substitution of the non-renewal of term for the rejection on probation was a sham or camouflage. No evidence was adduced that would substantiate such a claim.

160 While the letter of May 20, 2005, advising the grievor that she was being rejected on probation was rescinded, the fact that the grievor was now without employment remained. The employer has argued that I should dismiss the second grievance on the basis that the action complained of is now a nullity. I disagree. The employer cannot rescind a letter of termination based on one ground and substitute for it a second ground of discharge, and expect that the grievor will be required to begin the grievance process anew. The employer knew throughout the grievance process that the grievor was grieving her “termination”, however it was legally characterized by the employer.

161 The employer has also argued that, as the grievance was filed against a rejection on probation, it is not adjudicable. Given my decision above, I disagree with this argument as well. Given the employer’s about face regarding the characterization of the termination, the grievance before me is no longer one which contests a rejection on probation but rather is a grievance contesting a non-renewal of term.

162 The employer has also argued that grievances regarding the non-renewal of term appointments are outside the jurisdiction of adjudicators. It is true that, based on a lengthy jurisprudential history written by adjudicators of the Public Service Staff Relations Board, adjudicators have no jurisdiction over ends of terms under normal circumstances: Pieters; Savic; Monteiro v. Treasury Board (Canada Space Agency), 2005 PSSRB 27; and Marta v. Treasury Board (Royal Canadian Mounted Police), 2001 PSSRB 31. However, the presence of bad faith or disciplinary intent on the employer’s part would grant an adjudicator jurisdiction: Longpré v. Treasury Board (National Defence), 2004 PSSRB 81. I have already decided that no bad faith was present in this file and neither party raised any issue regarding any alleged disciplinary intent.

163 The issue of whether or not the presence of discrimination, as defined by the collective agreement and the CHRA, can serve to grant an adjudicator jurisdiction over a grievance contesting the non-renewal of a term appointment was not argued by either party. In any event, even if it had been, I would have declined to pronounce on this issue, given that such a pronouncement is not necessary in this case. Even were I to find that I have jurisdiction over the grievance given the allegation of discrimination, I would have concluded that there had been no violation of either the collective agreement or the CHRA. As I have clearly stated above, there has been no breach of the employer’s duty to accommodate.

164 I do not agree with the grievor’s representative’s argument that her incapacity to report to the Toronto OEICC while on probation is similar to the facts in Dekoning:

…

… While the employer’s right to reject probationary employees for cause, which could legitimately include absenteeism, applies equally to all probationary employees, when applied to an employee absent due to a disability, the right becomes discriminatory, because it imposes a penalty because of the absenteeism due to disability which would not affect other members who are not disabled.

…

165 In Dekoning, no evidence was submitted to explain why the employer could not accommodate the grievor. As well, Ms. Dekoning returned to work on a part-time basis in a section that could accommodate her sporadic and unpredictable absences.

166 In this case, the employer adduced evidence that the grievor had been accommodated (the Milton Centre assignment) and could only be further accommodated at the Toronto OEICC, as there were no other positions available in other centres. The grievor was quick to inform the employer that as of March 26, 2004, her driver’s licence was revoked. However, for reasons only known to her, she did not inform the employer that it had been reinstated in July 2004. It is well established that there is an onus on an employee to cooperate and to facilitate arrangements to return to work. In my opinion, by not informing the employer of her ability to use her personal vehicle, the grievor was not forthright in pursuing alternate possibilities to lessen her commuting time.

167 In deciding this case, I would be remiss in not commenting on a theme which surfaced in the evidence adduced in the hearing, that being the grievor’s duty to assist in the employer’s efforts to accommodate her. The grievor was well aware of the issue of continuous travel and failed to “take up” any discussion with the employer. While the employer has a duty to accommodate, the grievor has an obligation to assist in this regard. The employer clearly advised her that the discontinuous nature of the commute meant that travel to the Toronto OEICC fell within the grievor’s medical restriction. If the grievor contested this conclusion, it was up to her to present the employer with medical support for her position. This she did not do.

168 The grievor’s reluctance to participate as a partner in achieving a successful return to work is very evident. The grievor had to be reminded by the WSIB that she must attend physiotherapy sessions on a regular basis. She chose not to contact Ms. Jeric further after informing her that her first day at the Milton Centre was perhaps beyond her limitations, and thereby lost an opportunity to work closer to her residence. She was asked to provide a medical certificate for a medical absence and did not do so. She rescheduled, at least three times, her appointment for an assessment with Health Canada and did not inform her employer that her driver’s licence had been reinstated and that therefore the consecutive travel issue could be re-explored. She agreed to Return-to-Work action plans and either would not sign them or in fact denied that she had ever agreed to them. I also find it disquieting that throughout her absence from the workplace, the grievor was able to continue her studies for a Bachelor’s degree at McMaster University. Given my conclusion that the employer was not in violation of its duty to accommodate, I need not decide the issue of whether or not the grievor was in violation of her obligation to assist in the employer’s efforts. Had I needed to do so, I would have concluded that the grievor did not fulfil her obligations in this regard.

169 I have no evidence that by not renewing the grievor’s last specified period appointment the employer failed in its duty to accommodate her as a result of her injury. The employer met its duty in its attempts to accommodate the grievor. The employer acted in good faith but could not renew her specified period appointment. As stated in Pieters:

…

[46] When faced with a grievance against the employer’s failure to renew a term contract, adjudicators have consistently found that they do not have jurisdiction to determine the matter under the relevant provisions of the PSSRA: Hanna, (supra), Blackman, (supra), Beaulieu, (supra), Lecompte, (supra), and Marta, (supra). In Laird, (supra), although the employer’s decision to lay off a term employee prior to the end of her contract was motivated by bad faith, the adjudicator found that he only had jurisdiction to award the grievor compensation for the balance of her term…

…

170 As I have stated earlier, the decision by Mr. St. John to reject the grievor while on probation was bad judgment following bad advice that he had received, but certainly not the result of bad faith on his part. In any event, the rejection was rescinded and replaced by a non-renewal of term and it is the non-renewal which is the subject of the termination grievance.

171 Adjudicators have jurisdiction to interpret and apply the CHRA when a human rights issue is raised in an individual grievance filed pursuant to subsections 208(2) and (3) of the PSLRA.

172 Therefore, this grievance is dismissed for the reasons set out above.

173 For all of the above reasons, I make the following order:

V. Order

174 These grievances are dismissed for the reasons noted above.

March 29, 2007.

D.R. Quigley,
adjudicator