FPSLREB Decisions

I. Individual grievances referred to adjudication

A. Context

1 The grievor, Michael Pepper, is a systems electronic technician with the Fleet Maintenance Facility at Cape Scott, Nova Scotia, in the underwater marine weapons maintenance shop. He is a marine electrician by trade. He commenced working at the Department of National Defence (‘‘the employer’’) as an apprentice on June 20, 1977, and was appointed indeterminately on April 27, 1981. He completed training as an electronic technician in 1988 and was appointed as a systems electronic technician (SR-EEW-10) in November 1989 and then to the next highest level (SR-EEW-11) in March 1999. He is a member of the Federal Government Dockyard Trades and Labour Council East (‘‘the bargaining agent’’).

2 On June 30, 2006, the grievor’s employment was terminated pursuant to section 11(2)(g) (now 12(1)(e)) of the Financial Administration Act, due to his inability to attend work for medical reasons. The termination was effective July 14, 2006. The grievor had been absent from work since 1999.

3 This adjudication concerns two grievances. The first grievance, dated January 16, 2002, alleges that management mistreated the grievor to the point of causing him to become ill and unable to perform his duties (“the harassment grievance”) (PSSRB File No. 166-02-31912). The second grievance, dated July 16, 2006, alleges that the termination of the grievor’s employment was illegal (PSLRB File No. 566-02-767).

4 Mediation efforts between September 11, 2003, and March 17, 2006, concerning the grievor’s first grievance were unsuccessful. The employer’s decision to dismiss the grievor followed discussions engaged in during the mediation process.

5 On April 4, 2007, the employer objected to the Board’s jurisdiction over the reference to adjudication of the first grievance on the basis of timeliness because the grievance was filed five years after the beginning of the alleged mistreatment (PSLRB File No. 568-02-154).

6 At the commencement of the hearing, the employer conceded that the timeliness of the first grievance had been waived during the course of the grievance process and withdrew its objection. The employer, however, maintained its objection to the Board’s jurisdiction to decide the reference to adjudication of the same grievance, based on subsection 92(1) of the Public Service Staff Relations Act (‘‘PSSRA’’), as it applied at the time the grievance was filed.

7 After hearing counsel’s arguments and considering the written submissions filed by the parties prior to the hearing and the documents submitted at the outset of the hearing, I decided that it was not prudent to fully decide the objection to my jurisdiction without hearing the evidence of the matter. Accordingly, I took the employer’s objection to the adjudicability of the first grievance under reserve of hearing all the evidence.

II. Summary of the relevant evidence

8 As the testimony of the grievor and Captain Richard Payne concern the same issues and there was no contradiction between their testimony, it has been summarized together. In the summer of 1993, Donna Urquhart began working in the maintenance shop. She was hired under an equal employment initiative for women in non-traditional roles. She apprenticed in the fire control shop - services weapons.

9 At the end of her apprenticeship, Ms. Urquhart was classified as a SR-EEW-10S, one level above the grievor, who was then at the SR-EEW-10 level with 18 years seniority. However, because of his knowledge and experience, the grievor was frequently called upon to review the quality of Ms. Urquhart’s work and, at times, to redo it. Terry Martin, the grievor’s supervisor, was aware of Ms. Urquhart’s shortcomings as they had been brought to his attention several times, not only by the grievor, but by another employee as well. These shortcomings notwithstanding, Mr. Martin rated Ms. Urquhart as “fully satisfactory” on her performance appraisal (PER) in 1995.

10 The grievor’s PER for that year was also fully satisfactory, but also included a rating that the quality of his work consistently exceeded requirements and expectations. At the end of the meeting at which he signed his PER, Mr. Martin informed the grievor that Ms. Urquhart had filed an unofficial complaint against him. The substance of the complaint was that the grievor had closed a door in Ms. Urquhart’s face. The grievor did not recall the incident and said so. Mr. Martin replied that if two people could not get along, one of them could be removed. The grievor took this comment personally. The grievor returned to see Mr. Martin to tell him that he felt that his employment was being threatened. Mr. Martin told him to forget the whole thing.

11 By way of context, it is useful to know that Ms. Urquhart was viewed by the grievor and his co-workers as a “protected person,” that is, as a female in a non-traditional field. She had been relocated to Dartmouth over more senior male personnel in the fire control shop who had unwillingly moved to Halifax. Furthermore, Ms. Urquhart was working in a shop that required seniority for advancement, which she did not have. In addition, she was at a higher classification level than the grievor. It seems that Ms. Urquhart made no bones about the fact that she “would be in the shop long after others were gone”. Thus, the grievor became increasingly anxious that his job could be in jeopardy.

12 The grievor’s concerns about his employment, his manager’s lack of action concerning the quality of the shop work generally and the fact that he was having to compensate for Ms. Urquhart’s shortcomings caused him to fall ill in December 1996 and to take five months of sick leave.

13 While he was on sick leave, the grievor met with Ray Cormier, Production Manager, to discuss his concerns about the underwater marine weapons maintenance shop; he gave Mr. Cormier a detailed letter outlining those concerns. The grievor also went to see Mr. Martin to express similar concerns, also with a detailed letter in hand. Mr. Martin refused to accept the letter.

14 Meanwhile, Mr. Cormier arranged a meeting between the grievor and Mr. Martin, Mr. Perrier, the group foreman, and Kevin Ernst on February 21, 1997. The grievor’s concerns were discussed and an action plan was agreed to. According to the grievor, no further action to resolve his concerns was taken as a result of the recommendations in the action plan.

15 The grievor returned to work in May 1997.

16 On December 2, 1997, Ms. Urquhart came to work in a neck brace following a car accident unrelated to work. The grievor testified that he and a co-worker, Gerry Cross, were discussing training opportunities when Ms. Urquhart entered the room. Ms. Urquhart intervened in the discussion by saying that she was not getting any training, that if she did not get any training she would be unable to work on the equipment, and that if there was no journeyman to work with her, she could not do the work. She stated that she took offence to the fact that the grievor kept notes about her and that he intended to report the results to the captain. The grievor replied to her comments by asking her what she would do if she had to go out on a sea trial. She replied that her husband would not allow her to go to sea because she would be with a bunch of men. The grievor responded that “she was getting darn good money to do electronic work and she had better darn do it”. The grievor admitted at the hearing that his reply had been an expression of his frustration at having to check and correct her work despite being at a lower classification, along with the fact that Ms. Urquhart did not seem to enjoy her job.

17 Ms. Urquhart left work that day for an indeterminate period. On December 6, 1997, at the request of Ed Merlin, Assistant General Manager, she sent a statement entitled “Mike Pepper documenting work performance of fellow employees” which set out Ms. Urquhart’s version of the altercation of December 2, 1997. She requested that the matter be resolved by means of a shop meeting and an apology from the grievor. Ms. Urquhart’s statement was taken by Mr. Merlin to be an official complaint. The grievor was not given a copy of Ms. Urquhart’s alleged complaint until July 31, 2002.

18 Mr. Merlin met with the grievor and shop steward Jerry Ryan on December 8, 1997, to discuss Ms. Urquhart’s statement. On December 22, 1997, Mr. Merlin met again with the grievor and Mr. Ryan to review the grievor’s log book. The log book recorded past repair work that he would refer to when similar repairs came up again. The log book did not mention the work of individuals, but rather how equipment was best repaired. The grievor was informed that no further action would be taken about this incident.

19 On January 23, 1998, the grievor met with Mr. Merlin and requested that Ms. Urquhart’s complaint be resolved once and for all. The grievor was told that there could be no decision until Ms. Urquhart returned to work.

20 During Ms. Urquhart’s absence, the grievor took on additional responsibilities at work and upgraded his classification.

21 In May 1999, Ms. Urquhart returned to work on modified duties in a shop area adjacent to the grievor’s. Shortly thereafter, the grievor had a chance encounter with her in the corridor outside the washrooms that caused him to panic. He reported the incident to Mr. Cross. Thereafter, the grievor experienced several similar panic attacks.

22 On June 8, 1999, the grievor took sick leave and has not returned to work since that time.

23 On September 8, 1999, the grievor telephoned Wilma Verge, Human Resources Manager, to request her assistance in resolving Ms. Urquhart’s still outstanding complaint. On September 24, 1998, Ms. Verge wrote to the grievor stating that there had never been an official harassment complaint filed against him and that there was no formal investigation in progress. Accordingly, no disciplinary action was being contemplated nor was his employment threatened.

24 On October 29, 1999, Sun Life Group Disability Management (Sun Life) wrote to Ms. Verge concerning the grievor’s disability claim. Mr. Cormier responded to an inquiry from Ms. Verge on December 3, 1999, that there had been an “interpersonal problem” between the grievor and another employee. Ms. Verge communicated to Sun Life that no formal complaint has been filed against the grievor but that there was an interpersonal problem that appeared to have caused him distress.

25 On December 21, 1999, the grievor filed harassment complaints against Mr. Martin, Mr. Merlin, Mr. Cormier and David Conrod, as well as Ms. Verge, alleging abuse of authority because they ignored complaints of alleged harassment by Ms. Urquhart: the alleged door slamming incident (date unknown) and the verbal altercation incident (December 1997). On February 22, 2000, the commanding officer, Captain Richard Payne, wrote to the grievor informing him that he had looked into his complaints and determined that informal investigations had been inconclusive and that the investigations were formally closed. This letter was followed by another more detailed letter dated March 13, 2000, whereby Captain Payne reiterated his findings that there was no evidence to support the five harassment complaints and suggested that these concerns could have been more appropriately addressed in a grievance.

26 On May 5, 2000, the grievor filed a request for an investigation with the Public Service Commission (PSC) alleging that his complaints of harassment had not been handled in accordance with the harassment policies of the Department of National Defence (DND) and the Treasury Board of Canada Secretariat. The grievor asked as redress that the respondents be disciplined, that he be provided with a safe workplace for his return to work, and that he be compensated for sick leave, loss of income and benefits resulting from his absence from work. On August 2, 2000, the PSC denied the grievor’s request for an investigation on the basis that the complaints were untimely and, subsidiarily, that the grievor had not provided specific incidents of omission or improper behaviour that would justify the PSC’s intervention.

27 In the meantime, a mediation process initiated in June 2000 resulted in a memorandum of understanding signed on October 11, 2000, in which Captain Payne agreed to revisit the grievor’s harassment complaints. On November 9, 2000, Captain Payne informed the grievor that upon re-examining his complaints, there were elements of harassment that may have been present, that he would be asking the respondents to present their views, and that he would concurrently prepare the terms of reference for an investigating team. On January 23, 2001, Captain Payne informed the grievor that, after reviewing the responses, he had decided to proceed with an investigation.

28 The investigation was conducted by two outside investigators and centered on the following complaints: (a) that Mr. Martin and Mr. Merlin had failed to afford the grievor due process or closure following a complaint against the grievor, with the result that his health and well-being were affected; and (b) that Ms. Verge had failed to exercise due diligence when she was notified of the grievor’s complaint.

29 In a comprehensive report dated May 29, 2001, the investigators found that the grievor’s complaints of harassment were justified. They noted that while there had been no specific intent to harm the grievor, the issue of motive plays no part in a harassment investigation. By failing to address the complaints promptly and to follow departmental harassment guidelines, the grievor had been poorly served by the system intended to address such complaints. The investigators made a series of recommendations, including that the grievor be afforded the opportunity, with the assistance of his physician, to return to his position in the underwater shop or to a similar position in a suitable location. The other recommendations were preventative in nature and focused on education within the organization.

30 On July 5, 2001, Captain Payne wrote to Mr. Martin, Mr. Merlin and Ms. Verge, with a copy to the grievor, acknowledging that he had received the investigation report and stating that he would be making his own assessment of it. Mr. Merlin, Mr. Martin and Ms. Verge presented rebuttals to the investigation report.

31 On September 12, 2001, Captain Payne wrote three letters to the grievor about his findings and decisions relating to the investigation report. He found that certain allegations were supported, in that Mr. Merlin and Mr. Martin had not afforded the grievor due process. As corrective action, Captain Payne ordered that a “training package tailored to the procedural aspects of the recently promulgated Harassment Prevention and Resolution Guidelines” be designed and that Mr. Merlin and Mr. Martin attend such training. Captain Payne found that the allegations against Ms. Verge were unsupported. Captain Payne stated in these letters that his decision constituted administrative closure to the grievor’s harassment complaint and that, should the grievor not be satisfied, he could avail himself of the grievance procedure.

32 In his testimony, Captain Payne stated that he had decided to maintain his earlier conclusions there had been no abuse of the managers’ authority even though the process with respect to Ms. Urquhart had not been handled as well as it could have been. Although there had been some miscommunication, there was no evidence of misconduct or harassment on the part of the managers. In his view, a training package to educate the managers was the most appropriate outcome since there had been no further training relating to workplace harassment since 1995. Captain Payne also testified that, as there was no finding of misconduct on the part of Mr. Martin, the grievor’s immediate supervisor, no consideration was given displacing him in order to allow the grievor to return to his substantive position.

33 On January 16, 2002, the grievor filed a grievance at the second level of the grievance procedure alleging that management’s mistreatment of him had caused him to become ill and unable to perform his duties. The grievance was denied at the second level of the grievance procedure on July 31, 2002, and at the final level on December 5, 2002 (received by the grievor on January 13, 2003). The matter was referred to adjudication on February 4, 2003.

34 On January 19, 2003, the grievor replied to Captain Payne concerning his response to the grievance at the third level of the grievance procedure. He told Captain Payne that his absence from work was not being taken seriously as a medical issue and that there were existing workplace conflict resolution processes that had not been followed. He alleged that his concerns about the quality of work coming from the submarine shop were not taken seriously and that he did not feel comfortable returning to a new position. He stated that his complaint had not truly been resolved to his satisfaction and, despite Captain Payne’s assurances to the contrary, he had received no closure from the investigation and the grievance process.

35 A mediation process was initiated on September 11, 2003, in an attempt to resolve the grievance. On July 27, 2004, 10 options were proposed to the grievor with a view to resolving his grievance and having him return to work. On March 17, 2006, the employer tendered the same options as its final proposal to the grievor, at the same time advising him that if mediation failed, a recommendation would be made to terminate his employment. Mediation efforts were ultimately unsuccessful. On April 28, 2006, Lorne Brown, President, Federal Government Dockyard Trades and Labour Council East, advised the employer that the grievor had rejected the employer’s final proposal.

36 On May 1, 2006, the grievor was advised in a letter by Captain Gilles Hainse (the new commanding officer) that since the issue of his return to work had not been resolved during the March 17, 2006 mediation session, a recommendation would be made to the Rear Admiral to terminate his employment due to medical incapacity.

37 On May 24, 2006, Captain Hainse sought the grievor’s consent to contact his physician, Dr. Edwin Rosenberg, in order to update a medical assessment dated November 2, 2004, that had been given to the union. The grievor provided his written consent to disclose this information.

38 The grievor testified that he provided his consent for a medical report from Dr. Rosenberg, but that he had been intimidated in the course of doing so. Captain Hainse’s letter of May 24, 2006, requesting the grievor’s consent to disclose medical information had been delivered by two military personnel without giving him prior notification. These persons apparently stated that they would return that day to pick up the signed letter. The grievor stated that the employer had also sought to contact Dr. Rosenberg directly for this information before requesting his consent. The grievor considered this heavy-handed, given that he had always cooperated concerning such matters. On June 30, 2006, the grievor received a letter signed by the Rear Admiral advising him that his employment was being terminated pursuant to paragraph 11(2)(g) of the Financial Administration Act, effective July 14, 2006 (later corrected with the final level reply to read paragraph 12(1)(e) of the Financial Administration Act).

39 On July 18, 2006, the grievor filed a grievance disputing the termination of his employment at the third and final level of the of the grievance procedure. On December 13, 2006, the grievance was denied.

40 The grievor is presently receiving temporary earnings replacement benefits from the provincial workers’ compensation board.

A. Testimony of Dr. Rosenberg

41 The grievor has been in the care of Dr. Edwin M. Rosenberg, a psychiatrist, since July 6, 1999. At the time he consulted Dr. Rosenberg, the grievor had been away from the workplace since the beginning of June 1999. The grievor had previously been diagnosed by his family physician as suffering from a major depressive disorder with symptoms of panic attacks and was being treated by means of regular follow-ups and prescribed medication. Dr. Rosenberg provided considerable background about the grievor’s illness, which is not repeated here, save for what is relevant to the outcome of this decision. Extensive medical documents were filed by consent of the parties, some of which will be considered further in these reasons.

42 Dr. Rosenberg confirmed that the grievor’s ongoing illness and inability to return to work was initially caused by incidents relating to Ms. Urquart and then prolonged by the fact that her harassment complaint remained unresolved during her extended absence. Thereafter, the stress caused by the lengthy and unsatisfactory resolution of the grievor’s harassment complaints amplified his symptoms and further prevented him from returning to work.

43 Dr. Rosenberg’s opinion was that while the grievor was biologically susceptible to depression, that, in and of itself, was not the cause of his current state of health and his prognosis for improvement could be tested only if he was offered the opportunity to return to the workplace. In his view, the grievor could return to work in approximately three months if workplace issues were resolved. Conversely, his symptoms would continue as long as these issues remain unresolved.

44 Dr. Rosenberg testified that the opinion he gave on November 2, 2004, about the grievor's ability to work was at the union’s request in view of ongoing discussions with the employer about the grievor’s return to work at that time. On June 2, 2006, prior to terminating the grievor’s employment, the employer requested another opinion as to whether his 2004 opinion remained valid. Dr. Rosenberg confirmed his opinion of November 2, 2004, that the grievor was able to return to work if the employer provided a resolution to the issues that caused his illness and accommodated his return to work. However, having the grievor report once more to the supervisor with whom he had continuing difficulties, demoting him to a lower classification or forcing him to take medical retirement would further contribute to his depression. The grievor is presently undergoing treatment to learn coping mechanisms that allow him to lead a normal life. The grievor would be able to sustain extensive technical retraining, if necessary, to assume a new position without adverse effects. Dr. Rosenberg opined that management training on how to handle the harassment complaints in the workplace that had occurred since the grievor’s absence bode well for his return.

B. Testimony of Captain Hainse

45 Captain Hainse was the only witness who testified as to the circumstances of the grievor’s termination. In light of the reasons for my decision, I have given particular attention to his testimony.

46 Captain Hainse became the commanding officer of Fleet Maintenance at Cape Scott in December 2005, and is the commanding officer who recommended the termination of the grievor’s employment. Captain Hainse testified that he had no involvement with the grievor until a few months before his termination. The grievor’s harassment grievance and the details of an ongoing mediation came to his attention at the time that he became commanding officer as part of the “turnover” from his predecessor, Captain Smith. Captain Hainse was told that the grievor’s complaints were long-standing and that many attempts had been made to resolve the issues administratively, including the ongoing mediation process. Captain Hainse participated in the mediation session that took place on March 17, 2006. During the mediation session, he told the grievor that if no agreement was reached about his return to work, a recommendation would be made to terminate his employment based on medical incapacity.

47 On April 28, 2006, Mr. Brown, on behalf of the grievor, wrote to Captain Hainse informing him that the employer’s return-to-work proposal was unsuitable. Captain Hainse replied that he would, as a consequence, recommend the termination of the grievor’s employment:

…

I have received a letter dated 28 April 2006 from Mr. Lorne Brown, President of the FGDT&LC(E), advising me that you have rejected the proposal tendered to you at the 17 March 2006 Mediation Session.

I regret that we were unable to resolve this issue and as advised at the Mediation Session I have no other recourse but to recommend to MARLANT’S delegated authority for termination, Radm DG McNeil, that your employment be terminated due to your medical incapacity to return to the workplace.

You will be advised by Radm McNeil of his decision on this matter.

…

48 Captain Hainse testified that after he found out that the grievor had refused the employer’s proposals, his concern was that the right steps be taken to ensure the fairness of the termination process, including obtaining medical evidence, getting advice from Human Resources and ensuring that the grievor had “due process.”

49 Captain Hainse was informed by a human resources officer that the grievor’s last medical information had been received in 2004, and was advised that it was necessary to get an update of his medical condition, including a medical release from the grievor. On May 24, 2006, Captain Hainse wrote to the grievor to obtain his consent:

…

By letter dated 1 May 2006, I advised you that I would be recommending your termination due to your medical incapacity to return to the workplace.

During the preparation of my recommendation, I noted that the last assessment from Dr. Rosenburg was dated 2 November 2004. This assessment was provided to Mr. Tom Denault, Vice President of the Federal Government Trades and Labour Council (East), in response to a request to review the ‘‘retraining/development plan to support your reintegration to the workplace’’. This plan was developed in consultation with union representatives. At that time, Dr. Rosenburg stated: ‘‘Mr. Pepper is not presently able to perform any of the positions identified for his possible employment, as identified by DND. Should Mr. Pepper be obliged to return to the workplace in his previous employment, or to another work position without resolution of those difficulties which contribute to his medical leave from the workplace, it is my opinion that Mr. Pepper’s depressive symptomatology will continue to be manifested, precluding his effective involvement at the workplace’’… Your lawyer subsequently advised us that you were only interested in returning to your substantive position but with a different supervisor. In the final level reply in the grievance procedure dated 5 December 2002, it stated: ‘‘… the evidence does not support removing the supervisor from that shop’’. This remains the Department’s position.

I wish to contact Dr. Rosenburg to get an update on your medical condition further to his assessment dated 2 November 2004. I would ask that you indicate your consent, or not, to my contacting Dr. Rosenburg. Please check-off the appropriate block on the second copy of this letter which is enclosed, sign and place it in the self addressed envelope. I will arrange to have this letter picked-up at 1000 hrs on Friday 26 May 2006. If this is not convenient, please contact my assistant … so alternate arrangements can be made.

…

50 The letter was delivered by hand on May 25, 2006, rather than by mail because Captain Hainse was concerned that the grievor might not be available during the summer months, and because it had come to his attention that Dr. Rosenberg was about to take extended leave and would possibly not be available to provide his opinion.

51 On June 2, 2006, Captain Hainse wrote to Dr. Rosenberg asking him to update his medical opinion:

…

I am writing to you seeking confirmation of your medical opinion concerning Mr. Michael Pepper, an employee of Fleet Maintenance Facility Cape Scott. You may recall that in November 2004, you wrote a detailed letter concerning Mr. Pepper's medical status to Mr. Thomas Denault of the Federal Government Dockyard Trades and Labour Council. Around that time, the Department of National Defence was provided a copy of this letter as part of an effort to understand and resolve the issues surrounding his employment. Since then, there have been other efforts to resolve this matter but unfortunately the workplace difficulties involving Mr. Pepper are without resolution. The Department has notified Mr. Pepper, in a letter dated 1 May 2006, that a recommendation has been made to terminate his employment for cause for non-disciplinary reasons.

At this time, I am requesting that you confirm whether or not your detailed medical opinions, as outlined in your November 2004 letter, remain valid. Please feel free to provide any comments or opinions that you deem relevant at this time. Mr. Pepper has provided his written consent to release this information to the Department as per the conditions as outlined in his enclosed letter, which was in response to our letter of 24 May 2006, which is also enclosed. Thank you advance for your cooperation in this matter.

…

52 On June 8, 2006, Dr. Rosenberg provided Captain Hainse with his opinion of the grievor’s medical condition:

…

Thank you for your letter of 2 June 2006. I acknowledge receipt of Mr. Pepper's signed consent permitting me to correspond with you; at Mr. Pepper's specific request, copies of this letter will also be forwarded to Mr. Pepper and to Mr. David Mombourquette.

As you note, on 2 November 2004, I wrote a letter to Mr. Thomas Denault, in his position as Vice-President of the Federal Government Dockyard Trades and Labour Council East, regarding Mr. Pepper, a copy of which is enclosed for your review.

You have specifically asked, in your letter to me of 2 June 2006, that I “confirm whether or not your detailed medical opinions, as outlined in your November 2004 letter, remain valid.” Please accept this letter as confirmation that the opinions offered in my letter report to Mr. Denault of 2 November 2004 remain valid. Further, it remains my clinical opinion that the continuing fact of non-resolution of workplace issues which led to Mr. Pepper's depressive symptomatology continues to place a heavy burden on the augmenting and sustaining of that symptomatology.

…

53 After receiving Dr. Rosenberg’s opinion, Captain Hainse prepared a recommendation to the Rear Admiral that the grievor’s employment be terminated. Captain Hainse explained in his testimony that the Rear Admiral held the delegated authority to terminate employment. He and Jim Stewart, the senior human resources officer, met with the Rear Admiral and presented him with a three-part briefing note.

54 The first part was Captain Hainse’s recommendation in the form of a memorandum that the grievor’s employment be terminated for cause under sections 11(2)(g) and 11(4) (now 12(1)(e) and 12(3)) of the Financial Administration Act.

55 The second part provided a detailed history of the grievor’s career, personal information about his age and family, the circumstances of Ms. Urquhart’s complaint, the grievor’s harassment complaints, details of mediation discussion and exchanges (including the fact that mediation had been unsuccessful), an extract from Dr. Rosenberg’s opinion and a recommendation that the grievor’s employment be terminated “for his inability to report for work because of his illness.” This part was prepared by Ms. Donna Stringer, a labour relations officer, and was approved by Captain Hainse with a few minor changes.

56 The third part was a letter for Rear Admiral McNeil’s signature advising the grievor that his employment was being terminated. I have not reproduced the second part of the briefing note, which is a four-page document, because it contains a great deal of personal information and details what transpired during mediation. However, I reproduce here the first part, Captain Hainse’s recommendation to the Rear Admiral, outlining the reasons for his recommendation to terminate the grievor:

…

1. Authority to terminate an employee for reasons other than breaches of discipline or misconduct under Section 11-2(g) of the Financial Administration Act has been delegated by the Deputy Minister to the Commander Maritime Forces Atlantic. Termination must be for cause, FAA Section 11(4).

2. On 01 May 2006, I advised Mr. Michael Pepper an Electronic Systems Specialist (SR-EEW-11), employed with the Fleet Maintenance Facility Cape Scott that I would be recommending his employment be terminated due to his medical incapacity to return to work. Treasury Board required confirmation from Mr. Pepper’s attending physician that his medical opinion of 2 Nov 2004 remained valid, which confirmation was received by letter dated 8 June 2006.

3. Mr. Pepper has been absent from work since 1999. Following administrative closure of five harassment complaints in September 2001, the results of which were not acceptable to Mr. Pepper, he lodged a grievance stating he had been mistreated by management since 1997 which caused his illness. The grievance was denied at the Department’s final level of the grievance process by decision dated 05 December 2002. Mr. Pepper subsequently referred his grievance to Adjudication and an offer to engage in mediation was agreed to by the Employer. Mediation meetings/sessions have been ongoing since September 2003. During the mediation process considerable efforts were expended to develop a return to work program to accommodate Mr. Pepper in the workplace. Notwithstanding these efforts, the plan was deemed unacceptable by Mr. Pepper. A Briefing Note detailing the chronology of events is enclosed. The most recent mediation session was held on 17 March 2006 where a “final” proposal was tendered to Mr. Pepper. Mr. Pepper was also advised that if mediation failed, a recommendation for termination would be initiated. On 28 April 2006 we were advised by letter from the President of the Federal Government Dockyard Trades and Labour Council (East) that Mr. Pepper rejected the Department’s proposal. Consequently the grievance will be scheduled for Adjudication and we have been advised that Mr. Pepper will grieve his termination and refer to Adjudication and it is expected that both grievances will be heard concurrently at Adjudication.

4. A letter to Mr. Pepper advising him that his employment is being terminated is enclosed for your signature.

…

57 Captain Hainse’s testimony was that after reading the briefing note and asking for a few clarifications, Rear Admiral McNeil signed the letter of termination — the third part of the briefing note — that reads as follows:

…

3 June 2006

…

I have reviewed the Commanding Officer Fleet Maintenance Facility Cape Scott, Captain(N) J.G.C. Hainse’s recommendation that your employment be terminated for cause because of your inability to attend work due to medical reasons.

You have been absent from the workplace since 1999 and it is regrettable that the considerable efforts expended to develop a return to work program were unsuccessful.

As the Deputy Minister’s delegated authority under Section 11 (2) (g) of the Financial Administration Act to terminate employment for reasons other than misconduct, I am terminating your employment effective 14 July 2006. You have a right to grieve my decision in accordance with Article 19 of your collective agreement.

…

58 On December 11, 2006, the grievor wrote to Captain Hainse seeking clarification about the adjudication process and management’s accountability for not resolving his harassment complaints. Captain Hainse replied on January 18, 2007. He referred the grievor to his representative about the adjudication matters and gave him an update on the most recent efforts deployed by the unit to address harassment complaints. He also stated that the informal investigation of Ms. Urquhart’s complaint had been inconclusive and that no report was ever issued.

59 In cross-examination, Captain Hainse stated that when he met with the Rear Admiral, he presented him with the information and recommendations in the briefing note. The issues he considered relevant were the many attempts at mediation and at having the grievor return to work. Captain Hainse admitted that the only attempts he was aware of concerning the grievor’s return to work were 10 options and recommendations presented as part of the mediation discussions. He admitted that he had not been involved in the creation of these options and was unaware that they had been prepared as part of mediation discussions in 2004. Captain Hainse was unaware that the exchanges had been on a “without prejudice” basis as part of confidential information exchanged during mediation.

60 In response to questions about the grievor’s harassment complaints, Captain Hainse stated that he did not revisit or question Captain Payne’s conclusions concerning the grievor’s complaints of harassment, since his role was not to validate Captain Payne’s decisions. His discussion with Captain Payne involved getting some background information concerning the grievor, his findings and the investigation. Captain Payne had informed the Rear Admiral only that the matter of the grievor’s grievance was going to mediation. Captain Hainse acquiesced that although the briefing note to the Rear Admiral mentioned the investigation into the grievor’s complaints of harassment, it did not contain the findings or recommendations of the investigators or what Captain Payne had said about the report.

61 Captain Hainse admitted that he relied on Ms. Stringer for the information contained in the briefing note, and in particular paragraph 14 concerning the mediation process and the options presented to the grievor. Captain Hainse said that he was present at the mediation session on March 27, 2006. His decision to recommend the termination of the grievor’s employment, should mediation be unsuccessful, rested on the fact that mediation had been ongoing for quite some time and that the employer’s proposals had not produced any results. He conceded that he did not explore any other options about continuing the grievor’s employment after mediation was unsuccessful. The only information he obtained before making his recommendation to the Rear Admiral was an update of the grievor’s medical condition. He did not consider getting other medical information.

62 When asked about the urgency of recommending the termination of the grievor’s employment, Captain Hainse responded that this decision had been long overdue. Mr. Cormier had told him that the grievor was sick and could not return to work. During the last phase of mediation there appeared to be no possible prospect of the grievor’s return to work. All the options had been presented during the mediation process. The fact that the grievor’s “issues” remained unresolved was not good for the morale of the unit. He was concerned about the grievor’s dedication to his work as the grievor did not appear to want to resolve workplace issues. Captain Hainse was concerned that if such workplace issues were not dealt with, other employees would perceive a lack of leadership that would affect the efficiency of the unit. He admitted there had been no complaints from other employees about these concerns or the grievor’s absence.

63 Captain Hainse also explained that when he received his command, he went through a transition period with Captain Smith. He was briefed in preparation for the mediation session of March 17, 2006, by a human resources officer. He testified that he was unaware of the reasons why mediation had been delayed for a period of time between 2003 and 2006, other than the lawyer representing the employer had been absent on extended leave and had eventually been replaced. He was unaware that mediation had also been delayed because of changes in command at Cape Scott. He was also unaware that the grievor was being compensated for a workplace injury rather than long-term disability as he thought.

64 Captain Hainse asserted that the termination of the grievor’s employment had been handled “by the book” in light of the grievor’s complaints about management’s mishandling of the harassment investigation. In his mind, there was reasonable cause for the grievor’s termination and he had acted on it based on the employer’s termination policy: “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance.”

65 Captain Hainse acknowledged that he had discussed the ongoing mediation with Mr. Cormier sometime between December 2005 and March 2006, but he could not recall the details. He was concerned that there had been many attempts at mediation and at having the grievor return to work, but with no results. Captain Hainse said that the briefing note had been prepared by a labour relations officer following his instructions and that the officer had taken the initiative to include the information concerning exchanges during the mediation process to complete the briefing note.

III. Summary of the arguments

66 As the grievor proceeded first in this matter, his arguments are presented first.

A. For the grievor

1. Board’s jurisdiction to hear the grievor’s harassment grievance

67 The grievor argues that his harassment grievance is based on article 5 of the collective agreement — “Managerial Responsibilities” — and is in keeping with a developing line of jurisprudence that an employee may grieve harassment by the employer, as held in Toronto Transit Commission and A.T.U. (Stina) (2004), 132 L.A.C. (4^th) 225. Even though the collective agreement may be silent about human rights violations, there is an implied duty of care to ensure the psychological safety of employees, that prevents management from exercising its rights in an abusive manner.

68 The courts have also held that if the essential character of the dispute arises from the interpretation, application, administration or violation of the collective agreement, the matter falls within the jurisdiction of the arbitrator (Ferreira v. Richmond, 2007 BCCA 131). The courts have also favoured the dispute resolution process set up under the collective agreement or legislation where it provides effective redress and serves the essential character of the dispute (Pleau (Litigation Guardian of) v. Canada (Attorney General), 1999 NSCA 159). The alleged misconduct of a supervisor toward an employee should be addressed at adjudication as held in Oliver v. Severance, 2007 PESCAD 2.

69 In addition, the grievor argues that the employer’s decision about his harassment complaint was flawed and should be set aside for reasons similar to Tucci v. Canada (Revenue, Customs, Excise and Taxation), 1997 CanLII 4875 (FC). In that case, the Federal Court set aside the decision of an investigator designated under the Public Service Employment Act because his reasons did not demonstrate that he had directed his mind to the alleged abuses of authority before him in reaching his decision. It was not sufficient for the employer to have noted the absence of malicious intent; it also had to bear in mind that decisions made by the grievor’s supervisor, other managers and the human resources officer did not follow departmental policies. This grievance alleges that the employer disregarded the recommendations of an official investigation team and gave no importance to the lack of cooperation of certain key managers. These actions constituted further harassment of the grievor. The employer’s remedy to institute a corporate training package was of no assistance in resolving the grievor’s dispute.

70 In these circumstances, an adjudicator must have the jurisdiction to adjudicate a grievance regarding the breach of employer policies designed to protect the rights of employees, such as the MARLANT policy declaration on good working relations that was in effect at the time of the grievor’s complaint.

71 The grievor argues that the employer’s failure to follow due process in resolving his harassment complaint should form the basis for further damages, as held in Toronto Transit Commission. The grievor requests an award of compensation, beyond the mere loss of salary, because the employer’s actions have had a long-lasting impact on the grievor’s career and benefits and have aggravated his medical condition. The grievor requests that I exercise my jurisdiction under the Canadian Human Rights Act and make an award of general damages for the harm done to him.

2. Termination of the grievor’s employment

72 The grievor argues that the employer’s decision to terminate his employment fails to take into consideration the duty to accommodate his mental disability to the point of undue hardship as required by the Canadian Human Rights Act. The grievor further argues that the decision to terminate his employment was based on irrelevant and inadmissible considerations, including discussions that took place during the mediation process.

73 The employer’s offer to accommodate was limited to options contained in a document produced during the mediation process. To return to work, the grievor needed to resume his former job without his former supervisor, Mr. Martin, whom the grievor alleges was the cause of his psychological condition. This was the conclusion of the grievor’s psychiatrist and was specifically requested by the grievor. Yet, the employer did not ask Mr. Martin whether he was prepared to change positions, even though Mr. Martin had made it known that he would no longer be comfortable supervising the grievor. The employer preferred to back its supervisor’s actions during this dispute and never considered this option. That position, argues the grievor, is fatal to the employer’s position that it attempted to accommodate the grievor.

74 The grievor takes the position that discussions during the mediation process are confidential and cannot be the subject of a subsequent adjudication. The discussions were not kept confidential; they were relayed to several persons outside the mediation team and used as a basis for terminating the grievor’s employment. The termination is, therefore, unfounded because it is based on inappropriate considerations.

75 The grievor argues that he had been promised closure by Captain Payne concerning Ms. Urquhart’s complaint, yet the issue of the investigation into his harassment complaints, his grievances and the mediation process come up again as part of the considerations for the termination of his employment. The briefing note does not state that the investigation report upheld his complaints or that Captain Payne subsequently decided not to sustain the findings of the investigation report.

76 The briefing note goes into great detail about the proposals discussed during mediation and places the blame on the grievor for the failure of the mediation process because he rejected the employer’s proposals. These facts were prejudicial to him because the Rear Admiral had no other context but the briefing note to assess the reasons he was not returning to work. The briefing note does not state that much of the delay during the mediation process was attributable to the unavailability of the employer’s counsel, the change of command or the shortcomings of the return-to-work proposals. The facts are selective and certain of them are untrue, for example, his being unavailable to attend mediation in January 2004 because of illness and his undertaking to provide a counter-proposal in January 2004. The grievor argues that none of these facts or the options proposed should have been in the briefing note. The Rear Admiral’s reliance on the incomplete and misleading facts in the briefing note should make the decision void ab initio.

77 The grievor further argues that the termination of his employment is illegal because the employer failed to follow DND termination procedures provided in its policy: “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance.” There was no proper medical assessment nor was there a discussion with the employee about other options as required before deciding on termination. The employer disregarded proper procedures to terminate his employment just as it disregarded proper procedures to deal with his harassment complaints.

78 The employer did not try to accommodate the grievor up to undue hardship. No evidence was presented that accommodating his return to work would result in financial hardship, that his absence disrupted the employer’s operations or had an impact on the morale and work performance of other employees.

79 The grievor suggests that termination was a “done deal” even before the mediation session of March 17, 2006. The employer proceeded callously by sending military personnel to deliver a letter to his home and trying to obtain a medical opinion from his psychiatrist without his consent.

80 The grievor asks that the dismissal be overturned and that he be reinstated with full seniority and compensation. He further asks that I exercise my discretion under section 226(g) of the PSLRA and award damages in the amount of $20,000 for his pain and suffering as a result of this ordeal and the violation of subsections 52(1)(b) and 53(2)(e) of the Canadian Human Rights Act. The grievor argues that the termination of his employment was discriminatory and that the employer was aware that its decision would cause him harm. Furthermore, the employer acted recklessly in not considering accommodation.

81 In support of the confidentiality of the mediation process, the grievor cited the following cases: Rogacki v. Belz, 2003 CanLII 12584 (Ontario Court of Appeal); Rudd v. Trossacs Investments Inc., 79 O.R. (3d) 687 (Ontario Superior Court of Justice – Divisional Court), and the following case concerning the final effects of mediation, Skandharajah v. Treasury Board (Employment and Immigration Canada), 2000 PSSRB 114.

B. For the employer

1. Board’s jurisdiction to hear the grievor’s harassment grievance

82 The employer argues that, unlike the private sector, the jurisdiction of an adjudicator flows from the PSSRA (as it applied at the time) and not from the collective agreement itself. Sections 91 and 92 of the PSSRA and sections 208 and 209 of the PSLRA provide a broad right to grieve. On the other hand, the right to adjudication is limited to three issues. Harassment not being one of these issues, the grievance cannot be referred to adjudication.

83 The grievor’s argument that his right to refer his grievance to adjudication can be found in the management rights clause in the collective agreement is flawed as it is contrary to precise statutory provisions that govern the federal public sector. Toronto Transit Commission stems from a completely different legislative setting. Moreover, section 96(2) of the PSSRA prevents an adjudicator from amending the collective agreement. Bratrud v. Office of the Superintendent of Financial Institutions Canada, 2004 PSSRB 10, is a case in point. In that matter, the grievor alleged that her performance appraisal constituted personal harassment. The collective agreement contained a specific clause protecting employees against personal harassment, which in turn provided the adjudicator with jurisdiction to hear the complaint. The cases of Canada (Attorney General) v. Lachapelle, [1979] 1 F.C. 377, and Baril v. Canada (Attorney General), [1980] 1 F.C. 55, rejected the notion that a disciplinary letter could be referred to adjudication based on the same principle, that is, that to be adjudicable, a specific right must exist in the statute.

84 Furthermore, the grievor also brought the same complaint before the PSC, which was the proper forum for this type of complaint. That complaint was rejected. If the grievor was not satisfied with this decision, he could have challenged it in another forum. It is not because the grievor was told that the filing of a grievance may be more appropriate that this grievance may be referred to adjudication. An adjudicator does not have jurisdiction over a grievance that alleges that the employer did not follow its policies. The factual substance of the grievor’s claims fell under the exclusive authority of the PSC as held in Adams v. Cusak, 2006 NSCA 9.

85 In the alternative, the employer argues that the grievance is without merit. Captain Payne’s disagreement with the conclusions of the investigators is not improper, as it was within his right and duty as reviewing officer to make this decision. There is no evidence of bad faith, or that he made his decision based on any improper purpose. He agreed that managers had made errors, but that these errors did not constitute harassment of the grievor. The fact that certain managers did not participate in the investigation process does not vitiate the entire process.

86 The employer disagrees that not following the harassment policy is in itself harassment. It is up to the responsible officer to determine whether there was harassment. The issue was dealt with by the PSC and again through the grievance procedure. Both these processes concluded that the grievor had not been subject to harassment.

2. Termination of the grievor’s employment

87 The employer argues that Scheuneman v. Canada (Treasury Board), [2000] 2 F.C. 365, is authority for the principle that a grievor must be able to return to work within a reasonable period of time and that any leave is of a temporary nature. The employer is entitled to act on the medical information that it has. Whether the illness or the disability was caused by the workplace is not relevant. The grievor’s psychiatrist concluded that the grievor could not return to work unless his issues were resolved. This medical conclusion does not support returning an employee to work with accommodation. That the grievor’s issues be resolved to his satisfaction is not an accommodation issue and equates with an employee not being able to return to work in the foreseeable future.

88 To accept the grievor’s statement that he cannot return to work until all his issues have been resolved is akin to forcing the employer to agree with a grievor’s position. The grievor’s testimony is that there has been no closure as a result of the administrative processes and that even the adjudication process may not bring him closure. The subject of closure does not form part of any duty to accommodate. The duty to accommodate cannot be seen to imply the satisfaction of all of an employee’s concerns.

89 The employer argues that the termination of the grievor’s employment was the only reasonable conclusion under the circumstances in a case where an employee has been absent from work for an extended period of time and his return to work is unlikely in the foreseeable future (Brown and Beatty, para. 7:60000). The grievor has not made a case for exemplary damages. If this is a workplace injury, then the grievor is covered by a compensation plan for such injury.

90 The employer submits that it would be inappropriate to remove the grievor’s immediate supervisor from his position, as it did not find that the supervisor had harassed the grievor. Were the employer to remove the supervisor without his consent, it would be open to a complaint from a blameless supervisor who acted on the basis of the information available to him at the time. Moreover, the adjudication process provides the means of curing any shortcomings with respect to the employer’s decision.

91 The employer also submits that there will always be a difficulty when a mediation process does not resolve a dispute and the matter then comes to adjudication. The employer is in the difficult position of not being able to put forward what was proposed to the grievor during the mediation process. The employer takes the position that as a representative of management it was appropriate to apprise the Rear Admiral of what had occurred during the mediation process. In this case, the briefing note set out the failure to reach an agreement and the decision to proceed to termination as a result. However it was also relevant that the grievor had not been in the workplace for seven years and no return to the workplace was foreseeable.

92 The employer submits that just because options were examined in the context of mediation, they should not be excluded from the employer’s considerations in making a decision thereafter. In this case, these considerations should not be allowed to vitiate its decision to terminate.

C. Reply of the grievor

93 The grievor replies that mediation discussions are without prejudice and that is the reason why they are not disclosed. The grievor disagrees that the Rear Admiral was entitled to mediation information simply because he is part of management and that he could act on that information.

94 The grievor takes issue with the employer’s position concerning the removal of the supervisor, because this avenue was never considered.

95 The grievor responds that the employer has taken a too narrow approach to the legislation and has not considered how Toronto Transit Commission has changed this evolving area of the law and the scope of an arbitrator’s jurisdiction. The grievor urges me to give careful consideration to the broad principles of this case and how it can be applied to the grievor’s harassment grievance. The employer should be held to the standard of its declared policies as these policies concern the application of the collective agreement. But for the employer’s actions, the grievor would not have left work and he argues that damages are owed on this basis.

IV. Reasons

A. Adjudicator’s jurisdiction under the PSSRA to decide a harassment grievance

96 As the harassment grievance was filed on January 16, 2002, the Public Service Staff Relations Act is the applicable statute with respect to this grievance. The PSSRA defines not only how the adjudication process is to be carried out by the Board, but the subject matter of an adjudicable dispute. Section 92 of the PSSRA is very specific as to what type of grievance can be referred to adjudication:

92. (1) Where an employee has presented a grievance up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

…

97 The jurisdiction of an adjudicator appointed under the PSSRA with regard to the federal public sector differs significantly from the broad jurisdiction conferred, for example, upon arbitrators appointed under the Canada Labour Code, which provides as follows:

      57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

…

60. (1) An arbitrator or arbitration board has

…

(a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;

…

[Emphasis added]

98 As my jurisdiction is precisely defined in the legislation, I am not empowered to consider any other source, even though the applicable collective agreement may appear to create collateral rights. The case of Lachapelle decided by the Federal Court of Canada is decisive on this point:

…

It is clear that consideration must first be given to the source of an employee's right to submit a grievance to adjudication by respondent Board, or more specifically, by an adjudicator or a board of adjudication acting within the framework of the rules established by the Board. There is no doubt as to the reply. This system of adjudication is established by the Public Service Staff Relations Act, which makes the Board that it has created responsible for supervising its implementation. The source of the employee's right to make use of the adjudication procedure, and consequently the source of the power of the Board, or of the adjudicator that it designates to hear a grievance that is submitted to it, may therefore only be found in this Act. Section 91 of this Act specifies exhaustively when a grievance may be referred to adjudication, and does not empower anyone to decide otherwise: it is therefore the Act alone that must be considered. This reasoning may appear simplistic, but it is nevertheless worth stating in order to rebut in advance any attempt to look elsewhere than in the Act, such as in the applicable collective agreement, and specifically in article 9.23 of the said agreement, which concerns the grievance and adjudication procedure, for the source of the employee's right and consequently of the jurisdiction of the Board or the adjudicator. In fact, respondent adjudicator quickly dismissed the argument to this effect made before him and counsel for the mis-en-cause did not press it in this Court. I will spend no more time on this point: the parties in their agreement could not claim to stipulate contrary to what Parliament has prescribed in section 91 of the Public Service Staff Relations Act concerning the right of an employee to make use of the adjudication procedure.

…

99 The grievor’s claim of alleged mistreatment is not a grievance relating to “disciplinary action resulting in discharge, suspension or a financial penalty.” Nor does a claim for lost costs, benefits and damages transform an unadjudicable grievance into an adjudicable one.

100 I disagree with the grievor that my jurisdiction should be interpreted broadly as suggested in Toronto Transit Commission. The grievor’s submission is that his grievance relates to the interpretation of the collective agreement because it alleges that the employer improperly applied management policies. While the employer assumes a duty in the collective agreement to treat its employees equitably according to its policies, no enforceable duty is created by the existence of this clause. An unsatisfied employee’s only recourse, where the employer has not followed its own policies, is the grievance procedure or another statutory scheme, as the case may be. In matters of harassment, the PSC is the appropriate forum to obtain effective redress for this type of complaint. If the PSC dismisses a complaint, the appropriate recourse for a review of that decision is the Federal Court, not this Board. It should be noted that under section 7.5 of the Public Service Employment Act, R.S., 1985, c. P-33, the PSC had the broad remedial authority to order a deputy head to take appropriate corrective action, should this have been its determination.

101 For these reasons, I am without jurisdiction to resolve this grievance.

B. Whether the grievor’s termination was based on improper considerations

102 The termination of the grievor’s employment raises two issues: (a) the use of confidential information obtained during the course of mediation, and (b) the employer’s duty to accommodate a disabled employee.

1. Use of confidential information obtained during the course of mediation

103 The grievor alleges that the termination of his employment was based on information exchanged during the mediation process, including that mediation was reported to have failed because he would not accept certain employer proposals to bring him back to work. The grievor argues that the information provided in the briefing note, which the Rear Admiral relied upon to make the decision to terminate, was prejudicial to his interests. To this, the employer has responded that the Rear Admiral, as a member of management, was entitled to know about the mediation discussions and, regardless of discussions that took place at mediation, the decision to terminate the grievor was based on the fact that there was no reasonable expectation that he would return to the workplace in the foreseeable future.

104 Before examining the validity of these arguments, an understanding of the principles of the mediation process as it applies to the resolution of workplace disputes is required.

105 The mediation of workplace disputes is well recognized as offering a better opportunity to search for a mutually acceptable outcome than does grievance arbitration. In comparison with arbitration awards that result in grievances being sustained or denied, mediation allows and even encourages more cooperative problem-solving than that which occurs during an arbitration hearing. It is also generally accepted that the quality of the grievance outcome is enhanced when it is mutually agreed upon by the parties rather than imposed by an outsider. Furthermore, this type of dispute resolution is well known to foster improved longer term cooperation.

106 Mediation would not survive long if parties were not prepared to accommodate each other by exchanging available information in order to explore settlement possibilities. Thus, the adoption and use of mediation requires a mutual commitment to greater cooperation in handling disputes given the usual adversarial roles of the parties and the concomitant expectations of the parties’ respective constituents. This cooperative approach is one of the key reasons for mediation’s success. Not only does it reflect the motivation and attitude of the parties, but it also rests on the sense of trust that must develop during the process.

107 One of the elements that contributes to the sense of trust between the parties during mediation is the confidentiality of the process. In fact, most participants take the confidentiality of the mediation process for granted. Confidentiality is also an express condition of an agreement to mediate. Confidentiality means that only the participants and persons with the authority to resolve the dispute in the final instance will know about the details of the mediation. Confidentiality is important because, from the litigant’s perspective, very personal information and career decisions may arise during discussions. From counsel’s perspective, the possible effect of mediation on future litigation is an important consideration in how much can be revealed during discussions.

108 These issues explain how trust between the participants themselves and the mediator are at the core of the process. The very existence of the dispute may make the participants distrustful of each other. Participants will disclose important and personal information only where the mediator has been able to establish a trusting and safe environment. The important and personal information disclosed to the mediator during caucuses, which in turn assists the mediator in resolving the dispute based on the parties’ interests, needs, wants and desires, is also a vital part of the resolution process. Without the guarantee that information disclosed is confidential, mediation will not be productive.

109 As well, parties will hesitate to engage in settlement negotiations if something they say during mediation can later be used against them in another process. With the assurance that their discussions are confidential, parties are more likely to willingly discuss all matters and propose offers of resolution to settle their dispute. It is useful to note that courts have traditionally declared offers to compromise disputed claims or settlement proposals as inadmissible for the purpose of determining liability based on a policy of favouring settlements and giving little weight to proposals that do not end in a settlement. Arguably, a similar rationale should apply to the mediation process. Counsel and mediators alike rely on this rationale to ensure a confidential setting.

110 The following quotation aptly summarizes the reasons confidentiality is essential to the mediation process:

…

The mediator encourages the parties to be candid with the mediator and each other, not just about their willingness to compromise, but also and especially about the needs and interests that underlie their positions. As those needs and interests surface, the possibility of finding a satisfactory resolution increases. The parties will be wary and guarded in their communications if they think that the information they reveal may later be used outside of the mediation process to their possible disadvantage. When they have resorted to mediation in an attempt to settle pending or threatened litigation, they will be particularly alert to the possibility that information they reveal to others in mediation may later be used against them by those others in that, or other, in litigation. The parties may also be concerned that their communications might be used by other adversaries or potential adversaries, including public authorities, in other present or future conflicts. The possibility of prejudice to legal rights, or of exposure to legal liability or prosecution, may not be a party’s only concern. Parties may also be concerned that disclosure of information they reveal in the mediation process may prejudice them in commercial dealings or embarrass them in their personal lives. Accordingly, mediation works best if the parties are assured that their discussions with each other and with the mediator will be kept confidential.

…

(Owen Gray, “Protecting the Confidentiality of Communications in Mediation” (1998), 36, Osgoode Hall L.J. 667 at 671)

111 Another consideration in favour of the confidentiality of the mediation process is the mediator’s neutral role. As an impartial third party, the mediator facilitates communication and discussions as part of the negotiation and ultimately the implementation of an agreement. Were the mediator required to disclose what happened at mediation other than the fact that the parties were in attendance, his role would be seriously compromised. The one-sided disclosure of mediation discussions by one of the parties compromises this neutral role.

112 Confidentiality during the mediation process has also been viewed as part of the legal concept of privilege that protects against the disclosure of evidence at a hearing or trial. Generally, the privilege involves parties in a relationship that prohibits the disclosure by one party of information revealed by the other. Privileges have been created by law to protect the sanctity of certain relationships built upon trust and the need for protected disclosure. Examples of privileged relationships are those between lawyer and client, doctor and patient, and in a labour setting, union steward and grievor.

113 The fact that communications take place in a confidential relationship is not the sole test for applying the legal concept of privilege. In order to determine whether communications in a confidential relationship should be protected from disclosure, Wigmore proposed that communications be tested against four conditions:

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.

(See Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Butterworths, 1992 at page 629)

114 The conditions of the Wigmore test can usefully be applied to the different aspects of the mediation relationship. In their opening statement, mediators describe the mediation to the parties as confidential and usually require that a mediation agreement be signed prior to the commencement of mediation. Thus the first part of the test is met. The closed and private nature of the mediation process and the general acceptance that disclosure to the mediator should be in confidence clearly meet the second and third conditions of the test. The fourth part of the test is usually the more problematic one as it requires a balancing of the public interest in disclosure against the public interest in preserving the confidentiality of the relationship that is being put to the test. In Rudd v. Trossacs Investments Inc., the court concluded that the confidentiality of the mediation process is an important public interest and should outweigh the interest in compelling the evidence of a mediator. In the court’s view, the confidential information sought by the parties was not the only available evidence and the intention of the parties was the important point of whether they had concluded an agreement.

115 This being said, the courts have recognized the importance of the confidentiality of mediation where there is a statutory or an agency rule that encourages or mandates settlement discussions as was the case in Rogacki v. Belz.

116 Privilege in the mediation context, however, is different from other privileged relationships that usually consist of two parties and where the privilege is held by the client or patient in that only that person can waive the privilege. In work-related disputes, there are usually more than two individuals who participate in mediation. Does the privilege attach to the mediator, or are the parties able to waive it? If the privilege is to be waived, must all parties agree? Another difference is that in most cases, except in the case of the union steward-grievor relationship, a relationship exists between a licensed or regulated professional and a client. However, mediation is not a regulated profession and, the issue then becomes whether just any party can assert a privilege to preserve the confidential nature of the information disclosed during mediation.

117 In R. v. Gruenke, [1991] 3 S.C.R. 263, Chief Justice Lamer observed that a prima facie protection for solicitor-client communications was based on the fact that these communications were inextricably linked with the effective operation of the legal system. Likewise, on the ground of a similar public policy, there is an arguable case for a prima facie protection of communications exchanged during mediation where these communications are linked with the effective operation of an adjudication process recognized by statute.

118 Contractual confidentiality raises other issues. Whether the disclosure of confidential information has occurred or whether it is being requested will require the adjudicating body to weigh the issues stated earlier with the harm resulting from the disclosure. Where the confidentiality agreement has been breached and harm ensues, the adjudicating body will need to create an effective remedy.

119 These policy considerations about the mediation process are particularly relevant to the federal public service workplace because of recent amendments to the legislation. On April 1, 2005, the Public Service Labour Relations Act (‘‘PSLRA’’), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Section 13 of the PSLRA now stipulates that part of the Board’s mandate is to provide mediation services:

      13. The Board’s mandate is to provide adjudication services, mediation services and compensation analysis and research services in accordance with the Act.

120 As set out in the Preamble to the PSLRA, mediation has become a key element of the Board’s statutory mandate and recognized as a means to good labour-management relations. The goal of encouraging the settlement of disputes is based on providing litigants with more satisfying and appropriate procedures and outcomes, while preserving ongoing relationships and responsibility:

…

Recognizing that

the public service labour-management regime must operate in a context where protection of the public interest is paramount;

effective labour-management relations represent a cornerstone of good human resource management and that collaborative efforts between the parties, through communication and sustained dialogue, improve the ability of the public service to serve and protect the public interest;

collective bargaining ensures the expression of diverse views for the purpose of establishing terms and conditions of employment;

the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment;

the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes;

commitment from the employer and bargaining agents to mutual respect and harmonious labour-management relations is essential to a productive and effective public service;

…

121 Under the PSLRA, mediation is a voluntary process. The voluntariness of the process, however, should not detract from the fact that the participants must be able to have confidence in its integrity. Contrary to the Board’s arbitration and adjudication functions, there is no precise regulatory or statutory framework for the Board’s mediation function. Accordingly, the integrity of the mediation process must be seen to rest on recognized public policy considerations that led the law-makers to include mediation as a preferred method of dispute resolution as part of the legislation. If these important public policy considerations are not recognized as part of the dispute resolution process, the parties will develop a perception that mediation is just an empty gesture and the goals of efficiency and quality improvement to the adjudication process will be all but lost.

122 The administration of the mediation process also affects the credibility of the Board’s processes. If the Board does not preserve the confidentiality of the mediation process, it is difficult to see how participants can be open and frank in their settlement discussions. An allegation of a breach of confidentiality flowing from the mediation process or a motion to the Board asking that settlement discussions be disclosed must be decided in light of whether the conduct or request impedes the policy goal of effectively and fairly resolving disputes.

123 The issues raised in the Rogacki and Rudd cases are different from the issues raised by the grievor in this case. In Rogacki, the issue was the availability of a contempt order against a party who had published the content of confidential discussions during mediation. The Court of Appeal for Ontario held that such an order was not available. In Rudd, the issue was the compellability of the mediator to give evidence in determining the terms of a settlement agreement. The same court decided that the public interest in maintaining the confidentiality of the mediation process outweighed the interest of the parties in compelling the evidence of the mediator. Rogacki reviews at some length the importance of protecting confidentiality as part of the mandatory mediation process, whereas Rudd takes the approach of applying the Wigmore test to determine whether the communications during mediation were privileged.

124 While these two cases provide a sound review of the public policy issues inherent in maintaining the confidentiality of the mediation process, they do not address the precise points brought up by this grievance, that is, the scope of confidentiality during the mediation process and, if confidentiality is deemed to have been breached, its effect on the termination of the grievor.

125 The grievor, his representatives, the employer’s representatives and the mediator signed an agreement to mediate on September 11, 2003. Among the clauses contained in the agreement are the following:

…

By signing this document the parties undertake to conduct this mediation process in good faith and in a forthright manner, and to make a serious attempt to resolve the outstanding matters. The parties wish to mediate these matters in accordance with the following terms:

…

1. all information exchanged during this entire procedure shall be divulged on a without prejudice basis for the purposes of settlement negotiations and shall be treated as confidential by the parties and their representatives subject to the requirements of any statute and the need to protect individuals against physical harm. Furthermore, evidence that is independently admissible or discoverable shall not be rendered inadmissible or non-discoverable by virtue of its use during the mediation;

2. it is understood that in order for mediation to work, open and honest communications are essential;

   …

1. it is recognized that the mediation process is voluntary, and may not be terminated by the mediator or the parties at any time;

2. the mediator is free to caucus with the parties individually, as he or she sees fit, to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one party during such caucusing may only be disclosed to the other party with the former party’s express permission. It is understood that any of the parties may request at any time to caucus, with or without the mediator;

3. in order to ensure the confidentiality of the process it is understood that any notes prepared or written by the mediator shall be destroyed; the mediator shall only report to the Board whether there has been a full settlement or not; any memorandum of settlement reached by the parties shall not be placed on any Board file, nor shall its terms be disclosed unless the parties otherwise agree;

…

[Emphasis added]

126 These paragraphs of the agreement leave no doubt that the parties wished to assure themselves and the mediator of the protection of information disclosed during the mediation process that settlement discussions would be confidential. In fact, the major part of the agreement focuses on confidentiality and communication during the mediation process. I am therefore satisfied that, in this case, there existed a mediation privilege that met all the conditions of the Wigmore test.

127 The mediation agreement dated September 11, 2003, was introduced as part of the grievor’s evidence through the cross-examination of Captain Hainse. The employer did not object to its introduction. The following signatures appear on behalf of the grievor: Mr. Mombourquette, the grievor’s counsel who appeared during these proceedings, the grievor and an unidentified signature. The following signatures appear on behalf of the employer: Al Cormier, G. Beaudet, Tracey Lyall, and Captain Smith. There were no questions concerning this document. The grievor simply asked me to consider it as part of its argument concerning the confidentiality of mediation and the fact that the termination of his employment had been based on improper considerations.

128 According to the agreement to mediate, the information obtained during the mediation process was to be limited to a select group of persons who agreed to respect its confidentiality. Apparently, the employer’s representatives did not take their undertaking as seriously as they should have, nor did they apprise Captain Hainse of this agreement when he participated in the last mediation session. Mr. Cormier discussed and gave his opinion about the grievor’s medical condition to Captain Hainse. Captain Smith gave his opinion about the lack of results about a now-lengthy mediation process. Ms. Lyall, who was the manager of human resources, apparently communicated sufficient information to Ms. Stringer, another human resources officer who does not appear as having been present at the mediation, to allow her to prepare a detailed briefing note for the Rear Admiral. In addition, Mr. Stewart, Ms. Stringer’s supervisor, was also apprised of mediation information since he participated in the discussions with Captain Hainse and Rear Admiral McNeil about the termination of the grievor’s employment.

129 As a consequence of the breach of confidentiality during the mediation process, the employer evidently relied upon key information that should not have been relevant to its recommendation to terminate the grievor’s employment:

• Dr. Rosenberg’s medical opinion to the union dated October 25, 2004 about the grievor’s medical condition and return to work prognosis: without this information, the employer could not have asked for an “update” and would have had to consider independent and current medical information before terminating the grievor.

• The back-to-work opportunities that were developed during the mediation process (the 10 options): without this information, the employer would have had to examine and present specific options to the grievor in view of accommodating his return to work (see next section of these reasons).

• Dr. Rosenberg’s assessment of the grievor’s aptitude to undertake proposed back-to-work opportunities: this assessment given in 2004, was neither requested nor updated in Dr. Rosenberg’s opinion given on June 6, 2006.

• The grievor’s wish to work with a different supervisor: this consideration would not otherwise have been known to the employer and should not have influenced a decision not to offer the grievor an accommodation opportunity before terminating his employment.

• The grievor’s decision not to accept the proposed back-to-work opportunities: the employer anticipated and precipitated the grievor’s decision by giving him an ultimatum on the last day of mediation. This ultimatum was used as a justification to terminate of the grievor’s employment.

• The participation of the grievor’s spouse in the mediation process: the briefing note states that the ultimatum was presented to the grievor’s spouse as it was presented to the grievor and his representatives.  This consideration is not only immaterial but a most egregious breach of the grievor’s right to the confidentiality of her role during the mediation process. 

• The length of and the apparent lack of progress of the mediation process: these considerations were irrelevant to the employer’s termination process.

130 In order to determine whether the employer had other independent evidence that would otherwise support a recommendation to terminate the grievor’s employment, I read the briefing note while redacting the portion concerning the details of the mediation. This exercise yielded the following information:

• the grievor’s work background (paragraph 3);

• the grievor’s harassment complaints, their outcome and the fact that a grievance was filed on January 17, 2002 (paragraphs 4 to 13);

• the fact that Treasury Board requires a current medical opinion from the grievor’s physician (paragraph 15);

• the physician’s medical opinion which is summarized as follows: “ that the non-resolution of workplace issues which led to Mr. Pepper’s symptomatology continues to place a heavy burden on the augmenting and sustaining of that symptomatology” (paragraph 15);

• that the grievor has been receiving worker’s compensation benefits since 1999 (paragraph 16).

131 Without the key information obtained during mediation discussed earlier, the above information is insufficient to motivate the termination of the grievor’s employment. The medical information is a case in point. In his opinion to the union on November 2, 2004, Dr. Rosenberg states among other things that the grievor is in a position to return to the workplace within three months if workplace issues are resolved; he also states that the grievor could sustain extensive retraining with little impact on his health. These two essential points concerning the possibility of the grievor’s return to work were not put forward in the briefing note to the Rear Admiral.

132 It is also my view that the following statements in the briefing note to the Rear Admiral regarding the outcome of the mediation process were prejudicial to an independent review of the reasons for the  termination of employment:

• “Protracted mediation efforts failed on 28 April 2006 without a potential return to work solution or a voluntary severing of the employment relationship.” (paragraph 1)

• “Mr. Pepper and his representatives (legal council (sic), union and spouse) were advised that if mediation were unsuccessful a recommendation would be made to terminate his employment.” (paragraph 1)

These two statements imply that the grievor was at fault for the length and failure of the mediation process and that the grievor knew and had accepted the consequences of the termination of the mediation process and consequent loss of employment.

133 In light of these observations, it is clear that the employer did not treat the mediation process as a means of resolving the precise dispute for which it had been set up (PSSRB File no. 166-02-31912), namely the harassment grievance. Rather the mediation process was confused as merely a step within an entirely different process, namely, the decision to terminate the grievor’s employment.

134 The grievor relied on the confidentiality of the mediation process to make disclosures about his health, his personal life and his interests and limitations in returning to work. He had every expectation that this information would remain confidential among the mediation participants and not be used for other purposes.

135 On the basis of the evidence and in particular Captain Hainse’s testimony, it is clear that mediation discussions were disclosed to persons outside the mediation process and the content of these discussions was used for a purpose other than the resolution of the grievor’s harassment grievance. In light of the public policy considerations of fostering good labour-management relations and providing employees with appropriate procedures and outcomes to their disputes, the breach of confidentiality within the mediation process was a violation of the grievor’s right to engage in a discrete dispute resolution process to resolve his harassment grievance separate from another independent and unrelated process to terminate his employment.  It was disingenuous for the employer to use a voluntary process set up to resolve one issue as a stepping stone to further a purpose that clearly was not the grievor’s and to achieve a result that was never meant to be part of the process.

136 Accordingly, the termination of the grievor’s employment based on medical and other information obtained within the mediation process cannot be sustained.

2. Employer’s duty to accommodate a disabled employee

137 The grievor argued that the employer did not follow the department’s termination procedure entitled “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance”, namely, that following the medical assessment, an employee’s manager must schedule a meeting to inform the employee of the results of the medical assessment and their consequences for his/her job, during which the employee may be accompanied by a union representative. In particular, the employer did not present him, independently from the mediation process, with other options such as resignation, voluntary demotion, or retirement on medical grounds (if eligible) before deciding to terminate his employment as provided under this policy.

138 Although the “Guidelines for Demotion or Termination of Employment for Reasons Other than Misconduct or Unsatisfactory Performance” represent an objective and independent process with respect to the termination of an employee for medical reasons, they are not part of the collective agreement, nor are they conditions that have been negotiated with the bargaining agent. Accordingly, the same observations as those that applied to the enforceability of the harassment policy apply here, that is, the non-observance of these guidelines is not an adjudicable right.

139 However, the human rights of a disabled employee must be considered before an employer can terminate his employment. Paragraph 3(1) of the Canadian Human Rights Act prohibits discrimination on the basis of disability. Sub-paragraph 7(a) provides that it is a discriminatory practice, directly or indirectly, to refuse to continue to employ an individual on the basis of a prohibited ground of discrimination. Subsection 208(2) of the PSLRA provides for the adjudicator’s authority to decide matters related to human rights.

140 In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at page 174, the Supreme Court of Canada defined discrimination as follows:

…

… [A] distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society…

…

141 The employee who alleges discrimination has the onus of proof to make out a sufficiently strong case of discrimination (also known as a prima facie case of discrimination), based on facts that, if believed, justify a finding of discrimination in the absence of the employer’s response (see Ontario Human Rights Commission v. Simpson Sears Ltd. [1985], 2 S.C.R. 536 (O’Malley decision) at para. 28). In this matter, the test in O’Malley, requires that the grievor establish that he has a disability captured by the Canadian Human Rights Act, that he suffered adverse treatment in the workplace and that this disability was a factor in the adverse treatment he received. The grievor’s disability need not be the only factor, or even the primary factor for discrimination to be established. The burden then shifts to the employer to establish, on a balance of probabilities, that its decision or policy did not constitute discrimination because the disability was not capable of being accommodated in the workplace without undue hardship.

142 The employer has argued that the grievor’s medical condition does not support returning him to work with accommodation because the workplace issues that are the source of his illness will never be resolved to his satisfaction. The employer has also argued that all leave is of a temporary nature and that the employer is entitled to terminate the employment of an employee who cannot return to work. Both these arguments concede that the grievor’s mental disability was a factor in the decision to terminate his employment. Consequently, I find that a sufficiently strong case of discrimination has been established. The balance of this decision deals with whether or not the employer met its duty to accommodate the grievor to the point of undue hardship.

143 To meet the accommodation requirements of an employee’s needs under paragraph 15(2) of the Canadian Human Rights Act, the employer must establish that accommodating those needs would “impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.” In Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at page 521, the Supreme Court held that the factors that weigh in favour of a finding of undue hardship must be balanced against the right of an employee to be free from discrimination. Thus, a balancing process requires an assessment on a case-by-case basis of the severity of the hardship against how substantial the resulting benefits will be to the employee.

144 In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 S.C.R. 3 (“Meiorin”), the Supreme Court of Canada set out three elements that must be present for an employer to sustain a defence of a so-called bona fide occupational requirement (paragraph 54):

1. The standard was adopted for a purpose rationally connected to the performance of the job;

2. the standard was adopted in good faith and that it is tied to a legitimate work-related purpose;

3. the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose.

145  In this case, the employer’s argument is that the employee had been absent for an extended period and his return to work was unlikely in the foreseeable future. This standard is also set out in its “Guidelines for Demotion or Termination or Employment for Reasons Other than Misconduct or Unsatisfactory Performance.” There can be no dispute that an employer cannot be required to keep an employee indefinitely who is incapable of performing his duties, since the employee is not fulfilling his part of the employment contract. In this sense the employer’s attendance standards are rationally connected to the performance of the grievor’s job. The grievor did not contest the employer’s attendance standards as rationally connected to the performance of his job, nor was there any suggestion that this standard was not adopted in good faith and for the fulfillment of a work-related purpose. Therefore, the essence of the grievor’s case is that the employer has failed to show that the attendance standard as applied to his case is reasonably necessary, because the employer has not demonstrated that accommodating the grievor would cause the employer undue hardship.

146 Under the third step of the Meiorin analysis, the employer must establish that it could not accommodate the grievor to the point of undue hardship. Both the grievor and the employer must participate in the search for an accommodation, although this is the primary responsibility of the employer. This inquiry is an individual one in each case (paragraph 63). The employer’s standard must take into account “the unique capabilities and inherent worth and dignity of every individual” (paragraph 62). Moreover, tribunals “should be sensitive to the various ways in which individual capabilities may be accommodated” and “should be innovative yet practical when considering how this may best be done in particular circumstances” (paragraph 64).

147 Meiorin sets out a number of important elements that are useful in determining the type of accommodation needed by an employee, such as whether the employer has looked at alternate approaches that would not have had a discriminatory effect on the employee, whether in light of its legitimate work-related purpose, it was necessary for all employees to meet this standard, or whether there was a way for the employee to do the job that is less discriminatory (paragraph 65). Meiorin, therefore, requires the employer to diligently examine all the possibilities of adapting the workplace to enable the employee to work. A mere statement without supporting evidence or a generalized view that finding such employment is not possible does not meet the standard of undue hardship.

148 The employer relied on the decisions of this Board and the Federal Court of Appeal in Scheuneman in support of its position. That case, however, is clearly distinguishable on its facts as there was a medical report stating that the grievor could not return to work in the foreseeable future, and the employee stubbornly refused to return to work.

149 Before taking the drastic step of terminating the grievor’s employment on the basis that he was no longer able to attend work, the employer has the obvious duty to establish the exact medical condition of the employee and a prognosis that he will be unable to return to work in the foreseeable future. In the instant case, the employer had no such conclusive evidence. The evidence is irrefutable that the employer made up its mind to terminate the grievor’s employment before obtaining any evidence of his complete disability. It relied on a medical opinion given in 2004 obtained during the mediation process with respect to another grievance and the opinion of another manager. The request for an “update” of the grievor’s medical after the ultimatum was given to him implies an administrative exercise to justify the decision already taken to terminate the grievor’s employment. There is no evidence that this medical update was obtained with a view to attempting to accommodate the grievor’s return to work.

150 But more significantly, after obtaining the medical update, the employer rushed to a decision without giving any consideration to the possibilities that were being suggested. Dr. Rosenberg did not testify or state in his November 2, 2004 opinion that the grievor could not return to work; to the contrary, he stated that the grievor could return to work within three months if workplace issues were ultimately resolved. He also provided recommendations for the grievor’s accommodation, including retraining. Neither of these recommendations were insurmountable obstacles to accommodating the grievor’s return to work.

151 Given that the grievor had already been absent for seven years, no adequate reason was advanced to justify why the employer could not take a few more weeks to reconsider its position. Captain Hainse was apparently concerned that Dr. Rosenberg might be unable to give an opinion because he was to take an extended leave. The relevance of this consideration with respect to the precipitous decision to terminate the grievor is unexplained. Dr. Rosenberg was not the only physician who was treating the grievor and who could have given a medical opinion about the prognosis for his return to work.

152 When asked about the urgency of recommending the termination of the grievor’s employment, Captain Hainse’s response was that the decision was long overdue. All the options had been presented during the mediation process. The fact that the grievor’s “issues” remained unresolved was not good for the morale of the unit. Captain Hainse was concerned about the grievor’s dedication to his work and the perception of other employees about a lack of leadership that would affect the efficiency of the unit. Yet he admitted there had been no complaints from other employees about these concerns.

153 An employer’s reasons for not considering accommodation must be supported by reliable, objective and persuasive evidence that its concerns are well founded. Anticipated hardships based on speculative concerns of certain adverse consequences are insufficient. Meiorin is unambiguous that the aim of human rights legislation is to have employers direct their creative thoughts to positive ways to achieve successful accommodations. An employer’s efforts must include an evaluation of the process by which it reached its decision not to accommodate. The rejection out of hand of any consideration of accommodation, without giving the matter adequate reflection or attention or exploring the possibilities, can hardly be described as having taken adequate steps to accommodate.

154 In this matter, other than the so-called 10 options put forward during the mediation process in 2004, there is no evidence that the employer applied itself to diligently examining all the possibilities of adapting the workplace to enable the grievor to work after receiving Dr. Rosenberg’s medical opinion of June 8, 2006. Captain Hainse’s reasons for terminating the grievor are not supported by any concrete evidence of any hardship and are not persuasive. Had the employer truly been concerned with accommodating the grievor’s return to work, it would have become knowledgeable about the grievor’s disability as it presented itself in June 2006 and examined the possibilities of accommodation as they existed at that time. It would not have caused undue hardship for the employer to provide the grievor’s psychiatrist with specific information about the jobs being proposed, the qualifications for these jobs relevant to the medical disability, and to request his opinion on this basis.

155 Nor did the employer engage in meaningful discussions with the grievor about the consequences of the most recent medical information and the recommendations being made to determine if there was any work that he could perform that would meet his restrictions. Before terminating his employment, the employer had an obligation to ensure that the grievor fully understood the content of the medical opinion, to clarify the grievor’s position with respect to this latest information, and to clearly set out the consequences of not returning to work. It would have created no hardship for the employer to have engaged in such discussions. There is also no evidence that providing training to the grievor as suggested by Dr. Rosenberg would have created undue hardship. Even though it was known that the grievor’s supervisor was not interested in continuing his supervision, the employer persistently refused to at least explore the possibility of having the grievor report to a different supervisor.

156 Moreover, the recommendation for terminating the grievor’s employment is attributed to his inability to report to work because of his illness. The briefing notes omit all reference to Dr. Rosenberg’s opinion about the three-month prognosis for the grievor’s return to work or the fact that he could be retrained. The omission of such statements was misleading and prejudicial to the grievor given that there was no complete medical information attached to the recommendation for termination. It is particularly telling that medical information is buried in one sentence in paragraph 15 that is overshadowed by the 14 previous paragraphs that refer extensively to the grievor’s history, his complaints, the fact that the employer’s proposals for his return to work were not accepted and the grievor’s apparent responsibility for the lengthy mediation process and its outcome. Some of the facts in the briefing note are mistaken and there are omissions, such as the findings of the harassment complaint investigation team. The insistence on irrelevant and misstated facts, rather than on key medical information and the consequences of this information, suggest that accommodating the grievor’s medical condition was secondary to the determination to terminate the grievor’s employment.

157 Therefore, I come to the inevitable conclusion that the employer decided to terminate the employment of the grievor without taking the steps to make an informed decision. Namely the employer did not seek out useful information from Dr. Rosenberg to assist in its decision-making, nor did it attempt to determine if there was a suitable job available that could accommodate his return to work.

158 The employer’s arguments suggest that the length of the absence was in itself an accommodation since the grievor was unable to return to work for a lengthy period. While the employer provides sick leave, leave without pay and disability benefits as part of its compensation package, doing so does not mean that it fulfilled its obligation to accommodate the grievor to the point of undue hardship in the circumstances of this case. There is no indication that the employer was in regular contact with the grievor during his absence or that it committed financial or other resources to accommodate the grievor outside these benefits. In fact, the grievor was receiving compensation for a work-related injury. The employer did not seek up-to-date medical information about the grievor for two years before its decision to terminate his employment. Given the size of the employer’s organization, its resources and expertise, I have some difficulty understanding why the employer did not take a greater initiative in suitably accommodating the grievor’s return to work before the definitive decision to terminate his employment. An ultimatum based on a lengthy mediation process unrelated to ending the grievor’s employment is not an accommodation argument. The grievor was not entitled to a perfect solution, but he was entitled to a full consideration of his restrictions and how they could be accommodated within the employer’s policies and the jobs available.

159 On the basis of these findings, I conclude that the employer failed to accommodate the grievor to the point of undue hardship.

160 The grievor requested that I award damages related to the long-lasting impact of the employer’s actions on his career and benefits and the aggravation of his medical condition with respect to his harassment complaint and grievance.

161 As I have dismissed the grievance, there are no damages owing.

162 The grievor requested that I exercise my discretion under section 226(1)(g) of the PSLRA and award damages in the amount of $20,000 for his pain and suffering as a result of this ordeal and the violation of subsections 52(1)(b) and 53(2)(e) of the Canadian Human Rights Act, because the termination of his employment was discriminatory and the employer acted recklessly in not considering accommodation.

163 It is my finding that the grievor should also be entitled to a remedy with respect to the negative impact of the employer’s breach of the confidentiality of the mediation process.

164 My decision with regard to a remedial award is taken under reserve. The parties are given 60 days to come to an agreement concerning such indemnity as may be owed to the grievor. Should the parties be unable to come to an agreement, I will receive their representations on a remedial award by an exchange of written submissions, no later than 90 days following the issuing of these reasons.

165 For all of the above reasons, I make the following orders:

Order

166 The application for the extension of time relating to PSLRB File No. 568-02-154 is closed.

167 The grievance relating to PSSRB File No. 166-02-31912 is dismissed.

168 The grievance relating to PSLRB File No. 566-02-767 is allowed.

169 The grievor is reinstated in the position he held at the time of his termination and entitled to benefits and wages, if that is the case.

170 I retain jurisdiction on the issue of a remedial award with respect to PSLRB File No. 566-02-767 for a period of 90 days.

January 28, 2008.

Michele A. Pineau,
adjudicator