FPSLREB Decisions

1 Teresa Panacci (“the grievor”) grieved the failure of the Canada Border Services Agency (CBSA or “the employer”) to accommodate her. In a decision issued on January 20, 2011, I allowed the grievance (2011 PSLRB 2). I remained seized to address any issues with the implementation of the award. The parties requested a teleconference to discuss some issues about the implementation of the order. The teleconference was held on April 21, 2011.

The order reads as follows:

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[105] The grievor is to be compensated for any losses in income and benefits for the period from April 2, 2004 to the date on which she commenced full-time hours after her return to work in the Compliance Verification and Services section in March 2005.

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2 In the decision, I described the appropriate remedy as follows:

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[101] An appropriate remedy for this breach of the duty of accommodation is to put the grievor back in the position she was in before April 2, 2004. The grievor should be put in the position that she would have been in had the employer continued her assignment in CVS. She was working full-time in her assignment before the employer ended her accommodation. . . She is also entitled to compensation at the full-time rate of pay that she would have received for all unpaid leave taken from April 2, 2004 to her return to work in March 2005. I did not receive any evidence of the difference in income between the full-time salary that she would have received and her income from Employment Insurance and disability insurance. The grievor is entitled to that difference in income, if any. The grievor was on graduated hours when she returned to work in March 2005. She is entitled to any difference in income between her graduated hours and what she would have received had she worked full-time, up to the date on which she resumed full-time work. The grievor is also entitled to all benefits that she would have received as a full-time employee between April 2, 2004 and the date on which she returned to full-time employment.

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3 The grievor requested the following remedy, at paragraph 61:

… the grievor is seeking compensation for all financial losses suffered as a result of the failure to accommodate her, including leave entitlements and lost salary. She seeks the reimbursement of all sick leave and vacation leave taken and the reimbursement of pension plan contributions, including for time on graduated hours, and that she be made whole.

4 Ms. Panacci was in receipt of Employment Insurance benefits and disability payments during the relevant period. The employer does not know what her income was during the period that she did not receive salary. During the teleconference, Ms. Panacci agreed to provide copies of her income tax forms (T4) to the employer. The employer has advised that it cannot pay third parties monies that Ms. Panacci may be required to repay. Concerns were expressed that Ms. Panacci may owe more money to the disability insurer and Employment Insurance than the employer is required to pay in accordance with my order. Ms. Panacci was concerned about being in a negative position as a result of the order.

5 The employer also stated that there were “tax implications” to its payment, and it was not able to determine those implications with the information it had available.

6 The employer stated that it did not know if Ms. Panacci would be made whole through its payment because of disability insurance payments, Employment Insurance benefits and income tax deductions.

7 The sentences in the reasons that seem to have caused the most concern for the parties are these two, in paragraph 101:

… I did not receive any evidence of the difference in income between the full-time salary that she would have received and her income from Employment Insurance and disability insurance. The grievor is entitled to that difference in income, if any…

8 The words in the order are clear. Ms. Panacci is to be compensated for any losses suffered as a result of the failure of the employer to meet its duty of accommodation. I did not have the authority to appoint her retroactively to a position with the CBSA, and I did not purport to do so. I did not reinstate the grievor to her substantive position since it was clear that she was not capable of performing the duties of that position. She was, in fact, disabled within the definition of “disabled” in her disability insurance plan. It is clear from the record that Ms. Panacci was totally disabled during the relevant period in which she was in receipt of these payments. Therefore, she was entitled to those benefits and remains entitled to those benefits after the issuance of my order. I cannot change the past; I can merely address through an award of damages any losses that the grievor may have suffered as a result of the employer’s failure to accommodate her. Compensation for the difference in income between what she would have earned as a full-time employee and what she received from Employment Insurance and disability insurance payments is simply a way of quantifying the loss that Ms. Panacci suffered. If the employer had properly accommodated the grievor, it is likely that she would not have become totally disabled and would not have had to access benefits available to those employees who are totally disabled.

9 The parties should be able to easily calculate the difference in income, if any, by examining the T4 statements for the relevant period. If there is no shortfall in income, Ms. Panacci is not entitled to any payment from the employer.

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

Order

11 The employer is required to calculate the full-time salary that the grievor would have received during the period that she was in receipt of Employment Insurance and disability benefits. The employer is then required to compare that amount to the amounts listed on the T4 statements provided by the grievor. The employer is then required to reimburse the grievor any difference in income between those two numbers. If there is no difference, or a negative balance, the employer is not required to pay any damages to the grievor for this period.

May 27, 2011.

Ian R. Mackenzie,
adjudicator