FPSLREB Decisions

I. Grievance referred to adjudication

1 Christopher Currie (“the grievor”) claims that the Department of Fisheries and Oceans (“the employer”) failed to accommodate his needs as a disabled employee. According to the grievor, the employer’s failure to accommodate led to his rejection on probation, which he claims was therefore not proper. The grievor filed a grievance on March 18, 2008 in which he requested that he be reinstated with full reimbursement for lost wages and benefits and that he “be made whole.”

2 From the outset the employer maintained that I was without jurisdiction to deal with this matter. The employer submits that the legislation is clear and prohibits me from assuming jurisdiction because the action of the employer was a rejection on probation.

II. Procedural issue

3 In addition to this grievance, the grievor filed another grievance (PSLRB File No. 566-02-2113). Prior to the hearing, the Public Service Labour Relations Board (“the PSLRB”) received notice from the grievor’s representative that the complaint had been withdrawn.

4 At the beginning of the hearing, counsel for the grievor confirmed that the only matter before me was the grievance.

5 During closing arguments, counsel for the grievor raised the argument, apparently for the first time, that the provisions of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (“the CHRA”), had been violated. Thus, on December 4, 2009, the grievor gave notice to the Canadian Human Rights Commission (“the CHRC”) that he had raised, at adjudication, an issue involving the interpretation or application of the CHRA. On December 24, 2009, the CHRC notified the PSLRB that it did not intend to make submissions with respect to the issue raised by the grievor.

III. Hearing

6 This matter was scheduled to be heard from November 23 to November 27, 2009. However, at the outset of the hearing, counsel for the grievor advised me that the grievor did not take issue with the employer’s position that he had failed to meet the performance standards of the position. This resulted in the hearing concluding on November 25, 2009, as the only issue before me was whether there had been bad faith on the part of the employer in not accommodating the grievor.

IV. Summary of the evidence

7 Five witnesses were called during the hearing. The employer called Donald Inkpen, who, at the time relevant to the grievance, held the position of Superintendant of Electronic and System Maintenance; Elwin George, who at the relevant times was the Superintendant of the Electronic and Information Section of the Integrated Technical Service; Paul McKiel, Supervisor of Technical Maintenance at the Dartmouth Technical Workshop (“the DTW”); and Lorne Anderson, a senior technician at the DTW. In addition, the grievor testified on his own behalf.

8 Although there were some differences in the witnesses’ evidence, in my view, many if not all of the relevant facts are really not in dispute.

9 The grievor applied for a position with the employer in 2003 as a “disabled” person. Mr. Inkpen described the application process as an Employment Equity process, in which the grievor “self identified” that he had a disability.

10 In any event, the grievor was the successful applicant, and on January 9, 2004, he accepted the offer and started on February 2, 2004 in Charlottetown, Prince Edward Island.

11 At no time did the grievor ever describe to his employer, or indeed to me during the hearing, the nature of his disability. Furthermore, the grievor did not adduce any evidence that between 2004 and 2005 he requested any form of accommodation. Mr. Inkpen’s evidence confirms that the employer was aware that the grievor was disabled because of the self-identification on his application form (Exhibit 5, Tab 1), but no request for accommodation was made. The grievor’s employment application states, “… diagnosed disability from a doctor…”, which was the only evidence that he suffered from a disability.

12 The employment opportunity offered to the grievor was to participate in a training program for electrical technicians. All the witnesses referred to the program as the Marine Electronic Technologist (EL) Development Program (“the MELDEV Program”). It is a four-year program that requires the participant to advance from year to year based on his or her performance. The employer has the discretion to extend any given portion of the program from three to a maximum of six months.

13 The witnesses described, in some detail, the manner in which the grievor was assessed. I will not go into detail about the measuring standards as the grievor admitted that he was unable to achieve the acceptable level either in Charlottetown or, as will be described later in this decision, in Dartmouth.

14 Suffice it to say that, even with two three month extensions (on January 31, 2005 (Exhibit 5, Tab 4) and on April 28, 2005 (Exhibit 5, Tab 4)), the grievor was unable to achieve the necessary standards for promotion to the next stage of the MELDEV Program, and the employer terminated him on July 28, 2005 (Exhibit 5, Tab 5). The letter of termination refers specifically to subsection 28(2) of the Public Service Employment Act, S.C. 2003, c.22(“the PSEA”).

15 The grievor filed a grievance concerning the employer’s action, and evidence was adduced that there was a mediated settlement that resulted in his reinstatement. Several witnesses referred to the grievance and the settlement during the evidence, but at no time was any documentary evidence adduced. The grievor was again offered employment in the MELDEV Program on April 4, 2006 (Exhibit 5, Tabs 6 and 7).

16 Again, the employer was aware that the grievor was disabled. But, as Mr. Inkpen stated during cross-examination, employees are not encouraged to disclose the nature of their disabilities. In this case, the grievor, as with other disabled employees, was encouraged to identify any necessary accommodations. Mr. Inkpen testified that, once the employer is provided with the requested accommodations, Health Canada is approached for an assessment of the request. Mr. Inkpen testified that the employer would follow Health Canada recommendations.

17 On the grievor’s appointment to the position at the DTW, Health Canada requested that he be with provided the opportunity to take frequent breaks. The grievor acknowledged that this request for accommodation was granted. In fact, he stated that it was not an issue.

18 When the grievor reported to work at the DTW on May 17, 2006, he met with Mr. Anderson who testified that he discussed the MELDEV Program with the grievor and that they generally reviewed the operations at the DTW (Exhibit 5, Tab 8). In addition, on June 1, 2006, Mr. Anderson drafted a document confirming the nature of the discussions with the grievor on May 17, 2006, which the grievor had signed (Exhibit 5, Tab 9). Mr. Anderson was the senior technician to whom the grievor would report while he was working at the DTW.

19 One of the employer’s concerns was the grievor’s tardiness. The grievor requested that he be allowed to have some flexibility in his start time. The employer did not then grant the request; only when it received a letter from Health Canada on January 2, 2007 (Exhibit 5, Tab 14) did it consider the request as one for accommodation. The letter from Health Canada stated the following: “… Mr. Currie may more than likely have a medical condition that will affect his ability to awaken and arrive to work on time.” As a result, Mr. McKiel testified that they “backed off” and allowed the grievor some flexibility for his start time.

20 On May 11, 2007, the employer received a further communication from Health Canada (Exhibit 5, Tab 14) that indicated that it was unable to confirm the medical condition referred to on January 2, 2007. Mr. McKiel testified that he attempted to correct the tardiness issue that became obvious from the beginning through a counselling process that resulted in a letter dated June 29, 2006 (Exhibit 5, Tab 10).

21 Regardless of the employer’s concerns about both his technical capabilities and his tardiness, the grievor’s probationary period was extended on May 7, 2007 (Exhibit 5, Tab 17). In addition, at the grievor’s request the employer provided a workstation that was more suitable to his needs. Shortly after that the grievor indicated to Mr. McKiel for the first time that he had an issue with Mr. Anderson. That said, the grievor did not testify about any issue he had with Mr. Anderson or indeed with any particular person in management.

22 On June 5, 2007, at the employer’s request, Health Canada provided a list of 10 accommodations for the grievor (Exhibit 5, Tab 19). The list reads as follows:

1. Mr. Currie will need a quiet non-distracting environment where he can work. His workstation should not be close to heavy traffic areas. His workstation should not be near coffee break areas and lunch tables. Preferably near a window so he can get natural light.
2. He will need written duties given by his supervisor either by e-mail or in a written format on a daily basis. If work situation required a changing format, for example IST training modules one day or going to ship at base location another day, these can be given to him a day prior to the change.
3. Multi-tasking is possible for someone with his medical problem, but one task at a time is much more appropriate to complete.
4. Mr. Currie will need a personal digital assistant (PDA), preferably an electronic device to help him continue to be structures and disciplined in his daily work environment. He can highlight important priorities and erase what he does not need. This will assist him with managing time effectively. It would be an excellent visual tool as well as auditory tool as he can use the alarm system in the PDA to remind him of a particular task to be done at a certain time.
5. [The parties agreed that this should be number 5, although it was found as a continuation of number 4.] His training program will have to be clearly explained and outlined to him. If you have not already done so, he should be provided with orientation training on equipment etc. There should be discussions with supervisors regarding the equipment and the full expectations of his supervisors, that he understand what has been explained to him, their approach should be positive, and they must understand and support his strengths and promote them.
6. Monthly reviews would be helpful in keeping him on a positive note and being aware of his strengths and weaknesses observed by the supervisor and given to him in writing.
7. Shiftwork may not be appropriate at this time due to the adverse effects of any medication he may be required to take. Regular working hours would be more appropriate.
8. Due to his medical condition, his work should begin around 8:00 am rather than earlier as that affects the circadian pattern of sleep and his sleep rhythm.
9. A positive reinforcement provided by his peers and supervisors would be very helpful.
10. The office space should be clear and well lit.

[Sic throughout]

23 I note that the list of accommodations was sent only on June 5, 2007, 13 months after the grievor had started work and one month after his first extension. The grievor offered no explanation as to why this list of accommodations was not supplied earlier.

24 Regardless, Messrs. McKiel and Anderson testified that, for the most part, all requirements were implemented. They did acknowledge that, with respect to point two, at times, the instructions were not in writing; with respect to point four, the grievor eventually, after a few months, advised that the PDA did not work and that he had never asked for it in the first place; and, with respect to point six, the monthly reviews were not always in writing.

25 The grievor testified about the implementation of the 10 recommendations in the Health Canada letter. With respect to point one, the grievor stated that the work location was changed, but only after he made repeated requests. With respect to point two, there was an improvement, but still many instructions were not supplied in writing. With respect to point three, he stated that it was not an issue. With respect to point four, he stated that, from the beginning, the PDA’s battery did not hold a charge but that he did not mention it right away as he did not wish to be seen as a complainer. With respect to point five, the grievor acknowledged that he was provided a mentor. With respect to point six, the grievor admitted that the monthly reviews improved. With respect to point seven, the grievor acknowledged that shift work was not an issue. With respect to point eight, the grievor acknowledged that the tardiness issue was not raised again. With respect to point nine, the grievor testified that he did not receive positive motivation. With respect to point 10, the grievor stated that it was not an issue.

26 In any event, the grievor continued to participate in the MELDEV Program, and Mr. Anderson testified that he completed at least two technical assessments for the grievor, on June 15, 2007 (Exhibit 5, Tab 21) and on September 5, 2007 (Exhibit 5, Tab 22), and that an action plan was developed on September 14, 2007 (Exhibit 5, Tab 23).

27 On November 21, 2007, Mr. Anderson completed another technical assessment (Exhibit 5, Tab 24). It is noted that, in that assessment, the grievor asked to refer to his notes. The request for the use of notes was not new for the grievor, but as in past cases, on November 21, 2007, the employer did not allow the grievor to use his notes as the purpose of the assessment tool was to test the level of knowledge that the MELDEV Program employee had achieved.

28 In any event, by letter dated February 28, 2008, (Exhibit 5, Tab 28) the grievor was advised that he was being terminated. It is useful to reproduce the following portion of the letter:

…

Pursuant to section 62.1 of the Public Service Employment Act, I regret to notify you that your employment with the Department of Fisheries and Oceans will be terminated effective, April 01, 2008. Effective February 29, 2008, you will no longer be required to report for duty… . In accordance with Section 3.1 of the Regulations Establishing Periods of Probation and Periods of Termination of Employment During Probation, effective February 29, 2008 you will be on leave with pay until close of business March 31, 2008.

This decision is based on the conclusion that you do not meet the requirements to move to the next level (EL02) of the training program. You have been counselled on numerous occasions over the last year and a half regarding on-going concerns with respect to your ability to retain and transfer knowledge, your ability to meet work requirements and your personal suitability for this program. You have been unable to progress past the first level of the training program despite repeated extensions and additional training. In addition, there have been several instances of insubordination and unco-operativeness which have increased in frequency and degree of seriousness over time. During our discussions in April 2007, your most recent assessment in January 2008 and the MELDEV documentation which you were provided with in May 2007, you have been advised that failure to proceed to the next level in the program may result in rejection on probation.

…

[Sic throughout]

V. Issue to be decided

29 My first obligation is to determine if I have the requisite jurisdiction to deal with this matter.

30 If I do conclude that I have the jurisdiction, because the grievor acknowledged that he had not achieved the technical level required of him to advance to the next classification level, the issue before me is easily stated. I must determine if the employer addressed the grievor’s accommodation.

VI. Positions of the parties

A. The employer’s preliminary objection on jurisdiction

31 The employer takes the position that I am without jurisdiction to hear this matter because it concerns a termination or rejection on probation and because section 211 of the Public Service Labour Relations Act, S.C. 2003, c.22 (“the PSLRA”), does not allow the reference to adjudication of a termination under the PSEA.

B. The grievor’s position

32 With respect to the preliminary objection raised by the employer, the grievor takes the position that I do have jurisdiction. In making his argument, the grievor concedes that he was a probationary employee and that, on the face of the evidence, he was rejected on probation.

33 However, the grievor states that, once the employer has satisfied a prima facie case that the termination was in fact a rejection on probation, the onus shifts to the grievor to establish that the employer’s decision was coloured or tainted. It is the grievor’s position that the employer failed to accommodate his needs, and therefore, the preliminary objection must fail. In essence, the grievor submits that the employer’s decision was arbitrary, discriminatory and disciplinary.

34 The grievor also submits that subsection 208(2) of the PSLRA provides me with the authority to consider whether subsection 3(1) of the CHRA has been infringed. In making this argument, the grievor submits that the CHRA is quasi-constitutional in nature and, therefore, that it trumps any restrictions that may be found in the PSLRA.

35 Counsel for the grievor submits that the law is clear. An employer has a duty to accommodate to the point of undue hardship. It is submitted that the facts do not establish that the employer accommodated the grievor, and furthermore, no evidence was adduced that the employer would have encountered any undue hardship had it accommodated the grievor.

36 In the grievor’s view, he was disabled, and the employer at no time questioned that fact. The grievor notes that, although some accommodation was made for his needs, it was inadequate. Counsel for the grievor suggested that, for instance, although the employer did allow some flexibility for the grievor’s starting time after January 2007, it stopped once Health Canada withdrew its recommendation on May 11, 2007 (Exhibit 5, Tab 14).

37 Furthermore, the grievor states that the list of accommodations set out by Health Canada on June 12, 2007 (Exhibit 5, Tab 19) were not properly implemented by the employer. However, when pressed to explain what else could have been done, counsel for the grievor suggested that the employer’s failure to allow the grievor to use his notes when being tested was a failure to accommodate.

38 Counsel for the grievor referred me to the following legislative provisions and decisions: sections 208 and 209 of the PSLRA and section 62 of the PSEA; Canada (Attorney General) v. Leonarduzzi, 2001 FCT 529; Canada (Attorney General) v. Penner, [1989] 3 F.C. 429 (C.A.); Raveendran v. Office of the Superintendent of Financial Institutions, 2009 PSLRB 116; Ondo-Mvondo v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 52; Melanson v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 33; Pepper v. Deputy Head (Department of National Defence), 2008 PSLRB 71; and Chaudhry v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 72.

C. The employer’s position on the merits

39 The employer, on the other hand, submits that, if I find that I have jurisdiction, this grievance should be dismissed. In its submission, the employer does not agree with the grievor’s conclusions with respect to the employer’s acceptance of the recommendations made on June 12, 2007 (Exhibit 5, Tab 19).

40 Furthermore, with respect to the issue of the use of notes, the employer points out that there is no evidence before me that such an accommodation would be required in the grievor’s case. In making its, the employer states that the grievor was not a part of the multi-faceted approach necessary to assist employees requiring accommodation. Rather, the employer submits that the grievor did not cooperate even though it was acknowledged that he was disabled.

41 In reply, the employer took issue with the grievor raising the CHRA at this point in the proceedings. The employer pointed out that nowhere in any of the documentation before me was the grievor going to claim that the CHRA has been violated.

42 In support of the employer’s submissions, counsel for the employer referred me to the following authorities: Penner; Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 (T.D.)(QL); Leonarduzzi; Wright v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 139; Dalen v. Deputy Head (Correctional Service of Canada), 2006 PSLRB 73; Melanson; Swan and McDowell v. Canada Revenue Agency, 2009 PSLRB 73; Rousseau v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 91; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Kandola v. Canada (Attorney General), 2009 FC 136; and Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68.

VII. Analysis

43 I agree with the suggestion of counsel for the grievor that this is indeed a sad case. The grievor struck me as an intelligent individual who had some related education and experience. Based on my observation of the grievor during his testimony, I concluded that he was for the most part obedient, patient and sincere, but unfortunately, those qualities were not very helpful to him.

44 But for the allegations that the actions of the employer violated the CHRA, which I will discuss in detail later in this decision, I would be inclined to conclude without further consideration that I am without jurisdiction to render a decision on the merits of this matter.

45 Many decisions have been rendered that outline the limitations on the authority of an adjudicator to consider terminations of employment under the PSEA. The limitations have been captured in section 211 of the PSLRA, which states that “any termination of employment under the Public Service Employment Act” cannot be referred to adjudication.

46 Although I was referred to a plethora of case law, I am persuaded that many of the recent cases to which I was referred provide very good summaries of the state of the law.

47 The Federal Court in Leonarduzzi concluded that the employer need only demonstrate that the rejection (termination) was for an employment-related reason. The Court suggested that “… dissatisfaction with the suitability of the employee …” was all that was needed.

48 Since that case was decided in 2001, several adjudicators have interpreted the limitation set out in section 211 of the PSLRA. I am of the view that the adjudicator in Melanson was correct when he stated the following at paragraph 160: “As long as the employer establishes a legitimate employment-related reason for rejecting an employee, an adjudicator cannot intervene.”

49 Furthermore, I am persuaded by the adjudicator’s analysis and conclusion in Rousseau. At paragraph 106, the adjudicator stated the following:

106    Once the employer has demonstrated that the termination was employment related, the adjudicator is without jurisdiction unless the grievor demonstrates that his or her dismissal was not in fact a true rejection within the meaning of the PSEA…

…

50 In this case, the grievor was terminated or rejected by the employer for reasons that were in my view related to his employment. In particular, the employer concluded that the grievor was not able to meet the technical requirements to progress to the next step in the MELDEV Program (see paragraph 28 of this decision). This conclusion of the employer is not disputed by the grievor who in fact acknowledges his inability.

51 It is established that the termination is employment related. However, considering that the employee did self-declare, it may be necessary to consider the good faith of the employer in light of the CHRA.

52 The grievor claims that he has been discriminated against by virtue of the alleged failure of the employer to accommodate his needs brought on by his disability. At this stage, I want to point out that I am not convinced that the employer’s objection to the grievor raising the CHRA in closing argument is well founded. It appears to me that, as the grievor clearly alleged that the employer had failed to accommodate him, the natural conclusion would be that the CHRA was being raised. In my view, counsel for the grievor corrected any error that may have occurred by giving notice to the CHRC, which in turn advised that it would not intervene.

53 The grievor has not established that the employer acted in bad faith; as a matter of fact, I believe the grievor was accommodated.

54 At the beginning of his employment at the DTW, the grievor was allowed significant flexibility for breaks as Health Canada suggested on December 19, 2005 (Exhibit 5, Tab 6).

55 Furthermore, the evidence discloses that the grievor did not actively request any accommodation except for the right to have a flexible starting time. The employer granted that request once it possessed supporting documentation from Health Canada on January 2, 2007 (Exhibit 5, Tab 14). I am of the view that the list of 10 accommodations provided by Health Canada on June 12, 2007 (Exhibit 5, Tab 9) were for the most part complied with by the employer, and in fact, the grievor during his testimony did not take issue with this conclusion.

56 I note also that no evidence was adduced to explain the delay in Health Canada providing the list of accommodations. In making this observation, I conclude that there is no fault to be attached to the employer. But I do have to wonder if the grievor was as proactive as he should have been in providing the necessary information to Health Canada.

57 I conclude that the employer dealt with anything that the grievor requested or that Health Canada recommended.

58 The only evidence before me of a request of the grievor that was not dealt with was the right to use his notes during technical assessments. It is not denied that the employer did not allow this to occur, and it was explained to me that technical assessments are used to determine the level of retention an employee had achieved. In addition, I note that no evidence was adduced before me that such an accommodation was required for an individual such as the grievor. During the hearing, the nature of the grievor’s disability was never disclosed, and no evidence was adduced to indicate that certain accommodations, such as the use of notes, would have been useful and necessary to accommodate such a disability.

59 In my view, the grievor was his own worst enemy. He was hired as an employee with a disability. Although I agree with him and the employer that there was no requirement to disclose the nature of the disability, that is not the end of the matter. I have held before and I am still of the view that, although the employer might very well be in the best position to determine the nature of accommodation that it can allow, the employee must take some responsibility.

60 Furthermore, I am unable to conclude that the employer acted in bad faith in its dealings with the grievor. Thus I am of the view that I lack jurisdiction to decide this matter.

VIII. Reasons

61 For all of the reasons stated above, I conclude that the grievor has not satisfied his onus and that I am without jurisdiction.

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

IX. Order

63 The grievance is dismissed.

January 22, 2010.

George Filliter,
adjudicator