FPSLREB Decisions

I. Individual grievances referred to adjudication

1  On April 3, 2006, Louise Lafrance (“the grievor”), who worked for Statistics Canada (“the employer”), Survey Operations Division, filed two grievances. In the first grievance, she alleged that the employer contravened article 27 of the collective agreement by refusing to provide her with work and to pay her salary and employee benefits as of March 31, 2006. In the second grievance, she accused the employer of refusing to adapt her workplace and to comply with the recommendations of different doctors, contravening article 16 of the collective agreement and the Canadian Charter of Rights and Freedoms.

II. Summary of the evidence

2 A good portion of the events leading up to these grievances was already addressed in a decision rendered in 2006. The parties agreed to integrate into the evidence in this case the summary of the evidence described in paragraphs 5 to 96, inclusive, of Lafrance v. Treasury Board (Statistics Canada), 2007 PSLRB 31, rendered on March 23, 2007, as well as the exhibits filed in that case.

3 It will be easier to follow this decision if it is understood that, in 2007 PSLRB 31, I found that Ms. Lafrance suffered from functional limitations stemming from a health problem that prevented her from being present in her workplace. To do paid work, Ms. Lafrance would have had to have been able to continue performing full-time telework from her home. However, because it was impossible to access the information required for the tasks associated with her position outside the workplace and because those tasks required her presence at meetings that were held in the workplace, the obligation to be present in the workplace was a bona fide occupational requirement.

4 Nonetheless, the employer had an obligation to make accommodations short of undue hardship, and to that end, from time to time, it offered Ms. Lafrance paid work that she could perform from her home. In light of the evidence presented, I found that, on the one hand, the employer did not fail in its duty to search for a reasonable arrangement that would not cause undue hardship and that would enable Ms. Lafrance to continue working but that, on the other hand, the duty to search for a reasonable arrangement was an ongoing duty that did not end with my decision.

5 The parties adduced the following agreed statement of facts:

[Translation]

• The pertinent period covered by these two grievances began on March 31, 2006 and ended on June 26, 2007.
• Ms. Lafrance was diagnosed with a sleep apnea disorder around the year 2000.
• As stated in paragraph 135 of the Public Service Labour Relations Board’s decision dated March 23, 2007 in file number 566-02-04, the parties agree that the duties of Ms. Lafrance’s substantive position at the SI-02 group and level required that she be present at the employer’s premises, that it is a bona fide occupational requirement and that, consequently, full-time telework constitutes an undue hardship for the employer.
• As stated in paragraph 135 of the Public Service Labour Relations Board’s decision dated March 23, 2007 in file number 566-02-04, it is acknowledged that the employer did not fail in its duty to search for a reasonable arrangement that would enable the grievor to continue working not only at the SI-02 level but also in lower-level positions for the period extending to March 2006.
• As stated in paragraph 135 of the Public Service Labour Relations Board’s decision dated March 23, 2007 in file number 566-02-04, the parties agree that the fact that telework was available in the past does not necessarily mean that it is available now.
• As stated in paragraph 135 of the Public Service Labour Relations Board’s decision dated March 23, 2007 in file number 566-02-04, it is acknowledged that the Statistics Act guarantees citizens that the information they entrust with Statistics Canada will be kept confidential, thus imposing extremely stringent constraints on the organization with respect to the management of that information.
• The employer was able to find Ms. Lafrance a six-month assignment as a writer/revisor in the Methodology Branch starting on October 24, 2005. The assignment came from the resourcing and corporate assignments program.
• The employer had to terminate the writer/revisor assignment three weeks early, on March 31, 2006, because the quality of Ms. Lafrance’s work did not meet the requirements for that type of work.
• As stated in paragraph 24 of the Public Service Labour Relations Board’s decision dated March 23, 2007 in file number 566-02-04, it is acknowledged that Ms. Lafrance used her annual leave and her paid sick leave to cover the period from April 2006 to July 2006.
• Ms. Lafrance was paid for 69.5 hours of telework that the employer managed to find her in August 2006. The work involved debriefing questionnaires.
• Ms. Lafrance was not paid from August 28, 2006 to January 2007.
• Ms. Lafrance was paid for 32 hours of telework that the employer managed to find her for the week of January 22, 2007. The work involved debriefing questionnaires.
• Ms. Lafrance agreed, on or around May 23, 2007, to undergo an assessment of her ability to work by Health Canada.
• Ms. Lafrance filed her claim for disability benefits on June 3, 2007.
• Ms. Lafrance received disability benefits from June 2007 until her medical retirement.
• Ms. Lafrance was paid for her participation in the mediation that took place on September 10, 11 and 12, 2007.
• On September 26, 2007, Health Canada found that Ms. Lafrance was unable to work and that she would probably not be able to return to work before September 2008.
• Ms. Lafrance underwent a medical assessment by Dr. Berthiaume in October 2007, which indicated that she was unable to work and that she would very likely never be able to return to work.
• The Health Canada report, dated February 7, 2008, recommended medical retirement due to permanent disability effective January 2007.
• Ms. Lafrance went on medical retirement effective June 20, 2008.

[Sic throughout]

III. Summary of the arguments

6 Ms. Lafrance testified in support of her grievances. The employer called the following individuals to testify: Francine Trottier-Guilbaud, Jean-François Carbonneau, Annie Grenier and Duncan Wrighte.

A. Louise Lafrance

7 Ms. Lafrance testified that, after the employer terminated an assignment in March 2006, she received no further work or pay. She indicated that the employer never communicated with her and that she was not kept informed of the steps that it was taking other than by a memo informing her that the issue of searching for work for her had been raised at the managers’ meetings. After being informed of Garey Catlin’s departure, she wrote to the new assistant director, Duncan Wrighte, to introduce herself and to provide him with an overview of her situation (Exhibit PS-4). Ms. Lafrance testified that, although she had filed two grievances, she was ready to do any kind of telework because, at that point, she had no work and no income.

8 Ms. Lafrance confirmed that she worked in August 2006 and that she was paid for 69.5 hours of work. She added that, between March and August 2006, she did not receive any work.

9 Ms. Lafrance testified that she did not communicate with the employer to discuss either the possibility of work or any reintegration plan until she received an email from Mr. Wrighte on January 12, 2007 (Exhibit PS-5). She understood from the email that the employer wanted more information about her health and that it was asking her to identify a specialist of her choice. It was the first such request since March 2006. She did not comply because, in her opinion, the employer was aware of her functional limitations, and she was in no position to choose a specialist. In late May 2007, the employer asked her to undergo a Health Canada medical assessment (Exhibit PS-6), to which she agreed. The employer did not ask her for any information about her medical condition between January 12, 2007 and May 28, 2007. At the end of August 2007, the meeting with Health Canada was set for September 26, 2007 (Exhibit PS-7).

10 Ms. Lafrance testified that, on July 5, 2007, after being informed of the possibility of work by her representative, she emailed Mr. Wrighte (Exhibit PS-8), informing him that she was still available for work. Neither Ms. Matte nor Ms. Trottier-Guilbaud, both of whom are mentioned in that email, contacted her, and Mr. Wrighte did not respond to her emails.

11 Ms. Lafrance testified that, because she had no salary, she applied for disability benefits (Exhibit PS-9). On July 3, 2007, the employer had 72 hours to provide the necessary documents to Sun Life. However, it was late in complying, and Ms. Lafrance had to send several emails (Exhibits PS-10, 11 and 12). The employer provided an explanation for the delays (Exhibit PS-14).

12 Ms. Lafrance reiterated that, from March 2006 until she was declared unable to work, she received no communication from her employer, that no reasonable arrangement was proposed to her and that the employer did not inform her of any of its alleged efforts to find an arrangement.

13 In cross-examination, Ms. Lafrance confirmed that she used her annual leave and her sick leave to cover the period from April to August 28, 2006 and that she later took sick leave without pay (Exhibit PS-18). When presented with the exchange of emails on June 1, 2006, Ms. Lafrance acknowledged that she and the employer had exchanged emails about her situation. She indicated that the monthly teleconferences always included discussions of the lack of medical information and the emails sent to the directors asking if there was any work for her. She reiterated that the first time that Mr. Wrighte contacted her after her email of September 26, 2006 (Exhibit PS-4) was on January 12, 2007 (Exhibit PS-5). However, when presented with an email dated September 29, 2006, she acknowledged that she did receive a response to her email from Mr. Wrighte (Exhibit PS-20) informing her that work was still being sought for her.

14 When asked about the request for an assessment of her ability to work and the claims for disability benefits, Ms. Lafrance acknowledged the exchange of correspondence and the forms (Exhibits PS-21 to PS-27). She testified that she had been qualified for telework from March 2006 to June 2007. She recognized the medical certificate that had entitled her to employment insurance from March 2007 to June 2007 (Exhibit PS-29). She confirmed that she received disability benefits beginning in June 2007. She left her employment on June 20, 2008 after her medical retirement was approved.

15 In re-examination, Ms. Lafrance indicated that, in June 2007, she had no work and that, when her employment insurance benefits ran out, she applied for disability benefits.

B. Francine Trottier-Guilbaud

16 Ms. Trottier-Guilbaud has been employed as a program manager in the Resourcing and Corporate Assignments Division at Statistics Canada since September 2005. That division matches managers looking for temporary resources with employees looking for assignments. The program meets the operational needs of managers and the professional development needs of employees. Ms. Trottier-Guilbaud indicated that she is responsible for labour relations files, where the goal is to find assignments for specific requirements.

17 Ms. Trottier-Guilbaud testified that she forwarded Ms. Lafrance’s resumé to the contacts for the employer’s assignment program, along with a memo indicating that the assignment would have to involve telework. She submitted as evidence emails sent within the department and to other departments about the efforts to find an assignment for Ms. Lafrance from February 2006 to September 2007 (Exhibits PS-31 to PS-36). She added that, whenever a manager expressed an interest in finding a potential candidate in a compatible group and level, she would send that manager Ms. Lafrance’s resumé.

18 Ms. Trottier-Guilbaud adduced in evidence a report indicating the review of strategies and the dates of activities undertaken to find an assignment for Ms. Lafrance (Exhibit PS-37).

19 In cross-examination, Ms. Trottier-Guilbaud acknowledged that her work involved finding an assignment for Ms. Lafrance and that the responsibility for finding a reasonable arrangement fell to management. She did not communicate directly with Ms. Lafrance, and her efforts did not involve consulting Ms. Lafrance. As well, she did not obtain Ms. Lafrance’s consent to send out her resumé.

20 Ms. Trottier-Guilbaud also acknowledged that the search for an assignment did not come from a specific request from Ms. Lafrance and that management thought that it had a good strategy for giving Ms. Lafrance the best possible chance. It is a flexible program designed to match the needs of managers and individuals seeking assignments. Managers review resumés and decide whether to offer assignments. The idea was not to force a manager to hire Ms. Lafrance. She did not have any special status compared to other employees seeking assignments. The managers indicated that they did not have any telework at that time. Ms. Trottier-Guilbaud did not know if any employees were teleworking at Statistics Canada.

C. Jean-François Carbonneau

21 Mr. Carbonneau is the director of the Investment and Capital Stock Division. He was the assistant director of the Survey Operations Division until August 2006.

22 Mr. Carbonneau testified that, during the period covered by the grievances, regular teleconferences were held with Ms. Lafrance and her representative. The conferences addressed the following four points: the search for work, the leave situation, medical information and the date of the next conference. Annie Grenier prepared a summary (Exhibit PS-19) after each conference. The employer had reduced the number of contact points as much as possible to ensure better communication. The teleconferences helped reduce travel, given that the employer was not entirely certain of Ms. Lafrance’s limitations.

23 Mr. Carbonneau explained that the focus was keeping the resumé circulating both inside and outside the department. The employer had offered to provide resources to help Ms. Lafrance prepare her resumé. The search for work was expanded to the department’s regional offices, to the entire department and to about 30 other departments. The employer also ensured that Ms. Lafrance had the opportunity to consult internal assignment offers and connected her to the Internet from her home to provide her with access to Publiservice.

24 Mr. Carbonneau indicated that the employer continued to attempt to obtain information about Ms. Lafrance’s functional limitations and that it reiterated the request for clarification. That information would have been useful for the department’s ability to provide her with work.

25 Mr. Carbonneau testified that the request for an assessment by Health Canada and the availability of the summary of a previous meeting, which is mentioned in the exchange of emails of June 1, 2006, put a damper on the communications with Ms. Lafrance. He noted that from that point Ms. Lafrance’s representative, Bertrand Myre, demanded that all communications be in writing. That requirement is mentioned in the letter dated June 30, 2006 that was addressed to Ms. Lafrance (Exhibit G-29) that updated the situation and that provided her with a draft letter to Health Canada.

26 Mr. Carbonneau adduced Ms. Lafrance’s request for a special assignment dated July 8, 2005 (Exhibit PS-38) to place her in the corporate assignments database. The database is accessible to all Statistics Canada managers to help them meet their human resources requirements.

27 Mr. Carbonneau testified that no change was made to Ms. Lafrance’s SI-02 group and level substantive position as of his departure from the assistant director position in August 2006. He indicated that Ms. Lafrance was not given any special assignment between March and August 2006. The work that could have been done as telework was the preparation of survey minutes. The minutes are prepared after a survey and require between 40 and 70 hours of work, depending on the survey size. The reason no such work was available was that none of the types of surveys on which she could have worked ended during the period in question. Mr. Carbonneau also noted that other efforts were made both inside and outside Statistics Canada to try to find work for Ms. Lafrance, which is why Statistics Canada was circulating her resumé. He added that the confidentiality requirements associated with the surveys and data collected by Statistics Canada did not change during the period in question.

28 Mr. Carbonneau testified that the search for work was not limited to the SI-02 group and level but that it extended to other positions. On that note, he pointed out that Statistics Canada offered Ms. Lafrance a translation assignment starting in October 2005.

29 Mr. Carbonneau testified that he communicated once by phone with Ms. Lafrance between March 2005 and August 2006 to discuss the use of her leave credits. An email exists that confirms that conversation (Exhibit PS-40). After June 2006, at the request of Ms. Lafrance’s representative, all communication was by email (Exhibit PS-39).

30 In cross-examination, Mr. Carbonneau indicated that his role was to collaborate with human resource officials in finding the best way to address difficult situations such as that of Ms. Lafrance. His responsibility was to ensure that every possible means and tool available to Statistics Canada was used to facilitate Ms. Lafrance’s return to work. To accomplish that, he indicated that he called on the available services at the corporate level and in human resources along with employee assistance and the corporate assignments program.

31 Mr. Carbonneau indicated that Ms. Lafrance’s assignment from October 2005 to March 2006 had initially been for six months. There was no guarantee that the type of work offered would be available at the end of the assignment. During that time, the employer continued to try to obtain more information to better understand Ms. Lafrance’s functional limitations, which would have been useful in finding a more permanent arrangement for her. He acknowledged that the lack of information did not prevent the employer from finding an arrangement for her from October 2005 to March 2006.

32 Mr. Carbonneau indicated that the clarifications in question in his email of June 2006 (Exhibit PS-19) concerned the medical conditions affecting Ms. Lafrance’s return to work. The objective was to better understand the functional limitations in order to find a reasonable arrangement and to properly direct the job search. Mr. Carbonneau indicated that although several requests were made to Ms. Lafrance’s doctor through her or through letters from the employer and despite interventions by other stakeholders, including a representative of the Canadian Human Rights Commission, the employer never received the requested information.

33 Mr. Carbonneau indicated that the first thing was to ask Ms. Lafrance to obtain information from her doctor. That information was important in managing her return to work because it would have helped to extend the range of options. The more detailed the information about the medical condition to accommodate, the easier it is to adapt the workplace and to find a reasonable arrangement. The “full-time telework” restriction reduced the chances of finding an assignment for Ms. Lafrance. After making every effort to obtain information from her treating doctor, in June 2006 the possibility still existed of obtaining information through Health Canada to help move the file forward. Mr. Carbonneau explained that, despite the lack of information, efforts continued to find work for Ms. Lafrance.

34 When asked if he was responsible for finding a reasonable accommodation, Mr. Carbonneau indicated in the affirmative. He indicated that, in communications with Ms. Lafrance, the discussions were about the points on the agenda. Among other things, the employer provided Ms. Lafrance with equipment to facilitate her search for work and to track the results of her search from her end. When asked whether an accommodation plan existed, Mr. Carbonneau indicated that it is important to understand that the entirety of the employer’s actions and efforts over several years were done in a coordinated manner.

35 When asked about the existence of telework outside the division, Mr. Carbonneau indicated that no telework was available at the SI-02 group and level. Economists sometimes teleworked when preparing an analysis or a news release, but Ms. Lafrance was not qualified for that kind of work. The employer did not restrict its search to positions at the SI-02 group and level and noted that Ms. Lafrance had been offered a special assignment in translation. Interviewer positions, for their part, required incumbents to drive to different scheduled meetings or to work from Statistics Canada’s offices.

36 When asked about a statistic that stated that 6 percent of Statistics Canada employees teleworked, Mr. Carbonneau replied that nothing indicated that that telework was full-time. Telework was available on an ad hoc basis.

37 When asked about the possibility of combining tasks to create an arrangement, Mr. Carbonneau indicated that job descriptions were analyzed and that other divisions were contacted to find work for Ms. Lafrance. The employer considered regrouping tasks, but it was not possible considering Ms. Lafrance’s qualifications and level of knowledge.

38 Mr. Carbonneau indicated that Statistics Canada used its contacts with other departments to find full-time telework for Ms. Lafrance, but to no avail.

D. Annie Grenier

39 Ms. Grenier has been a management advisor in the Canada Border Services Agency since October 2006. Before that, she was a senior staff relations advisor at Statistics Canada.

40 Ms. Grenier testified that she had been involved in managing Ms. Lafrance’s file. She indicated that she sent an email to Mr. Myre (Exhibit PS-44), with a copy to Ms. Lafrance, outlining the department’s efforts to find appropriate work for Ms. Lafrance. She noted that the search for work was a joint responsibility between the employee and the department. The email ended by indicating to Ms. Lafrance that her suggestions would be welcome. She did not receive any suggestions from Ms. Lafrance.

41 Ms. Grenier testified that she participated in the teleconferences with Ms. Lafrance. Their purpose was to update Ms. Lafrance about the search for work. The department also counted on them to obtain clarifications about Ms. Lafrance’s functional limitations.

42 Ms. Grenier testified that the email of June 1, 2006 (Exhibit PS-19) was a follow-up to Mr. Myre’s email, in which he expressed concerns about the summary of the February 2006 teleconference and clarified some of the issues that were discussed.

43 Ms. Grenier indicated that, after their telephone conversation on June 6, 2006, she emailed Mr. Myre (Exhibit PS-45), confirming his request that communications with Ms. Lafrance be only in writing until the adjudication the following July. That requirement slowed down the process of finding a solution to Ms. Lafrance’s situation. Mr. Myre did not respond to her email.

44 Ms. Grenier testified that she prepared the draft of the June 30, 2006 letter (Exhibit G-29) signed by Mr. Carbonneau on behalf of the Director of Survey Operations. The letter replaced the teleconference that could not take place because of the communications requirement. The letter repeated the points on the agenda, including the search for work, the information about the functional limitations and Ms. Lafrance’s employee status. The letter also contained the results of the department’s efforts to determine whether Ms. Lafrance was eligible for priority staffing. After consulting with the Public Service Commission, it was determined that, to obtain priority status, Ms. Lafrance had to be receiving disability benefits, which was not the case. Ms. Grenier indicated that the department also made sure to contact the different staffing services to inform them about the requirement to take the necessary steps to find work and to ask them to get in touch with management if a process was begun for a position that would suit Ms. Lafrance. She noted that Ms. Lafrance did not respond to the request at the end of the letter for suggestions on approaches to finding her work or on any other aspect of the situation that might speed up its resolution.

45 In cross-examination, Ms. Grenier indicated that her experience with staff relations began in 2001. She had been involved in the management of Ms. Lafrance’s file since starting in her position. She indicated that the requirement to communicate only in writing had complicated the communications. She added that the requirement did not prevent the employer from looking for work but that, when communications are only in writing, information sharing is limited and cooperation more difficult. It is more efficient to use the phone than to communicate by email. Ms. Grenier indicated that her approach was to give Ms. Lafrance the treatment to which she was entitled. She always tried to keep the lines of communication open in managing the file.

46 Ms. Grenier acknowledged that the situation had become stressful for Ms. Lafrance. She added that management was sympathetic and that it was reflected in the efforts that it made for her. The search for work was, in her opinion, a shared responsibility between the employee and the department. The department’s obligation was to find an arrangement that did not cause undue hardship.

E. Duncan Wrighte

47 Mr. Wrighte is the director of the Collection Planning and Management Division, also known as the Survey Division. He has been in that position since September 2006. He indicated that, shortly after his arrival, he was informed of Ms. Lafrance’s situation and of the fact that she could only telework.

48 Mr. Wrighte adduced the minutes of the division’s management meetings (Exhibit PS-46) from November 2006 to November 2007. He indicated that an item was added to every weekly meeting to ask the directors whether any telework was available for Ms. Lafrance. He indicated that efforts to address the situation included finding assignments through the assignment program, actively soliciting options and establishing relations with the help of human resources to communicate with other departments.

49 Mr. Wrighte explained that the two- to three-week delay in responding to Sun Life’s request concerning the disability claim was attributable to the compensation section being relocated and to the employee looking after the file being on leave.

50 Mr. Wrighte indicated that he responded on September 29, 2006 to Ms. Lafrance’s email (Exhibit PS-4) dated September 26, 2006. His response (Exhibit PS-47) referred to the ongoing efforts and the desire to work together on finding a solution to her situation. He also adduced his response dated January 12, 2007 (Exhibit PS-48) to the email Ms. Lafrance had sent him the previous January 10. In that communication, he reiterated the employer’s need for information about her functional limitations. He indicated that that information would have been useful in finding a solution to Ms. Lafrance’s situation because the nature of the work at Statistics Canada significantly limited the opportunities and type of full-time telework available. He adduced the following: a response to an email from Ms. Lafrance dated January 25, 2007 (Exhibit PS-49) about the continuing search for work, an email (Exhibit PS-50) stating that the employer wanted to provide Ms. Lafrance with paid leave to cover her time in mediation, an email with information received from Ms. Lafrance (Exhibit PS-51) and an email about a request for special annual leave (Exhibit PS-52).

51 Mr. Wrighte testified that, after his arrival, no changes occurred that would have made full-time telework possible and that the confidentiality requirements were still the same. He explained that it was due to the nature of the work. The work of project officers required continuous daily contact with the divisions and regional offices, which meant using the confidential computer network. Even drafting the manual and preparing the documentation required contact with colleagues in the office. Only a small portion of that work can be done via teleworking.

52 In cross-examination, Mr. Wrighte confirmed that the employer did not limit its search to his division. He indicated that the nature of the work assigned to Ms. Lafrance was not limited to survey assessments. She had been involved in compiling and transcribing summaries of the meetings held after the surveys. That was clerical work. He reiterated that other divisions had been contacted in an effort to find work for Ms. Lafrance.

53 Mr. Wrighte reiterated that the delay in addressing the disability insurance claim was due to the relocation of the compensation section and to the absence of the officer in charge of providing the required information. He added that the department encouraged Ms. Lafrance to apply for disability benefits, which were retroactively approved effective June 2007.

IV. Summary of the arguments

A. For the grievor

54 Ms. Lafrance’s representative began his arguments by indicating that, under the provisions of the Canadian Human Rights Act (CHRA), the employer must make every necessary effort to find a reasonable arrangement to accommodate an employee who is suffering from health problems. He indicated that, after the first grievance, it became evident that Ms. Lafrance had been a victim of discrimination and that her situation during the period covered by these grievances did not change. The employer continued to demand that she come to the office, depriving her of her ability to earn a living because of a health problem.

55 The grievor’s representative claimed that the CHRA was designed to ensure that employees with health problems were not subjected to discrimination. During the period covered by the grievances, Ms. Lafrance was forced to remain at home with no source of income, which made her a victim of discriminatory treatment. Thus, the onus of proof is on the employer, which must demonstrate that it met its obligation to make accommodations short of undue hardship.

56 The grievor’s representative indicated that the following two issues are in dispute:

1. Did the employer make every effort to find a reasonable arrangement?
2. Did those efforts meet the threshold of undue hardship?

57 The grievor’s representative argued that the employer knew that, even before the decision in 2007 PSLRB 31, it had to make every necessary effort to find a reasonable arrangement for Ms. Lafrance to enable her to work from home. He indicated that the responses to the grievances confirmed that the employer was aware of that obligation. However, he noted, the only conclusion to be drawn from the evidence presented by the employer is that there were communications among management’s representatives who were trying to determine whether there were any assignments that would enable Ms. Lafrance to work from home. In the opinion of the grievor’s representative, the issue is whether the mere fact of informally contacting departmental and other employees to find out whether there were any special assignments for Ms. Lafrance constitutes a reasonable effort short of undue hardship within the meaning of the CHRA and the case law. He submitted an article by Professor Michael Lynk entitled: “Disability and the Duty to Accommodate in the Canadian Workplace.”

58 The grievor’s representative submitted that the employer is responsible for reviewing every possibility and that it must demonstrate that its efforts were serious and conscientious using the following four steps: 1) the employer must assess whether the employee can meet the obligations of his or her own position; 2) the employer must determine whether it is possible to recombine or modify the tasks associated with the employee’s position to enable him or her to continue working; 3) the employer must determine whether the employee can meet the requirements of another position; and 4) the employer must determine whether the employee can meet the requirements of another position by modifying it or by recombining other organizational tasks.

59 The grievor’s representative submitted that the first decision about Ms. Lafrance’s situation rendered in 2007 PSLRB 31 addressed the issue of whether the employer had completed the first step. He submitted that the employer never investigated or even considered the other steps. The employer did not prove that the option of modifying, pairing or recombining some of the tasks of Ms. Lafrance’s position was impossible and that it constituted undue hardship.

60 The grievor’s representative submitted that the employer did not prove that, in the entire federal public administration, it was impossible to recombine or modify tasks to enable an employee to continue working. He added that Mr. Carbonneau’s testimony clearly demonstrated that no serious or conscientious effort was made to assess those steps. He pointed out that, in cross-examination, Mr. Carbonneau mentioned that there was no telework in Statistics Canada because of the organization’s mission but mostly because no telework was possible for employees in the SI group. Yet, according to a 2005 employee survey, 5 percent of Statistics Canada employees telework, the same proportion as for the public service as a whole. Moreover, the evidence also reveals that 6 percent of employees in the SI group telework. The grievor’s representative concluded that Mr. Carbonneau’s argument that there was no telework in Statistics Canada is unfounded; departmental data indicates that more than 250 people telework.

61 The grievor’s representative submitted that Mr. Carbonneau implicitly and explicitly admitted that he did not review any positions to determine the tasks that could be performed by telework and that he did not determine whether Ms. Lafrance could perform those tasks. Mr. Carbonneau said only that telework was available at Statistics Canada solely on an ad hoc basis. He could not say whether it would have been possible to recombine tasks done in an ad hoc manner to create a productive position for Ms. Lafrance. As for whether Mr. Carbonneau reviewed telework positions throughout the public service, the grievor’s representative submitted that Mr. Carbonneau responded that “[translation] [i]t would have taken [him] a hundred years.”

62 The grievor’s representative submitted that, in light of Mr. Carbonneau’s testimony, it is clear that the employer did not make a serious and conscientious reasonable effort. He added that Mr. Carbonneau did not know what the process or plan of accommodation was and that he did not demonstrate that it was impossible to go through the steps because they constituted undue hardship.

63 The grievor’s representative submitted that, referring to Calgary District Hospital Group v. United Nurses of Alberta Local 121-R (1994), 41 L.A.C. (4th) 319, the duty to accommodate calls for more than demonstrating that the employee cannot carry out the duties of his or her position. The employer is obligated to determine the extent that the employee’s position can be modified or adapted to enable him or her to return to work despite his or her limitations.

64 The grievor’s representative submitted that the adjudicator’s decision concerning Ms. Lafrance (2007 PSLRB 31, rendered in March 2007) established that her presence in the workplace constituted a bona fide occupational requirement. However, the employer did not demonstrate why her position could not be modified or adapted to enable Ms. Lafrance to telework. The grievor’s representative added that Greater Niagara General Hospital v. Ontario Nurses’ Association (1995), 50 L.A.C. (4th) 34, clearly established that the employer is obligated to review every existing job to determine whether they can be restructured or whether tasks can be combined into a new position that would enable the employee to return to work. The employer was obligated to identify the tasks that could be done as telework and to combine them in a position that would enable Ms. Lafrance to work from home.

65 Referring to Ontario Nurses’ Association v. Community Lifecare Inc. (2001), 101 L.A.C. (4th) 87, the grievor’s representative submitted that the employer was obligated to identify the tasks throughout the federal public service that could be done as telework and to consolidate them into a single position to make a reasonable accommodation for Ms. Lafrance. He added that it was impossible to believe that, in the entire federal public service, tasks could not be combined to create a productive telework position that would not constitute undue hardship for the employer.

66 The grievor’s representative submitted that, in Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8, a Public Service Labour Relations Board adjudicator found that the primary responsibility for finding an accommodation fell to the employer. According to British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 S.C.R. 3 (Meiorin), it is not sufficient for the employer to roughly estimate or state without evidence that it would not be possible to find tasks adapted to the needs of the employee to conclude that the employer had taken every possible measure short of undue hardship. The adjudicator found that Meiorin is unequivocal; human rights legislation requires that employers find positive ways to find satisfactory accommodations.

67 The grievor’s representative submitted that, in Ms. Lafrance’s case, the employer never considered making accommodations that would meet her specific need of working from home. The only effort the employer made was to send out emails asking whether any assignments were available for her. Simply sending emails and speaking about the search for work at management committee meetings certainly does not satisfy the principle set by Meiorin. The obligation or the duty to find a reasonable accommodation goes beyond a mere search for work.

68 The grievor’s representative noted that Ms. Trottier-Guilbaud testified that Ms. Lafrance had been placed in the corporate assignment program so that she could be entered in a database that was accessible to managers looking to fill temporary positions. However, he noted that Ms. Trottier-Guilbaud never consulted Ms. Lafrance, and that she was not responsible for the accommodation process. Although Ms. Trottier-Guilbaud admittedly took steps to inform internal and external managers of Ms. Lafrance’s availability for special assignments, the corporate assignment program is not an accommodation program. Ms. Trottier-Guilbaud effectively acknowledged that Ms. Lafrance had the same opportunities and the same chances as the other employees in the program. The grievor’s representative added that Mr. Carbonneau completely contradicted that part of Ms. Trottier-Guilbaud’s testimony on two occasions. He indicated that Mr. Carbonneau mentioned that Ms. Lafrance could not work full-time and that there was insufficient information about her functional limitations, which considerably reduced Ms. Lafrance’s chances of obtaining a special assignment. The grievor’s representative wondered whether the emails were not merely “smoke and mirrors” since Mr. Carbonneau knew that the chances of finding a special assignment for Ms. Lafrance were very slim.

69 The grievor’s representative submitted that the corporate assignment program discriminated against Ms. Lafrance because, given her medical condition, she had a lesser chance of obtaining a special assignment.

70 The grievor’s representative submitted that, although the employer will try to make the case that it tried to find work for Ms. Lafrance, the fact remains that the employer did not find her a reasonable accommodation. The only work that the employer provided her came to 69.5 hours in August 2006 and 32 hours in January 2007. The grievor’s representative referred to the efforts made by the employer in Begley v. Treasury Board (Public Works and Government Services Canada), PSSRB File No. 166-02-26311 (19960522). He noted that, unlike that employee’s situation, no position was offered to Ms. Lafrance. The employer merely stated that there was no possible assignment, without even considering other types of reasonable arrangements. He submitted that the employer’s obligation was not limited to searching for special assignment opportunities by exchanging informal emails between internal and external management representatives, citing Hoyt v. Canadian National Railway, 2006 CHRT 33.

71 The grievor’s representative submitted that the employer did not display any innovativeness, flexibility or creativity and that it contented itself with looking for work. The mere search for work does not meet the criteria provided under human rights legislation. Consequently, from March 31, 2006 to September 20, 2007, when Ms. Lafrance resigned, the employer found no reasonable arrangement. The grievor’s representative requested that the grievance be allowed.

72 The grievor’s representative submitted that, because the employer systematically refused to find a reasonable arrangement that would have enabled Ms. Lafrance to reintegrate into the workplace, and that in so doing the employer deprived her of her livelihood after March 31, 2006, Ms. Lafrance should be compensated for her lost income, including employee benefits, taking into consideration the disability benefits she received until she was deemed unable to work by the Health Canada doctor. He also asked that her severance pay and retirement benefits be recalculated.

73 The grievor’s representative asked for the maximum compensation for pain and suffering under section 53 of the CHRA. The employer’s conduct caused Ms. Lafrance tremendous stress and suffering. The simple fact of being without income for a year and four months threatened her health. The employer’s systematic refusal to find a reasonable arrangement had professional consequences. The impact on her health led to premature medical retirement. The grievor’s representative noted that, three months after the first decision on her situation, Ms. Lafrance realized that the employer was not making her desired adaptation measures. She had no choice but to apply for disability benefits. She did not want those benefits. She wanted to work until the end of her career.

74 The grievor’s representative referred to Lloyd v. Canada Revenue Agency, 2009 PSLRB 15, in which the adjudicator stipulated that it is up to the employer to provide an accommodation plan and that the lack of consultation with the employee about the plan unduly delayed the efforts and the implementation of the recommendations. The adjudicator in that case explained that, in cases dealing with issues of accommodation, there is a need to manage the situation in a consultative rather than an autocratic manner. The grievor’s representative submitted that the evidence indicated that no consultation about a real accommodation plan ever took place.

75 The grievor’s representative requested compensation of $20,000 were I to find that the discrimination was deliberate or reckless. He noted that the first decision about Ms. Lafrance’s situation was a serious warning for the employer. Although the conclusion was that the evidence demonstrated a bona fide occupational requirement, he noted that the employer was still obligated to find a reasonable arrangement that would enable Ms. Lafrance to earn a living. He indicated that the facts on file showed that, right after decision 2007 PSLRB 31 was rendered, the employer did not make any real effort (within the meaning of the CHRA) to find a reasonable arrangement. Between the date of that decision and the date on which Ms. Lafrance was declared unable to work, the employer never took the initiative to communicate with her. He noted that Mr. Wrighte testified that he received instructions from Human Resources to communicate only in writing. He did not communicate with her except to respond to her emails.

76 The grievor’s representative submitted that the employer clearly did not take its obligation seriously, that it never intended to find a reasonable arrangement and that its conduct towards Ms. Lafrance was incontestably deliberate and inconsiderate.

77 The grievor’s representative submitted that what made the case of Ms. Lafrance and many others different was, without doubt, the attitude of the employer’s representatives towards Ms. Lafrance, with no regard to the consequences. He pointed out that the testimonies of Ms. Grenier and Mr. Wrighte were revealing on that point.

78 The grievor’s representative submitted that the one and only purpose of Ms. Grenier’s testimony was to make the bargaining agent representative partly responsible for the failure of the efforts to find a solution to Ms. Lafrance’s situation. The employer never indicated to the bargaining agent that it had an issue with its organization or that the request for written communication would present problems or obstacles for the accommodation process. He added that Ms. Grenier’s testimony did not show how that requirement impeded the process.

79 The grievor’s representative submitted that Mr. Wrighte’s testimony revealed the employer’s intentional and deliberate carelessness. Despite the many emails sent to the employer explaining the urgency of Ms. Lafrance’s situation, the employer took two months to fill out a form that normally should have taken 72 hours. The evidence revealed that Ms. Lafrance and Ms. Black sent four emails reminding Mr. Wrighte of the urgency of the situation. The employer knew that the disability benefits were Ms. Lafrance’s only source of income. The grievor’s representative noted that Mr. Wrighte’s response was that Ms. Lafrance could have claimed benefits long before she did. The grievor’s representative submitted that the important thing is the employer’s two-month delay and wondered if the employer made every reasonable effort to ensure that the form was submitted to the insurer as soon as possible.

80 The grievor’s representative pointed out that, in the meantime, in July 2007, Ms. Lafrance wrote to Mr. Wrighte, despite the fact that she had submitted a claim for disability benefits, indicating that she was available for work. She always hoped to be able to work. The grievor’s representative submitted that, unfortunately, the evidence indicated that Mr. Wrighte had been ordered not to communicate with Ms. Lafrance. The employer knew that eventually Ms. Lafrance’s medical condition would deteriorate to the point where she would be unable to work. The grievor’s representative submitted that Ms. Lafrance was forced to take medical retirement because the employer deliberately failed to find work that met Ms. Lafrance’s functional limitations and in so doing aggravated her medical condition. He requested compensation of $15,000 for that deliberate discrimination. In support of the claim, the grievor’s representative referred to Culic v. Canada Post Corporation, 2007 CHRT 1, and to Giroux v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 102.

B. For the employer

81 The employer’s representative submitted that this case consists of the following two issues: the first is whether the employer failed in its duty to find a reasonable arrangement for Ms. Lafrance, and the second is whether it contravened article 27 of the collective agreement.

82 The employer’s representative submitted the following comments in response to the arguments made by Ms. Lafrance’s representative. She noted that, during her testimony, Ms. Lafrance affirmed that the employer never communicated with her to discuss employment options and the need to obtain information about her functional limitations. Knowing that that was false, the employer had to establish that it had indeed communicated with Ms. Lafrance through teleconferences and written methods following the express request of her representative. The employer’s representative pointed out that Ms. Grenier’s testimony indicated that it is often easier to communicate verbally than in writing, and Ms. Grenier clearly indicated that the requirement that communications be done in writing was not the reason Ms. Lafrance did not obtain telework. Instead, the requirement slowed or encumbered the exchange of information that might have helped in the search for a reasonable arrangement.

83 The employer’s representative submitted that the issue raised by Ms. Lafrance’s representative, whether the mere fact of communicating with people in the department constituted a reasonable effort, is not the issue to be decided. She submitted that the first issue is to determine whether the employee has established a prima facie case of discrimination. The second is to determine whether full-time telework constitutes an undue hardship.

84 In response to the allegation that the employer did not complete the first of the four steps in the process of finding an arrangement for Ms. Lafrance, the employer’s representative submitted that, during the hearing of the grievor’s first grievances, the employer proved that the second step of the process had been achieved by establishing that Ms. Lafrance’s position could not be modified to full-time telework, which would have been an undue hardship. She also submitted that the evidence also showed that no other position in Statistics Canada lent itself to full-time telework given the confidential nature of the tasks. She added that the employer does not have to prove that it is impossible to modify tasks anywhere in the public service, since the Supreme Court has established (in Hydro Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43) that the applicable criterion is undue hardship, not impossibility. She also noted that the Financial Administration Act and the Public Service Employment Act do not provide the deputy head of a department with full authority over the management of human resources anywhere other than in his or her own department. Thus, Statistics Canada cannot assign tasks from another department and cannot incur expenses outside its mandate.

85 The employer’s representative submitted that the arguments presented by Ms. Lafrance’s representative about the telework statistics cannot be used because those statistics do not reflect full-time telework but rather all types of telework, including full-time, part-time and ad hoc. Nor do the statistics reflect the types of tasks or the qualifications required to execute them.

86 The employer’s representative submitted that, according to the case law, there is no obligation to create a position from bits and pieces. Many of the decisions submitted by Ms. Lafrance’s representative are from the private sector and contain nothing relevant to the reality of the federal public service. In many of the cases, the functional limitations were known. Begley can be ignored because the department in question was much larger, and the employer knew the complainant’s functional limitations. In this case, the only acceptable solution for Ms. Lafrance was full-time telework.

87 The employer’s representative submitted that prudence was called for when considering the arguments submitted by Ms. Lafrance’s representative. In fact, none of the evidence submitted supports the allegations that the corporate assignment program was discriminatory or that Ms. Lafrance’s condition worsened because she had no work. The only medical evidence submitted was that she was unable to work. The employer’s representative also submitted that the employer continued to seriously consider any request for accommodation and that it raised the fact that the decision 2007 PSLRB 31 was rendered three-quarters of the way through the period addressed by these grievances.

88 The employer’s representative commented on Ms. Lafrance’s testimony. She noted that, contrary to the allegations that Ms. Lafrance made about the lack of communication during the main examination, in cross-examination, Ms. Lafrance admitted that the employer had set up monthly teleconferences to discuss employment opportunities, medical information and the use of leave credits and that Ms. Grenier had kept the bargaining agent and Ms. Lafrance informed of the steps the employer was taking to identify existing telework opportunities (Exhibit PS-44). Ms. Grenier’s correspondence clearly indicates that the search extended to all of Statistics Canada, that every director general was informed of Ms. Lafrance’s situation and that the Survey Operations Division continued to look for a telework opportunity for Ms. Lafrance. The employer also took steps to facilitate Ms. Lafrance’s search for employment by giving her access to Publiservice from her home.

89 The employer’s representative also noted that it was further to an express request from her bargaining agent representative that the teleconferences were discontinued and replaced by written communications. On that point, she submitted Exhibits PE-19, PR-45 and G-29. The employer’s representative noted that Ms. Lafrance admitted that she did not respond to Mr. Wrighte’s email seeking her cooperation in finding a specialist who could identify her functional limitations, in order to find a reasonable arrangement. The evidence also revealed that Ms. Lafrance obtained a medical certificate dated March 27, 2007 indicating “medical illness” (Exhibit PS-29) and that she applied for disability benefits only in June 2007 (Exhibit PS-27), even though she was informed of the possibility of obtaining those benefits in August 2006 (Exhibit PS-18).

90 The employer’s representative submitted that it was not until May 2007 that Ms. Lafrance agreed to undergo a medical assessment (Exhibit PS-21), and further to the assessment, on September 26, 2007, Ms. Lafrance was declared unable to work (Exhibit PS-24). The employer’s representative pointed out that, on that same date, Statistics Canada asked Health Canada whether medical retirement was a possibility (Exhibit PS-23). In November 2007, the bargaining agent forwarded a medical assessment (Exhibit PS-25) from an independent doctor to determine Ms. Lafrance’s long-term medical prognosis. Based on that information, Health Canada approved Ms. Lafrance’s medical retirement due to her permanent disability effective January 2007 (Exhibit PS-26).

91 The employer’s representative submitted that Ms. Lafrance confirmed that she took several types of paid leave from April to August 2006 and that she had been paid for services rendered in August 2006 and January 2007 (Exhibits PS-16 and PS-17). Ms. Lafrance did not provide any evidence indicating that the employer failed to pay her salary for services rendered during the period covered by the grievances.

92 Turning to her own arguments, the employer’s representative pointed out that Ms. Lafrance’s grievances are a good opportunity to add to the case law on the parties’ obligations about the duty to develop accommodations. Although there is extensive case law on the obligations of the employee and the employer, she noted that there was very little on the bargaining agent’s responsibility.

93 The employer’s representative submitted that the case law on discrimination and accommodation provides that the complainant must establish a prima facie case of discrimination. On that point, she referred to the Supreme Court of Canada decision in Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536. She also noted that, in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Supreme Court ruled that it was up to the complainant to propose a solution and that the Canadian Human Rights Tribunal, in Patricia Butler, D.T. 12/02, stated that the employee’s conduct must be carefully considered. She also referred to Twetten v. RTL Robinson Entreprises Ltd., 2005 CHRT 8, and Kandola v. Canada (Attorney General), 2009 FC 136, about an employee’s obligation to provide medical information about his or her physical limitations. In her opinion, it is clear that an employee must provide the necessary medical information and participate in the search for a solution, without which it cannot be alleged that the employer failed to take the necessary steps. An employee who requires accommodations must identify his or her limitations and needs. An employer cannot proceed with accommodation without knowing the functional limitations of the employee in question.

94 The employer’s representative submitted that the employer found itself in a situation where it had no knowledge of Ms. Lafrance’s physical limitations. The employer was aware that Ms. Lafrance suffered from a medical condition and that her doctor had recommended full-time telework as an accommodation. Full-time telework is an accommodation measure and a possible arrangement, but it is not a functional limitation.

95 The employer’s representative submitted that, despite the employee being obliged to provide the employer with information about her functional limitations, the evidence presented at the hearing into the first grievances demonstrated that the employer had been proactive in repeatedly requesting that Ms. Lafrance’s doctor provide information about her situation. The evidence demonstrated that those numerous efforts proved fruitless, despite the assistance provided by the Canadian Human Rights Commission. Given that its efforts were fruitless, the employer suggested that Ms. Lafrance be assessed by Health Canada. Yet, Ms. Lafrance objected (Exhibit E-54).

96 The employer’s representative submitted that the employer never stopped trying to obtain that information (Exhibits PE-19, G-29 and PE-48) and that Ms. Grenier and Mr. Carbonneau both testified that the information was needed to find a reasonable arrangement and that the full-time telework requirement made it difficult to find a solution. How can the employer be reproached for not suggesting different types of arrangements when the only possible solution was full-time telework? In addition, at no time did Ms. Lafrance or the bargaining agent respond to requests for suggestions or proposals (Exhibits G-29, Pe-44 and Pe-45). The employer was left on its own to find accommodations, whereas the case law clearly establishes that it is a shared responsibility.

97 The employer’s representative submitted that the employer did not fail in its duty to find a reasonable accommodation because its search was limited by occupational requirements. She referred to Hydro Québec, McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, and Guibord v. Canada (Treasury Board), [1997] 2 F.C. 17 (T.D.). The employer’s representative pointed out that other employees suffering from the same medical condition did not have the same full-time telework requirement and that solutions had been found for them.

98 Referring to 2007 PSLRB 31, the employer’s representative submitted that it was proven that the employer did not fail in its duty to search for a reasonable arrangement short of undue hardship to enable Ms. Lafrance to continue working. The employer’s representative submitted that the work was analyzed and that telework options were assessed. The testimonies of Mr. Carbonneau and Mr. Wrighte established that very few telework opportunities related to Ms. Lafrance’s substantive position existed given the nature of the work and that the same applied outside the Survey Operations Division in Statistics Canada. Only ad hoctelework was possible, and the employer never gave up searching for it for Ms. Lafrance. Ms. Trottier-Guilbaud also testified about the different proposed strategies that were used to identify existing telework until September 2007 (Exhibits Pe-31 to Pe-36). The evidence indicates that, every single month, the employer looked for telework at the equivalent or at a lower level and that the emails to the different regional offices and divisions of Statistics Canada indicated that the Survey Operations Division would pay Ms. Lafrance’s salary. The employer’s representative also pointed out that another strategy used was sending Ms. Lafrance’s resumé to the various managers that identified human resource requirements. The search also extended to more than 30 departments by email and the professional contacts network to try to find telework for Ms. Lafrance. The employer’s representative added that the evidence demonstrated that, although Ms. Trottier-Guilbaud did not personally contact Ms. Lafrance, the grievor was aware of the efforts made for her (Exhibits Pe-19 and Pe-44) and that she agreed to participate in those efforts by providing her resumé (Exhibit Pe-38).

99 The employer’s representative pointed out that Mr. Carbonneau testified that, during the period covered by these grievances, i.e., March 2006 to August 2007, Ms. Lafrance’s substantive position did not change and that full-time telework was not possible given the legislative provisions about confidentiality. Mr. Carbonneau testified that Statistics Canada made concerted efforts and used several tools and resources to find a telework opportunity that would be suitable for Ms. Lafrance. Even the creation of a new position was considered — writer/revisor — until it was determined that, after a test period, Ms. Lafrance was not qualified.

100 The employer’s representative pointed out that Mr. Carbonneau clearly indicated that not all telework could be assigned to Ms. Lafrance, i.e., the work of economists, because of her qualifications. The telework statistics used by the bargaining agent do not indicate whether they apply to full-time telework and do not specify the qualifications required for the work.

101 The employer’s representative pointed out that Statistics Canada found out from the Public Service Commission that, to access the priority system for appointment to another position, the employee had to be receiving disability benefits. She added that Ms. Grenier passed that information on to Ms. Lafrance (Exhibit G-29) and that neither Ms. Lafrance nor her representative responded. Management also ensured that it would be informed of any position that had to be filled and that would lend itself to telework.

102 The employer’s representative pointed out that Mr. Wrighte testified that, in addition to the many initiatives undertaken and the proposals made to obtain priority status, when he arrived he also worked to ensure that work opportunities for Ms. Lafrance were discussed at the management meetings (Exhibit PS-46), which took place every two weeks from November 2006 to November 2007. Mr. Wrighte also confirmed that, since his arrival, no changes were made either to the surveys or to Ms. Lafrance’s substantive position.

103 The employer’s representative submitted that the evidence clearly showed that the employer never stopped its search, which it extended to the regions, divisions and other departments for positions equivalent to or below the SI-02 level held by Ms. Lafrance. The employer’s representative added that the department’s deputy head was responsible for hiring decisions.

104 The employer’s representative submitted that the case law recognizes that the employer is not required to create a new position to meet the needs of an employee. Referring to Kerr-Alich v. Treasury Board (Department of Social Development), 2007 PSLRB 33, Canadian National Railway Co. v. Brotherhood of Locomotive Engineers (2003), 118 L.A.C. (4th) 228, and Vancouver Island Health Authority v. British Columbia Nurses’ Union (2004), 129 L.A.C. (4th) 161, the employer’s representative pointed out that the criterion for determining whether an accommodation is reasonable is whether the work is useful and productive for the employer.

105 The employer’s representative submitted that the evidence demonstrates that the employer acted in good faith and that it continued to implement several strategies and initiatives in an attempt to find a reasonable arrangement for Ms. Lafrance. Full-time telework in her substantive position and in Statistics Canada constitutes an undue hardship. The employer’s representative added that Mr. Carbonneau clearly explained that an analysis of all public positions was also an undue hardship. In fact, every deputy head is responsible for his or her own department, and there is no obligation to create a position assembling the functions of different departments. The employer acted within the limits of the legislative framework and was not satisfied with brief searches. Statistics Canada conducted itself in an exemplary fashion.

106 For the second grievance, the employer’s representative submitted that the burden of proving that the employer contravened article 27 of the collective agreement about her right to compensation fell to Ms. Lafrance. Yet, she was paid for the work she performed and for her attendance at the adjudication of the first grievance and mediation, and there is no evidence indicating that the employer contravened article 27.

C. Grievor’s rebuttal

107 Ms. Lafrance’s representative pointed out that a good portion of the arguments submitted by the employer were presented at the hearing into the first grievances in July 2006 and that there was no reason to reopen that case. Among other things, he noted that the medical issue had been debated and that a decision had been rendered. He added that it was not possible for Ms. Lafrance to make a medical appointment with a Health Canada doctor on her own. Although Mr. Wrighte highlighted the alleged issues pertaining to medical information in his January 12, 2007 email, it was not until May 28, 2007 that the employer asked Ms. Lafrance to undergo an assessment by Health Canada, which she agreed to on June 10, 2007 by signing the appropriate form (Exhibit Pe21), which the employer sent to Health Canada on August 23, 2007, more than one-and-a-half months after Ms. Lafrance signed it. The appointment was set for September 26, 2007, which Ms. Lafrance attended. Claiming that Ms. Lafrance did not cooperate in clarifying her medical situation is false.

108 The grievor’s representative submitted that the employer’s representative used the same excuse as the employer’s representative in the first grievances to argue that the employer could not find a reasonable arrangement for Ms. Lafrance if it did not know her functional limitations. However, the grievor’s representative raised that the employer already found such an arrangement for Ms. Lafrance between October 2005 and March 2006, in August 2006, and in January 2007, all despite the lack of information about her functional limitations. The grievor’s representative pointed out that the allegations of lack of information about Ms. Lafrance’s functional limitations were raised only after the employer failed to find an arrangement for Ms. Lafrance.

109 The grievor’s representative acknowledged that all three parties had to take part in the effort to find reasonable accommodations. However, he added that the responsibility that fell to Ms. Lafrance and her bargaining agent only began once the employer submitted a reasonable proposal. Yet, the evidence shows that, on the three occasions when a reasonable and concrete proposal was made to Ms. Lafrance, she accepted it.

110 The grievor’s representative submitted that Ms. Lafrance communicated twice with her new manager, Mr. Wrighte, on September 26, 2006 and on July 5, 2007 (Exhibits PS-4 and PS-8) to inform him that she was available for any kind of work. He added that Ms. Trottier-Guilbaud’s testimony indicated that the employer’s job search process was never communicated to Ms. Lafrance. How could she have taken part in the process if she was never provided with copies of the correspondence sent to the different managers?

111 The grievor’s representative submitted that, in Renaud, the Supreme Court of Canada stipulated that the responsibility for finding a reasonable arrangement fell to all the parties but that also, once the employer has found a reasonable arrangement, the employee must cooperate and facilitate its implementation. The principle of the employee’s responsibility was set out in CANPAR v. U.S.W.A., Loc. 1976 (2000), 93 L.A.C. (4th) 208.

112 The grievor’s representative submitted that, in Ms. Lafrance’s case, the employer did not offer her any work opportunities and that its efforts did not meet the criteria established by the case law.

V. Reasons

113 While the main responsibility for finding a reasonable arrangement to help an employee with functional limitations falls to the employer, that responsibility does not involve creating a position out of bits and pieces without taking operational requirements into consideration. The Supreme Court of Canada, in Hydro-Québec, clearly indicated that the criterion is not the impossibility for the employer of accommodating an employee’s characteristics. The Supreme Court specified that the employer is not required to fundamentally modify the working conditions but to accommodate, if it does not impose undue hardship, the workstation or tasks to enable the employee to work.

114 In this case, the evidence shows that the employer used every necessary and appropriate means to find a reasonable arrangement for Ms. Lafrance during the period covered by these grievances, short of undue hardship. As a result, the employer was able to identify certain telework opportunities at different times. However, the full-time telework requirement presented a significant obstacle to the search for a solution to Ms. Lafrance’s situation. The evidence clearly established that full-time telework was not available on a continuous and ongoing basis, even after the tasks of Ms. Lafrance’s position were analyzed and after considering adding work from other sectors, as well as extending the search to Statistics Canada’s regional offices and to other departments.

115 I would add that, given the nature of the health problem disclosed by Ms. Lafrance, i.e., sleep apnea, it is not surprising that the employer tried to specifically pinpoint her functional limitations, particularly since it was not the first time that Statistics Canada had to contend with that type of problem, and that it had already addressed the problem by setting up a resting room for employees suffering from that condition. Ms. Lafrance did not fail in her duty to report her functional limitations. Had she not done so, she would have foregone her right to a reasonable arrangement. However, by indicating through her doctor that she was available only for telework, the only solution that would enable Ms. Lafrance to continue working was limited to telework. The employer cannot be blamed for lack of imagination in the search for solutions when the information provided supports no resolution other than full-time telework. However, despite that lack of information about Ms. Lafrance’s functional limitations, which might have made it possible to expand the search for possible solutions, the evidence shows that Statistics Canada did not let up in its search for a reasonable solution during the period covered by the grievances. Just because the employer could not find a lasting reasonable arrangement given Ms. Lafrance’s functional limitations and the constraints of the workplace, does not mean that it failed in its duty under the CHRA. It is important to note that, during the period covered by the grievance, given the circumstances faced by Statistics Canada and Ms. Lafrance’s qualifications, full-time telework represented an undue hardship for the employer.

116 At this point, I do not understand the reasons that led Ms. Lafrance to wait until July 2007 to claim disability benefits. In so doing, she deprived herself not only of income to which she was entitled, but also of the administrative priority for public service staffing granted to employees with functional limitations and receiving disability benefits. Ms. Lafrance’s reason that a claim would have conflicted with her affirmation that she was able to work demonstrates an important lack of understanding of her situation and her rights and the consequences of her inaction.

117 The search for a reasonable arrangement came to naught. That failure, which is attributable to Ms. Lafrance’s functional limitations as much as to the legitimate constraints of the workplace, cannot be attributed to the employer any more than it can be attributed to Ms. Lafrance or her bargaining agent.

118 Under the circumstances, I cannot find that the employer failed in its duty to search for a reasonable arrangement. Consequently, I cannot allow the claims submitted under the CHRA.

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

VI.Order

120 The grievances are dismissed

September 22, 2009.

PSLRB Translation

Georges Nadeau,
adjudicator