FPSLREB Decisions

I. Individual grievances referred to adjudication

1 The grievor, Christina Spooner, is a corrections officer currently employed by the Correctional Service of Canada (“the employer”) at Mission Institution. The grievances arose in the context of the grievor’s pregnancy and tragic loss of a fetus in 2006, while she was employed at Fraser Valley Institution (“FVI”). The first grievance, dated October 25, 2006, alleges that the employer’s failure to properly accommodate the grievor during her pregnancy led to the loss of the fetus and that she had been subjected to abuse of authority, harassment and discrimination, contrary to the collective agreement. The collective agreement in question, between the Treasury Board and the Union of Canadian Correctional Officers – Syndicat des agents correctionnels du Canada - CSN  (“the union”) was signed on June 26, 2006 and expired on May 31, 2010. In the second grievance, dated November 20, 2006, the grievor alleges that the employer continued to fail to accommodate her, causing her to lose opportunities to earn income.

2 It should be noted that, with respect to the allegations of discrimination, notice was given to the Canadian Human Rights Commission, which declined to participate in these proceedings.

II. Preliminary matters

3 Counsel for the employer raised a preliminary objection to the jurisdiction of an adjudicator with respect to the second grievance. That grievance alleged that the employer’s decision to place the grievor on paid leave status amounted to disciplinary action. Counsel for the employer argued that since that action of the employer did not rest on an allegation of fault against the employee, it could not be characterized as disciplinary. Nor was there any financial “penalty” in the sense used in           paragraph 209(1)(a) of the Public Service Labour Relations Act (PSLRA). The allegation of disciplinary action was central to the grievance, and since there had been no disciplinary action, the grievance was not eligible for referral to adjudication.

4 Counsel for the grievor argued that the second grievance arose in circumstances that were a continuation of the events that had led to the first grievance and that it involved the same pattern of discrimination and harassment. Counsel for the grievor argued that, therefore, it was referable to adjudication, like the first grievance, under paragraph 209(1)(a) of the PSLRA because it involved the application or interpretation of those provisions of the collective agreement pertaining to discrimination and accommodation.

5 Although counsel for the employer renewed her objection, she acknowledged that it is difficult to disentangle the factual background of the two grievances and that there would be significant overlap in the evidence for both grievances, although she reserved the right to return to this issue in final argument.

6 As a second preliminary matter, evidence was heard from Karen Varey, who had been subpoenaed by the grievor to provide certain information. At the time of the events giving rise to the grievance, Ms. Varey was an assistant team leader in the Intensive Intervention Unit (IIU) at FVI and was the grievor’s direct supervisor. Much of the information sought by counsel for the grievor under the subpoena concerned the protocol for handling a particular inmate, inmate N (initials will be used for inmate names throughout this decision). Inmate N was classified as a management protocol offender, which meant that protocols were developed specifically for her, as she did not fit into the normal categories of minimum, medium and maximum security inmates. Inmate N had a history of assaults against staff and other inmates and had not been successfully integrated into the population of other institutions. Ms. Varey testified that, by the time protocols were being developed for inmate N, the grievor had been in an accommodation placement outside the IIU and had no contact with that inmate. Ms. Varey said that she had reviewed several volumes of documents dealing with the inmate N’s case and that she had seen no reference to the grievor’s name; other aspects of those documents had no relevance to these proceedings. The only connection she could recall between the grievor and inmate N was that the grievor had expressed regret in a staff meeting that she would not have an opportunity to work with inmate N.

7 Ms. Varey did recall that certain aspects of the protocols with respect to inmate N had been perceived by primary workers (the title that had replaced “Corrections Officer”) as posing security risks, which had ultimately led to Ms. Varey imposing discipline on Renelle (Dolly) Coulson, the union vice-president. The grievor had been involved in the discussions surrounding that discipline in her union role as grievance coordinator. Under cross-examination by the grievor’s counsel, Ms. Varey asserted that there was no link between this occurrence and the change to the grievor’s accommodation placement that took place around the same time. Ms. Varey said that it was clear that Ms. Coulson had strong views about some aspects of the protocols for inmate N, but there had been no “shouting” in the course of their discussions, and the discipline had been imposed because of a communication Ms. Coulson had sent to employees, not because of the views she expressed. Ms. Varey said that she had seen no documentation concerning an exercise by employees of their rights under section 127 of the Canada Labour Code, and she did not recall Ms. Coulson or others framing their opposition to the protocols on inmate N on health and safety grounds.

8 Ms. Varey had been asked to ascertain whether the grievor had previously made harassment complaints against her. She found a single document relating to a previous complaint, with an indication that the grievor had addressed the complaint through the grievance procedure, and the file had been closed.

9 Counsel for the employer argued that any documents concerning inmate N were not relevant to these proceedings, as the grievor did not have any involvement in the management of that inmate; indeed, the inmate did not arrive at FVI until the grievor had been assigned elsewhere in the institution.

10 Counsel for the grievor expressed surprise that Ms. Varey claimed to have no recollection of other harassment complaints against her or of the health and safety aspects of the controversy over the management of inmate N.

III. Summary of the evidence

A.  For the grievor

11 The grievor testified that she began working at FVI in February 2004. At that time, the institution had just opened as one of several new institutions for female inmates. The institution was designed with few static barriers; inmates were residents in housing units and enjoyed considerable freedom of movement. They are encouraged to be as self-sufficient as possible. It was also intended that the institution have a secure unit (the current IIU), which would house maximum security and management protocol inmates. The grievor was a member of the commissioning team for the secure unit.

12 In November 2004, the grievor discovered that she was pregnant. She was aware of the high risk associated with her pregnancies. She had lost two previous pregnancies. One loss had occurred early in her service with the employer, in the summer of 2004, before her arrival at FVI. She had not sought any accommodation for the pregnancy on that occasion. Medical specialists had concluded that the reason for her losses was that she had an “incompetent cervix.” Women with this condition have a cervix that is shorter than normal, meaning that pressure on the cervix as the pregnancy progresses can lead to loss of the fetus.

13 For the 2004 pregnancy, the grievor was accommodated by being allowed to do much of her work from home. As a member of the commissioning team for the secure unit, she was heavily involved in drafting the policies and protocols that would be used in the unit, and it was possible for her to do the bulk of that work on a computer at home. She could communicate with other members of the team by phone or email.

14 At some stage in that pregnancy, she had a surgical procedure that was intended to relieve pressure on the cervix. She ultimately gave birth to a healthy child after a full term. She returned to work in November 2005, cutting her maternity leave short to assist with some issues related to the commissioning audit for the secure unit, which received its first maximum security inmate in February 2006. The unit staff consisted of 15 primary workers, including the grievor, and 3 behavioural counsellors. The staff was managed by a team leader, Attila Turi. Sometime later, an assistant team leader position was added, and Ms. Varey was placed in that position.

15 The grievor testified that, before that point, she and Ms. Varey had had a fairly positive relationship, but that when Ms. Varey became her supervisor in the IIU, there was tension between them from the beginning. The grievor disagreed with some of the changes that were made to the policies and protocols that she had helped develop. She said that she felt quite protective about those policies as they were her “baby.” She speculated that Ms. Varey might have felt threatened by having a subordinate who knew the policies better than she did, because of the grievor’s role in formulating the policies. After she joined the union executive in March 2006, the tension increased. In May, the grievor said that she complained to Mr. Turi about Ms. Varey’s attitude towards her.

16 It should be noted that counsel for the employer objected to this line of testimony on the grounds that the friction between the grievor and Ms. Varey over changes to the policies and procedures was irrelevant to the issues raised by the grievances. Counsel for the grievor argued that the evidence was being presented to show the origins of a pattern of harassment and discrimination against the grievor. The line of questioning was allowed on that basis.

17 The grievor said that when she spoke to Mr. Turi about her difficulties with    Ms. Varey, he encouraged her to remain in the unit, and characterized the problems as “growing pains.” He made it clear to her that she was a valued member of the staff in the unit, and she agreed to stay. However, her relationship with Ms. Varey did not improve, and Ms. Varey accused her on two separate occasions of breaching policy, once by removing food from an inmate and once by mishandling items seized from an inmate. Although the grievor was able to demonstrate the rationale for her actions, those incidents increased the tension between her and Ms. Varey.

18 The grievor was absent on holidays in July 2006. By the time she returned to work in August, she was aware that she was pregnant. She confided this to Mr. Turi. She was aware that among other things, inmate N was due to arrive in mid-August, and she expected that this would pose some challenges for the staff in the IIU. She wanted Mr. Turi to be aware that she might be away. Based on her history, she asked to wait to discuss accommodation until she knew that the pregnancy was viable.

19 The grievor said that even at that time, she was not planning to work with inmate N who was considered a very dangerous offender. Indeed, during much of the planning for the secure unit, she had been used as a benchmark for the extreme end of the security arrangements that might be needed. Unlike male facilities, FVI does not have a special handling unit (SHU) to deal with inmates who present inmate N’s level of risk, so it was necessary to devise special protocols to manage inmate N. At her previous institution, inmate N had been in restraints whenever she was out of her cell and had been denied many personal items, such as pens, because of her use of those items as weapons against staff and other inmates. The grievor said that, even though she would not have direct responsibility for the management of inmate N, the security protocols surrounding that inmate were of concern to her both because of her role as a union representative and, more directly, because she was in the secure unit from time to time.

20 On August 15, 2006, the grievor had an ultrasound that confirmed that her pregnancy was viable, and her family physician, Dr. M. Seger, provided a note     (Exhibit U-1) that read as follows: “Pregnant. EDC Apr. 6/07. History of incompetent cervix. Requires downgrade of duties to clerical work.”

21    The grievor said that she did not anticipate any difficulties with having a satisfactory accommodation made for her, given the success of the accommodation for her 2004 pregnancy. As she recalled, on August 17, she presented the doctor’s note to Mr. Turi. Ms. Varey was also present. They discussed some options for accommodation. Mr. Turi said that he understood that another team leader,                     Angie Vankoughnett, was making revisions to the standing orders for the institution, and he thought that the grievor would be able to assist. The grievor expressed some disappointment about not being able to maintain a connection with the secure unit, since she had put so much work into its establishment. It was agreed that, in addition to the work for Ms. Vankoughnett, she would take minutes at the weekly meetings of the Interdisciplinary Team (IDT) and that she would continue to work on the documentation for one of her caseload of inmates, inmate P. There was also a possibility that she might continue to be involved in segregation reviews.

22    In an email dated August 17 (Exhibit U-2), Shawna O’Connor, Assistant Team Leader, indicated that the grievor would be working in the case management area and that she would only work weekdays. She would be supervised by                                Ms. Vankoughnett. The case management area was in a different building, where there was limited inmate traffic. The grievor said that she did not specifically discuss the issue of inmate contact with Mr. Turi and Ms. Varey at the time. However, she did mention to them that it was likely that she would be having cervical surgery on September 22 and that it might be necessary to reconsider her accommodation at that time.

23    On August 20, Mr. Turi went on annual leave, and Ms. Varey became the acting team leader in the secure unit. At the IDT meeting of August 22 or 23, there was a discussion of the protocol with respect to inmate N, who had arrived on August 17 and who had been placed in the segregation unit. Ms. Varey indicated that the protocol would be modified so that it would not be necessary for inmate N to be placed in restraints while outside her cell as long as she was in the segregation unit; restraints would only be necessary when she left the segregation unit. A number of staff members, including the grievor, expressed concern about the change on the grounds that they were not yet familiar enough with the inmate to assess her accurately and had not developed any rapport with her.

24    A few days later, as the grievor recalled it, Ms. Coulson filed a complaint under section 127 of the Canada Labour Code, indicating that staff members were exercising their right to refuse unsafe work. Ms. Varey called in other staff, ordered staff to leave the unit who were refusing to work and conducted an investigation. The grievor said that at the time this happened, she had been in the secure unit for lunch, and was stuck there until she left in solidarity with the employees who were making the section 127 complaint.

25    At this point in the hearing, counsel for the employer objected to the admission of the intervention plan for inmate N through the grievor on the grounds that the document was not allowed to be taken out of the institution, for privacy reasons. Counsel for the grievor said that the document could be admitted through subsequent witnesses.

26    On or about August 30, Ms. Varey asked to speak with the grievor. She informed her that her accommodation in the case management area was being revoked and that she would have a new assignment in a static post the following week. She also raised with the grievor the question of whether she had been conducting union business during working hours without proper authorization.

27    The grievor said that she was “distraught” when she was informed that her accommodation was being changed. She went to the control “bubble” in the secure unit and called her union advisor, Ms. Coulson. She said that when Ms. Coulson arrived, the grievor was sitting on the floor of the bubble, so that inmates would not see her weeping. Ms. Coulson arranged for her to have a meeting with the warden,          Patricia Lockhart. She met with Ms. Lockhart and John Romaine, Acting Deputy Warden, and explained her concerns about the new accommodation assignment       Ms. Varey had described. She understood that she would be working at the principal entrance checking vehicles and screening those entering the institution which she did not think was consistent with her doctor’s note. She indicated that she was also expected to continue her duties with the IDT, which would make her workload too heavy. She explained to them her experience in her previous pregnancies and gave them a copy of her doctor’s note, which Ms. Lockhart and Mr. Romaine had not seen. She said that Mr. Romaine said: “This changes everything.” Ms. Lockhart suggested that she should go home for the rest of the day.

28    The grievor said that she perceived the reassignment to the principal entrance as punitive and connected with her involvement in the union in some way. She also described a further encounter with Ms. Varey when she was on her way to meet with the Warden. Ms. Varey asked her if she was going to the IDT meeting, as taking minutes was part of her job. The grievor explained that she had found someone to fill in for her while she had the meeting with the Warden. The grievor said that, during this encounter, she was still crying and shaking as a result of the earlier discussion with Ms. Varey.

29    On August 31, the grievor met with one of the specialists involved in her case, Dr. Waterman. She could not recall whether she showed him the memo (Exhibit U-6) that outlined the proposed accommodation at the principal entrance. He provided a further note (Exhibit U-4), which read as follows: “This lady is pregnant with a due date of April 6, 2007. She has a high risk pregnancy due to cervical incompetence. She should be working in an environment where she will not be exposed to physical altercations.”

30    The next day, September 1, the grievor was present at a meeting where her accommodation was discussed. Corinne Blanchette, a union representative, was present, as well as the grievor, Mr. Romaine, Ms. Varey and Ms. Vankoughnett. From the grievor’s point of view, the meeting did not go well. She felt under attack. In particular, she felt that Ms. Varey was “shouting” at her much of the time. She was presented with three options: working at the main control centre, working at the principal entrance and going on medical leave through employment insurance. She felt that all the options were objectionable and was resentful that the principal-entrance option was still on the table. The communication with her concerning her assignment to the principal entrance was described as being a “proposal,” which she found confusing because she had understood it to be an order made without any input from her. She was told that she would need further information from her doctors specifying her limitations so that a proper accommodation could be worked out.

31    The grievor said that she did not understand why the original accommodation in the case management area was being withdrawn and rejected the explanation that there was not enough work there for her. She further said that she failed to understand why her notes from the physicians were considered deficient since, in her previous pregnancy, an even more general note had been the basis for a perfectly satisfactory accommodation. During the meeting of September 1, she said that she was extremely upset and that she was crying much of the time. She could not understand the employer’s position and felt that it was being very hostile towards her. She acknowledged that she may have “yelled back” at employer representatives in the course of the meeting. At one point, she indicated that her doctors really wanted her “at home with her feet up.” She said that by that phrase she meant that, in an ideal situation, she would have been able to do exactly that.

32    A further meeting was held on September 7, 2006. By that time, the grievor had obtained a further note from her family physician (Exhibit U-5), which read as follows:

I am Christina’s family physician of nine years and write at her request to address employment concerns in the context of her current pregnancy. She has a medical history which creates a high risk of recurrent pregnancy loss. Her due date is April 6, 2007.

In order to minimize her chance of losing this pregnancy, she requires modified work duties that do not put her at risk of physical harm or abnormal emotional distress. Acceptable tasks could include the following:

general office work;

computer/keyboard tasks, data entry;

photocopying;

facsimile transmission;

document filing;

processing internal mail; and

attending meetings.

The following restrictions are strongly recommended:

no inmate contact;

no visual exposure to violence;

no exposure to emotionally distressing situations;

no exposure to x-rays, chemical agents or firearms;

no shift rotation, no night shift or evening hours;

no carrying, pulling or pushing any weight heavier than an office file;

continuous sitting or standing should be limited to 30 minutes;

work hours should not exceed 8 hours per day and 36 hours per week; and

no more than four successive work days.

I sincerely hope this addresses the employer’s concerns.

33    Ms. Blanchette, the grievor, Ms. Varey, Mr. Romaine and Ms. Vankoughnett were present at the meeting of September 7. There was some discussion of the authenticity of the doctor’s note, as it was unsigned. Ms. Blanchette undertook to obtain a signed copy. A new accommodation option — working in the mailroom — was presented at the meeting. There was a fairly lengthy discussion of what could be done to avoid having the grievor come into contact with inmates, now that the doctor’s note made it clear that that should be prevented. Ms. Varey said that they would take steps to prevent inmates from coming into contact with the grievor. The grievor was given instructions to report to the duty office when coming or going so that her whereabouts would be known and arrangements made not to have inmates present. This accommodation was outlined in a document (Exhibit U-6), which the grievor and       Ms. Blanchette signed. At the meeting, the grievor was also told that other options were being explored and that the mailroom accommodation was viewed as an interim measure.

34    The grievor reported to the mailroom, but the accommodation did not work out well. Although Ms. Varey sent an email notice (Exhibit U-7) requiring staff to provide notification if it was necessary for inmates to be in the area, it was not altogether effective. It had been suggested that schedules would be changed so that an inmate cleaner would not be working during the grievor’s working hours, but that did not happen, and the grievor was sometimes confined to the duty office while the cleaner was in the area. On one occasion she was also locked in a vestibule area by an employee who was going to interview an inmate in his office next to the mailroom. The grievor found the environment tiring and stressful. She felt that there was some tension with the managers working in the administrative area around the mailroom as they had to “babysit” her.

35    The grievor described one occasion when, without notification to her, a maximum security inmate who had previously made a death threat against her was brought through her area. It was one of at least two occasions when an inmate arrived in the area without notice. The incident was confirmed by the evidence of            Debbie Richardson, an employee who works in the administrative services area where the mailroom is located. A union executive member, Lori Hawkings, took her concern to Ms. O’Connor, and asked if the grievor could go home. The request was denied.

36    Mr. Turi returned from annual leave at that time and, on August 19, informed the grievor that the existing accommodation arrangement was clearly unsatisfactory. He placed her on leave with pay because it was not “reasonably practical” to accommodate her at FVI. He advised her that other options were being explored.

37    On September 22, the grievor had the cervical surgery of which she had previously notified the employer. When she returned home that evening, there was a message on her voice mail from Ms. Varey, telling her that an accommodation had been arranged for her at regional headquarters and that she was to report there on Monday, September 25. The grievor said that the message was brusque to the point of being rude. On Monday, she called FVI to try to obtain more information. Mr. Turi and Ms. Varey were away at a conference, but she obtained the telephone number of a contact at regional headquarters from Ms. Vankoughnett, and arranged a meeting. She reported to regional headquarters to begin work on October 3, 2006. She said that this position met the requirements for her accommodation and that the work was fine, although she felt that she was “under a magnifying glass” because of the circumstances that had led to her working there.

38    By Friday of the first week, the grievor said that she was having spasms in her leg, and she stayed in bed for much of the weekend. On Sunday night, October 9, she went to the hospital in Mission, and her water broke while she was waiting for a bed. She was not too concerned at that point, since she knew that there were techniques available to help maintain a pregnancy under those conditions. She was taken by ambulance to Abbotsford, and was attended by Dr. Shaun Tregoning, who had performed her cervical surgery. After examining her, he told her that there was no chance of survival for the baby, and after she went through labour, the baby was stillborn. She found the experience completely devastating, and her husband and daughter were also extremely upset.

39    On October 10, she telephoned Mr. Turi and told him that she had lost the pregnancy and that accommodation would no longer be required. He told her that she should not be in a rush to return to work. She said that she was very angry and asked him why he had not given her more time earlier.

40    Two weeks later, the grievor returned to work, and, after consulting with union representatives, filed the first of the two grievances at issue in these proceedings. Part of the corrective action requested in that grievance was that she no longer be supervised by Mr. Romaine or Ms. Varey and that each of them be transferred to another institution.

41    At a meeting in early November, the grievor and Ms. Coulson met with Mr. Turi and Ms. Vankoughnett. Ms. Coulson and the grievor clarified that the grievor’s concern was not that she might encounter Mr. Romaine or Ms. Varey in the course of her duties at FVI but that she not be supervised by either of them. On that basis, Mr. Turi indicated that she could be placed in an institutional movement officer (IMO) position, which would not place her under their supervision. The grievor rejected that option. Mr. Turi concluded that there were no other available options that could meet the concerns raised in the grievance. He then placed her on leave with pay, which was her status until November 22, 2006. She felt that it was punitive, leading her to file her second grievance. She ultimately moved to a position at Mission Institution. At the time of the hearing, she had attained permanent status in that position.

42    Donna Mynott, a human resources officer employed at regional headquarters, was subpoenaed by the union to give evidence. She indicated that part of her responsibility is to advise managers concerning accommodation. She stressed that the actual decisions about accommodation are made by managers, not by her. The grievor’s case first came to her attention in early September 2006. At that time, the employer was trying to identify alternative options for consideration in the event that no accommodation could be found at FVI. Ms. Mynott said that she did not have access to the grievor’s personnel file and that she saw no files concerning the grievor’s previous accommodation, in 2004. In retrospect, she said that it would probably have been helpful to have had information about the earlier accommodation, but she and the managers she talked to were focused on the current limitations under which the grievor would have to be accommodated. They were attempting to obtain sufficient information from the grievor’s physicians so that they would be able to formulate reasonable options. She did not recall ever seeing the initial note from Dr. Seger (Exhibit U-1), although the gist of it may have been communicated to her verbally.

43    Ms. Mynott said that by the time she was provided with any significant information about the grievor’s case, the principal-entrance placement was no longer under consideration, and she was unable to comment on that. She said that in her experience, the accommodation of pregnant employees did not necessarily entail a complete ban on inmate contact, and she did not draw the conclusion initially that that would be necessary in the grievor’s case. She said that she had some information about the grievor’s medical condition but stressed that it is the employee’s responsibility to provide full medical information as a basis for discussing accommodation. She indicated that she does not consider herself qualified to make medical judgments. She described her approach to accommodation as open and consultative but said that, if the grievor was not ultimately satisfied with the accommodation, it might still be an appropriate accommodation. She also said that the first priority in considering an accommodation is to make efforts to identify a suitable arrangement in the employee’s home institution.

44    Ms. Mynott said that she was made aware in mid-September of the problems with the accommodation in the mailroom, and it was based on her advice that Mr. Turi made the decision to place the grievor on leave with pay at that time. She had no knowledge of the options that were presented to the grievor at the meeting of September 7, which she was unable to attend, or of the information that the grievor might have been given about options outside FVI. She was aware that inquiries were being made about possible openings elsewhere. For example, she thought that she had forwarded a posting (Exhibit U-22) to the person in human resources who was making inquiries.

45    In an email (Exhibit U-18) dated September 26, 2006, to Ms. Vankoughnett,     Ms. Mynott raised the question of why the grievor had not reported to regional headquarters to begin her placement. She said that she was told that the grievor was upset with the way the news of the placement had been communicated to her. She did not have any subsequent involvement with discussions concerning the grievor.

46    Dr. Tregoning, a specialist in reproductive endocrinology, testified on behalf of the grievor. His current professional focus is on women who are unable to fall pregnant or who are susceptible to failed pregnancies. He first met the grievor after she sustained a miscarriage in 2004. He conducted chromosomal studies that showed that the grievor had a normal chromosomal pattern. Based on other tests, he concluded that the likely cause of her miscarriage was cervical incompetence. When she subsequently became pregnant, he decided to carry out a somewhat controversial treatment, the insertion of a cervical cerclage. This treatment places a stitch in the cervix designed to prevent it from opening. A major study to assess the efficacy of that treatment is currently underway. His view is that the treatment can improve the chances of retaining a pregnancy for women with incompetent cervices. He also counsels patients to take bed rest and to adopt a sedentary or less active lifestyle that will not require lifting, pushing or standing for long periods.      

47    When Dr. Tregoning treated the grievor in 2004, he said that she was very upset about the loss of her previous pregnancy and anxious about carrying the new one to term. He provided a note on November 2004 (Exhibit E-3) indicating that the grievor “... [w]ould be better off on routine day work with no after hours’ [sic] shifts.”

48    Dr. Tregoning said that it is difficult to be categorical about what might trigger the loss of a pregnancy for women with incompetent cervices. Some studies suggest that stress, including visual exposure to violence, is linked to miscarriage, and there is support in the medical community for the idea that, at the very least, the reduction of stress can do no harm. When asked to examine the doctors’ notes (Exhibits U-1, U-4 and U-5), he said that one of the things the notes seemed intended to convey, particularly the final one (Exhibit U-5), was that the grievor should be avoiding stress. He said that every time he saw her during her 2006 pregnancy, she indicated that she was frustrated about the workplace situation and that she felt that she was not being listened to.

49    He said that the cervical cerclage surgery on September 22 went well in the grievor’s case, with no complications requiring a stay in the hospital. He did not advise extended bed rest in her case. He said that his preference is not to suggest total bed rest or staying home to patients, as the absence of social contact and the isolation creates other risks. His preference is to advise reducing stress at work.      

50    Dr. Tregoning was on call at the hospital when the grievor arrived on       October 9, 2006, and had to advise her that her pregnancy was unsustainable. He indicated that workplace stress might possibly have played a role, and he had not been made aware of any other possible triggers.         

51    The grievor also called Ms. Coulson as a witness. Ms. Coulson described the events surrounding the arrival of inmate N. She said that there was confusion over changes made to the plans for managing the inmate (Exhibits U-27 and U-28) and that she sent an email on August 28 to other employees (Exhibit E-8) advising them of her concerns about the changes. Ms. Varey asked to see her. She met with Ms. Varey and another employer representative, accompanied by the grievor. Ms. Varey indicated that Ms. Coulson had made improper use of the email system and directed her to recall the email “by the end of the day,” a term that turned out to be problematic as her working day went on longer than that of Ms. Varey. She was later contacted again by Ms. Varey, accompanied by Mr. Romaine, to ask why she had not removed it. Ms. Varey indicated that she was giving her a direct order to remove it. With the grievor’s help, she did recall the email. Ms. Coulson was ultimately disciplined by a written reprimand.

52    Ms. Coulson said that she would characterize the changes to the protocol for inmate N as a health and safety issue. However, she conceded that no complaint had been made under section 127 of the CLC. Her explanation was that she was intimidated by Ms. Varey and that she faced the threat of discipline.

53    On August 30, she saw the grievor, who was very upset about the change to her accommodation assignment. She assisted the grievor by helping her make an appointment with the Warden for the same day and by calling Ms. Blanchette. She accompanied the grievor to the meeting with the warden, Ms. Lockhart, and                Mr. Romaine. There was a discussion about the principal-entrance assignment, and     Ms. Lockhart gave the grievor permission to go home for the rest of the day.

54    Ms. Coulson said that she felt intimidated by Ms. Varey and that she had been in situations where Ms. Varey was “yelling” at her.

55   Donna Collins, who became a correctional officer in 2004 and who was working in the secure unit at FVI in summer and fall 2006, testified that Ms. Varey bullied and harassed her. She recounted an occasion when she received news that her daughter had overdosed, and she left the facility to meet the ambulance. The next day,            Ms. Varey, accompanied by another supervisor, asked to speak to her. Ms. Varey said that she wanted to raise the issue of taking sick leave for purposes other than illness and followed that up by saying that she had some other concerns about Ms. Collins’ performance. Given the personal circumstances concerning her daughter, Ms. Collins felt that it was harassment. Under cross-examination, she conceded that her sick leave account was in deficit, and that the amount and type of leave taken by employees was a legitimate management concern. However Ms. Collins reiterated that Ms. Varey engaged in bullying and harassment and that she targeted union members for particular attention. She acknowledged that she had never initiated a harassment complaint against Ms. Varey because she did not think that it would be followed up.

B.  For the employer

56    The employer called as witnesses Ms. Vankoughnett, Ms. Varey, Mr. Romaine, Mr. Turi and Ms. O’Connor, all managers who had been involved in the successive efforts to accommodate the grievor. The employer also called Dr. Marie-France Delisle as an expert witness.

57    Dr. Delisle is a clinical associate professor in the Department of Obstetrics and Gynaecology at the University of British Columbia, whose research, teaching and clinical care specialty is high-risk pregnancies. She described the medical condition known as cervical incompetence, which may cause a risk of losing the fetus in the second trimester, as the “silent dilation” of the cervix to the point where it cannot support the fetus. She said that it is a quite rare diagnosis, which is arrived at when other possibilities have been excluded. She confirmed Dr. Tregoning’s testimony that the current treatment is to offer elective cervical cerclage 11 to 13 weeks into the pregnancy. She said that the treatment does not guarantee a successful pregnancy, although it may be of some help — she described it as a “band-aid” solution.

58    Dr. Delisle had reviewed the medical charts pertaining to the grievor’s 2006 pregnancy, although she had never treated the grievor or examined her. She stated that the charts and documentation supplied to her were somewhat unclear and that there was information — specifically pathological information — missing. She said that there were two possible diagnoses in the grievor’s case. One is that her pregnancy was lost because of cervical incompetence. The other possible explanation is that it was attributable to a phenomenon known as “recurrent first trimester loss.” It was not clear from the pathology reports how long the fetus had been dead before the grievor’s loss, but if it had been a period of several weeks, it would suggest that recurrent first trimester loss was the explanation. On balance, her conclusion was that the correct diagnosis was probably recurrent first trimester loss rather than cervical incompetence.

59    In the case of cervical incompetence, Dr. Delisle said that the “enemy” is gravity and that patients are advised to avoid lifting, pushing or other physical exertion. In the case of either cervical incompetence or recurrent first trimester loss, it is appropriate to advise patients to avoid stress, although the connection between emotional stress and physical responses is hard to determine.

60    At the time of the hearing, Ms. Vankoughnett was the assistant warden intervention, at Grand Valley Institution, but before that she was at FVI. In August and September 2006, she was the assistant team leader reintegration, and her responsibilities included overseeing the case management system. Physically, the case management office was in an administrative area not freely accessible to inmates. Inmates could be present in the area for meetings with parole officers or other administrative staff, but only by appointment.

61    Ms. Vankoughnett was absent from FVI when the initial accommodation was being considered for the grievor, and she was not involved in the choice of placement. The grievor was assigned to the case management area on August 18, and                 Ms. Vankoughnett did not return until August 21, at which time she met with the grievor to discuss the parameters of the accommodation. Ms. Vankoughnett understood that the grievor wished to continue to manage some aspects of the inmate caseload she had carried as a primary worker and that it would be necessary for her to spend time in the secure unit to do it. They discussed some possible projects that the grievor could undertake in case management, which might have included creating document templates or working on the policy manual or other documents.                Ms. Vankoughnett did not see any documentation spelling out the limitations on activities for the grievor, although she had a general understanding that the secure unit was not considered a suitable environment. The grievor said that she did not specify what needs she had, although she did talk a bit about the risks she faced in her pregnancy. The grievor said that she thought that the accommodation would work. They talked about the time frame, and the grievor said that she did not know how long she would be there. The grievor did raise the possibility of working at home, but                        Ms. Vankoughnett told her that there was no work available in the department that lent itself to that arrangement.

62    The desk given to the grievor was next to Ms. Vankoughnett’s station, in the same area occupied by the parole officers. Inmate traffic was quite regular, and the grievor did not express any concerns.

63    Ms. Vankoughnett and the grievor agreed on some initial work objectives. The grievor eventually showed Ms. Vankoughnett some work that she had done on the policy manual, which was excellent, but that would not have taken very long to do. For several days she did not see the grievor at all. She understood from others that the grievor was spending much of her time in the secure unit, and it was never clear why she would spend days at a time there. She later found out that the grievor was expected to take minutes at the IDT meetings, but this would have occupied only part of one afternoon and did not entirely explain her absence from the case management area.

64    Ms. Vankoughnett’s conclusion was that, if the grievor needed to spend so much time in the secure unit, the placement in the case management area did not meet her needs. She had a conversation about it with the grievor’s substantive supervisor,       Ms. Varey, who said that she, too, was concerned that the grievor was spending much of her time in the secure unit. Ms. Vankoughnett understood that other options for accommodation were being considered, including placement at the principal entrance. The grievor’s accommodation in the case management area lasted approximately eight days.

65    Ms. Vankoughnett was present at the meeting with the grievor and her union representative on September 1 and saw Exhibit U-3, which outlined the principal- entrance accommodation. Ms. Vankoughnett was invited to the meeting because she had worked with the grievor most recently, but she did not play a primary role in the meeting. She said that the grievor was very upset during the meeting and seemed to feel that she was being pushed into the principal-entrance option. The grievor said that Ms. Varey did not care about the baby. Options other than the principal-entrance assignment were discussed, including a possible project through the union. In response to the possibility of one administrative position, the grievor responded that she did not want to be “dummied down to a clerk.”

66    Ms. Vankoughnett said that, as she recalled, the discussion at the meeting of the grievor’s limitations centred on the doctor’s note identified as Exhibit U-4, which spoke of having the grievor avoid “physical altercations.” It was not clear to the managers present what that meant, and they asked the grievor if she could get further clarification from the doctor, which the grievor and Ms. Blanchette seemed to find unreasonable. Ms. Vankoughnett said that Mr. Romaine seemed particularly anxious to get further clarification after the grievor spoke of the desirability of being at home with her feet up.

67    Ms. Vankoughnett said that she thought that the general approach of the managers at the meeting was very respectful and professional. The grievor was upset and angry, and they took a break once to allow her to regain her composure. She seemed impatient with the process, and at one point said that she thought that it was ridiculous that she had to “go through this.” Ms. Vankoughnett said that she thought that the managers present were trying to identify suitable options and that their responses to the grievor were appropriate.

68    Ms. Vankoughnett was also present at the meeting of September 7, 2006. She said that, at that time, discussion was proceeding on another accommodation for the grievor and that by the end of the meeting, a memorandum had been agreed on and signed by the parties, including the grievor (Exhibit U-6). Ms. Vankoughnett testified that the meeting was quite productive and that the tone was quite cordial. The doctor’s note (Exhibit U-5) was available, although Ms. Vankoughnett did not recall whether she read it. The meeting included the discussion of other options that might be appropriate in the future. The question of the grievor being able to work from home was raised again, and she was informed that there was no work available that could be done from home.

69    Asked whether the possibility of further work in the case management area was considered, Ms. Vankoughnett said that it was not one of the options canvassed. She said that accommodation had been tried there and that it did not seem to suit the grievor’s wish to be present in the secure unit. By the time of the September 7 meeting, it was clearer that the grievor should not have contact with inmates. The only possible work available in case management was parole officer work, which would necessitate inmate contact, so it was not considered.

70    The only further involvement that Ms. Vankoughnett had with the grievor’s accommodation issues occurred when she temporarily replaced Mr. Turi in the secure unit in late September. On September 26, it was brought to her attention that the grievor had not reported to regional headquarters to begin her placement. She left a voice mail message for the grievor the following morning, September 27, and was contacted by Ms. Blanchette the same day, who mentioned that she and the grievor had not received documentation about the placement. Ms. Vankoughnett faxed                Ms. Blanchette the documentation. She also met with the grievor later in the day and advised her to report to regional headquarters to work out the arrangements for her work.

71    Ms. O’Connor was the acting team leader operations at FVI in August 2006. Her testimony was that she initiated discussion of the possibility that the grievor could be accommodated in the case management area. Other than sending an email (Exhibit U-2) to the grievor advising her of that accommodation, she was not directly involved in the grievor’s accommodation.

72    Ms. O’Connor said that she was relieving a correctional supervisor on   September 15 and that she was responsible for giving the order that led to the inmate being escorted through the mailroom area without notice. Ms. Hawkings, a union representative, brought to her attention that this was a breach of the terms of the grievor’s accommodation and, as Ms. O’Connor put it, “[t]he light bulb went on.”       Ms. O’Connor met with the grievor and a union representative and apologized for the breach. Ms. O’Connor said that she returned to her own duties but that she understood that there had been a further breach of the accommodation conditions.

73    Ms. Varey testified. At the time of the events concerning the grievor’s accommodation in August and September 2006, she was the assistant team leader in the secure unit and the grievor’s direct supervisor. Ms. Varey said that she thought that she and the grievor had a good working relationship in the beginning but that it had changed over time. Her sense was that it was because of the new role Ms. Varey took on when she moved to the secure unit. Much of the staff in the new unit was inexperienced, and it was necessary to adapt the policies to accommodate them.       Ms. Varey said that the grievor clearly felt a sense of ownership about the policies that she had helped to formulate and that she was resistant to changes to them and to direction from Ms. Varey. Ms. Varey said that, although she was not aware in detail about the role played by the grievor in formulating the policies for the new secure unit, she knew that the grievor had been part of the team. Ms. Varey said that she thought that the team had done excellent work but that it was necessary to adapt the policies once the unit was in operation, and there was some resistance from employees, including the grievor, to the changes.

74    Ms. Varey said that she and Mr. Turi had a number of challenges in opening the new secure unit, many of them related to alleviating conflict among the staff and getting them to work as a team. Ms. Varey said that it was necessary, on occasion, to address performance issues with the grievor, and there was a marked difference between the level of respect the grievor accorded to Mr. Turi and to Ms. Varey. She said that she and Mr. Turi both favoured dealing with performance issues in an informal way and preferred to resolve them through direct discussion with employees. She recalled that she spoke to the grievor about an incident where the grievor had removed an inmate’s food from the fridge and that there was some disagreement between them. Ms. Varey said that she had told the grievor that the policy was that food services workers were responsible for making judgments about when food should be removed and that it was not up to the grievor. The grievor disagreed, but Ms. Varey did not recall any further fallout from the discussion.

75    Mr. Turi advised Ms. Varey in August 2006 that the grievor was pregnant and that she was requesting accommodation. Ms. Varey joined a meeting already in progress on August 16 or 17 to discuss it. She understood at that time that the grievor was asking, on the advice of her doctor, to be removed from the secure unit and relieved of shift work. At that time, the grievor did not express any concern about inmate contact and was, indeed, asking to retain some of her caseload in the secure unit. In the accommodation, the grievor was placed in the case management area, and it was understood that she would retain inmate P on her caseload and take minutes at IDT meetings. Ms. Varey said that she did not think that the terms were recorded in writing. There was a verbal agreement that it should be given a “trial run.”

76    From early in the grievor’s accommodation in case management, Ms. Varey said that she heard from other managers that the grievor was spending considerable time in the secure unit and that she spent at least part of that time at the control post frisking inmates, which seemed to be outside the terms of her accommodation.        Ms. Vankoughnett also mentioned to her that she was not sure that she had enough appropriate work for the grievor. At a management team meeting on August 30, the grievor’s circumstances were discussed. In addition to the points that had already been raised with Ms. Varey, at least one manager expressed the concern that the grievor seemed to be doing union business in the secure unit during her working hours. During the discussion, it was agreed that a new placement would be found for the grievor, at the principal entrance assisting the officer in charge of that area. In addition, she would continue to do the IDT minutes and maintain the one inmate on her caseload. Ms. Varey said that the primary reason for changing the accommodation was that there was not enough appropriate work in the case management area.          Ms. Vankoughnett expressed this sentiment, and it seemed to be confirmed by the regular presence of the grievor in the secure unit performing duties not contemplated in the case management accommodation arrangement. Since Ms. Vankoughnett had not been involved in the discussions leading to the accommodation in case management, her assessment of the success of the accommodation was important.

77    Ms. Varey met with the grievor to explain the new proposed arrangement.       Ms. Varey’s recollection was that the grievor initially concurred that there was not enough work for her in case management, but she was concerned that the new placement would be beyond the terms of her doctor’s certificate. Ms. Varey agreed to put the proposal in writing so that the grievor could discuss it with her physician. During the conversation, Ms. Varey said that she also pointed out that the grievor should not be conducting union business without proper authorization. Ms. Varey said that the grievor was “defensive” and “upset” about that advice. Ms. Varey said that the discussion about union business was not directly related to the issue concerning the imposition of discipline on Ms. Coulson recounted in the grievor’s testimony. According to notes of the meeting made by Ms. Varey later in the day (Exhibit E-5), the incident she referred to had to do with the grievor continuing a telephone conversation about the Coulson matter when the Deputy Warden came into the unit. Ms. Varey denied that there was any link between the decision to alter the grievor’s accommodation and her role as representative for Ms. Coulson in the discussions of the actions that resulted in the discipline.

78    Ms. Varey prepared a memorandum (Exhibit U-3) outlining the nature of the new placement at the principal entrance. In it, the grievor’s duties were described as follows:

As this post is considered a “one person” post, your duties will consist of assisting with the person/vehicle traffic that this post generates. You will be required to assist the existing staff that is posted there and, if necessary, you may be asked to perform additional or different duties which would consist of mainly clerical functions; example: IDT minutes and segregation reviews, case work records. It should be noted that at no time will you be considered or required to respond to emergency situations.

[emphasis in the original]

The memo ended by saying that further accommodation would be considered should the grievor be unable to carry out the duties of the position. The grievor was given the document in the early afternoon of August 30.

79    Ms. Varey said that the proposed placement was chosen because the managers who discussed it concluded that it would suit the grievor’s requirements as they understood them. The work at the principal entrance includes screening and admitting staff, visitors and inmates and checking vehicle traffic and issuing security equipment to staff. The principal entrance was not seen as raising any peculiar security risks. A secure post was available to staff, and there was no indication at that time that inmate contact was outside the terms of appropriate accommodation. At that point, Ms. Varey said that they were aware that the grievor had been doing similar work in the secure unit — opening and closing security doors, for example — and they did not anticipate that the grievor would respond negatively to the proposal. Ms. Varey also said that she understood that the grievor would fax the proposal to her doctor and that she would have a chance to discuss with him whether it would be suitable. Ms. Varey denied that the proposal constituted an “order” at that stage. It was open to the doctor or the grievor to suggest changes or to provide new information. The document was worded as it was to give the grievor and her physician a concrete idea of what the placement would entail. Ms. Varey also said that it was not intended that the grievor’s workload would be increased. Although the proposal indicated that she would still be doing the IDT minutes and carrying her caseload, it was expected that those tasks would be combined with the duties at the principal entrance to make up an ordinary workload. A computer was available at the principal-entrance post, and the grievor could use it for case notes or minutes. Ms. Varey said that it would not be part of the grievor’s assignment to check vehicles and that she would only have to use the remote system to open the gate.

80    Ms. Varey again encountered the grievor after the grievor had received the memorandum concerning the new accommodation. She asked if the grievor was on her way to the IDT meeting, which was taking place that afternoon. The grievor replied that she had a meeting with the Warden to discuss her accommodation.

81    Ms. Varey spoke briefly with the Warden after the meeting with the grievor.        Ms. Varey said that she did not recall all the details of the conversation but that she remembered that the Warden had been very concerned about the grievor’s allegation that a previous pregnancy had been lost because the institution had failed to properly accommodate her.

82    Ms. Varey was present at the meeting on September 1 at which the grievor presented another doctor’s certificate (Exhibit U-4) indicating that she should avoid “physical altercations.” Ms. Varey said that the grievor’s tone at the meeting was uncooperative and disrespectful. Although her union representative, Ms. Blanchette, indicated that the grievor had limitations beyond those mentioned in the doctor’s note, the grievor did not identify any work at the institution that she could perform.         Ms. Blanchette said that the grievor’s limitations would include that she should have no inmate contact, that she not be exposed to X-rays and that she not be required to do any pushing or pulling. The managers present said that such limitations were not clear from either of the doctor’s notes and that the restrictions with respect to inmate contact and exposure to X-rays had not been raised before. The grievor said, “I can’t be here,” and said that she wanted to work at home. The managers repeated that there was no work available for her to do at home and pointed out that the doctor’s note did not say anything about her being at home. Ms. Varey recalled that Mr. Romaine offered to permit the grievor to take the weekend to consider the options, and the grievor rejected the idea. At that point, Ms. Varey said that she raised the idea that the grievor might work in the mailroom, which the grievor described as “dumbing her down.”    Ms. Blanchette also raised the possibility that there might be a project that could be done through the union.

83    Ms. Varey said that she tried to clarify at the meeting that the memorandum concerning the principal-entrance placement had been put forward as a proposal and that it was always intended that the grievor would have an opportunity to respond based on a discussion with her physician. Ms. Varey also apologized to the grievor if she was mistaken about the allegation that the grievor had been conducting union business.

84    At the September 1 meeting, Ms. Varey said that several options were mentioned, including the principal-entrance proposal and the mailroom work.           Mr. Romaine also said that if the doctors were really saying that the grievor should be home in bed, she should perhaps consider applying for employment insurance sick leave benefits. Ms. Varey said that she tried to make it clear that the principal-entrance proposal had not been made in isolation but that it arose from a discussion among managers based on the information that they had at the time about the grievor’s limitations. Ms. Varey said that the grievor was upset during the meeting and that her tone was hostile and disrespectful. Ms. Varey said that she did not raise her voice during the meeting and that she only once suggested that a comment of the grievor was inappropriate. Ms. Varey said that the grievor accused her of “lying” about having seen the first doctor’s note (Exhibit U-1). In her testimony, Ms. Varey clarified that she had been made aware of the note around August 17 when the initial accommodation was being discussed but that she did not think that she actually saw the note until later. The meeting failed to resolve many of the issues, but the managers present did make it clear to the grievor that they would need a more detailed indication from the doctor about the specific limitations on the grievor’s activities. It was agreed that further investigation would be made of some of the options canvassed at the meeting, including the union work and the mailroom possibility. Ms. Varey said that, by the end of the meeting, it was understood by everyone present that the principal-entrance option was no longer on the table.

85    A further meeting was held on September 7, 2006, with several employer representatives present, as well as the grievor and Ms. Blanchette. At that time, the grievor tendered the doctor’s note (Exhibit U-5), which is reproduced at paragraph 32.

86    Although the note was unsigned, and the employer representatives asked to have a signed copy provided, they agreed to use it as a base for future discussion. The grievor was given a new proposal for accommodation in the mailroom (Exhibit U-6). That document included a description of the steps that would be taken to ensure that inmates would not be present in the area without prior notice. It was agreed at the meeting of September 7 that the grievor would accept this accommodation, and notice was sent to all staff (Exhibit U-7) to direct that the requirement of advance notice for inmate traffic be observed. Although Ms. Varey continued to be the substantive supervisor for the grievor (that is, she was responsible for her performance evaluations and so on), she was directly supervised by managers in the administrative area where the mailroom was located.

87    After the meeting, Mr. Turi returned from his annual leave, and Ms. Varey was not directly involved in managing the grievor’s accommodation. She did brief Mr. Turi on what had happened to that point, and she understood that the protocol put in place to prevent inmate contact with the grievor in the mailroom had been breached.         Mr. Turi asked her to phone the grievor and advise her of the accommodation placement at regional headquarters. She simply telephoned the grievor on     September 25 and left a message advising her that she was to report to regional headquarters.

88    Ms. Varey gave evidence concerning the events leading to Ms. Coulson’s disciplinary reprimand. She said that the changes to the protocol for dealing with inmate N (Exhibits U-27 and U-28) had been made at Mr. Turi’s direction and that they were consistent with normal practice for managing inmates. She said that discipline was ultimately imposed on Ms. Coulson not for raising safety concerns but for insubordination, which took the form of advising other staff not to comply with the protocol that had been issued (Exhibit E-8). Ms. Varey acknowledged that employees have rights under the Canada Labour Code to raise concerns about the safety of their working conditions, but she said that those concerns had not been formally brought to the employer’s attention according to the processes provided under the Canada Labour Code or by using the channels available for initiating labour-management discussions. Ms. Varey said that she had an opportunity to discuss the issues with    Mr. Turi on his return from holidays and that he agreed that a reprimand was appropriate.

89    Ms. Varey also testified concerning the report resulting from an investigation into complaints of harassment made by an employee (not the grievor) against           Ms. Varey and another manager in March 2004 and June 2005. She testified that she had seen the report (Exhibit U-30) but that the version that she had seen had been vetted because not all of it concerned allegations against her. Of a number of complaints made against her, one had been considered by the investigator to be well-founded.

90    The employer also called Mr. Romaine to give evidence. It should be noted that Mr. Romaine, along with Ms. Varey, was specifically named in the grievance in connection with the allegations of abuse of authority and harassment. At the time of the events concerning the grievor’s accommodation, he was the acting deputy warden at FVI, and in that role he had extensive responsibility for the operations of the institution, including supervising the team leaders and assistant team leaders who directly supervised primary workers. Mr. Romaine said that he had previous experience arranging accommodations for employees and was familiar with the employer’s responsibilities. He said that his understanding is that the employer is required to try to accommodate the employee within the limitations specified by the employee’s doctor. He was not aware of any general policy concerning inmate contact in relation to pregnant employees.

91    In the grievor’s case, Mr. Romaine said that he could not remember exactly how he became aware of her accommodation issues but that he was involved in the discussions starting around August 30. He was present at the management meeting on the morning of that day. He had no involvement with the initial accommodation of the grievor in case management, which was managed by Mr. Turi and Ms. Varey. He recalled that, at the meeting, no suggestion was made that inmate contact was a concern, although other aspects of the accommodation were raised. He later received a copy of the written proposal for the principal-entrance accommodation (Exhibit U-3), and the version entered into evidence contained his written notes and editorial suggestions. He was not sure when he received that document, although he was certain that it was before the meeting on September 1.

92    Later on August 30, he was asked to attend the meeting between the Warden and the grievor. He thought that a union representative was present as well, but could not recall who it was. He was not sure whether he had Exhibit U-3 at the time of the meeting, although he thought the note that “Christina takes on too much” was prompted by discussions at the meeting with the Warden. The notes also included a statement that the doctor’s note available at that time (Exhibit U-1) was “not helpful” because it did not specify limitations. He thought that the issue was also discussed at the meeting with the Warden. His notes reflected the discussion that accommodation had to be a “health decision first” and alluded to the possibility of medical employment insurance if accommodation was not possible. The grievor also told the Warden that the institution had been responsible for her loss of a pregnancy in the past, which made the meeting emotionally charged for everyone.

93    Mr. Romaine said that he understood that the initial accommodation to case management had been based on providing the grievor with work that a primary worker could do but relieving her of shift work. He understood that Ms. Vankoughnett had concluded that there was not enough work for the grievor in case management. His notes on Exhibit U-3 indicated that the grievor thought that Ms. Varey had seen the original doctor’s note in Exhibit U-1. Mr. Romaine said that Mr. Turi advised him that the note had not been shared with Ms. Varey when it was originally received.             Mr. Romaine said that he had seen that note, although he was not sure when. He stated that he understood that the duties to be performed at the principal entrance would be consistent with “clerical duties” as they would include answering phones and using the computer and would not include direct involvement in screening or in other activities connected with that post. Although pushing buttons to open gates for vehicles would not normally be part of a clerk’s work, it was no more difficult than the other work that she would be doing.

94    Mr. Romaine attended the meeting of September 1 and made the handwritten notes that were attached to Exhibit U-3. Mr. Romaine said that he was at pains to ensure that the meeting got off on the right foot, and he began by apologizing if there had been a misunderstanding of the purpose of the memo concerning the principal entrance. He said that the intention had been that it would be possible for the grievor to discuss the issue with her physician before the accommodation was implemented. The grievor said, “I can’t be here” and, when asked to explain, said that the doctor really wanted her “... [a]t home with her feet in the air.” Mr. Romaine said that that was the first he had heard of any such requirement, and when the grievor asked: “Why does this have to be such a battle?” he assured her that the employer wanted to work with her on the accommodation issue. Mr. Romaine said that one of those present suggested setting the principal-entrance proposal aside, since it seemed to be a distraction from resolving the problem. He explained to the grievor that the proposal was made because it was seen as incorporating a set of duties less onerous than those that she was already performing. The grievor went on to say the following: “I don’t feel comfortable around offenders.” Mr. Romaine again said that that was the first he had heard of that possible limitation. Those present at the meeting tried to generate some other options, including the possibility of a union-management project. Mr. Romaine said that he suggested to the grievor that she might want to take the weekend to think about the options and to speak with others, but she did not wish to.

95    Mr. Romaine said that, at the end of the meeting, it was agreed that other options would be explored. He understood that the grievor was having surgery on September 22 and that it might be necessary to revisit the situation at that time.       Mr. Romaine undertook to explore the possibility of work somewhere other than FVI, although he saw it as a last resort, since she was an employee there. The grievor responded as follows: “I don’t want to be your employee.” Ms. Blanchette asked for clarification that Ms. Varey would be the contact for further discussions, and the grievor indicated that that would be a problem for her.

96    Mr. Romaine said that the tone of the September 1 meeting was unsatisfactory. The grievor was “pretty emotional”, which made it difficult to focus on the issues that needed to be resolved. He did not feel that the meeting was “...as positive and productive as these meetings usually are.” He did not view the idea of reassigning the grievor outside FVI as a desirable step, although he realized that it would resolve the newly raised issue of inmate contact.

97    Mr. Romaine was again present at the September 7 meeting and took notes as well, which were attached to Exhibit U-3, although he left the meeting after about half an hour. The detailed note from the doctor (Exhibit U-5) was given to the employer representatives, and there was further discussion of options, including the mailroom option. Some of the discussion revolved around the prospects for rearranging the schedule of the inmate cleaner in the mailroom area. He noted that clerical duties were considered the “best fit” for the grievor, although she indicated that she would be more interested in policy-related work. The grievor renewed her inquiry about working from home and was told that no suitable work was available.

98    The collective agreement (Exhibit U-15) contains the following provisions:

…

Article 45

45.01 An employee who is pregnant or nursing may, during the period from the beginning of pregnancy to the end of the twenty-fourth (24^th) week following the birth, request the Employer to modify her job functions or reassign her to another job if, by reason of the pregnancy or nursing, continuing any of her current functions may pose a risk to her health or that of the foetus or child.

45.02 An employee’s request under clause 45.01 must be accompanied or followed as soon as possible by a medical certificate indicating the expected duration of the potential risk and the activities or conditions to avoid in order to eliminate the risk. Dependent upon the particular circumstances of the request, the     Employer may obtain an independent medical opinion.

45.03 An employee who has made a request under clause 45.01 is entitled to continue in her current job while the Employer examines the request but, if the risk posed by continuing any of her job functions so requires, she is entitled to be immediately reassigned alternative duties until such time as the Employer:

a)   modifies her job duties or reassigns her; or

b) informs her in writing that it is not reasonably practicable to modify her job functions or reassign her.

45.04 Where reasonably practicable, the Employer shall modify the employee’s job functions or reassign her.

45.05 Where the Employer concludes that a modification of the job functions or a reassignment that would avoid the activities or conditions indicated in the medical certificate is not reasonably practicable, the Employer shall so inform the employee in writing and shall grant leave of absence without pay to the employee for the duration of the risk as indicated in the medical certificate. However, such leave shall end no later than twenty-four (24) weeks after the birth.

45.06          An employee whose job functions have been modified, who has been reassigned, or who is on leave of absence shall give at least two (2) weeks notice in writing to the Employer of any change in duration of the risk or the inability as indicated in the medical certificate, unless there is a valid reason why that notice cannot be given. Such notice must be accompanied by a new medical certificate.

45.07 Notwithstanding 45.05, for an officer working in an institution where she is in direct and regular contact with offenders, if the Employer concludes that a modification of job functions or a reassignment that would avoid the activities or conditions indicated in the medical certificate is not reasonably practicable, the Employer shall so inform the officer in writing and shall grant leave of absence with pay to the officer for the duration of the risk as indicated in the medical certificate. However, such leave shall end no later than at the time the officer proceeds on Maternity Leave Without Pay or the termination date of the pregnancy, whichever comes first.

45.08 An employee who returns to work at the end of her maternity leave, parental leave may ask for a reduced work week ending no later than twelve (12) months after the end of the maternity leave or the parental leave without pay set out in paragraphs 30.03 and 30.06.

For the duration of this period, the employee benefits are governed by Article 35 – Part-Time Employees.

In order for an employee to have a reduced work week, the Employer, the employee and the Union must conclude an agreement in writing to this effect. The employee may terminate the agreement at any time on thirty (30) days notice. When the agreement expires, the employee shall return to her position or to a position equivalent to the substantive position she occupied before the leave.

…

99    Mr. Romaine was familiar with these provisions and said that he was seeking to work within their framework for considering issues of accommodation. In that context, he said that the possibility that accommodation might not be “reasonably practicable” and that the grievor might go on leave was raised, although he could not be certain exactly when it was mentioned, whether in the conversations of August 30,   September 1 or September 7. Under cross-examination, he said that the issue of inmate contact in the case of pregnant employees may be important and that the employer needs to be informed, because it is challenging to devise an accommodation if a restriction on inmate contact is desirable. He indicated that the employer tries to find meaningful work for an employee before considering the leave option.

100    Mr. Romaine was aware that the accommodation in the mailroom proved unsuccessful. Both Ms. Collins and Ms. Hawkings made errors, which they acknowledged, in having inmates escorted through the mailroom area without prior notice to the grievor.

101  Mr. Romaine did canvass possibilities for placing the grievor outside FVI. He said that he concentrated mostly on options at regional headquarters, since he understood from the meetings involving the grievor that a penal institution environment was not optimal for her.

102  He had no further involvement with the grievor’s accommodation until Mr. Turi informed him in October that the grievor had lost the pregnancy. He sent an email to the new warden, Nancy Wrenshall (Exhibit E-9), to advise her of the situation. In the email, he indicated that the grievor had eventually been accommodated outside the institution and that, in earlier discussions, she had indicated her unhappiness about being at FVI.

103  The final employer witness was Mr. Turi, the team leader for the secure unit. At the times material to the grievance, Mr. Turi had an assistant team leader, Ms. Varey, reporting to him, who had direct responsibility for the supervision of the 25 to 30 primary workers in the unit. Mr. Turi also oversaw the work of a group of behavioural counsellors. Mr. Turi had asked for the creation of the assistant team leader position when the unit opened because of the relative inexperience of many of the staff members and the challenges of opening a new type of unit. He asked that Ms. Varey be assigned to the position because of her experience with female inmates.

104  Mr. Turi testified that he had prior experience with accommodation issues and that he understood that the situations in which accommodation is necessary may evolve over time. He also said that he was aware that sometimes accommodation placements just do not work, although it may be predicted that they will succeed. Given the limitations of the employee, it may not be possible to provide sustainable work. The key element in arranging an accommodation is the information provided by the doctor about the limitations on the employee’s activities.

105  Mr. Turi was first made aware of the grievor’s pregnancy in early August, but she asked him to keep the matter confidential until after her appointment with her doctor in mid-August. She raised the matter again on August 16 or 17, just before    Mr. Turi’s scheduled departure on annual leave. The only information available from the doctor (Exhibit U-1) suggested that the grievor should be doing “clerical duties,” which Mr. Turi understood were not consistent with her normal duties as a primary worker. It was on that basis that the arrangement was made for the grievor to work in case management. The grievor also told him that it was important to her to continue to be involved in the secure unit. Thus, it was agreed that she would write the IDT minutes and keep part of her inmate caseload. He could not recall specifically discussing this with Ms. Varey before he left, but he said that it would be usual for that kind of issue to be included when he debriefed her so that she could act in his absence.

106  When Mr. Turi returned from holidays in mid-September, the issue of the grievor’s accommodation was one of the first things brought to his attention. The conditions for her work in the mailroom had been breached, and while he was trying to understand the situation, a second breach occurred. He met with the grievor and arranged for her to go on leave with pay until something else could be worked out. The leave with pay status was formally communicated to her in a memo dated     September 19 (Exhibit U-10). By that time, it had been indicated that the grievor should not have any inmate contact by either sight or sound, which would influence the assessment of the options. Mr. Turi was leaving for a conference the third week of September. Therefore, he had about a week to put something else in place. He recalled considering several options and concluded that the position at regional headquarters would be the most suitable. Mr. Turi said that he understood that a number of possible placements had been considered, although he was not aware of all of them. Given the restrictions on inmate contact, many were ruled out “by [him] or by someone else”, and he determined that the regional headquarters option was most appropriate. He asked Ms. Varey to advise him of the details of the placements and then left for the conference. He was not directly involved during the subsequent week, although he was told on his return that the starting date for the grievor at regional headquarters had been postponed to early October.

107  On October 10, the grievor phoned Mr. Turi to tell him that she had lost the pregnancy. She was naturally distressed, and he told her to take the time she needed before returning to work. His recollection was that she phoned sometime laterand they agreed that she would return around October 24 or 25. His impression was that the grievor was looking forward to returning. She did not attend the IDT meeting on her first day back, which surprised him somewhat, as she was usually an active participant. He checked in with her, and she said that she was just trying to get back into the routine. While leaving his workplace, he was advised by another manager that the grievor had filed a grievance.

108  The seriousness of the allegations in the grievance led him to advise the Warden of his concerns and to seek advice from a human resources staffing advisor. It was recommended that he offer the grievor an opportunity for further leave. He also explained to her the recourse available for a harassment complaint, since that was one of the elements of the allegations in the grievance. In their conversation, she confirmed her intention to proceed with the grievance.

109  Mr. Turi met again with the grievor and her union representative in early November, and they discussed, in particular, the issues raised by her request in the grievance not to be supervised by Ms. Varey or Mr. Romaine. At the meeting, the grievor clarified that her concern was not with coming into contact with them but with being under their supervision. Mr. Turi said that the IMO line position was available, an option that the grievor did not accept. Mr. Turi said that he had a conversation with the Warden, who viewed the IMO option as reasonable. The only other option was something outside the institution. The grievor was offered two options and she elected to take a position at Mission Institution while the investigation and grievance processes continued. The grievor filed the second grievance (Exhibit E-11) to protest the disadvantage to her of being placed on leave status after her return to work in October. That grievance, according to Mr. Turi, was seen as a continuation of the issues concerning her accommodation that were raised in the first grievance.

110  Because Mr. Turi was not named in the grievance, he was involved in its investigation and denied the grievance (Exhibit E-10) on January 19, 2007.

111  Under cross-examination, Mr. Turi testified about the changes made to the protocols involving inmate N. He said that, in contrast to the correctional system for male inmates, there is no SHU option for female inmates, and security issues involving female inmates have to be handled within institutions. The National Operational Plan indicates the general parameters concerning the management of inmates. The IDT meetings provide a forum for the discussion of specific issues concerning the behaviour of individual inmates. The changes to the protocols for inmate N were consistent with the plans for her reintegration, which had been initiated before she arrived at FVI.

C. Rebuttal of the grievor

112  In her rebuttal testimony, the grievor rejected the notion that there was not enough work for her in the case management area. She said that she had certification as a parole officer and that she could have done parole work or worked on contingency plans.

113  She said that her reason for wishing to continue with part of her caseload in the secure unit was that she had built a relationship with inmate P, a maximum security inmate, and had been working on arrangements for a private family visit, a privilege that was unusual for an inmate as violent as inmate P. She wanted to see the documentation through, and it would not have been necessary to speak “in depth” with the inmate.

114  The grievor conceded that there was a discrepancy between what her doctors said and her assertion at the meeting of September 1 that she should be at home with her feet up. She said that most pregnant women would prefer to be at home, but she recognized that she needed to be earning an income, and she made her statement at the September 1 meeting because she was in a highly emotional state.

115  The grievor stated her conviction that the change to her accommodation was made because of her involvement with Ms. Coulson in the issues surrounding the changes to the protocols for inmate N and that her role in those discussions made her a “target” for Ms. Varey. She said that her accommodation arrangement contemplated that she would spend time in the secure unit. She conceded that she had spent time in the “bubble” but said that it was the safest place. The grievor said that the principal-entrance option was not put to her as a “proposal” but that Ms. Varey had directed her to report to the principal entrance until she insisted on having a written document that she could take to her doctor.

116  The grievor said that after she filed the first grievance on October 25, she had a conversation with Mr. Turi in which he advised her to stay home on leave with pay until further notice. She felt that it was a further punitive measure, as it denied her opportunities to earn shift premiums or overtime. That was her reason for filing the second grievance. She alluded to a notice sent to managers at the direction of           Ms. O’Connor and Mr. Turi (Exhibit U-31) advising that she was not to be called in for “O/T or shifts of any type”. The grievor said that she understood that her transfer to Mission Institution was a further aspect of her accommodation arising from her wish not to be supervised by Mr. Romaine or Ms. Varey. She indicated that she had initially had some difficult adjusting to her new environment, because it was the first time she had worked with male offenders, and she felt stigmatized somewhat because of the circumstances under which she had been transferred there. However, she said that she ultimately earned the respect of her new colleagues and, at the time of the hearing, had become a permanent employee.

IV. Summary of the arguments

A.  For the grievor

117  The grievor’s representative argued that the conduct of the employer in relation to the grievor’s accommodation was in violation of the collective agreement and the Canadian Human Rights Act (CHRA) and that it was inconsistent with the jurisprudence from the Public Service Labour Relations Board (“the Board”) on the issue. He referred to section 15 and subsection 53(3) of the CHRA, which read, in part, as follows:

15. (1) It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;

…

(f) an employer, employee organization or employer organization grants a female employee special leave or benefits in connection with pregnancy or child-birth or grants employees special leave or benefits to assist them in the care of their children; or

…

(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

…

53. (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

…

(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice willfully or recklessly.

118  In addition to article 45 of the collective agreement, counsel for the grievor referred to clause 37.01, which reads as follows:

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

119  Counsel for the grievor also referred to the provisions in the Canada Labour Code and in the PSLRA that protect the rights of employees to conduct the affairs of the union.

120  Counsel for the grievor said that this case essentially turns on the interpretation of the facts, and, on that point, he urged me to pay close attention to the chronology of events. He noted that there had been no trouble whatsoever with the grievor’s accommodation during her 2004 pregnancy. Indeed, in 2006, the first accommodation made for the grievor in the case management area was satisfactory from her point of view. The difficulties reflected in the grievance began when Mr. Turi went on holidays and the management of her accommodation was left in Ms. Varey’s hands. From that point on, the grievor alleges that the actions taken with respect to her accommodation constituted discrimination, harassment and abuse of authority. Such characterization is particularly accurate in relation to Ms. Varey’s actions. It also applies to                 Mr. Romaine. Although he was not as directly involved, he could have prevented the continuation of the campaign that Ms. Varey was conducting against the grievor.

121  According to the grievor’s version of events, Ms. Varey had a history of bullying and harassing employees who were active in union affairs. When Ms. Coulson responded to the changes to the protocol for inmate N by raising legitimate concerns for the safety of workers, Ms. Varey chose to retaliate. In part, the retaliation took the form of withdrawing the existing accommodation for the grievor, despite Ms. Varey being aware of the grievor’s medical condition and of the necessity for appropriate accommodation.

122  The grievor was, in fact, certain that Ms. Varey had seen the initial medical certificate requiring that she perform “clerical duties” (Exhibit U-1). Even if Ms. Varey’s denial that she saw the document is accepted, she was generally familiar with its requirements. The successive demands of Ms. Varey and Mr. Romaine for ever more information from the doctors constituted harassment and increased the grievor’s stress. At the meeting of September 1, both Ms. Varey and Mr. Romaine tried to push the grievor towards accepting the placement at the principal entrance, although she was clearly suffering at the meeting and under great stress. The grievor had no choice but to try to comply with the arrangements that were subsequently made for her to work in the mailroom, but it is clear that all the events that occurred before Mr. Turi returned increased the grievor’s state of stress and anxiety. The efforts made to identify appropriate placements outside the institution (Exhibits E-1 and E-2) were not fully communicated to the grievor, and she was not given any meaningful role in identifying options that she might have preferred. Since she had not been kept apprised of the developments taking place, the “rude” message that Ms. Varey left her directing her to report to regional headquarters only exacerbated the strain.

123  Counsel for the grievor argued that the recklessness and wilfulness of the employer’s representatives in dealing with the grievor when they knew of her high-risk medical state entitle her to damages in accordance with subsection 53(3) of the CHRA.

B. For the employer

124  Counsel for the employer raised an objection concerning my jurisdiction with respect to the second grievance, which concerned events occurring after the grievor filed the first grievance. Since the relief sought in the first grievance included a request not to be supervised by Ms. Varey or Mr. Romaine, Mr. Turi consulted with the grievor about where it would be appropriate to place her. She rejected the option of the IMO line at FVI and ultimately transferred to Mission Institution. Initially, that resulted in some cost to the employer, as it paid travel and other expenses for her during her transition to the new institution. Had the grievor accepted the IMO position, she would immediately have had access to shift premiums and overtime work. It was because she initiated discussion of other options that it was necessary for her to spend a period on leave. In that context, placing her on leave status cannot be seen as imposing a financial penalty within the meaning of paragraph 209(1)(a) of the PSLRA. Counsel referred me to several decisions from the Board concerning similar issues: Stevenson v. Canada Revenue Agency, 2007 PSLRB 43; Smith v. Treasury Board (Solicitor General –Correctional Service Canada), PSSRB File No 166-2-27445 (19970922); and Schofield v. Treasury Board (Department of Foreign Affairs and International Trade), 2002 PSSRB 47,upheld in 2004 FC 622.

125  Counsel for the employer argued that for any loss suffered by the grievor to fall within the category of a penalty, it has to be linked to some disciplinary purpose on the employer’s part and therefore to some allegation of employee wrongdoing. In Stevenson, the adjudicator commented as follows:

…

[45]    As recently confirmed by the Federal Court in Canada (Attorney General) v. Grover, 2007 FC 28, adjudicators are required to look at the substance of the employer’s alleged disciplinary action, not its form, in order to determine whether they have jurisdiction. In this case, the form of the employer’s action was administrative in nature. The grievor alleges that this administrative action was a disguised disciplinary action. When examining an action of the employer that is, on its face, administrative in nature, an adjudicator must look at all the surrounding facts and circumstances to determine whether that action was in reality disguised discipline.

…

[47]    Disciplinary action is action taken by the employer in response to alleged misconduct or, in other words, “… in response to what the Employer considers to be some kind of voluntary malfeasance, by whatever name it may be called in an office file.  …” (Robertson v. Treasury Board (Department of National Revenue), PSSRB File No. 166-02-454 (19710628)). The grievor has not provided any evidence to demonstrate that the actions of the employer were a response to alleged or perceived misconduct. On the contrary, the evidence demonstrates that the employer was pleased with her work and the performance of her duties.

…

126  With respect to the first grievance, counsel for the employer argued that it should be dismissed as the grievor failed to show that the employer had failed to accommodate her or that it had discriminated against her. The circumstances were sensitive and highly charged, but the evidence failed to show harassment, discrimination or abuse of authority in a legal sense. Counsel for the employer referred me to a number of recent cases discussing issues of discrimination and accommodation. The cases indicate that an employee has the onus of establishing a prima facie case of discrimination and describe the limits on the obligations of an employer to accommodate an employee who has a disability. Counsel for the employer also argued that the grievor failed to show that she had suffered harassment or that managers had abused their authority.

127  Counsel for the employer reviewed the evidence. She said that Mr. Turi had responded in a somewhat hurried way to the initial medical information he received, which referred to “clerical duties.” He bundled a number of duties, including the duties in case management, to meet what he understood to be the grievor’s needs at that time. Counsel for the employer argued that it was always understood that the situation would need to be revisited as the pregnancy evolved. When the situation was reviewed during Mr. Turi’s absence, it was decided for a number of reasons — including a concern about whether there was sufficient work for the grievor and a concern that her absences from the case management area were indicative that the arrangement was not working well — that the placement should be changed. The principal-entrance position was proposed to the grievor, with the expectation that she would discuss it with her doctor. When the grievor reacted in a strongly negative way to that option, it was withdrawn. At that point, the employer did not have clear information about the limitations on the grievor’s activities that would have to be accommodated. The employer’s right to seek such clarification is clear in clause 45.02 of the collective agreement. Once the employer received adequate information, it tried to formulate an option that would keep the grievor in the institution, which it considered as preferable, and, when that did not work, it found an option in another location.

128  Counsel for the employer argued that discussing accommodation is a reciprocal process and that it is incumbent on the grievor and her representatives to assist in the identification of appropriate placements. During the course of the discussions, the grievor failed to present any options, with the exception of working from home, which was not feasible at that time. Having alluded to the possibility of a union-management project, the union representative failed to provide any further indication of whether that was a possibility.

129  The employer’s responsibility in these circumstances is to seek a reasonable accommodation, not to find an accommodation that is perfect or one that meets all  the employee’s preferences. The employer is entitled to expect that the employee will perform meaningful work. It is clear in this case that the grievor also wished to perform meaningful work, and the employer was making efforts to ensure that that would happen.

130  The issues concerning the grievor’s activities in relation to the changes to the protocol for inmate N were, according to counsel for the employer, largely a red herring. Ms. Varey did not impose discipline on Ms. Coulson for raising security issues or for exercising any rights under the Canada Labour Code — which she did not, in fact, do — but for insubordination. When Ms. Varey spoke with the grievor on     August 30 and raised the issue of whether the grievor had been engaged in union business, she was not retaliating for any activities connected to the inmate N situation. She was addressing the grievor’s failure to acknowledge the presence of a member of senior management because she was on the phone apparently discussing union affairs. Under the circumstances, Ms. Varey was conveying to the grievor a legitimate reminder that she needed to have appropriate authorization if she wished to conduct union business while working.

131  Counsel for the employer argued that there was no evidence to show that          Ms. Varey had a history of confrontation with union representatives or of bullying those active in the union’s affairs. Ms. Collins did recount the event when Ms. Varey took her to task for not obtaining proper leave, but she did not file a grievance or a harassment complaint on that occasion and, although she made broader statements about Ms. Varey bullying others, she could not provide an example.

C. Rebuttal for the grievor

132  With respect to the second grievance, counsel for the grievor argued that I have jurisdiction because the allegations it contains represent a continuation of the pattern of harassment, abuse of authority and discrimination raised in the first grievance.

133  Counsel for the grievor denied that the first medical certificate (Exhibit U-1) was not sufficient. In fact, both in 2004 and initially in 2006, the employer was able to arrive at satisfactory accommodations based on that amount of information. It was only when Ms. Varey was left in control of managing the grievor’s accommodation that it came into question. The ground that there was “not enough work” in case management was purely fiction, which Ms. Varey exploited to withdraw the original accommodation and present a new placement that was completely unsatisfactory and that did not fall under the heading of “clerical duties.”

134  Counsel for the grievor reiterated his argument that Ms. Varey was wrongly trying to prevent employees from exercising their rights as union members under the Canada Labour Code and the PSLRA, and her dealings with the grievor should be seen as an instance of retaliatory action against someone active in that confrontation.

V. Reasons

135  The allegations made in these grievances are extremely serious, and the issues that they raise are highly sensitive and emotionally charged. Included in the relief sought by the grievor is the reassignment of two managers and a considerable sum in damages for pain and suffering. No one who meets the grievor can doubt that she found the events highly stressful and that she was devastated by the loss of her pregnancy. No one who heard all the witnesses could fail to understand the degree of tension that arose from the interactions between the grievor and the employer in summer and fall 2006. Nonetheless, as counsel for the employer pointed out, it is my task to place the interactions in a legal framework and to decide whether the employer’s actions constituted a course of discriminatory and abusive behaviour or whether those actions represented a conscientious effort to find a way to reasonably accommodate the grievor’s situation.

136  My conclusions concerning the facts must be viewed in the context of the legal principles that have emerged to describe the respective roles of employers and employees in cases where the employee’s disability requires accommodation. One of the primary allegations in this case is that the employer discriminated against the  grievor by failing to accommodate her adequately when she was pregnant. In Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68, the adjudicator laid out the approach to be taken in analyzing whether an employer has discriminated against an employee by failing to provide proper accommodation. The adjudicator commented as follows:

…

[27]    The Supreme Court of Canada has considered the test to be applied in matters concerning allegations of discrimination in an employment setting. Particularly, it has determined a three-part test that eliminates the distinction between direct and adverse-effect discrimination: British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin), [1999] 3 S.C.R. 3, para 54. However, although often overlooked, but clearly pointed out by the Federal Court of Appeal, one of the overarching principles of the Meiorin case is that the onus lies on the complainant (here the grievor) to prove a prima facie case  … .

…

137  It is clear from cases such as British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin), [1999] 3 S.C.R. 3, that the obligation resting on an employer to provide accommodation for a disabled employee is serious and requires the employer to make extensive and conscientious efforts to find a solution that will allow the employee to continue in employment in the face of medical limitations. This was reiterated by the Supreme Court of Canada in the recent decision 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, at paragraph 14:

[14] As L’Heureux-Dubé J. stated [in Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27] the goal of accommodation is to ensure that an employee who is able to work can do so. In practice, this means that the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.

138  The Court went on in Hydro-Québec to stress that there are limits on the responsibility an employer has to accommodate an employee, at paragraphs 15 and 16:

[15]    However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration. The burden imposed by the Court of Appeal in this case was misstated. The Court of Appeal stated the following:

[Translation – in original]

Hydro-Québec did not establish that [the complainant’s] assessment revealed that it was impossible to [accommodate] her characteristics; in actual fact, certain measures were possible and even recommended by the experts.

          [Emphasis added at para 100 – in original]

[16]    The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

139  The concept of “undue hardship” alluded to in the quotation has proved somewhat difficult to define in the discourse about the duty to accommodate. In Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, the Supreme Court of Canada confirmed its decision in Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, that Canadian courts should not adopt the approach outlined in American jurisprudence that would define any effort by or cost to an employer beyond a de minimis level as qualifying as undue hardship. On the other hand, as the Court stated in Hydro-Québec, the notion of undue hardship does not place a burden on an employer so onerous that it can be satisfied only by showing that it is impossible to find a satisfactory accommodation. The conclusion that can be drawn from these statements is that the obligation resting on an employer is serious and requires that it make diligent and vigorous efforts to identify options that will permit the employee to continue to work, taking into account whatever limitations exist. However, that does not place on the employer an unlimited obligation to accommodate the employee.

140  With respect to the nature of the process to be followed in arriving at a reasonable accommodation, the comments of the Supreme Court in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, at para 22, also help clarify the current principles concerning the duty to accommodate:

[22]    The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made. Throughout the employment relationship, the employer must make an effort to accommodate the employee. However, this does not mean that accommodation is necessarily a one-way street. In O’Malley (at p. 555) and [Renaud] the Court recognized that, when an employer makes a proposal that is reasonable, it is incumbent on the employee to facilitate its implementation. If the accommodation process fails because the employee does not co-operate, his or her complaint may be dismissed. As Sopinka J. wrote in [Renaud], “[t]he complainant cannot expect a perfect solution” (p. 995). The obligation of the employer, the union and the employee is to come to a reasonable compromise. Reasonable accommodation is thus incompatible with the mechanical application of a general standard…

141  The principles set out in those decisions indicate that, although an employer is required to make vigorous efforts to identify options for accommodating an employee, the obligation is not infinite, and it permits an employer to select options that will serve its purposes as well as the employee’s. The employer is entitled to expect that the work performed by the employee will make a meaningful contribution to the enterprise. The employer is not required to provide “make-work” projects as a pretext for having the employee continue on the job. It should also be noted that the employee has a responsibility to reach an agreement about accommodation — that of accepting reasonable compromise and providing a medical basis on which the employer can make decisions. The employee and his or her physician have the best understanding of the limitations entailed by the employee’s physical condition, and it is the employee’s responsibility to communicate clearly with the employer concerning those limitations.

142  I have concluded that the evidence demonstrates that the employer made reasonable efforts in this case to accommodate the grievor and that it showed a willingness to consider options requiring considerable adjustment in the duties she performed. It should be noted that the employer was attempting to accommodate the grievor using medical information that can only be described as limited and unhelpful. The initial doctor’s certificate referred only to “clerical duties” without specifying what actual limitations on the grievor’s activity were to be taken into account. That signified to Mr. Turi that some of her duties as a primary worker would probably not fit within the description, and he offered an arrangement that would remove her from the secure unit much of the time. At her suggestion, however, she continued to have an involvement with the secure unit through her task of taking IDT minutes and her continued work on an inmate caseload. That arrangement was not made in consultation with the person who would be supervising the administrative part of her duties, Ms. Vankoughnett, but was based on the assumption that sufficient work could be found for her in case management.

143  After Mr. Turi left, Ms. Varey, who was responsible during that time for managing the accommodation, became aware that the grievor was not spending much time in the case management location but that she was spending a lot of time in the secure unit and appeared to be doing some of the tasks of a primary worker, such as admitting inmates and staff to the unit. Ms. Varey had some questions about whether that was consistent with the accommodation that had been arranged for her, and her conversation with Ms. Vankoughnett appears to have reinforced Ms. Varey’s doubts of whether the accommodation was working. In consultation with a number of management representatives, Ms. Varey decided to propose a new accommodation. Both she and the grievor recalled the conversation on August 30 in which Ms. Varey outlined the nature of the new accommodation. Later in the day, the new accommodation was set down in writing (Exhibit U-3). Although the grievor reacted to the document quite negatively, considering it an “order” that placed pressure on her to undertake work that she thought was outside the restrictions specified by the doctor, this characterization seems somewhat at odds with her testimony that she asked for a written version of the proposal so that she could discuss it with her doctor. It is clear from the evidence both that she had time to discuss it with her doctor and that the employer withdrew the proposal on the basis of her response and the new note (Exhibit U-4) from the physician.

144  All the witnesses who described the meeting of September 1 obviously found it stressful and somewhat difficult. The new doctor’s note — which alluded to protecting the grievor from “physical altercations” — was also amenable to a number of interpretations. The grievor and her representative put forward the interpretation that it precluded contact with inmates. That was the first time the employer had heard that that might be a requirement, and it clearly presented new challenges in terms of identifying options within a penal institution, especially one where there were relatively few areas where inmates were not regularly present. The grievor also said at the meeting that her doctors thought that the ideal situation for her would be “...at home with her feet in the air.” In her rebuttal testimony, the grievor said that she made that claim because she was in a highly emotional state and that she did not mean for it to be taken literally. It was, however, something that concerned the employer representatives and added a further consideration to the efforts to identify an appropriate option.

145  Although the meeting of September 1 was difficult, the employer undertook to continue to make efforts to provide an accommodation that would meet the grievor’s needs. It asked for additional medical information because it was still unclear about the specific limitations that it should be trying to accommodate. Counsel for the grievor argued that the repeated requests for medical information constituted harassment. I do not accept that argument. It must be remembered that the initial accommodation for the grievor — and on September 1 she was still protesting that it had been withdrawn — involved her presence in the secure unit and her continued contact with inmates. Yet, on September 1, she and her representatives produced a new medical certificate, which they said indicated that the grievor should be protected from inmate contact. The grievor also claimed that the ideal situation for her would be at home with her feet up, yet she clearly considered offensive a suggestion from       Mr. Romaine that she might consider medical benefits under employment insurance as an option. On the basis of Mr. Romaine’s notes of the meeting and the accounts of all the witnesses who were present, it could not possibly be said that the actual limitations within which the grievor would have to work were clear to anyone.

146  On numerous occasions in evidence and argument, the grievor and her counsel alluded to the accommodation made for the grievor in 2004 and stated that they viewed it as the desirable standard, both for medical information and for a response from the employer. However, the evidence of employer witnesses made it clear that the situation had been much different in 2004, when the secure unit had not yet been commissioned and when there happened to be a considerable amount of work for which the grievor was qualified that could be performed from her home. The grievor’s response to many of the options presented to her in 2006 seems to have been conditioned by her preference for the working-from-home option over all others. The employer’s obligation does not extend, however, to finding an accommodation that will meet the employee’s preferences. The arrangements must meet the interests of both parties. Efforts must be made to find a situation that permits the employee to continue working, but such a situation is expected to meet some operational need of the employer. The accommodation made for the grievor in 2004 may have been ideal, from her point of view, but that does not render the employer’s consideration of different kinds of options in 2006 unreasonable or discriminatory.

147  It is unfortunate — and it is a deficiency that cannot be laid at the feet of either the grievor or the employer — that the medical information provided as a basis for discussing accommodation was inadequate and lacked specificity. Whatever the employer made of the medical information available in 2004 — none of which was produced before me — the medical notes initially provided in 2006 did not give the employer much to go on. When compared to the document ultimately provided (Exhibit U-5) on September 7, the notes in Exhibits U-1 and U-4 were cryptic and unhelpful. The reference to “clerical duties” alluded to a category of responsibilities that might include a wide range of tasks, including those the employer had in mind as part of the principal-entrance proposal, but it did not point out specific limitations or conditions that should be avoided. Similarly, the use of the term “physical altercations” in the second medical note could be interpreted, as the grievor and her representative argued, that there should be a total exclusion of inmate contact, even by sight or sound, or it could be interpreted more narrowly to mean that the grievor should not be in situations in which she faced physical danger or in which she would be close to others in physical danger. The medical information, along with the grievor’s responses to the employer’s initiatives, created a moving target, to which the employer naturally had difficulty making a coherent response. Under the circumstances, however, I have concluded that the employer made reasonable efforts to find a satisfactory accommodation and that the conduct of the employer’s representatives was not discriminatory.

148 Counsel for the grievor referred me to the decision in Marois and Hubert v. Treasury Board (Correctional Service of Canada), 2004 PSSRB 150, in which the significance of inmate contact was considered as an element of the accommodation of pregnant employees in the correctional system. The Marois and Hubert decision emphasizes inmate contact in arriving at an appropriate accommodation. It is clear that the employer and the union have also identified this as an important issue, given the provision set out in clause 45.07 of the collective agreement.

149  In his cross-examination of employer witnesses, counsel for the grievor intimated that the Marois and Hubert decision had led to the adoption of a sweeping policy by the Treasury Board under which accommodations made for pregnant corrections workers would automatically exclude inmate contact. The responses of the witnesses indicated that they were not aware of any such policy, and counsel for the grievor failed to produce any evidence of the existence of a formal policy. He argued that, in any case, the conclusion must be drawn from Marois and Hubert that the accommodation of pregnant corrections workers should preclude contact with inmates.

150  In my view, it is impossible to interpret Marois and Hubert to such sweeping effect. Much of the decision focuses on the question of whether Health Canada physicians can actually be viewed as providing an independent medical opinion in the context of clause 45.04 of the collective agreement. The adjudicator found that Health Canada could not be viewed as a source of independent medical advice for the employer. It should further be noted that the medical certificates provided by the employees in Marois and Hubert specifically spoke to the inmate contact issue, and the circumstances are therefore distinguishable from those in this case, where the inmate contact issue only arose obliquely out of the second medical certificate and was not fully clarified until the third. Finally the conclusory paragraphs in Marois and Hubert do not suggest an intention to lay out an automatic requirement for all accommodation cases; the adjudicator wrote at paragraph 68 as follows:

 [68]   Therefore, by wishing to impose reassignment to clerical positions in the Administration-I or the Administration–III building on Ms. Marois and Ms. Hubert starting on November 19, 2001, the employer contravened clause 46.07 of the collective agreement. It might have been otherwise if, under clause 46.02, the employer had obtained an independent medical opinion that the restriction that there be no contact with inmates was not justified by the state of health of the mother or the foetus.

151  My finding that the employer’s efforts to accommodate the grievor were reasonable and that they did not constitute discrimination do not end the matter, however, as the grievor also raised issues of harassment, abuse of authority and discrimination based on union activity.

152  The allegation of harassment is primarily based on the relationship between the grievor and Ms. Varey, although Mr. Romaine is implicated in the grievance because of his supervisory role over Ms. Varey. Both the grievor and Ms. Varey admitted that their relationship was tense and strained, and it is perhaps unfortunate that, because of the absences of others, notably Mr. Turi, at crucial times, Ms. Varey took on the responsibility for managing the grievor’s accommodation. The frictions in her relationship with the grievor evidently made it difficult for the grievor to react in a dispassionate way to communications from Ms. Varey.

153  Workplace tension or ill will is not, however, a sufficient basis for upholding a charge of harassment. In Joss v. Treasury Board (Agriculture & Agri-Food Canada), 2001 PSSRB 27, the adjudicator commented at paragraph 96 as follows:

[96]    Hard feeling, feelings of resentment, and out right feuds between employees crossing all ranks are not unique in employment relationships. Such situations do not always amount to harassment and more often than not, are two way streets. These problems are not necessarily effectively remedied by disciplinary action, and certainly not by indiscriminate use of harassment policies or harassment complaints as this unfortunate tale reveals.

154  In paragraph 59 of Joss, the adjudicator referred to the requirements for a finding of harassment under the Treasury Board’s policy:

[59]    According to the Treasury Board policy, for general harassment to exist, there must be 1) objectionable conduct; 2) the conduct must be directed at the complainant; 3) the conduct must be offensive to that employee; 4) the perpetrator must know or ought to have known, the conduct would be unwelcome; 5) the conduct must demean, belittle, or cause personal humiliation or embarrassment to the complainant; and 6) the incident may be conduct, comment or display made either on a one-time or continuous basis. Therefore, in harassment that is not sexual in nature, it is not sufficient that the conduct was improper and that the perpetrator knew or should have known it would be unwelcome; the object of the conduct must find it offensive, and the conduct itself must be objectionable because it demeaned, belittled, or caused personal humiliation or embarrassment to the victim. As a result, harassment that is not sexual contains both an objective and a subjective element. The objective element is that the conduct must be objectionable and be demeaning, belittling or have caused personal humiliation or embarrassment. The subjective element is that the victim or object of the conduct must have found it to be offensive for one of those reasons.

155  The evidence of both the grievor and Ms. Varey must lead to the conclusion that there was an unhealthy dynamic in their relationship. The grievor felt that Ms. Varey was out of her depth as a manager in a secure unit of the kind created at FVI, and that she knew less about the appropriate policies and procedures than the grievor herself. She conceded that she lacked respect for Ms. Varey as a supervisor. Ms. Varey felt that the grievor was disrespectful and hostile towards her. Ms. Varey attributed much of it to the sense of ownership that the grievor felt for the policies that she had helped draft and thought that the grievor was resentful of any changes or adaptations to those policies. Ms. Varey felt that to carry out her role as the grievor’s direct supervisor, on occasion she had to challenge the grievor’s conduct or performance. None of it made for a harmonious or productive relationship, but the evidence falls short of establishing that Ms. Varey went beyond legitimate, if unsuccessful, efforts to assert her supervisory authority and does not demonstrate that she targeted the grievor or made efforts to demean or humiliate her. The limited evidence that was produced of interpersonal conflict between Ms. Varey and other employees similarly fails to support a charge of harassment, although it does add to the picture of workplace tension in which the events unfolded. Some of the evidence put forward to illustrate that Ms. Varey engaged in harassing behaviour showed, in fact, that her conduct was prompted by directions from others. The telephone call to the grievor directing her to report to regional headquarters was made on the instructions of       Mr. Turi and did not arise from any impulse on Ms. Varey’s part to needle or irritate the grievor. Ms. Varey expressed herself forcefully on occasion, and there was evident tension in some of her exchanges with the grievor and others, but her conduct did not, in my view, rise to the level of harassment.

156  The charge of harassment against Mr. Romaine was, in part, based on his supervisory role over Ms. Varey and also on his own interactions with the grievor in the course of the meetings at which he was present. Mr. Romaine expressed the view that the tone of the meeting with the Warden on August 30 and at the meeting of September 1 was not optimal, and he acknowledged that there were times during the meetings when the grievor was under stress and experiencing acute emotions. However, I have concluded that in the course of the meetings, Mr. Romaine was genuinely trying to ascertain the grievor’s position on various options and to generate some options for consideration. He did so under circumstances where he had relatively little medical information available and where new aspects of the grievor’s situation were being raised as the meetings progressed. In that context, there was no reason for him not to rely on Ms. Varey’s input, both as the grievor’s supervisor and as a fellow manager with a perspective on the institution.

157  Counsel for the grievor further argued that the grievor had been a victim of discrimination based on union activity, in violation of article 37 of the collective agreement and of the provisions of the Canada Labour Code and the PSLRA. He pointed to the coincidence of the grievor’s involvement in the events surrounding the disciplining of Ms. Coulson and the withdrawal of the grievor’s first accommodation placement in case management. He also pointed out that Ms. Varey alluded to the grievor’s involvement in union activity when she was informing her of the proposal for a new placement.

158  It is my view that the evidence does not prove that the change to the grievor’s accommodation was prompted by her role in the union’s activities. According to       Ms. Varey, in her conversation with the grievor on August 30, she observed that she understood that the grievor had failed to acknowledge the presence of a senior manager because she was on the phone on union business. The conversation did not arise out of or touch on the conflict that had arisen with Ms. Coulson over the changes to the inmate N protocol. The grievor’s evidence did not contradict Ms. Varey’s version with respect to content, although she felt that the conversation had a different tone. I agree with counsel for the employer that much of the evidence and argument concerning the protocol for inmate N was a red herring. The evidence does not support the allegation that Ms. Varey was attempting to prevent employees from acting on their legitimate rights with respect to their safety. A complaint was never filed under the relevant provisions of the Canada Labour Code. Ms. Varey did ultimately discipline    Ms. Coulson for the manner in which she chose to raise the concern, and the evidence did not establish that the legitimate role played by the grievor in representing          Ms. Coulson prompted any reaction from Ms. Varey. There was some allusion in the testimony of some witnesses to prior interference from Ms. Varey in the exercise of bargaining rights by employees, but that was not backed up by examples or concrete evidence. Certainly there was no evidence of any unfair labour practice charges brought against Ms. Varey.

159  Counsel for the grievor did not attempt to make a separate case for the allegation of abuse of authority. One is left to conclude, as counsel for the employer argued, that it is a contextual or overarching charge meant to reinforce the allegations of discrimination and harassment. Representatives of an employer may abuse their authority by discriminating against employees or harassing them. Given the conclusions that I have reached with respect to the allegations of discrimination and harassment, it is not necessary to address the charge of abuse of authority in detail, other than to observe that the depth of resentment of supervisory or managerial authority on the part of an employee cannot be a reliable indicator that the conduct of employer representatives exceeded the bounds of their legitimate authority. The grievor perceived the actions of Ms. Varey and Mr. Romaine as arbitrary and unreasonable, and it is understandable that she was in a heightened state of anxiety. As I have outlined earlier, however, my conclusion is that the conduct of the managers did not constitute discrimination, harassment or abuse of authority.

160  Counsel for the employer made an objection concerning my jurisdiction over the second grievance, which concerned placing the grievor on leave status while arrangements were being worked out for her after she returned to work and filed the first grievance in October 2006. If this grievance stood alone, the employer’s argument that the choice of leave status did not represent a punitive action bringing it within paragraph 209(1)(a) of the PSLRA might be well-founded. I agree, however, with counsel for the grievor who argued that this action must be seen as a continuation of the series of events that the grievor characterized in the first grievance as discriminatory and abusive. I hold that I have jurisdiction to consider it in this light and have therefore considered it relative to its relationship with the events giving rise to the first grievance.

161  However, I have found that the conduct of the employer put forward as the basis for the first grievance cannot be characterized in the way the grievor alleged, and I therefore find that the second grievance is also unsuccessful. After attempting to meet the request in the first grievance that the grievor not be supervised by Ms. Varey or Mr. Romaine by offering her a placement elsewhere in the institution, where she would have had access to shift premiums and overtime, Mr. Turi found it necessary to place her on leave status while options outside FVI were identified. Mr. Turi was not named in the first grievance, and indeed, the testimony of both the grievor and         Mr. Turi at the hearing indicated that their relationship before this had been harmonious. There was no evidence to suggest that Mr. Turi was acting other than in good faith and in an attempt to find a constructive solution.

162  Nothing I have stated in this decision should be taken as minimizing the extent of the loss suffered by the grievor in the course of these events. Her loss was tragic, and the risks associated with her medical condition could be expected to make her anxious and apprehensive during her pregnancy. For the reasons I have given, however, I have concluded that the allegations of discrimination, harassment and abuse of authority in the first grievance, and the allegation that the placement on leave status was a continuation of those actions, must fail.     

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

VI. Order

164  The grievances are dismissed.

May 12, 2009

Beth Bilson,
adjudicator