FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Marie-Josée Gauthier (“the grievor” or Ms. Gauthier) was a communications advisor for the Canadian Forces Grievance Board (“the employer,” “deputy head” or CFGB). On November 29, 2010, the employer terminated Ms. Gauthier’s employment for incapacity reasons. In December 2010, she filed a grievance to appeal the employer’s decision to terminate her employment. She alleged that the employer forced her to choose to retire and that it deprived her of the benefits provided in her collective agreement. She also alleged that the employer discriminated against her, in violation of the Canadian Human Rights Act (CHRA) and clause 19 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group that expired on June 20, 2011.

2 The grievance was the subject of two referrals to adjudication and one notice to the Canadian Human Rights Commission, which stated that Ms. Gauthier planned to raise an issue about interpreting or applying the CHRA. One referral to adjudication noted a violation of the collective agreement, and the other noted a termination for a reason other than performance, discipline or misconduct. As corrective action, Ms. Gauthier requested that the employer cancel the termination and allow her to continue to be on leave without pay and receive her benefits. At the hearing, Ms. Gauthier also requested that I order the employer to pay her $15 000 for pain and suffering and special compensation of $15 000 because the discrimination was willful and reckless.

II. Summary of the evidence

3 The two parties adduced documents in evidence that were mainly about Ms. Gauthier’s health between 2007 and 2010, discussions on her returns to work and absences, and the steps she took for a medical retirement. Ms. Gauthier testified. The employer called Najwa Asmar, Anne Sinclair and Bruno Hamel as witnesses. Ms. Asmar is the communications manager for the CFGB. She was Ms. Gauthier’s supervisor. Ms. Sinclair is the CFGB’s executive director of corporate services, which includes the communications department in which Ms. Gauthier worked. Mr. Hamel is the CFGB’s chairperson. As its chief executive officer, he made the decision to terminate Ms. Gauthier.

4 The CFGB’s communications department hired Ms. Gauthier in April 2002. She obtained an indeterminate position there in November 2002. Her duties consisted mainly of writing, editing and translating texts, updating intranet and Internet sites and carrying out different communications functions. Ms. Gauthier enjoyed her work, and her supervisor was fully satisfied with her performance when she was on the job.

5 Beginning in 2004-2005, Ms. Gauthier became absent more often, due to illness. Then, in 2006-2007, her absences became more frequent, and she missed on average two or three days per month. By June 2007, she was no longer able to work. Her physician concluded that she was suffering from serious depression. Some difficult periods of medication adjustment followed. Later, doctors diagnosed her with type II bipolar disorder. She was on uninterrupted leave from June 27, 2007 to August 24, 2009. Other than during the waiting period at the beginning of her leave, Ms. Gauthier received disability insurance benefits from Sun Life Financial for that period.

6 In late July 2009, Ms. Gauthier testified that she was told that she should return to work. She does not remember who made the request, but she agreed to collaborate with developing a return-to-work plan, which she, her doctor, the insurer and the employer ultimately approved. Under the plan, Ms. Gauthier was to return to work part-time on August 24, 2009, with a goal of resuming full-time work in October 2009. The evidence showed that Ms. Gauthier worked a total of 58.25 hours between August 24 and October 16, 2009, an average of approximately 7 hours a week. She provided a medical certificate for each absence with respect to the return-to-work plan.

7 On October 20, 2009, Dr. David Bakish, a psychiatrist treating Ms. Gauthier, assessed her health and concluded that she could not work more than 18 hours per week. On November 2, 2009, Ms. Gauthier’s family doctor stated on a medical certificate that she could not work more than 17 hours per week for the next three months. On February 16, 2010, Dr. Bakish saw Ms. Gauthier again and wrote that she was unable to work more than 18 hours per week and that her health condition should be reassessed on April 1, 2010. On February 26, 2010, the employer sent Ms. Gauthier to Health Canada for a medical assessment. On April 7, 2010, the Health Canada doctor saw Ms. Gauthier and concluded that she was unable to work and that he would prepare more specific recommendations when he received the medical information from Ms. Gauthier’s doctors. On May 31, 2010, the Health Canada doctor concluded that Ms. Gauthier could return to work two afternoons a week for two weeks and that she could add one half-day per week every two weeks to attain a maximum of 18 hours per week for at least six months. The Health Canada doctor was unable to determine a likely date for her return to full-time work. Then, on July 1, 2010, Ms. Gauthier’s family doctor supported her absence until July 5; on July 15, her absence until August 6; on August 16, her absence until September 13; on September 7, her absence until October 18; and, on October 14, her absence until January 4, 2011.

8 Between October 20, 2009 and November 30, 2010, the day on which her employment was terminated, Ms. Gauthier worked a total of 172.5 hours. Over the first five weeks of that period, she worked 78.5 hours, an average of 15.7 hours per week. In the next 14 weeks, she worked 64.5 hours, an average of 4.6 hours per week. Then, between March 1, 2010 and June 4, 2010, she did not work. Between June 7 and 24, 2010, she worked a total of 27.5 hours. She did not return to work after that.

9 The parties did not dispute the legitimacy of the sick leave that Ms. Gauthier requested from the employer. In addition, each leave, both short- and long-term, was supported by a medical certificate, and the witnesses, including Ms. Gauthier, agreed that her attempts to return to work on a gradual, part-time basis did not go well. On one hand, the employer could not count on her working the 17, 18 or 20 hours per week that were set out in her return-to-work plan because she did not complete those hours. On the other hand, Ms. Gauthier did not feel that she could work that many hours, especially since the thought of eventually working full-time was very stressful to her and contributed, in her view, to the deterioration of her health. However, she admitted that the employer was open to adapting her work schedule to her needs.

10 During the period at issue, the CFGB’s communications functions were Ms. Asmar’s responsibility. She had only one indeterminate employee to help her, namely, Ms. Gauthier. During Ms. Gauthier’s absences between 2007 and 2010, Ms. Asmar called on a succession of replacements, including a student, employees from an employment agency and temporary employees. Given that Ms. Gauthier did not return to full-time work after 2007, steps were continually taken to replace her, even during her gradual returns to work. When Ms. Gauthier was at work, she generally worked on tasks with longer-term deadlines. However, Ms. Asmar had difficulty relying on her for same-day tasks and fixed-deadline publications. It was not the number of hours or the pre-established schedule that caused the most problems for Ms. Asmar but, instead, the fact that Ms. Gauthier rarely complied with the schedule.

11 Ms. Sinclair explained that it had become difficult, not only operationally but also administratively, to manage Ms. Gauthier’s absences. The documents adduced in evidence indicate that she submitted 20 medical certificates over 3 years to justify her absences. It was almost impossible to predict when she would return to work, because the dates on the medical certificates for her returns to work were often extended several times by other medical certificates. In that situation, the replacements were short-term, and the employer hired students, employment agency employees or temporary employees for periods of less than three months. The federal public service regulatory framework imposes limits on the duration of that type of hiring and on the number of renewals of employees hired for short periods.

12 According to Ms. Sinclair, it was not possible to complete some relatively important communications projects because of Ms. Gauthier’s many absences. Furthermore, it was becoming impossible to ensure stability in the communications department, which had only two permanent full-time employees, including the manager, Ms. Asmar. With the new chairperson’s arrival in March 2009, a greater emphasis was placed on internal and external communications. The department had to be able to provide that service. At the end of summer 2010, Ms. Asmar informed Ms. Sinclair that it was possible that she would leave her position at the CFGB to work in Montreal. Ms. Asmar’s departure would have meant that Ms. Sinclair would have no longer been able to count on any stable, permanent resource in the communications department.

13  Based on the information that she possessed at that time, and after consulting with Mr. Hamel, Ms. Sinclair wrote to Ms. Gauthier on October 7, 2010. The essence of the letter is in the following excerpt:

[Translation]

…

This letter is about your extended absence due to illness from your communications advisor position for the Canadian Forces Grievance Board since June 27, 2007.

In situations in which leave without pay for reasons of illness or injury has exceeded two years and it seems unlikely that the employee will return to work in the foreseeable future, management must resolve the situation.

For that reason, I ask that you inform me, before Friday, November 5, 2010, as to whether:

1. your health has improved to the point that you can return to work full-time by November 5, 2010 (it must be certified in writing by your treating physician);
2. you would like to apply for medical retirement;
3. you choose to resign.

If you fail to inform us of your decision by November 5, 2010, I will be forced to recommend to the Chairperson of the Board that a termination for non-disciplinary reasons (incapacity) be approved, under paragraph 12(1)(e) of the Financial Administration Act.

If you choose medical retirement for health reasons and Health Canada does not approve your application, please be advised that the employer will have no other choice but to proceed with a termination.

…

14 Ms. Gauthier was very disappointed and sad when she received the letter. She did not understand why her employer had taken the new approach. Therefore, she decided to consult a union representative. On November 5, 2010, the union representative emailed Ms. Sinclair, asking to meet and discuss Ms. Gauthier’s case. That same day, Ms. Gauthier also emailed Ms. Sinclair, telling her that none of the solutions proposed in the letter of October 7, 2010 suited her. She also wrote that her doctors believed that they could eventually stabilize her health. It was just a matter time, according to Ms. Gauthier’s email. Like the union representative, she requested a meeting to discuss the situation.

15 The meeting in question took place on November 18, 2010, with Ms. Gauthier and her representative attending along with at least Ms. Sinclair as an employer spokesperson. Ms. Sinclair explained her reasons for sending the October 7, 2010 letter. She clarified that she was trying to achieve some stability in the communications section and that her problem was Ms. Gauthier’s inability to return to work. Ms. Sinclair said that she was willing to agree to Ms. Gauthier returning to work gradually but that she eventually wanted her to return to work full-time. Ms. Gauthier said that she was unable to return to work full-time but that she could return to work part-time at a later date. Ms. Sinclair agreed to extend the deadline for responding to the October 7 letter to November 25, 2010, one week after the November 18 meeting. She also testified that she informed Ms. Gauthier that she would have been able to take her back part-time but that she did not believe that Ms. Gauthier, based on experience, could keep to her schedule.

16 In cross-examination, Ms. Sinclair stated that she did not explore the possibility of transferring Ms. Gauthier elsewhere in the federal public service. She said that she was unable to begin those discussions until Ms. Gauthier’s work situation stabilized.

17 On the morning of November 29, Mr. Hamel sent a letter to Ms. Gauthier, notifying her that he was terminating her employment. The following excerpts summarize the essence of the letter:

[Translation]

…

This letter is to inform you of my decision to terminate your employment for non-disciplinary reasons (incapacity), beginning November 30, 2010.

You were hired in November 2002 as a communications advisor for the Canadian Forces Grievance Board, and you have been on extended sick leave since June 2007.

Over the past three years, three plans for a gradual return to work were established, in accordance with your physicians' recommendations. Unfortunately, none of those attempts was successful. Nothing leads me to believe that your situation could improve in the foreseeable future.

Last October 7, the Board sent you a registered letter in which it asked you to choose from the options available to you. You were to inform it of your decision, by November 5, 2010 at the latest. If you did not, it would be forced to proceed with your termination.

I have been informed that you have not chosen any of the proposed options. Therefore, I have decided to terminate your employment, pursuant to my powers under paragraph 12(1)(e) of the Financial Administration Act, as the chairperson of the Canadian Forces Grievance Board.

…

18 The employer agreed to extend the November 5, 2010 deadline, referred to in the letter of termination, to Thursday, November 25, 2010. Before receiving the letter, Ms. Gauthier wrote to the employer on November 29, 2010 to reply to the October 7, 2010 letter and to follow up on their discussion of November 18, 2010. The letters of Ms. Gauthier and the employer, both dated November 29, 2010, crossed in the mail. In her letter, Ms. Gauthier recalled that, at the November 18, 2010 meeting, she informed the employer that none of the offered options was suitable. Then, she informed the employer that, under duress, she chose to request early retirement for medical reasons.

19 On January 27, 2011, a Health Canada physician informed Ms. Gauthier that her application for medical retirement was denied, given that her physician had established that her disability was temporary and that, to be entitled to that type of retirement, she had to be permanently incapable of “[translation] regularly performing the duties of a paying position.” In fact, her doctor wrote on January 14, 2011 that Ms. Gauthier was "[translation] possibly unable, on a permanent basis,” to work but that he could not conclude that she had a total and permanent disability. He also added that she could possibly eventually return to work but that he could not guarantee it.

20 The employer’s decision to terminate Ms. Gauthier affected her very negatively. She was very stressed and fell back into a depression. She was also very worried about her financial situation and the fact that she was no longer covered by the drug insurance plan. Her thyroid problems did not get resolved until 9 to 10 months after November 2010, and she began to feel better in late 2011. She has not worked since her employment ended at the CFGB. Her physician advised her to wait until this hearing was over before doing so.

21 The employer’s witnesses pointed out that, since Ms. Gauthier was never able to work the number of hours planned in her gradual returns to work, operational problems arose because she had to be replaced. The employer could not plan the replacement needs properly. When Ms. Gauthier showed up, she performed her work well, but Ms. Asmar had difficulty relying on her because of her many absences, for which she sometimes gave no notice. Occasionally, she did not even call to advise that she would be away, except after the fact. Ms. Gauthier admitted behaving that way, but explained that she did so because of her illness.

III. Summary of the arguments

A. For the employer

22 Ms. Gauthier was completely absent from work for two years. She tried to return gradually on several occasions but was unsuccessful each time. In fall 2010, it became unlikely that Ms. Gauthier could perform the work in the foreseeable future. Given the circumstances, Ms. Gauthier’s termination did not constitute discrimination.

23 The employer accommodated Ms. Gauthier by agreeing to a gradual, part-time return to work, according to the proposed schedules that she and her doctors agreed to. The employer was flexible about her hours. However, she was not fit to work. The employer could not rely on her, even on the days on which she was supposed to be present. Considering the circumstances, the employer had the right to terminate her. It needed a stable workforce to ensure a certain continuity but continually had to hire temporary employees to deal with Ms. Gauthier’s expected and unexpected absences. The employer proved undue hardship. Its duty to accommodate Ms. Gauthier ended because she was unable to return to work in the foreseeable future.

24 Even after sending the October 7, 2010 letter, the employer remained open to taking Ms. Gauthier back part-time and so informed her. Nevertheless, she provided no signs of being able to return to work part-time, with a gradual return to full-time. Additionally, the employer was unable to promote her application to other federal departments or agencies because her work performance could not be guaranteed. Finally, Ms. Gauthier admitted that she was incapable of working at that time.

25 The employer referred me to the following decisions: 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; Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095; Québec (Procureur général) c. Syndicat de professionnelles et professionnels du gouvernement du Québec (SPGQ), 2005 QCCA 311; Scheuneman v. Canada (Attorney General), [2000] F.C.J. No. 1997 (QL) (C.A.); Canada (Attorney General) v. Pepper, 2010 FC 226; English-Baker v. Treasury Board (Department of Citizenship and Immigration), 2008 PSLRB 24; and Pepper v. Treasury Board (Department of National Defence), 2008 PSLRB 8.

B. For Ms. Gauthier

26 Serious depression followed by a diagnosis of bipolar disorder and later hypothyroidism prevented Ms. Gauthier from working full-time. Those are disabilities within the meaning of the CHRA. She acknowledged that her gradual returns to work were difficult but that each absence was supported by a medical certificate. In addition, with complete transparency and at all times, she kept the employer informed of her medical situation and her ability to work.

27 The employer’s reason for terminating Ms. Gauthier was that she could not return to work within the foreseeable future. However, when the employer wrote the October 7, 2010 letter, it had on hand a medical certificate dated September 7 certifying that Ms. Gauthier could return to work on October 18. Then, on October 14, Ms. Gauthier submitted another medical certificate, stating that she could not work until January 4, 2011. The employer’s October 7 letter specified that Ms. Gauthier had to return to work full-time before November 5. Otherwise, she had to apply for medical retirement or resign, or be terminated.

28 The employer did not base its decision on the contents of the medical certificates that Ms. Gauthier provided but on her leave history. Instead, it should have based its decision on the medical information and not on its impressions. However, the employer could have had doctors of its choice medically assess Ms. Gauthier but failed to. It possessed no medical proof that she could not return to work.

29 Ms. Gauthier proved that she had some disabilities and that she was terminated because of them. That is prima facie evidence of discrimination. The employer could have done more to accommodate her, and it did not reach the point of undue hardship. She could have been accommodated in another organization of the core public administration.

30 Ms. Gauthier asked for reinstatement into her position and for the restoration of her benefits, retroactive to the date of her termination. She did not ask for retroactive wages. However, the adjudicator should order that the employer pay her $15 000 for pain and suffering and $15 000 as special compensation.

31 Ms. Gauthier referred me to the following decisions: Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; British Columbia (Public Service Employee Relations Commission) v. BCGSEU (Meiorin), [1999] 3 S.C.R. 3; McGill University Health Centre; Hydro-Québec; Canada (Attorney General) v. Sketchley, 2005 FCA 404; English-Baker; Pepper; Naccarato v. Costco Wholesale Canada Inc., 2010 ONSC 2651; Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173; O’Leary v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSLRB 10; and Giroux v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 102.

IV. Reasons

32 The evidence demonstrated that Ms. Gauthier took sick leave for an uninterrupted period of 26 months between June 2007 and August 2009. Then, the following year, with the consent of her doctors and the cooperation of her employer, she tried, without success, a gradual return to work. In October 2010, the employer gave her an ultimatum in which she had to return to work full-time, apply for medical retirement or resign, or be terminated. Ms. Gauthier could not return to work because she was ill. On November 29, 2010, the employer terminated her. Later, in January 2011, she applied for medical retirement, which was denied because her doctors could not conclude that her disability was permanent.

33 There is no doubt that Ms. Gauthier was seriously ill between 2007 and 2010 to the point at which she could not work at all or only part-time for a few weeks during that time. At the time of her termination, and based on her testimony and the medical documents submitted as evidence, she had bipolar disorder and hypothyroidism, which the employer did not dispute. I agree with Ms. Gauthier that her state of health in 2010 constituted a disability within the meaning of subsection 3(1) of the CHRA. Nor did the employer dispute that fact.

34 The employer terminated Ms. Gauthier because she was not capable of working. She was unable to work because she suffered from a disability. The employer knew about her disability. In the adduced evidence, nothing leads me to believe that Ms. Gauthier would have been terminated had she had not had a disability. Therefore, her disability contributed directly to her termination. That is prima facie evidence of discrimination within the meaning of section 7 of the CHRA, which reads as follows:

7. It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination.

35 As the Supreme Court established in Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536, it was then up to the employer to take reasonable steps to accommodate Ms. Gauthier’s limitations, as long as the steps did not cause it undue hardship. The Court also specified in Meiorin that employers must make sustained and prolonged efforts to find solutions that enable employees to remain at work in spite of their medical constraints. Thus, Ms. Gauthier obviously had to be able to work.

36 The employer was also obliged to comply with clause 19 of the collective agreement, which deals with the elimination of discrimination. Generally, except for the prohibited grounds of discrimination, the collective agreement includes the same obligations for the employer as the CHRA. Clause 19 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.

37 The evidence demonstrated that, from August 2009 to October 2010, the employer accommodated Ms. Gauthier by allowing her to work part-time to facilitate her gradual return to work. The evidence also revealed that Ms. Gauthier was unable to work the number of hours that she was supposed to. In November 2010, the employer terminated her because she was unable to return to work in the foreseeable future. Therefore, the question is whether, in November 2010, continuing to accommodate Ms. Gauthier constituted undue hardship for the employer. If so, the employer had every right to terminate her. If not, the employer discriminated against her and did not comply with the CHRA or the collective agreement.

38 Certainly, Ms. Gauthier and Ms. Sinclair addressed the issue of another gradual part-time return to work at the November 18, 2010 meeting. However, at that meeting, the question addressed instead was whether Ms. Gauthier could return to work. Ms. Sinclair doubted it. As for Ms. Gauthier, she did not ask the employer to consider a fourth alternative to the three that had been proposed, i.e., returning to work part-time in November 2010. Instead, she said that she could return to work part-time at a later date without specifying any approximate date.

39  In November 2010, the employer required Ms. Gauthier to return to work. In Meiorin, the Supreme Court established that an employer’s requirement or standard must be adopted for a purpose rationally connected to the performance of the work, that the requirement is necessary to address a legitimate work-related purpose and that it is impossible to deal with the situation short of undue hardship on the employer. On the issue of undue hardship, in Hydro-Québec, at paragraphs 12 and 16, the Court provided the following details:

… What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances…

…

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

40 At the time of her termination, the arrangement that Ms. Gauthier required was apparently to be able to continue on sick leave without pay and to be able to return to work when her health permitted. By sending her the October 7, 2010 letter requesting that she return to work full-time on November 5, 2010 or resign, failing which she would be terminated, the employer ended the accommodation that had been in place. According to the employer, not knowing when it could rely on Ms. Gauthier’s services constituted undue hardship.

41 In Hydro-Québec, the Supreme Court commented as follows on an employee's duty to perform work and on the relationship between that duty and undue hardship:

…

15 However, the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration…

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

17 …Likewise, in the case at bar, Hydro-Québec tried for a number of years to adjust the complainant’s working conditions: modification of her workstation, part-time work, assignment to a new position, etc. However, in a case involving chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship.

18 Thus, the test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test…

19 The duty to accommodate is therefore perfectly compatible with general labour law rules, including both the rule that employers must respect employees’ fundamental rights and the rule that employees must do their work. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

…

42 The facts in Hydro-Québec differ from those of this case. Nevertheless, the principles established by the Supreme Court apply. If the employer shows that the employee cannot work for the reasonably foreseeable future, it establishes undue hardship. When the employee cannot meet his or her obligations for the foreseeable future, it is not the employer’s responsibility to accommodate the employee. On that point, in Syndicat des professionnelles, the Quebec Court of Appeal wrote the following:

[Translation]

76 …In fact, in circumstances in which the termination of employment results from the employee’s inability to work for the foreseeable future, the employee’s disability does not form the basis of dismissal; instead, it is the employee’s inability to fulfill the basic obligations of the employment relationship.

43 The Federal Court of Appeal supported that position in Scheuneman, in which it affirmed that the dismissal of an employee who is unable to return to work within a reasonable time is not discrimination based on disability. In English-Baker, the adjudicator also concluded that the duty to accommodate does not mean that the employer should indefinitely retain employees who are unable to work, as that would constitute undue hardship.

44 In this case, after slightly more than two years of sick leave, Ms. Gauthier tried to return to work gradually in August 2009. The evidence showed that the employer fully accommodated her in that respect. She was required to work 17 to 18 hours per week at that time. She was unable to fulfill that commitment and became sick again. Between March 1, 2010 and June 24, 2010, she worked a total of 27.5 hours and did not work after that. Between July and October 2010, Ms. Gauthier’s absences were supported by four consecutive medical certificates. On that basis, it became reasonable for the employer to believe that she could not return to work in the foreseeable future.

45 On October 7, 2010, the employer presented Ms. Gauthier with an ultimatum. It asked her to return to work on November 5, 2010 or to leave her job by taking medical retirement or resigning or by being terminated. It possessed at that time a medical certificate dated September 7 that certified her leave until October 18, 2010. Nothing in the medical certificate suggested that Ms. Gauthier could not return to work on November 5, 2010. However, based on the history of consecutive medical certificates for medium-term absences, it was reasonable for the employer to doubt that she could return. In addition, on October 14, 2010, four days before she was expected to return to work, Ms. Gauthier submitted a new medical certificate, justifying her absence until January 4, 2011. Given the circumstances, it was reasonable for the employer to conclude that Ms. Gauthier would not return to work in the foreseeable future.

46 The employer agreed to postpone its termination decision. At a meeting on November 18, 2010, it notified Ms. Gauthier that it was willing to agree to her return to work part-time if she could eventually return full-time. She responded that she could not return full-time but that she could eventually return part-time.

47 Based on the medical information available at that time, and in light of the facts in its possession, the employer decided to terminate Ms. Gauthier because nothing suggested that her situation could improve in the foreseeable future. The adduced evidence leads me to believe that the employer assessed the situation in full before terminating Ms. Gauthier and that it was reasonable for it to conclude that she would not return to work in the foreseeable future.

48 Ms. Gauthier’s situation differs from that in Pepper. In that case, the employer had no indication of the employee’s health condition or ability to return to work. It based its decision on a medical opinion obtained two years earlier. In Naccarato, the Court concluded that, based on the information that it possessed, the employer could not conclude that the employee could not return to work "in the foreseeable future.” In this case, my opinion is that the employer had enough information to conclude that Ms. Gauthier would not return to work in the foreseeable future.

49 Ms. Gauthier alleged that she was told in July 2009 that she had to return to work. She did not specify who told it to her or the context. Had she been unable to return to work, her doctors would have confirmed it. Instead, they wrote that she was able to work part-time. In her grievance, Ms. Gauthier also claimed that she had been forced to apply for medical retirement. In the context in which medical retirement was proposed, I agree with her that not many options remained open to her, given that she did not feel capable of returning to work. However, I see nothing illegal in an employer suggesting to an employee who is unable to work to apply for medical retirement. That option is better than termination.

50 Ms. Gauthier also stated that she could have been accommodated elsewhere in the core public administration. Ms. Sinclair said that she did not explore that possibility because Ms. Gauthier’s work situation had not stabilized. That explanation seems reasonable to me. I should add that no evidence was presented to me that showed that Ms. Gauthier requested a transfer or deployment elsewhere in the core public administration. On that basis, it is difficult to blame the employer for not doing so. Nor can the employer be blamed, even though it was not raised in Ms. Gauthier’s argument, for not accommodating her by offering her a part-time position instead of terminating her employment because, in reality and by her own admission, Ms. Gauthier was not capable at that time of working in the foreseeable future, either full-time or part-time. Furthermore, she did not know when she would be able to.

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

V. Order

52 The grievance is dismissed.

September 28, 2012.

PSLRB Translation

Renaud Paquet,
adjudicator