FPSLREB Decisions

I. Individual grievance referred to adjudication

1 The grievor, Terence Juba, is employed as a service delivery agent at the Data Processing Centre (“the Centre”) of the Department of Citizenship and Immigration (“the employer”) in Vegreville, Alberta. He has been employed since March 1995. His job involves processing mailed-in applications for temporary resident visa and permanent residence status. The Centre employs about 200 to 220 employees divided into teams. The processing unit in which Mr. Juba works has 16 to 18 employees.

2 The grievor has a scent sensitivity, which will be described later in this decision. He has missed work due to his sensitivity to scents in the workplace.

3 The collective agreement between the Treasury Board and the Public Service Alliance of Canada (the “bargaining agent”) for the Program and Administrative Services Group bargaining unit (expiry date: 20 June 2007) (Exhibit G-1) applies to Mr. Juba and it provides for sick leave as follows in clauses 35.02 and 35.04:

35.02 An employee shall be granted sick leave with pay when he or she is unable to perform his or her duties because of illness or injury provided that:

(a) he or she satisfies the Employer of this condition in such manner and at such time as my be determined by the Employer,

and

(b) he or she has the necessary sick leave credits.

35.04 When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 35.02, sick leave with pay may, at the discretion of the Employer, be granted to an employee for a period of up to one hundred and eighty-seven decimal five (187.5) hours, subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

4 On April 1, 2006, the employer implemented a policy promoting a scent-free environment at the Centre (“the policy”; Exhibit G-2). It sets out the following:

…

Some individuals are sensitive to scents. If they are exposed to certain odours, even in the smallest amounts, they can experience a number of negative effects/reactions. The severity of these symptoms can vary. While some individuals report mild irritation others are incapacitated and must give up many “normal” activities in order to avoid exposure.

…

3. WHAT IS SCENT FREE?

Respecting a scent free policy means ceasing to wear or use items that have a scent attached to them by artificial means. While it may be difficult to create a completely scent free environment, we can create an environment that has been rid of artificially induced scents, as much as possible.

4. PRODUCTS THAT CONTAIN SCENT

…

Scents are included in a large range of products, including: shampoos, conditioners, hairsprays, colognes, aftershaves, fragrances, perfumes, lotions, creams, deodorants, potpourri, industrial and household chemicals, soaps, cosmetics, air fresheners, deodorizers, candles, even some types of garbage bags.

It is impossible to list all products that contain scent. It is also impossible to provide an exact definition of scent-free or fragrance free as there is currently no standardization of these terms used by various industries. However, if a product’s list of ingredients indicates “fragrance” or “scent” or “flavour”, then it is not scent-free.

5. ISSUE

When some individuals are exposed to scents, their ability to perform their work may be hampered and their health and well-being may be adversely affected. The health and well-being of CPC-V staff is of general concern to all of us. It takes a collective effort to reduce situations which may adversely impact others in the workplace.

6. MEASURES TAKEN TO DATE AT CPC-V

• All employees have been informed of the issue on an informal basis and are required to refrain from wearing or using scented products that may adversely impact fellow colleagues;
• Signs are posted on all entrances to work stations occupied by CPC-V designating the area as a “scent free environment”;
• All employees are responsible for ensuring that any visitor be made aware of the requirement to refrain from wearing or using scented products before entering the workplace;
• A speaker has been brought into the CPCV to discuss scent sensitivity.

5 On August 10, 2006, the grievor filed a grievance, which reads as follows:“I grieve that I had to use my sick leave credits for time missed due to the scent issues in the office.” The grievor requested as corrective action the reimbursement of all sick leave for time missed due to his scent problem, up to and including the date on which the employer implemented the policy (April 1, 2006).

6 The parties were not available for a hearing of this grievance before February of 2010.

II. Hearing

7 In his opening argument, the grievor clarified that he was seeking the restoration of the sick days that he used for his scent sensitivity from 2003 (the date of a Health Canada assessment) to August 1, 2006.

8 It appears that the grievor filed other grievances about scent sensitivity and the policy and that at least one mediation took place. However, the issues mediated and their resolutions are not before me. It appears that the parties did not resolve the issue of the restoration of the grievor’s sick-leave bank, the subject matter of this grievance, in earlier grievances (Exhibit E-3, tabs 10 and 11).

9 This grievance appears to have been triggered when the employer sought to recover sick leave credits from the grievor. It began with an email from Paul Snow, Operations Manager at the Centre, sent on August 1, 2006 (Exhibit G-3), which reads in part as follows:

…

As we had discussed briefly a few weeks ago, you have a negative sick leave balance and we must find a solution to this issue.

We had discussed earlier in the year that we would hold sick leave requests from you pending a resolution to the grievance you had files regarding managements handleing of the workplace scent issue and we had, I thought, an agreement to be bound by the results of the grievance.

As you are aware that grievance has now been concluded in managements favour and I am no longer in a position to advance you sick leave credits beyond what is specified in the collective agreement. Article 35.04 of states:

“When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 35.02, sick leave with pay, may, at the discretion of the employer, be granted to an employee for a period of up to one hundred and eight-seven decimal five (187.5 hours subject to the deduction of such advanced leave from any sick leave credits subsequently earned.”

You have already been granted sick leave credits totaling 176.5 hours. You have submitted leave requests for sick leave totaling 142.75 hours. I am prepared to approve a total of 11.00 hours additional advance of sick leave credits to bring you to the maximum allowed under article 35.04, however this will leave a total of 131.75 hours of leave unaccounted for.

I need you to advise me of your preference in how to deal with this matter. You can convert this leave into another type of leave that you may have, annual leave, compensatory time off, or leave without pay. If you chose to take some or all of this time as leave without pay, please come and discuss the matter with me as we have some flexibility in terms of setting up a recovery schedule.

…

Please let me know of your decision by Friday August 4^th. Without a response from you I will conclude that you wish to have this 131.75 hours converted to leave without pay and I will instruct our compensation unit to begin recovery.

[Sic throughout]

A. Preliminary objection – timeliness

10 On December 5, 2008, the employer raised a preliminary jurisdictional objection by letter to the Public Service Labour Relations Board Operations Registry (the “Registry”). The employer wrote that an adjudicator had no jurisdiction to determine this matter as the remedy was limited to the 25 days before the grievance was filed. The employer implemented the policy on April 1, 2006, and the grievance was filed on August 10, 2006. On January 7, 2009, the grievor filed his reply, writing that the issue raised in the grievance had continued or recurred and that the last occurrence was within the time limits specified by the collective agreement. He further argued that the employer had waived its right to object to timeliness. The grievor asked that the matter be heard. Timeliness was argued at the outset of the hearing, and I reserved my judgment of that issue to my written decision.

B. Jurisdictional issue – modification of the grievance

11 In his opening statement, the grievor stated that he was seeking a declaration that the employer had violated the collective agreement by failing to accommodate his disability when it was first made aware of it. The grievor seeks an order that he be made whole. The grievor said that he was not going to argue the exact days that he missed work, as specific documentation was available in the employer’s payroll system. In its opening argument, the employer said that, on a number of occasions, the grievor took sick leave, which is the purpose of the sick leave provisions of the collective agreement. The employer noted that the grievor did not raise the issue of a breach of article 19 (No Discrimination) of the collective agreement before the adjudication and that he simply seeks the restoration of his sick-leave bank. In its closing argument, the employer argued that I had no jurisdiction to decide this case because the new issue of article 19 was advanced at adjudication, not in the original grievance: see Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), Shneidman v. Canada (Attorney General), 2007 FCA 192, and Lee v. Deputy Head (Canadian Food Inspection Agency), 2008 PSLRB 5.

C. Summary of the Evidence

12 The grievor testified that, for a number of years, he has suffered from scent sensitivity. He said that he is sensitive to certain scents in colognes and perfumes and in other substances. He has had the sensitivity all his life. His symptoms include headaches, runny nose, nosebleeds, lack of concentration and irritability. He has sought medical aid and has been advised by doctors that there is no cure. He has informed the employer of his scent sensitivity from the beginning of his employment.He says that the employer has recognized his sensitivity.

13 Mr. Juba said that he has been absent from work for hundreds of hours. He said that sometimes he would just use his vacation leave when things got bad. He is allowed a certain number of days of sick leave per year without a doctor’s note (uncertified). Mr. Juba said that much of the time he missed from work as a result of scent sensitivity is not documented.

14 Mr. Juba testified that the employer permitted him and others with scent sensitivity to post a sign that it provided. An example of the sign was provided (Exhibit E-3, tab 4). The sign, in both English and French, has a photograph of bottles of perfume between the English and French sections. The English section states the following:

Scent Sensitive Zone

Please do not enter if you are wearing perfume or cologne

Thank you

15 Mr. Juba testified that, before the policy came into effect, the employer had not done much except send an email in August 2005 stating that, if an employee puts up a sign, other employees should respect it (Exhibit E-5, tab 4).

16 The grievor put up the sign provided by the employer. Other employees did not respond favourably. They took the view that they were entitled to wear deodorant, use soap and wear perfumes, and in profane terms, they told him to mind his own business. He reported his problems related to scent sensitivity to the employer and informed it that he had to leave the workplace at times because he was sick from scents. He was told that that was the proper use of sick leave.

17 The employer implemented a policy stating that employees are not to wear scented products in the workplace. The employer has allowed Mr. Juba to leave his workstation for short periods to clear his head, which is not always effective.

18 The grievor said that the employer accommodated him by allowing him to maintain a negative sick leave balance. I note that there is no documentary evidence that the employer allowed him to maintain that negative balance for a substantial amount of time and maintain a balance beyond that permitted in the collective agreement.

19 Other employees continued using scents even as the grievor repeatedly brought the issue to the employer’s attention. He explored the possibility of working from home. Suggestions were made that he quit his job. He requested and was provided an air purifier. Mr. Snow gave him time to research what would be beneficial to him.

20 The employer told Mr. Juba that the implementation of the policy would be delayed because it was difficult, as people used scented products as part of their daily routines, and it would be hard to take away such a right or privilege.

21 Currently, sick leave is documented using “PeopleSoft,” a computer program that allows the recording of time and leave. Mr. Juba said that, on occasion, he recorded scent sensitivity as the reason for taking leave but that he did not always remember to when his head was not clear. Mr. Juba testified that the employer was aware that he was using paid and unpaid sick leave.

22 It appears that Mr. Juba has a problem with his back, which has also required him to take time off work. In cross-examination, he also admitted that he took sick leave for issues other than his back and his scent sensitivity.

23 Mr. Juba testified that he had a negative sick-leave balance in August 2006. The employer asked him to replenish it.Mr. Juba explained that, when an application for leave is made using PeopleSoft, a computer-generated reply states whether the leave was approved, and the leave balance is displayed. A sample report was filed showing a leave balance of -182.125 hours (Exhibit G-5).

24 Mr. Juba filed a leave inquiry that was printed on August 3, 2006 and that detailed approved leave from April 11, 2005 to August 6, 2006 (Exhibit G-6). The inquiry shows that the grievor took vacation leave, uncertified sick leave, leave without pay, family-related leave, personal days of leave and unspecified leave, which can be used for doctor-approved leave. Mr. Juba testified that all the leave was taken due to scents. However, it was also made clear in his cross-examination that some of the leave was for a back problem and some was for other medical conditions.

25 Mr. Juba testified that, when he is exposed to scent, the length of time for which he removes himself from the workplace varies, depending on the situation. If the headaches are overwhelming, he sometimes takes the rest of the day off, and if they are not too severe, he takes only a couple of hours off. Generally, before the policy was implemented, the grievor would inform his supervisor verbally or by email. A sample of an email that he sent on June 20, 2006, was filed in evidence (Exhibit G-7).

26 Mr. Juba testified that notices not to use scents were placed in the workplace and that reminders were given at group meetings. He was told that he could leave the premises for a short period — up to 30 minutes — in the hope that his symptoms would lessen.

27 Mr. Juba testified that scent sensitivity affects his personal life in public situations, such as grocery stores, but that, in those situations, he has the option of leaving.

28 The grievor said that he was never advised about time limits with respect to the grievance. He was told only when he breached the maximum sick leave entitlement.

29 In cross-examination, the grievor testified that Mr. Snow took Mr. Juba’s concerns seriously. Mr. Snow tried to work with the grievor and the Joint Occupational Safety and Health (JOSH) Committee to resolve the problem. For example, the employer paid for an air purifier. It moved Mr. Juba to different locations within the building. It had Mr. Juba suggest training criteria. The employer had an expert test the airflow, which met the mandated standards of air quality. The employer provided scent‑sensitivity training to other employees. Mr. Juba admitted that the employer had carried out his proposals from 2005.

30 In re-examination, the grievor testified that, although Mr. Snow appeared to take his scent sensitivity seriously, the grievor did not receive the same degree of cooperation from other senior staff. However, I note in contrast the documentary evidence of an email on scent sensitivity sent to all staff at the Centre on April 17, 2003 (Exhibit E-3, tab 18), which was before the grievor was sent to Health Canada for testing.

31 Mr. Snow testified that he became aware of Mr. Juba’s scent sensitivity in 2005, when he became the manager. He had participated in earlier discussions about that issue.

32 The grievor was examined by Dr. Jim Cheng, an occupational health doctor with Health Canada. Dr. Cheng prepared a report dated May 22, 2003 (Exhibit E-3, tab 17). The report states as follows:

…

In essence, Mr. Juba has a sensitivity (intolerance) to certain smells. He can tolerate other smells without any problem. This is a condition of sensitivity and is usually not amenable by standard medical interventions such as medications.

In order to manage such conditions, one can look into several choices.

Avoidance: if this exposure can be easily eliminated, then avoidance is probably the simplest and easiest recommendation to make. I understand this is not always possible. We can discuss further if necessary.

Desensitization: this is a more tortuous and slow way to address this problem. By desensitization, he needs to identify the exact scent that is giving him the problem. Then he needs to dilute it and gradually expose to it till he becomes tolerant to the smell. This will take some time and some effort. He indicated to me that he is aware of the parties who like to wear those scents. With assistance from the department, perhaps it is possible to help him procure those scents and then he can try to do the desensitization routine. The exact outcome and its success is not certain at this point.

…

33 Mr. Juba made a claim for compensation with the Workers’ Compensation Board – Alberta (“the WCB”). The complaint was made in connection with a report of an accident on October 29, 2002, in which he experienced headaches, a runny nose and occasional nosebleeds from being around co-workers wearing perfume. In a decision dated February 24, 2003, the WCB determined that the evidence did not support the claim that the grievor’s employment had contributed to his symptoms. The WCB found that his complaint was not compensable (Exhibit E-3, tab 19).

34 The employer circulated an email on April 17, 2003 about environmental sensitivities (Exhibit E-3, Tab 18). It reads in part as follows:

…

More and more people report having adverse reactions to common substances in their daily environment. Products such as office cleaning solutions, perfumes, air fresheners, hairsprays or aftershave lotions can trigger a reaction ranging from mild to serious in some people. Avoidance of triggers is extremely difficult because of the widespread use of fragranced products. This can make it difficult for individuals with sensitivities to function in the workplace and in other public environments.

…

The email suggested common sense, courtesy and avoiding scented products because “we all share the air.” I note that it was sent before Mr. Juba was assessed by Health Canada.

35 Mr. Snow testified that he met with Mr. Juba about the scent sensitivity issue. He sent an email to Mr. Juba on June 23, 2005 (Exhibit E-3, tab 3), responding to suggestions made by Mr. Juba. He made a commitment that the employer would work with the JOSH Committee. He outlined the steps that the employer would take, including the following:

• organizing a group to identify the qualifications for a consultant to deliver staff training;
• arranging staff training;
• working with Health Canada, Public Works and Government Services Canada, the JOSH Committee and others to identify areas for improvement in air quality and air flow;
• examining the possibility of moving Mr. Juba’s air filter; and
• working on developing and implementing a policy for scent and chemical sensitivity.

36 Mr. Snow testified that the employer carried out all the suggestions. Mr. Snow drafted an email, which his supervisor sent on August 30, 2005 (Exhibit E-3, tab 4). The email advised employees that some employees had scent sensitivity, that signs were posted, and that employees wearing scented products were to stay away from the work areas where signs were posted and to contact employees working in those areas only by telephone. The signthat employees with scent sensitivity used was attached to the email.

37 The employer arranged for air quality testing at the Centre. Bryan Smith, Environmental Health Officer, produced an interim report of September 9 and a final report of October 11, 2005 (Exhibit E-2). The testing took place on August 10 and 25, 2005. It revealed that carbon dioxide levels were well below 1000 parts per million, which indicated acceptable air refreshment, and that temperature ranges met the requirements of Treasury Board Directive 2-17, Use and Occupancy of Buildings.

38 Mr. Smith’s report pointed out that scent sensitivity was not addressed within Part II of the Canada Labour Code, R.S.C., 1985, c. L-2, and wrote the following:

…

Notwithstanding this scent sensitivity is a workplace issue that has bee [sic] raised in other safety committees. The voluntary scent free initiative that CIC has initiated in the Case Processing Centre, in consultation with their Joint Occupational Health and Safety Committee and Union appears to be an effective method to address the issue.

…

39 Mr. Snow said that the employer was not satisfied with a strictly voluntary approach to avoiding scents as some people were stubborn, forgetful or unwilling to give up wearing scented products. The employer developed the policy and implemented mandatory training, which took place on March 29, 2006. The employer filed a copy of the training presentation in evidence (Exhibit E-1, tab 5). The training was delivered by a person from outside the Centre to avoid stigmatizing those who were scent sensitive and to demonstrate that it was a serious issue. Both Mr. Snow and the grievor attended the training, as did everyone working at the Centre.

40 Mr. Snow indicated that the policy had been difficult to draft. Considerable debate took place in the JOSH Committee as to whether a policy was enforceable. The employer took the position that it would monitor compliance and enforce the policy. It developed the policy and provided associated training. The employer moved Mr. Juba’s air filter to a different location.

41 Mr. Snow testified that he was aware that the grievor was leaving work because of scent sensitivity. When Mr. Snow joined the unit in 2005, he was aware that the grievor was in arrears in his sick leave. He emailed Mr. Juba, as the issue needed to be resolved. The normal way of resolving such issues is that employees will not use the leave in arrears so that credits may accumulate over time. Sometimes, negative leave balances can be charged against leave with a positive balance. Another option is to recover money from the employee. One proposal was that Mr. Juba could work overtime, which would be exchanged for leave credits. Mr. Juba worked overtime but chose pay instead. A number of options were discussed, but the large leave deficit was not recovered. According to Mr. Snow’s testimony, the employer recovered the leave deficit by deductions from Mr. Juba’s pay. The details of the recovery are not before me.

42 In cross-examination, Mr. Snow testified that two other employees had scent sensitivity. Mr. Snow said that neither ever identified any need for accommodation and that neither reported to him. Mr. Snow testified that it was hard to determine whether voluntary compliance worked as scents were not removed from the workplace; the policy was an attempt to reduce and eliminate scents. Mr. Snow testified that complaints were received from Mr. Juba that employees were not respecting the signs. Mr. Snow testified that, once the policy was in place, the employer followed up, but that only limited follow-up occurred before the policy. Mr. Snow testified that the policy was more effective than voluntary compliance and that he investigated Mr. Juba’s complaints.

43 At one point in his testimony, Mr. Juba testified that the employer agreed that he could carry more than the maximum number of deficit hours set out in the collective agreement. It was characterized as an accommodation. That point is inconsistent with Mr. Snow’s testimony, the documentary evidence (including the collective agreement) and the grievor’s own evidence in cross-examination that the employer sought to recover the deficit. The only documentary evidence dealing with the leave bank are the following emails:

• August 3, 2006, from Mr. Snow to Mr. Juba, setting out that Mr. Snow agreed to hold all further actions for the recovery of the sick leave credits until August 31, 2006. The parties were discussing the matter in an attempt to reach an agreement not to take recovery action without at least two weeks’ notice (Exhibit E-3, tab 9).
• August 4, 2006, from Louise Mardell, National Representative of the bargaining agent requesting confirmation from Mr. Snow of her understanding that the sick leave arrears had not been dealt with in mediation and that the employer had not agreed to waive the sick leave arrears to the date of the implementation of the policy (Exhibit E-3, tab 10).
• August 4, 2006, from Mr. Snow to Ms. Mardell, confirming that no discussion had taken place, that no agreement had been made on sick leave advances or on the earlier use of holiday and other leave types to cover absences, and that the employer had not agreed to waive any sick leave arrears accumulated because of scent sensitivity.
• Mr. Snow confirmed in an email of August 14, 2006 (Exhibit G-4) to Ms. Mardell that, although the mediation had dealt with the plan to mitigate the effects of scent in the office and the development and implementation of the policy, the employer had not agreed to waive any sick leave arrears.

III. Summary of the arguments

A. For the grievor

44 The grievor submitted that he required accommodation for his scent sensitivity. The employer failed to provide a timely and effective accommodation until Mr. Snow became involved. The grievor used his sick leave to deal with his scent sensitivity because the employer failed to accommodate him.

45 This grievance did not ask for damages for the time after the policy was implemented. The grievor requested compensation for what the employer should have done before Mr. Snow’s involvement. For accommodation to be valid, it has to be effective and timely, and an employee should not have to wait four to five years for it to be implemented.

46 The grievor referred to article 22 (Health and Safety) of the collective agreement, which reads as follows:

22.01 The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Alliance, and the parties agree to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury.

47 The grievor stated that article 35 (Sick Leave With Pay) of the collective agreement is intended to address illness, not to “backstop” the employer’s failure to accommodate him.

48 The employer was aware that the grievor was ill and disadvantaged by scents in the workplace. The grievor argued that the fault was in timeliness to provide accommodation, which was the employer’s fault, not Mr. Snow’s. The grievor’s scent sensitivity should have been dealt with in 2003, when the employer became aware of it through Dr. Cheng’s report. Lloyd v. Canada Revenue Agency, 2009 PSLRB 15, makes it plain that adjudicators can award damages.

49 The grievor relied on Lancaster House, Leading Cases on Labour Arbitration Online (Lancaster House labour law on-line), at paragraph 7.4.1, which concerns the make-whole principle, and at paragraph 7.4.3, which concerns non-monetary losses. He relied on Brown and Beatty, Canadian Labour Arbitration, 4th edition, at topic 2:1410, which concerns damages. He also relied on Lafrance v. Treasury Board (Statistics Canada), 2006 PSLRB 56, and Lloyd. The grievor argued that the employer’s failure to implement the policy earlier directly caused him to leave the workplace due to scent sensitivity. His loss (of his sick leave) was reasonable and foreseeable, not speculative. By restoring the sick-leave bank, the grievor would be put in the position in which he would have been had the employer accommodated him in a timely manner.

50 The grievor seeks the restoration of the days in his sick-leave bank that he was required to use because of scent sensitivity, for the period from the date on which the Health Canada assessment was made to the date on which the policy and associated training were implemented.

51 The grievor asks that I reserve jurisdiction over the implementation of the declaration that he seeks.

B. For the employer

52 The employer argued that I have no jurisdiction due to the lack of timeliness of the grievance. Furthermore, if I grant a remedy, the grievor is entitled only to reimbursement for leave granted in the 25 days before the date on which the grievance was filed: see Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.) (QL). I note that the limit in Coallier was 20 days, but the applicable time limit here is 25 days in clause 18.10 of the collective agreement.

53 The employer relied on the principles in Burchill, Shneidman and Lee to arguethat an adjudicator has no jurisdiction to consider issues raised at adjudication that were not raised in the original grievance. In particular, the employer stated that the application of article 19 (No Discrimination) of the collective agreement is a new issue that was not raised in the grievance process.

54 On the merits of the grievance, the employer stated that it did everything in its power to provide Mr. Juba with a healthy and safe workplace once it was alerted to his scent sensitivity. The employer dealt with it in good faith for a number of years. The employer stated that, from November 2002 to April 2006, Mr. Juba did not provide medical information that a particular accommodation was required and did not present any evidence that the employer caused him to work in an unsafe or unhealthy environment. A graduated response, beginning with information and a request for voluntary compliance and followed by policy development, training and implementation, was appropriate.

55 The grievor does not have a disability. He has scent sensitivity. He had to prove that it is a disability. He failed. The employer relied on Lafrance and argued that the grievor did not prove that the employer’s failure to implement the policy at an earlier time had any connection to his use of sick leave.

56 The burden rests with the grievor to establish his losses. Mr. Juba did not provide any evidence of the leave that he took because of scent sensitivity before the policy was implemented. He has access to PeopleSoft; it was up to him to produce that evidence at this hearing.

C. Grievor’s rebuttal

57 In rebuttal, the grievor stated that the employer admitted through Mr. Snow’s testimony that the grievor has a disability or a mental or physical condition that impairs his ability to participate fully in the workplace. The grievance has to be interpreted liberally. The grievor said that “Parry Sound” was the authority for that proposition, without providing the citation or a copy of the case – appears that he was referring to Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42. The employer possesses documents that establish the extent of the grievor’s loss and can provide them. The employer’s graduated response was not effective. In response to the employer’s argument concerning Coallier, the grievor stated that, until the employer advised that it was seeking to recover the negative sick leave balance, it was a paper loss that was decreasing and that the parties were discussing. The loss crystallized when the employer sought to recover the deficit. The grievance was filed within 25 days of when the grievor had notice that the employer was seeking to recover the deficit.

IV. Reasons

58 I will deal first with the issue of timeliness, then with Burchill and finally with the merits of the grievance.

A. Timeliness

59 The grievor was notified on August 1, 2006 that the employer was seeking to recover the deficit in his sick-leave bank. After he received the notice, he filed a grievance on August 10, 2006. The collective agreement provides in clause 18.10 that a grievance may be presented at the first level of the grievance process no later than 25 days after the grievor first becomes aware of the action or circumstances giving rise to the grievance. Clause 18.16 provides that, when determining the time within which action is to be taken, Saturdays, Sundays and prescribed holidays are excluded. In my view, the “action or circumstance” in this case was the employer’s demand that the grievor restore the deficit in his sick-leave bank. Clearly, applying the prescribed method of calculating time, the grievance was filed less than 25 days after the grievor received notice on August 1, 2006 that the employer wished to recover the negative balance of his sick leave. The grievance was raised in a timely manner. Therefore, I dismiss the employer’s timeliness argument.

B. Burchill: Changing the nature of the grievance

60 The employer argued that the grievance was not presented as a breach of clause 19.01 of the collective agreement in the grievance form or as a delayed accommodation of a disability and that the grievor is precluded from raising either argument at adjudication, given Burchill, Shneidman and Lee.

61 A party that raises an issue of the interpretation or application of the Canadian Human Rights Act (CHRA), R.S.C., 1985, c. H-6, must, in accordance with the Public Service Labour Relations Board Regulations, give notice to the Canadian Human Rights Commission (CHRC), as the CHRC has standing to make submissions: subsections 210(1) and (2) of the Public Service Labour Relations Act (“the Act”). The Registry notified the grievor as follows:

…

[t]he party to a grievance who raises an issue involving the interpretation or application of the Canadian Human Rights Act shall provide the Canadian Human Rights Commission with a Notice to the Canadian Human Rights Commission (Form 24 of the Regulations), pursuant to subsection 92(1) of the Regulations.

…

62 In response to my questions in its closing argument, the grievor advised that he had not given any notice to the CHRC and that he was arguing that his grievance is about a breach of clause 19.01 of the collective agreement.Clause 19.01 of the collective agreement reads as follows:

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

63 The grievor also referred in argument to Parry Sound. Neither a full copy of the case nor a citation was provided. After the hearing and before writing this decision, I reviewed Parry Sound. It dealt with the issue of whether a breach of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, was arbitrable in the case of a discharge grievance filed by a probationary employee. For federal public servants, the Act provides the method for raising disputes about the interpretation or application of the CHRA. If the grievor was implying that I have jurisdiction to deal with a human rights complaint involving the CHRA, as a matter included within the grievance, without the grievor having followed the proper procedure for adjudication, he was incorrect. It appears from the grievor’s representations that I am not being asked to interpret or apply the CHRA. The grievor raised a breach of article 19 (No Discrimination) of the collective agreement in his opening argument, which is not referred to in the grievance. I further note that, in the grievance, the grievor did not invoke clause 22.01, which deals with health and safety.

64 In my view, the grievance’s wording does not clearly outline the basis for the grievor’s claim against the employer. On examining the wording, a reasonable person would consider that the grievance includes issues of the application or interpretation of clauses 35.02 and 35.04 of the collective agreement, as those provisions apply to the grievor’s situation. The grievance form does not explain how using his sick leave credits for scent sensitivity breached the collective agreement. No explanation is provided as to what the employer could have done differently and how its actions violated the collective agreement. The word “accommodation” is not used in the grievance; nor is the concept of a breach or delay in a duty of accommodation. Furthermore, no words appear in the grievance that the employer failed to “… make reasonable provisions for the occupational health and safety of …” the grievor (from article 22 – Health and Safety).

65 From the employer’s decision at the third level of the grievance process, it appears that it was aware that the grievor was arguing a failure to accommodate his scent sensitivity. The employer’s third-level decision states as follows:

…

Your bargaining agent stated that you feel the Employer did not do everything in its power to provide you with a healthy, safe workplace up until April 1, 2006 when the scent-free policy was implemented and that it is responsible for the fact that your sick leave is in arrears.

I understand that Management has dealt with your scent-sensitivity issues over the past years and that a number of measures were offered to help alleviate your symptoms…

During the period of November 2002 to April 2006, you did not provide management with any medical information that you needed to be accommodated in specific ways nor did you present any supporting evidence that management has caused you to work in an unsafe or unhealthy environment.

…

66 I note that the grievor has taken the position that he need not give notice to the CHRC as he is arguing a beach of the collective agreement and not a breach of the CHRA. If the grievor intended to raise a lack of accommodation as a violation of the collective agreement, then he missed several steps in the presentation of his grievance. To properly address accommodation, it is necessary to determine whether there was a workplace disability and the nature of the required accommodation, along with the reasonableness of the employer’s actions and whether the employer discriminated against the grievor. In its closing comments, the employer stated that Mr. Juba has a sensitivity and not a disability, that it responded reasonably to his requests and that he did not prove that the delay in implementing the policy, if there was one, caused him to use his sick leave.

67 After hearing all the evidence, it seems that the grievor’s argument is not with the employer establishing the policy and associated training but rather that the employer should have implemented the policy and training sooner, given that it had notice of his sensitivity. However, those issues sidestep the main steps of establishing the elements of a case. Usually a grievor must address the following issues:

• Is the grievor disabled, and if so, what is the nature of the disability?
• Did the grievor establish that his or her disability required the employer to put a plan of accommodation in place?
• Did the employer implement a plan, and if so, was it appropriate, reasonable and timely?
• Did the employer discriminate against the grievor?
• What was the appropriate remedy?

68 Those issues can perhaps be sidestepped if the employer admits to them, so the case can then proceed with only the accommodation issue. No such admission was made in this case. Those issues do not arise within even a liberal interpretation of the grievance presented to the employer. Further, I have no evidence that they have been discussed within the grievance process. In my view, those issues are new arguments at adjudication. Therefore, I have no jurisdiction to consider them; see Burchill and Shneidman. It is clear that the Burchill principles are alive and well in the jurisprudence, as noted recently as follows in Lee, at paragraphs 19 to 21:

[19]   … The recent … judgment in Shneidman … reiterated the principle that a “… grievor must have given her employer notice of the specific nature of her complaints through the internal grievance procedure …” (para. 26) and cited with approval the Burchill principle that “ … only those grievances that have been presented to and dealt with by all internal levels of the grievance process may subsequently be referred to adjudication … ” (ibid.) By upholding the lower court ruling, the Federal Court of Appeal’s decision has provided strong, renewed guidance to adjudicators about the importance and application of Burchill.

[20] As mentioned above, Burchill interpreted the provisions of the former Act, now replaced, as did the courts in Shneidman … In my opinion, however, Burchill continues to apply equally under the current Act. Its force flows from the stipulation under subsection 209(1) that an employee may only refer to adjudication an individual grievance “… that has been presented up to and including the final level in the grievance process … ” … That failure constitutes a bar to adjudication under … the former Act.

[21] The principle enunciated in Burchill persists in no small part because it makes good labour relations sense. The employer should be entitled to know the specifics of a grievor’s complaint so that it may properly address the issues raised and, if possible, resolve them during the grievance process. When a grievance is recast or has new elements after the internal grievance procedure has ended, the very purpose of that procedure can be undermined.

69 The issue of whether a grievance is new or captured within an existing grievance can be a matter of some dispute. It is an issue of characterization. It is also a jurisdictional issue. There are real limits to an adjudicator’s ability to decide a grievance that is framed differently from the grievance discussed in the grievance process. In this case, the jurisdictional issue did not fully materialize until the closing arguments. However, even when a point of jurisdiction is raised late, it is incumbent on an adjudicator to decide it. It is clear that an adjudicator’s decision on a jurisdictional issue can be set aside by the courts on judicial review, applying the appropriate tests. Therefore, I wish to set out my views on the merits of the grievance. I also think it important that the grievor know that his grievance was not dismissed simply for technical reasons related to the drafting of the grievance form.

C. Merits of the grievance

70 Had I not found that new arguments were raised at adjudication and therefore were barred, I would have dismissed this case on its merits. This is not a discipline case. The grievor must prove all the elements of his case on a balance of probabilities. Even if I accept that the grievor was disabled and that the employer could have more quickly implemented the policy and training on scent sensitivity, there is a major evidentiary lacuna in the grievor’s case. The evidence does not establish that delayed implementation of the policy and training would have made any difference to the leave that he took. I note that it is incumbent on the grievor to prove this point. He did not prove which days he lost because of scent sensitivity since it was clear that he had also lost days because of other health issues, including a back problem. The grievor did not call any medical evidence to establish the extent of his scent sensitivity or what needed to be done to alleviate it. He did not establish that the training and policy actually reduced or eliminated the days that he missed. He did not establish that, because of the delay in implementing the policy and training, he had to take additional sick days.

71 Generally, in a case such as this, it is expected that a medical opinion would be heard or that medical reports would be tendered in evidence. The medical evidence in this case is extremely thin. The Health Canada report discusses the grievor’s condition in terms of sensitivity and not disability. The grievor has testified to the effects of his sensitivity, but he is not a doctor. An occupational health and safety report essentially establishes that no significant air quality problem existed in the workplace. Apparently, there are no standards for scent. The WCB found no workplace injury. In my view, the WCB finding is not determinative, but it is evidence that was uncontradicted.

72 In Lloyd, the adjudicator dismissed the grievor’s claim that her sick leave be restored. Proper notice had been given to the CHRC, which did not participate in the hearing. The adjudicator wrote the following:

…

[50] …

…

It is my view that this claim for relief must fail. Although I am sympathetic to the claim, on a review of the evidence it is apparent that the grievor did not call any medical evidence or indeed any other evidence to support her contention that her taking “Sick Leave With Pay” was directly related to the failure on the employer’s part to provide an adequate or timely plan of accommodation. In other words, as submitted by the employer, the “Sick Leave With Pay” used by the grievor may have been due to her disability and not the failure to provide the plan of accommodation. Furthermore, even if there were evidence to support the nature of the claim, the grievor did not call evidence on the issue of the specific extent of the claim. Based upon the evidence adduced, I am unable to determine how many days of sick leave the grievor may have used for reasons other than her disability. It is my view that at the very least, the specifics of the claim ought to have been proven, and it is not an excuse to suggest that the employer would have access to the particulars, especially when there was no cross-examination of the witnesses called by the employer on this issue.

…

73 I note that, in Lloyd, the adjudicator dealt with a case in which the first issue — that the employee was disabled — had been acknowledged by the employer. The balance of the issues were the following:

• Did the grievor establish that her disability required the employer to put a plan of accommodation in place?
• Did the employer implement a plan, and if so, was it appropriate, reasonable and timely?
• Did the employer discriminate against the grievor?
• What was the appropriate remedy?

74 In this case, the employer did not clearly acknowledge that the grievor was disabled and argued that his condition was a sensitivity and not a disability. The employer acknowledged the existence of scent sensitivity by implementing the policy, training its employees, investigating problems, permitting signs to be posted and permitting the grievor to leave the workplace when necessary. No case law or thorough argument was presented as to whether scent sensitivity was a disability under the collective agreement, which the grievor must establish in the absence of an admission. No evidence was adduced or argument made that the employer discriminated against the grievor. No medical or other evidence was adduced connecting the sick leave used by the grievor to the delay in the implementation of the policy.

75 From the information before me, it appears that the grievor has an underlying condition. He suffers when he is exposed to scents. However, scents are ubiquitous in our society, and he suffers when he is out in the world and exposed to scents. It appears that the employer took the grievor seriously and that it attempted to address his concerns. It took a graduated approach and involved the grievor and the JOSH Committee. The grievor has expressed no additional methods for the employer to address his concerns, and the employer remains open for him to express those methods.

76 The grievor’s evidence is that he still has a scent sensitivity and that the implementation of the policy has not resolved them. The grievor testified that he still misses work because of his sensitivity. The medical information that he introduced did not establish that the sensitivity could be easily eliminated or that it could be eliminated at all. At the hearing, the grievor did not testify to any other specific changes that the employer could make that would assist him. The grievor simply stated that the changes should have been made earlier. The employer addressed his condition by making changes to the workplace, posting signs, and developing and implementing the policy. Despite the changes, the grievor’s condition persists, and his work absences continue.

77 The burden rests with the grievor to prove his case on a balance of probabilities. He has failed. The grievor did not prove that, had the policy been implemented earlier, the days or hours of work that he missed due to his scent sensitivity would have been reduced. It is sheer speculation to conclude that an earlier introduction of the policy or training would have had any impact on his days lost.

78 When the grievor is unable to provide his services, he takes sick or other leave. The grievor is apparently able to take leave without pay when his sick-leave bank is exhausted. I cannot amend the very clear terms of clauses 35.02 and 35.04 of the collective agreement. Based on the evidence I cannot provide any relief. The grievor seeks the restoration of his sick-leave bank. He did not establish a legal basis for me to do so.

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

V. Order

80 The employer’s objection to the timeliness of the grievance is dismissed.

81 I declare that I have no jurisdiction to consider the new issues raised at adjudication and I order this file closed.

May 25, 2011.

Paul Love,
adjudicator