FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Dr. Maher Zaytoun (“the grievor”) is a veterinarian working at the Canadian Food Inspection Agency (“the CFIA” or “the employer”). His position is classified at the VM-01 group and level, and he is covered by the collective agreement between the CFIA and the Professional Institute of the Public Service of Canada (“the PIPSC”), which expired September 30, 2007 (“the collective agreement”).

2 On June 2, 2006, the grievor collapsed at his workplace. He was immediately transported to the hospital for treatment. At that time, his substantive position was located at one of the employer’s facilities, a beef slaughter plant in Kitchener, Ontario. The physician who examined the grievor shortly after the June 2, 2006 incident diagnosed that the grievor had suffered an acute attack related to asthma or allergies. He recommended that the grievor not be exposed to dust, mould or ammonia in the workplace.

3 From early June 2006 to March 2008, the employer took several measures to accommodate the grievor in the workplace. The grievor was not satisfied that he was properly accommodated. On that point, he filed a first grievance on May 30, 2007, asking that his request for accommodation be dealt with in an appropriate and timely manner. On October 4, 2007, the grievor filed a second grievance, asking for the same remedy and adding that he wished that all discriminatory actions related to his disability and ethnic origin would cease. The grievor had emigrated from Egypt to Canada in the late 1990s. The grievances were dismissed at the final level of the grievance procedure on September 9, 2008 and were referred to adjudication on November 14, 2008.

II. Summary of the evidence

4 The grievor adduced 44 documents and the employer 47 documents. The grievor testified. The employer called Rick Hutfloetz and Dona Holmes as witnesses. At the time of the grievances, Mr. Hutfloetz was the inspection manager for the Southwest Ontario region of the CFIA, and Ms. Holmes was a human resources consultant for the Ontario region of the CFIA. Because the evidence adduced by the parties was not contradicted, it will be as one in a logical sequence.

5 As mentioned earlier in this decision, the grievor collapsed at his workplace on June 2, 2006. The incident happened while the grievor was working in a barn performing ante-mortem examinations. After the incident, the grievor’s physician, Dr. Antoun Toma, recommended that the grievor not be exposed to dust, mould or ammonia in the workplace. The employer decided not to send the grievor back to the Kitchener site but rather to temporarily assign him to the Brampton establishment. His work mostly involved animal examinations at the different terminals of the Toronto International Airport for exportation purposes.

6 The grievor was satisfied with the Brampton assignment. He liked his work, did not feel exposed to dust, mould or ammonia and enjoyed working closer to his home, which was in Mississauga. The grievor worked at the Brampton facilities from June 9, 2006 to September 7, 2007.

7 On July 13, 2006, the employer wrote to Dr. Jeffrey Chernin at Health Canada, asking for a fitness-to-work evaluation for the grievor to identify any required work restrictions or accommodations. On September 19, 2006, Dr. Chernin replied to the employer that it had just received a preliminary report from the grievor’s clinician and that he had asked the grievor for some additional clinical information from his physician. On December 11, 2006, Dr. Chernin wrote to the employer and stated that he was still waiting for the additional clinical information. On April 26, 2007, the grievor wrote to the employer stating that he had mailed the clinical information to Dr. Chernin on April 12, 2007. On May 16, 2007, Dr. Chernin sent his fitness-to-work evaluation to the employer. His conclusion was that the grievor had a medical condition for which he required ongoing medical supervision. He also stated that the grievor should be able to carry out the duties of his substantive position but that he should not return to the slaughter site described as “the Barn.” On May 28, 2007, Dr. Chernin clarified that, in his May 16, 2007 evaluation, he was referring to the Kitchener work site.

8 On July 30, 2007, Mr. Hutfloetz contacted the district veterinarian at the Brampton office, Georges Mraz, and asked questions about the working conditions in that office. Mr. Mraz answered that the grievor never complained of any medical issues to him and that he never mentioned that he could not work in barns or other locations. He also mentioned that, in Brampton, the grievor was working approximately two to four hours at the doorway of the Air Canada barn and, in the winter, more deeply inside the barn. Mr. Mraz mentioned that the work in Brampton implied that the grievor would be exposed to dust, vapour and animal dandruff. Skin particles were also always airborne and could cause irritation of the upper respiratory tract.  

9 On August 16, 2007, the employer informed the grievor that he had been indentified as a disabled priority based on the assessment from Health Canada that he was unable to work in his substantive position in Kitchener considering that 80 percent of his duties implied working in the Barn. This meant that the grievor could be appointed in priority over other employees into a new or vacant position.

10 On September 4, 2007, the grievor provided the employer a copy of a new medical assessment that he received the same day from his physician, Dr. Toma. The assessment stated that the allergic reaction that the grievor suffered from in June 2006 could have been triggered from allergens in the Barn or on the kill floor at the slaughter site. He added that it would be a potential health hazard for the grievor to return to a similar slaughter site, and he recommended that the grievor not return to the Barn or to slaughter sites.

11 In light of that new medical information, Mr. Hutfloetz decided to temporarily appoint the grievor to the Woodstock work site starting September 10, 2007. He believed that the grievor should no longer work at the Brampton site because barn work was involved. Considering that the grievor’s substantive position was in Kitchener but that his residence was in Mississauga, the employer informed the grievor that he would be considered present at work while travelling from Kitchener to Woodstock and back. The employer would provide him with a CFIA fleet vehicle for the commute.

12 The grievor experienced problems dealing with his new supervisor in Woodstock. On October 4, 2007, he wrote to Mr. Hutfloetz, complaining that he was harassed and bullied by his supervisor in Woodstock. The grievor asked Mr. Hutfloetz for a transfer to another CFIA office. The grievor also developed problems with his right knee and back from his daily commute to Woodstock. On October 10, 2007, he met Dr. Yan Liu, who wrote in a clinical note that the grievor’s work should be modified to reduce prolonged sitting and that long drives were certainly worsening his pain. After that, the grievor never went back to work in Woodstock. He was on certified sick leave from October 10 to December 7, 2007.     

13 On November 5, 2007, the employer wrote to Dr. Chernin, asking for a new fitness-to-work evaluation for the grievor. The purpose of the assessment was to establish if the grievor was fit to work in a slaughter environment or in any barn and to determine the restrictions, including environmental restrictions, with respect to the duties that the grievor could perform. The employer also asked Dr. Chernin several questions on the issue of driving long distances. On December 20, 2007, Dr. Chernin responded to the employer that the grievor could not drive more than one hour at a time and that he would not be able to commute daily from his home to Woodstock. Dr. Chernin could not answer the other questions at that time, and he indicated that he would be able to after receiving the report that St. Michael’s Hospital was to send him after examining the grievor.

14 On November 15, 2007, Mr. Hutfloetz wrote to other inspection managers in the Greater Toronto Area, informing them that he needed to find a temporary medical accommodation for a veterinarian (the grievor) who could not work in barns or in slaughter plants and who could not drive more than 45 minutes from his or her home in Mississauga. Mr. Hutfloetz asked his colleagues for an answer by the end of the week since he needed to find something for the grievor in short order. Mr. Hutfloetz did not receive any positive replies from his colleagues. On November 19, 2007, Mr. Hutfloetz informed Crystal Stewart, a PIPSC representative, that he had not been successful in finding a position for the grievor. He also wrote to Ms. Stewart that the grievor would have to stay home until the employer could determine if any other options existed. On November 21, 2007, Mr. Hutfloetz provided the same information to the grievor and advised him to continue, for the time being, to remain on sick or annual leave.

15 According to the grievor, he used 43 days of sick leave and 24 days of annual leave between October 2007 and January 2008 because he was not accommodated. The grievor’s leave statement indicates that, on December 10, 2007, the employer approved the grievor’s request for annual leave from December 10, 2007 to January 16, 2008.

16 Having been unsuccessful in obtaining a veterinarian assignment for the grievor, Mr. Hutfloetz wrote to several CFIA managers in early January 2008, seeking a temporary assignment for the grievor in an office setting. On January 15, 2008, the grievor indicated that he was willing to accept such a temporary assignment except that he did not want to be assigned to a position in the EG group. Later that day, Mr. Hutfloetz offered to temporarily accommodate the grievor with data entry work at the CFIA Toronto Regional Office. The grievor accepted the offer and began working in that temporary assignment on January 17, 2008.

17 The grievor was examined by an occupational health specialist at St. Michael Hospital on March 20, 2008. The specialist sent his examination report to Health Canada. On March 26, 2008, Dr. Joel Glass, a medical officer for Health Canada, sent the employer a revised fitness-to-work assessment. In that assessment, Dr. Glass stated that there was no medical evidence that the grievor could not work in a slaughterhouse. Also, there were no restrictions for the grievor about working with cows, hogs, horses or poultry. However, Dr. Glass reiterated that the grievor had some driving limitations.

18 In early April 2008, the grievor was permanently appointed to a veterinarian position in Toronto. He is fully satisfied with that position, which does not require driving long distances to work or while at work. To this day, neither the grievor nor his doctors know what caused him to collapse while working at the Kitchener CFIA facilities on June 2, 2006.

19 Between June 2006 and March 2008, there were many exchanges between the employer, the grievor and Ms. Stewart about problems and solutions to the grievor’s accommodation needs. The grievor, Mr. Hutfloetz and Ms. Holmes also testified about those exchanges.

20 The grievor wanted to be permanently accommodated. For him, the Brampton position would have been a satisfactory accommodation. The grievor was not happy when he was appointed to Woodstock in September 2007. Woodstock was a two-hour drive from his home. Also, he felt harassed by his new supervisor. Mr. Hutfloetz believed that he could not allow the grievor to continue working in Brampton after receiving the September 4, 2007 medical assessment stating that the grievor could not work in a barn. For Mr. Hutfloetz, Woodstock was a solution considering that it did not include barn work.

21 The grievor asked to introduce evidence related to the fact that he was harassed while working in Woodstock and that it had made him sick. I refused to review that evidence since it was not related to the subject of the grievance. The grievance filed on October 4, 2007 dealt with the employer’s alleged failure to accommodate the grievor’s disability. For the grievor, his temporary appointment to Woodstock was not suitable. If the grievor felt harassed by his new supervisor in Woodstock, he should have filed a separate grievance, or he should have clearly mentioned it in his October 4, 2007 grievance.

III. Summary of the arguments

A. For the grievor

22 The grievor argued that the employer did not respect its own policy, guidelines and procedures on workplace accommodation. The employer was late in accommodating the grievor. Had it acted diligently, accommodation would have been found faster, and the grievor would not have had to use sick leave and annual leave while he waited for accommodation.

23 In August 2007, the employer gave the grievor priority for appointment to a new position. At that time, the employer never considered appointing him permanently to the Brampton office, where he was on assignment, or in Toronto. The employer’s own policy states that the manager should discuss the accommodation with the employee and that every effort should be made to accommodate the employee and to respect the accommodation that he or she requested. The grievor wanted to work in Brampton, but instead, he was sent to Woodstock, two hours from his home.

24 The grievor fully cooperated with the process. He had the responsibility to express his needs and to provide the relevant medical information, and he did so. For more than 20 months after the June 2, 2006 incident, the grievor did not know where his substantive position would be located. That tardiness in accommodating the grievor ultimately led him to become sick and to have to use annual leave to maintain his salary.

25 The grievances were filed on May 30 and October 4, 2007. Those grievances should be considered continuing grievances. The grievor did not have to submit a new grievance for every 25 days that he was not accommodated. The problem was not fixed after October 4, 2007, and the grievor is fully entitled to claim sick leave and annual leave used after his grievances were filed.

26 The grievor referred me to the following decisions: Lowe v. Landmark Transport Inc. et al., 2007 FC 217; Ontario (Human Rights Commission) v. Simpsons Sears Ltd, [1985] 2 S.C.R. 536; and Lloyd v. Canada Revenue Agency, 2009 PSLRB 15.

B. For the employer

27 The employer first argued that there was absolutely no prima facie evidence that the grievor was discriminated against based on ethnic origin. The allegation should simply be dismissed because it is not founded on any evidence.

28 The employer took no issue with the fact that the leave that the grievor took between October 2007 and January 2008 were after the grievances were filed. The employer accepted the grievor’s argument that the grievances were continuing considering that permanent accommodation occurred only in April 2008.

29 The grievor had a burden of proving that the employer did not respect its obligation to accommodate him. The grievor did not meet that burden. The evidence showed that the employer made all reasonable efforts, considering the information that it had at the time. Furthermore, the grievor is claiming reinstatement of his sick leave, but the evidence showed that the grievor was not capable of working at all during his sick leave. With respect to his claim for a reinstatement of annual leave, evidence was adduced that the employer had approved the grievor’s request for four weeks of annual leave. The employer should not have to reinstate those leave credits.

30 The evidence adduced at the hearing shows that the employer made continuous efforts to try to accommodate the grievor according to his medical condition. Immediately after the June 2, 2006 incident, the employer removed the grievor from its Kitchener facilities. The grievor was then assigned to Brampton. According to the first medical information provided to the employer, that workplace seemed to fit the grievor’s needs. During the year that followed, the employer waited for more information from a specialist that could precisely specify the grievor’s work limitations.

31 In September 2007, the employer was informed that the grievor could not work in any barn or slaughterhouse. The employer then decided to assign him to Woodstock, where his tasks were designed in a way that he would not have to work in a barn or a slaughterhouse. Woodstock was a 45-minute drive from Kitchener, the location of the grievor’s substantive position. The employer asked the grievor to drive that distance using one of its vehicles and on its time. It was a suitable temporary assignment. On October 4, 2007, the grievor announced that he had a new medical restriction. He could no longer drive that distance. The employer was left with very few options. The evidence shows that it continued to make efforts to accommodate the grievor but that it was not successful until January 18, 2008. In the meantime, the grievor had gone on sick leave and then on annual leave. On his return from annual leave, the grievor was accommodated.

32 The employer failed to see what it did wrong in trying to accommodate the grievor’s physical limitations. It did everything that it could to temporarily accommodate the grievor despite being provided with incomplete information. When the employer received complete medical information in March 2008, the grievor was permanently accommodated within a short delay.

33 The employer referred me to the following cases: Kandola v. Canada (Attorney General), 2009 FC 136; Callan v. Suncor Inc., 2006 ABCA 15; 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; McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4; British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. 3; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Lafrance v. Treasury Board (Statistics Canada), 2009 PSLRB 113; Spooner v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 60; and Gibson v. Treasury Board (Department of Health),2008 PSLRB 68.

IV. Reasons

34 In June 2006, the grievor collapsed at his workplace. His doctor recommended that the grievor not be exposed to dust, mould or ammonia. The employer immediately removed him from his substantive position in Kitchener. From early June 2006 to March 2008, the employer took several measures to accommodate the grievor in the workplace. The grievor was not satisfied that he was properly accommodated. On that point, he filed a first grievance on May 30, 2007, asking that his request for accommodation be dealt with in an appropriate and timely manner. On October 4, 2007, he filed a second grievance, asking for the same remedy but requesting in addition that the discriminatory actions related to his disability and ethnic origin cease.

35 There was absolutely no evidence adduced to support the allegation of discrimination based on ethnic origin. The allegation could be rephrased as follows: the grievor was born in Egypt, and he was not accommodated, so he was not accommodated because he was not born in Canada. Obviously, I need more than that to conclude that there was discrimination, and I dismiss the grievor’s allegation that he was discriminated against or not properly accommodated based on ethnic origin.

36 The second alleged basis of discrimination is the employer’s failure to accommodate the grievor’s physical disability. The duty to accommodate results from the obligation imposed on the employer by article D12 of the collective agreement not to discriminate and by section 15 of the Canadian Human Rights Act to provide accommodation short of undue hardship. As stated in Kandola, an employee requiring accommodation must inform the employer of his or her limitations and cooperate in the process. The duty to accommodate is limited by the principle of undue hardship, as stated in British Columbia (Public Service Employee Relations Commission) and in Hydro-Québec. The employer does not have a duty to completely change working conditions. Rather, it has the duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to perform his or her work.

37 The assessments of the grievor’s disability and his work limitations changed several times between June 2006 and March 2008. The grievor’s accommodation needs changed accordingly.

38 In June 2006, Dr. Toma recommended that the grievor not be exposed to dust, mould or ammonia. In September 2006, Dr. Chernin from Health Canada wrote that he needed additional clinical information about the grievor before finalizing his fitness-to-work evaluation. When it accommodated the grievor in June 2006, the employer relied on Dr. Toma’s reports and sent the grievor to work in Brampton. The employer could not permanently accommodate the grievor at that time because it was waiting for the Health Canada assessment. The situation remained unchanged until May 16, 2007. Considering those facts, I believe that until May 16, 2007, the employer had fully satisfied its obligation to accommodate the grievor.

39 On May 16, 2007, Dr. Chernin’s assessment was that the grievor should not return to work at the Barn. On May 28, 2007, Dr. Chernin added that he was referring to the Kitchener work site in his May 16, 2007 letter. This meant that the grievor could be accommodated by not working at the Kitchener work site. The employer did not act immediately after receiving that information but kept the grievor in his temporary assignment in Brampton. On May 30, 2007, the first grievance was filed. At that point, the employer had fully satisfied its obligation to accommodate the grievor and was not late in permanently accommodating him. The employer had known only for two weeks the grievor’s work limitations or restrictions.

40 On August 16, 2007, the employer identified the grievor as a disabled priority. That opened the door to his permanent appointment to another position. On September 4, 2007, the grievor provided new medical information to the employer. Dr. Toma recommended that the grievor not work in a barn or a slaughterhouse. Most VM-01 work at the CFIA involves spending a significant amount of time in a barn or slaughterhouse, including the work that the grievor was doing in Brampton. Faced with that new medical information, the employer assigned the grievor to a position in Woodstock without barn or slaughterhouse work. Because of the distance involved, the employer decided to assume the costs of transportation and time. At that point, the employer had fully satisfied its obligation to accommodate the grievor and was not late in permanently accommodating him. It acted based on the new medical information available.

41 On October 4, 2007, the second grievance was filed. The grievor again asked to be accommodated appropriately. He stipulated that he was discriminated against based on disability and that the employer was retaliating against him for attempting to exercise his right to accommodation. I dismiss those allegations, which are not supported by the evidence. The employer was acting on the medical information in its possession. To be certain, the Woodstock assignment was not a perfect solution, but it was temporary. It implied that the grievor had to travel more than he did to Brampton, but the employer was not obliged to appoint him to Brampton. Furthermore, the employer would have taken unnecessary risks by allowing him to stay in Brampton because that position implied working in a barn, contrary to the last medical information provided.

42 On October 10, 2007, the grievor produced new medical information recommending that prolonged sitting and long drives be avoided. He went on sick leave that same day, and he was off sick until December 7. With that new information in hand, the employer could no longer send the grievor to Woodstock or assign him to any position that required working in a barn or a slaughterhouse. The accommodation solutions needed review. On November 5, 2007, the employer wrote to Dr. Chernin to ask for a new fitness-to-work evaluation for the grievor. Dr. Chernin only answered on December 20, 2007, indicating that he was waiting for a report to give more specific instructions to the employer on the grievor’s work limitations. In the meantime, Mr. Hutfloetz continued his efforts to find other work for the grievor, but he was unsuccessful. When the grievor informed him that he was not sick anymore and that he would return to work on December 10, 2007, Mr. Hutfloetz suggested that he take annual or sick leave because he had not yet found other work for the grievor. The grievor then decided to apply for four weeks of annual leave, ending January 16, 2008.

43 Between October 10, 2007 and December 7, 2007, the employer could not accommodate the grievor while he was on sick leave and not available for work. Under those circumstances, the employer did not fail in its duty to accommodate the grievor. On December 10, 2007, the grievor was ready to work, but he could not because the employer could not accommodate him, and so the grievor went on four weeks of annual leave. On his return, he was accommodated. However, the employer was not able to accommodate the grievor on December 10, 2007 because of the changing medical situation and of the length of time for assessments to arrive.

44 The employer’s inability to accommodate the grievor lasted four weeks. During the first of those four weeks, there was no work for the grievor. For the remaining three weeks, he was on preapproved annual leave. The employer knew that the grievor would return on January 16, 2008, and it found him a temporary assignment for that date. Taking into consideration the grievor’s evolving medical situation, the absence at that time of a complete fitness-to-work evaluation, the grievor’s severe work limitations and the normal tasks of a VM-01, I do not conclude that the employer discriminated against the grievor based on his disability or that it failed in its duty to accommodate the grievor by not being able to accommodate him immediately on his return from sick leave.

45 The duty to accommodate does not imply perfect and instant accommodation.  The Court of Appeal of Alberta wrote the following in Callan, at paragraph 21:

[21] … There is no duty of instant or perfect accommodation, only reasonable accommodation. The reasonableness of the employer’s accommodation must be evaluated considering the knowledge of the employer, together with the cost, complexity and expense of any physical accommodation required, and other similar factors…

46 After examining the evidence and putting it in a chronological perspective, I conclude that the employer made reasonable efforts to accommodate the grievor from the June 2, 2006 incident, when he collapsed at the CFIA’s Kitchener facilities, to when the grievor was permanently accommodated in a VM-01 position in Toronto. The grievor’s medical situation and his work limitations changed more than once during that 21-month period. The first medical assessment was that the grievor had no driving limitations but that he could not work in the Kitchener Barn. The final assessment was that he could not drive long distances but that he had no limitations for working in any barn. The employer accommodated the grievor and respected his work limitations at all times. Accommodation was put in place almost immediately, except when the grievor returned from sick leave on December 10, 2007. Accommodation was then provided when the grievor returned from annual leave on January 17, 2008.

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

V. Order

48 The grievances are dismissed.

March 1, 2010.

Renaud Paquet,
adjudicator