FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Marie-Pascale Michaux (“the grievor”) filed a grievance on July 9, 2009, contesting her rejection on probation on June 15, 2009. At that time, she was working for the Department of Human Resources and Skills Development (HRSDC or “the employer”). Furthermore, the grievor accused her employer of failing to accommodate her and of discriminating against her, which is a violation of article 19 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada (PSAC) for the Program and Administrative Services Group. When her employment was terminated, the grievor had been working in an indeterminate PM-5 advisor position since December 1, 2008.

2 On April 22, 2010, the grievor referred her grievance to the Public Service Labour Relations Board (“the Board”) for adjudication under subparagraph 209(1)(c)(i) of the Public Service Labour Relations Act (“the Act”). She also filed a notice with the Canadian Human Rights Commission (CHRC), as required under section 210 of the Act.

3 On June 14, 2011, the employer objected to the adjudicator´s jurisdiction to hear the grievor´s grievance since she had not been demoted or terminated as described in paragraph 209(1)(c) of the Act; she had been rejected on probation for failing to show up for work. The employer claimed that, after being hired into the public service in Ottawa, the grievor worked only one-and-a-half days, after which she returned to her home in Marieville. She now requests accommodation.

II. Summary of the evidence

A. Employer´s opening remarks

4 The employer´s representative stated that section 211 of the Act does not allow referring a grievance to adjudication about any termination made under the Public Service Employment Act (PSEA). The employer´s representative referred me to the Federal Court decision in Kagimbi v. Canada (Attorney General), 2011 FC 527.

5 In addition, the employer´s representative argued that, for a rejection on probation, the initial burden of proof is on the employer to demonstrate that the employee was dismissed on employment-related grounds, which was so in this case.The grievor must then demonstrate that the dismissal was motivated by discrimination or that it was made in bad faith. The employer´s representative referred me to Souaker v. Canadian Nuclear Safety Commission, 2009 PSLRB 145, at para 129, which explains the adjudicator´s role when allegations of discrimination were made.

6 The employer´s representative maintained that my jurisdiction as an adjudicator was limited to determining whether discrimination occurred and that it did not include considering the merits of the decision. The employer´s representative reiterated that the grievor had to demonstrate that discrimination occurred. Were she successful, then the employer would have to justify its measure.

7 In this case, the employer´s representative stated that the grievor, who resided in Marieville, Quebec, was offered an advisor position (PM-5) in Ottawa in November 2008. The grievor first qualified for the position through an external staffing process (open to the public). Since the position was located in Ottawa, the grievor agreed to relocate from Marieville to Ottawa at the employer´s expense. She showed up for work on the first day. The next day, she indicated that it would not work out due to her medical condition. She returned to Marieville and never returned to Ottawa to perform her duties. The employer´s representative claimed that, on June 3, 2009, the employer had an employment-related reason for terminating the grievor´s probationary employment because she had been absent from work since December 2, 2008 and because she appeared to have no intention of returning to work in Ottawa in the short, medium or long term.

8 Furthermore, the employer´s representative argued that the grievor´s unfitness appeared more about her need to relocate than about the job.

9 Finally, the employer´s representative stated that the grievor worked only one-and-a-half days after being recruited through an external staffing process, which is different from other cases in the jurisprudence, in which the periods worked were much longer.

B. Opening remarks by the grievor´s representative

10 The grievor´s representative submitted that evidence would show that the grievor spent 14 days preparing for her relocation from Marieville to Ottawa and that that preparation, done while still performing the duties of her previous job, contributed to the deterioration of her medical condition.

11 The grievor´s representative confirmed that the grievor, who is diabetic, left her job after the second day. However, he pointed out that the grievor´s physician confirmed that the move had caused her health to deteriorate. However, in May 2009, the grievor was once again well enough to work, although within a limited area.

12 The grievor´s representative also argued that the employer did not object to the medical certificates that the grievor submitted. He stated that the grievor´s reason for leaving was directly linked her disability and that she had informed the employer that she was diabetic when she was hired.

13 The grievor´s representative agreed that he had the burden of proving that the employer discriminated against the grievor. In addition, he argued that the employer had to demonstrate that the real reason for the termination was something other than discrimination.

14 The grievor´s representative also maintained that the employer´s efforts to accommodate the grievor were very limited and did not meet the relevant criteria established by the jurisprudence.

15 Finally, the grievor´s representative argued that the fact that the grievor worked only one-and-a-half days need not be considered. In his view, it would be dangerous to make a decision based only on that factor. It must be determined whether the grievor was dismissed because of her disability and if so whether the employer met its obligation to accommodate her.

II. The evidence

A. For the employer

16 The employer called three witnesses and adduced three exhibits. The grievor´s representative called three witnesses, including the grievor, and adduced six exhibits. With the consent of the grievor´s representative, the employer also adduced into evidence a binder containing several supporting exhibits (Exhibit 1).

17 Penny Hammell testified for the employer.

18 Ms. Hammell worked for the HRSDC for 15 years. She retired from the public service a year ago, after 39 years of service. When she retired on November 13, 2010, she was Director of the Social Development Partnerships Program, a program established under the aegis of the HRSDC responsible for managing grants and funding for families and children.

19 Ms. Hammell testified that, as the program director, she led a unit that included seven PM-5 advisor positions in addition to administrative positions at the AS-1 and AS-2 levels. When all positions were filled, she had a staff of 12.

20 Ms. Hammell explained that her section was in charge of approving grants and funding in response to varied applications. Her staff handled projects and proposals that were designed to obtain grants and funding to support families and children throughout the country.

21 She said that she and all her staff worked in the same building in Vanier (Ottawa). She explained that it was a national program managed in Ottawa and that there were no regional offices anywhere in the country.

22 Ms. Hammell explained that, due to the nature of the work, the advisors need to work together at the same location. She said that the advisors did not have a specific workload; when proposals arrived, the work was assigned among them. Ms. Hammell stated that, since the program was not broken down into geographic areas, it was not useful to spread the advisors across the country.

23 Ms. Hammell testified that, in September 2008, following a staffing process for a PM-5 position, she and Ms. Fuchs interviewed the grievor, who at that time was in the pool of screened candidates. They offered her a position. Ms. Hammell said that the interview took place in her office in Vanier (Ottawa). Ms. Michaux was hired through an external staffing process.

24 In her testimony, Ms. Hammell recognized the letter of offer for the PM-5 position, dated November 7, 2008, which Liz Rootham sent to the grievor. The letter stated that December 1, 2008 was the start date. Gatineau was indicated as the work location; however, the parties had always understood that Ottawa was the actual work location for the Social Development Partnerships Program.

25 Ms. Hammell indicated that she and the grievor agreed in the September 2008 interview that the grievor´s start date would be in December 2008 so that she could relocate from Marieville to Ottawa. Ms. Hammell said that she and the grievor agreed to the start date and that the grievor did not express any concerns about it.

26 Ms. Hammell said that, between the time the position was offered to the grievor and her arrival in Ottawa in December 2008, the grievor never mentioned that she was feeling particularly stressed by her move to Ottawa.

27 Ms. Hammell testified that the grievor started her job on December 1, 2008. On that day, the grievor attended both an orientation session to familiarize herself with her work and a meeting to become acquainted with her new co-workers. Ms. Hammell said that everything went well on that first day of work. On the second day, the grievor asked Ms. Hammell to speak with her in the office´s kitchen area. Ms. Hammell said that the grievor then told her that she had a disability, felt overwhelmed by everything and was “[translation] messed up.”

28 Ms. Hammell testified that the grievor was upset and that she had tears in her eyes. Ms. Hammell said that she told the grievor that her health mattered most and that she should take a day of sick leave and some of her banked annual leave to return to health so that she could make a clear-headed decision.

29 Ms. Hammell testified that she was surprised by the grievor´s reaction; it was completely unexpected. She said that, even though the meeting lasted approximately 30 minutes, the grievor never stated what had upset her so much.

30 Notably, Ms. Hammell indicated that, during the meeting, the grievor never mentioned that she would have liked to work in a different position, or even at a different level, if the position were closer to her home, or that she was interested in telework. In Ms. Hammell´s mind, the grievor´s health was most important; she wanted the grievor to take time to calm down and to reflect on what she should do. In response to a question from the grievor´s representative, Ms. Hammell said that she did not recall discussing the grievor´s relocation during the December 2, 2008 meeting. She insisted that her priority was to ensure that the grievor was healthy and that she had time to reflect on what she wanted to do. With respect to the grievor´s email of December 2, 2008, Ms. Hammell testified that she had never asked the grievor to cancel her relocation, because she did not wish to upset her further. According to Ms. Hammell, the grievor decided on her own to cancel her relocation.

31 Ms. Hammell indicated that, during the December 2, 2008 meeting, the grievor mentioned that her disability was related to diabetes. Ms. Hammell asserted that the grievor never spoke of high blood pressure at that time.

32 That same day, December 2, 2008, after the grievor left the office, she phoned Ms. Hammell to request the cancellation of her relocation from Marieville to Ottawa (Exhibit 1, tab 5).

33 Ms. Hammell said that she and the grievor discussed the situation on December 3, 2008. Ms. Hammell advised the grievor to contact the HRSDC´s human resources section to discuss any possibilities they might have had to offer her.

34 Ms. Hammell also produced an email that the grievor sent to France Rioux, at Royal Lepage, on December 4, 2008, in which the grievor wrote that her “[translation] transfer to Ottawa is not the right thing to do” for her at that time. She also wrote that, after discussing the matter with her immediate superior, she decided to cancel her hotel reservations and to return home to reflect on what she should do (Exhibit 1, tab 6).

35 Ms. Hammell stated that, on December 8, 2008, the grievor requested sick leave for December 3, 4 and 5, 2008 and annual leave for December 8 to 22, 2008. Ms. Hammell granted her request.

36 Ms. Hammell said that, on December 8, 2008, she advised Ms. Ethier in the HRSDC´s relocations section that she supported Ms. Michaux´s request to cancel her relocation from Marieville to Ottawa. Ms. Hammell also mentioned that on December 9, 2008 she emailed Tammy Simpson of the human resources section for advice on how to staff Ms. Michaux´s position while she was on leave. Ms. Hammel was short-staffed and needed someone, even though the position had been staffed with the grievor.

37 Ms. Hammell testified that, on December 11, 2008, she received a copy of an email that the grievor sent to Ms. Simpson on December 9, in which the grievor requested accommodation measures, such as telework (Exhibit 1, tab 10).

38 Ms. Hammell stated that she spoke to the grievor during the week of December 8, 2008. Since the grievor had been unable to find a position near Marieville, it was decided that Ms. Hammell would reactivate her request to relocate to Ottawa. Ms. Hammell testified that she was happy to learn that the grievor was returning. On December 17, 2008, the grievor´s relocation to Ottawa was reactivated at Ms. Hammell´s request, as confirmed in the email exchange between Ms. Hammell and Ms. Ethier of the HRSDC´s relocation section (Exhibit 1, tab 13).

39 On December 22, 2008, at the request of Linda Koo, a union relations officer with the PSAC´s National Component, Ms. Hammell confirmed that the grievor had decided to proceed with her relocation to Ottawa since she had been unable to find work near Marieville and her position was still available (Exhibit 1, tab 14).

40 However, Ms. Hammell testified that, on December 22, 2008, she received an email from the grievor in which the grievor stated that she would not be coming to work on December 23, 2008 as planned and asked to be accommodated due to her health. A first medical certificate from Dr. Gagnon, dated December 18, 2008 and attached to the grievor´s email, confirmed that the grievor´s health deteriorated after her move to Ottawa (Exhibit 1, tab 12).

41 Ms. Hammell testified that, from December 22, 2008 to May 2009, she did not deal personally with the grievor; Human Resources Services handled her file. Ms. Hammell said that she received another medical certificate from Dr. Gagnon, dated April 16, 2009. It indicated that the grievor was unable to return to Ottawa because it would be detrimental to her health to move away from her area of residence.

42 Ms. Hammell testified that she then wrote to the grievor on May 7, 2009 to advise her that she had to either come to work or resign. She added that, if the grievor did not show up for work on June 8, 2009, she would be terminated on probation.

43 Ms. Hammell testified that she wrote the May 7, 2009 letter to the grievor because, before then, the grievor had expressed an interest in returning to Ottawa, since she had been unable to find work near Marieville.

44 With respect to the medical certificate from Dr. Gagnon dated April 16, 2009, Ms. Hammell indicated that, apart from mentioning that the grievor was unable to move to Ottawa, no medical reason or alternative solution for her job in Ottawa was mentioned. In response to a question from the grievor´s representative, Ms. Hammell said that she did not ask Dr. Gagnon to specify the nature of the grievor´s illness (in general, physicians do not indicate such information on medical certificates submitted to the employer). Ms. Hammell stated that it was not her job to question the medical certificate that the grievor provided.

45 Ms. Hammell testified that she received clarification from Dr. Gagnon on May 29, 2009 (Exhibit 1, tab 26, Annex C) that that the grievor could only work inside a 30 to 40 km radius of Marieville, excluding the island of Montreal. Ms. Hammell then sent another letter to the grievor on June 3, 2009, further to her letter of May 7, 2009, reminding her that she had to show up for work on June 8, 2009. Otherwise, she would be terminated on probation (Exhibit 1, tab 24).

46 As for the work location and the question of whether the grievor´s work could be performed from Marieville, Ms. Hammell stated that it was impossible for the grievor´s work to be done outside the Ottawa office. Ms. Hammell repeated that she manages a national program centralized in Ottawa, that applications are not handled according by region of origin and that no regional offices exist. Ms. Hammell indicated that employees do not have portfolios assigned specifically to them; they must all work together. Furthermore, funding requests clearly have a financial component, and employees must often consult their co-workers in the finance section, who also work in Ottawa.

47 Ms. Hammell said that, despite everything, the HRSDC´s human resources section took steps to find another job for the grievor in the Marieville area (Exhibit 1, tabs 16, 17 and 18).

48 Ms. Hammell concluded by stating that, since the grievor did not show up for work in Ottawa on June 8, 2009, Liz Rootham terminated her employment under section 62 of the PSEA after indicating to the grievor that she would receive compensation in lieu of notice.

49 Eryka Bradford was the employer´s other witness.

50 Ms. Bradford testified that, during the period in question, she was a labour relations advisor with the HRSDC. She indicated that she had been involved with the grievor´s file since February 2009. Her knowledge of the file at that time was that the grievor had been selected following an HRSDC external staffing process and that she had agreed to relocate from Marieville to Ottawa. However, one-and-a-half days after beginning her job, the grievor said that she was ill and notified HRSDC management that she had to leave work. She never returned to work.

51 Ms. Bradford testified that the grievor gave management an initial medical certificate, indicating that she would be absent from December 3, 2008 to March 24, 2009. It was accompanied by a note from the physician, dated December 18, 2008, stating that the distance had contributed to a deterioration of the grievor´s state of health. Another medical certificate from the same physician, dated March 24, 2009 and submitted to management, indicated that the grievor´s leave of absence from work would be extended until April 19, 2009. Finally, a note from the grievor´s physician, dated April 16, 2009 and submitted to management, stated that a transfer outside her area of residence would be detrimental to her health (Exhibit 1, tab 26, Annex C).

52 Ms. Bradford said that, after receiving the second medical certificate, dated March 24, 2009, HRSDC management decided to extend the grievor´s leave of absence. Ms. Bradford testified that, after a discussion with HRSDC management, her understanding of the medical certificate dated April 16, 2009 was that the grievor was capable of working, just not in Ottawa.

53 Ms. Bradford said that she contacted the grievor´s union representative, Mr. Archambault, on May 27, 2009, after receiving the note from the grievor´s physician dated April 16, 2009, which indicated that it would be detrimental to the grievor for her to work outside her area of residence. Hence, she could not work in Ottawa. Ms. Bradford wanted clarification of what constituted the grievor´s “area of residence,” as mentioned in Dr. Gagnon´s medical certificate dated April 16, 2009. She also wanted to know the position level that the grievor was willing to accept should she be demoted (Exhibit 1, tab 19).

54 On May 28, 2009, Mr. Archambault responded to Ms. Bradford and Ms. Hammell about the grievor´s preferences. He obtained clarification from Dr. Gagnon on the boundaries of the area of residence (Exhibit 1, tabs 20 and 21 and tab 26, Annex C).

55 Ms. Bradford indicated that, even though she felt that, given the circumstances, the HRSDC was not responsible for finding the grievor another job, she still contacted HRSDC managers and colleagues in other departments to try to help the grievor find another job. Ms. Bradford said that it was the right thing to do and that, in her opinion, an employer should act that way.

56 Ms. Bradford testified about her attempts to find the grievor another job by emailing other HRSDC divisions and other departments (Exhibit 1, tabs16 to 20 and 23). Ms. Bradford said that some of her contacts forwarded her email to their departmental managers while most replied that they noted her request.

57 Ms. Bradford testified that she forwarded an email dated May 15, 2009 to Mr. Archambault, among others (Exhibit 1, tab 17), and addressed to Ann Demers, in which two potential departments were mentioned. Ms. Bradford specified that she did not contact the two departments and that it had been up to the grievor to follow up.

58 Ms. Bradford testified that sometime around April 2009 she had three or four discussions with Mr. Archambault in which they attempted to find a solution. Ms. Bradford mentioned that Mr. Archambault tried to find another position for the grievor, but he never mentioned any specific positions.

59 In cross-examination, Ms. Bradford said that, when Mr. Archambault asked her if management agreed with the contents of the medical certificates, she responded that management did not doubt their validity.

60 Ms. Bradford said that she had a telephone conversation on June 2, 2009, which she noted on file, in which Mr. Archambault notified her that he was going to file a complaint with the CHRC based on discrimination against the grievor´s disability. Ms. Bradford indicated that she then asked Mr. Archambault to clarify the requested accommodation measures and the position levels that the grievor was ready to accept.

61 As for Ms. Hammell´s letter dated June 3, 2009 and ordering the grievor to show up for work on June 8, 2009, failing which her probationary employment would be terminated, Ms. Bradford indicated that it was the final chance for the grievor before her employment was terminated. The grievor never showed up for work. Ms. Bradford indicated that she wrote the letter signed by Ms. Hammell on June 3, 2009 but that Ms. Hammell reviewed it before signing it. Ms. Bradford testified that Ms. Hammell made the decision to terminate the grievor´s employment.

62 Ms. Bradford testified that the grievor was terminated on probation because she never showed up for work, despite the medical certificate´s indication that she was capable of work provided that her duties could be performed within the Marieville area. According to Ms. Bradford, the grievor was well enough to work as of April 16, 2009, as long as the work was in her area of residence, i.e., Marieville.

63 Finally, in response to a question from the grievor´s representative about other things that could have been done to solve the problem, such as telework, Ms. Bradford indicated that, to her knowledge, Ms. Hammell and the grievor had had such a discussion and that the type of work for the grievor to do was not suitable for such measures.

64 Lucie Richer was the employer´s final witness. She testified that she has been working as a staffing advisor at the HRSDC´s Centre for Expertise since August 2011. She spent the previous 15 years with the HRSDC´s transfer and placement service. Her role was to manage a program designed to assist HRSDC employees who wanted to change their jobs or region. Her clients were primarily from the HRSDC. They communicated with her by email or in person. Along with other departments, the HRSDC participated in a program that facilitated employee transfers for a term or indeterminate position to Ottawa. That program, referred to as the Departmental Assignment Program (DAP), was primarily targeted at employees and positions in Ottawa. However, Ms. Richer indicated that the program also covered other regions, such as Montreal. The DAP had 15 to 20 participating departments.

65 Ms. Richer explained that, normally, if an employee desired to transfer outside the Ottawa area, she would send his or her resumé to the departments participating in the DAP. However, her role was limited to checking every six months to see if the employee had been transferred.

66 Ms. Richer testified that the grievor was enrolled in the DAP from December 2, 2008 until June 30, 2009 (Exhibit 1, tab 4) and that her resumé was sent to 15 to 20 departments. Ms. Richer also testified that a website, “Gateway to Mobility,” was available for employees interested in a transfer. Ms. Richer indicated that, despite all efforts, attempts to find the grievor a job in the Marieville area were futile. In cross-examination, Ms. Richer said that, when she contacted potential employers, she always gave them the most recent email address, telephone number or street address provided by the employee. It was up to the grievor to ensure that her contact information was current.

B. For the grievor

67 The grievor testified that she was currently working in a term position with the Canadian Space Agency (“the Agency”), which began on July 27, 2009 and, in theory, was to end on November 30, 2011. The grievor also stated that, when she was hired for an indeterminate position with the HRSDC on December 1, 2008, she had been working in a term position with the Agency.

68 The grievor testified that she has been diabetic since about 1997. She mentioned all the complications associated with the illness, such as high blood pressure, high cholesterol and anemia. The grievor said that she has to constantly be aware because several factors can affect diabetes, such as fatigue, stress, menstrual cycles and fevers. It is important that she maintain regular meal times and sleep habits. Ms. Michaux stated that she suffers from Type 2 diabetes, for which she does not take insulin. Controlling diabetes requires a certain lifestyle stability. She must take seven different drugs each day. She has received treatment for depression since January 2009. In cross-examination, Ms. Michaux indicated that her medication dosage can be adjusted to stabilize a situation.

69 The grievor said that she moved several times in her life, 50 times before the age of 25, and 7 to 10 times since turning 25. Her last move before accepting the position with the HRSDC was in January 2006. Moving had never been a problem for her. Her last 10 moves had all been in the Montérégie area. Her jobs over the past 25 years have primarily been in the Montérégie area.

70 The grievor mentioned that she began to search for a job in Ottawa in 2008 since the good jobs were there. She testified that she never really considered the impact that a move might have on her health; she did not anticipate any problems.

71 The grievor indicated that she was informed near the end of October or the beginning of November 2008 that she was being offered a PM-5 advisor job in Ottawa with the HRSDC´s Partnerships Program. On or around November 13 and 17, 2008, the grievor and Ms. Hammell discussed an issue with the wording of the letter of offer. She testified that, during those discussions, she told Ms. Hammell that the start date was approaching and that she was feeling nervous. She asked Ms. Hammell to postpone the start date. Ms. Hammell refused, apparently because she needed someone quickly.

72 The grievor said that relocating to Ottawa involved several steps, such as selling her house and finding a new one, negotiating a mortgage, and closing her spouse´s psychology practice in Marieville. The grievor indicated that those steps were carried out while she continued to work for the Agency.

73 Ms. Michaux testified that, while waiting for her relocation to complete, she moved into a hotel in Ottawa on Sunday, November 30, the day before she was scheduled to begin her job with the HRSDC. Her spouse accompanied her. He had to return to Marieville on Wednesday, December 3, 2008. The grievor mentioned that she was “[translation] tired, worn out,” had no appetite and had trouble sleeping.

74 The grievor said that her first day at work was fine; she became familiar with the workplace and met the other employees at a staff meeting. The grievor stated that she returned to her hotel at the end of the day, where she met up with her spouse. She was happy but tired.

75 The grievor testified that the next day, December 2, 2008, she did not feel well. She had slept poorly, she was congested and she had a fever. When she arrived at work, she sat down at her computer. Ms. Hammell came to say hello and to ask how she was doing. The grievor answered that she was not feeling well and asked to speak to her privately. They went to the kitchen area, where the grievor told Ms. Hammell that she was exhausted and unable to function. According to the grievor, Ms. Hammell was empathetic. She testified that she told Ms. Hammell that she was finding the move difficult and asked if she could telework and move gradually.

76 According to the grievor, Ms. Hammell replied that those options were not possible, that her health mattered most and that she should not lose her health over a job. Ms. Hammell recommended to the grievor that she go home.

77 The grievor testified that she could not return home because her old position had been staffed. She also mentioned that Ms. Hammell told her to take care of her health and that the most important thing was to cancel the relocation. The grievor also said that Ms. Hammell told her to call back the following Monday because she was going to try to find her another job in Marieville. Ms. Hammell also told her that she would be placed on a priority list.

78 The grievor testified that she then communicated with Ms. Richer, of Human Resources, to be added to a priority list. She then notified her spouse that things were not going well and that she was returning home to Marieville. She also indicated that, at Ms. Hammell´s suggestion, she drafted a letter with the intention of cancelling the relocation. She sent a copy of the draft letter to Ms. Hammell on December 2, 2008.

79 The grievor testified that she collapsed when she returned to the hotel. However, she told her spouse that Ms. Hammell had been understanding. The grievor indicated that, at that moment, she had no definite intention for her job. All she wanted was to return home to Marieville. When the employer´s representative asked her why she decided to leave on December 2, 2008 rather than wait until the next day to see how things would go, the grievor replied that she was in such a state that one night would not have made a difference.

80 With respect to her email on December 4, 2008 to France Rioux, responsible for relocations at Royal Lepage, in which she stated that her “[translation] transfer to Ottawa is not the right thing to do,” the grievor explained that, at that moment, she was “[translation] still worn out.” It did not mean that she was giving up her job.

81 The grievor was on sick leave and annual leave from December 3 to 22, 2008, inclusively. She pointed out that her health required a certain degree of stability for meal times and sleeping habits and that the move and all the related changes had aggravated her health problems.

82 The grievor testified that she contacted Ms. Hammell on December 8, 2008 to follow up. She told Ms. Hammell that she was starting to feel better but that she was still not in perfect health. The grievor said that, between December 8 and 11, 2008, she attempted, more or less successfully, to obtain information from the HRSDC´s relocation and human resources sections. In her testimony, she said that she contacted Ms. Hammell on December 11, 2008 and noticed a change in her tone. It was more hostile.

83 The grievor indicated that she met with Dr. Gagnon on December 18, 2008. He confirmed that she was suffering from sinusitis, which had been ongoing since her arrival in Ottawa on December 1, 2008 and “[translation] would have wiped her out.” Dr. Gagnon prepared a medical certificate for her that same day. On December 22, 2008, the grievor notified Ms. Hammell that she would not be returning to work on December 23, 2008 and that the employer was obliged to accommodate her. Ms. Michaux said that her union representative, Ms. Koo, had suggested the reference to accommodation. She testified that she attached Dr. Gagnon´s medical certificate dated December 18, 2008 to her December 22, 2008 email.

84 The grievor also testified that in January 2009 she applied to Sun Life for disability insurance. She added that, at that time, although she would have liked to return to work, she could not since she was in a state of confusion and depression. She also said that she received employment insurance benefits from December 2008 to April 2009.

85 The grievor testified that she received the medical certificate indicating that she would be absent from work from December 3, 2008 to March 24, 2009 at her appointment with Dr. Gagnon on January 21, 2009. When she saw her physician again on March 24, 2009, he extended her absence until April 19, 2009 (Exhibit P1, tab 26, Annex C). Dr. Gagnon issued another medical certificate on April 16, 2009. According to the grievor, that medical certificate authorized her to return to work, but not in Ottawa. All the medical certificates were submitted to the employer. As for Dr. Gagnon´s note dated May 29, 2009 and specifying the grievor´s area of residence for return-to-work purposes, the grievor indicated that it was prepared at the employer´s request. It wanted the April 16, 2009 medical certificate clarified. Ms. Michaux pointed out that the employer made no other requests about her health. The grievor never felt that the employer doubted her state of health.

86 José St-Louis, the grievor´s spouse, testified on her behalf. He is a psychologist and deals primarily with teens and adults with anxiety problems. He practises in Saint-Jean-sur-Richelieu in the Montérégie area and is a member of a group of six psychologists. In 2008, he was practising in Marieville, but he closed his practice as he anticipated moving to Ottawa. In cross-examination, Mr. St-Louis indicated that he terminated his lease for his Marieville office in July 2008 since it was coming up for renewal and he planned to move to Ottawa. However, he recognized that the grievor had not received a letter of offer at that point.

87 Mr. St-Louis said that in September 2008 the grievor wanted to go to Ottawa, which had better job prospects.

88 Mr. St-Louis mentioned that the grievor has been diabetic for 8 to 10 years. Before November 28, 2008, she had much to do before the move scheduled for December 2008. She seemed somewhat tired. Mr. St-Louis explained that she handled things because she is good at such tasks and he does not speak English.

89 Mr. St-Louis testified that everything went well on the grievor´s first day of work, December 1, 2008. At the end of the workday, the grievor returned home. Everything seemed fine. However, on the afternoon of December 2, 2008, Ms. Michaux was in tears and said that she wanted to return to Marieville. She was upset. Mr. St-Louis mentioned that he would have preferred to wait before returning to Marieville but that the situation was so serious that they decided to leave Ottawa immediately for Marieville. When the employer´s representative asked whether given the severity of the situation the grievor was taken to a hospital, Mr. St-Louis replied in the negative, adding that such a situation had never arisen before.

90 Mr. St-Louis said that in March 2009 they had to take their Marieville house off the market since the physician stated that it was best not to return to Ottawa. In response to a question from the employer´s representative as to why working in Montreal was not an option, Mr. St-Louis replied that they did not like the city of Montreal. They had lived there in the past and had no desire to return.

91 At the end of Mr. St-Louis´s testimony, the grievor´s representative advised me that he would not call Dr. Gagnon as a witness.

92 Sylvain Archambault was the grievor´s final witness. He is a national union representative for the Canada Employment and Immigration Union (CEIU), a PSAC component. Mr. Archambault explained that he opened a file as soon as he began to handle the grievor´s situation, which was on May 12, 2009. Mr. Archambault began to take steps with the employer after Ms. Hammell´s May 7, 2009 letter to the grievor, requiring her to show up for work on June 8, 2009. Mr. Archambault contacted Ms. Bradford on May 12, 2009. Mr. Archambault testified that, during their conversation, Ms. Bradford told him that the employer was disappointed that the grievor had worked only two days. Ms. Bradford reiterated that the grievor knew when she was hired that the job was in Ottawa. Ms. Bradford added that, further to Dr. Gagnon´s recommendation of April 16, 2009, the HRSDC apparently had no positions to offer the grievor in the Marieville area.

93 Mr. Archambault mentioned that he emailed Ms. Hammell on May 15, 2009, asking to meet with her to discuss accommodation measures for the grievor. He also indicated in his email that the grievor was willing to consider a demotion. In cross-examination, Mr. Archambault admitted that the demotion had to be in the Marieville area and not in Ottawa. Mr. Archambault testified that, despite his attempts to push back the return date of June 8, 2009, stated in Ms. Hammell´s May 7, 2009 letter, she refused, apparently because the grievor had had enough time to decide.

94 Mr. Archambault also mentioned a conversation he had with Ms. Bradford on May 25, 2009, in which he would have tried once again to find a solution. Mr. Archambault said that Ms. Bradford told him that apparently it was not necessary to forward the grievor´s file to Health Canada for an evaluation since the employer did not doubt the diagnosis. At Mr. Archambault´s suggestion to find an accommodation measure, on May 27, 2009 (Exhibit 1, tab 19), Ms. Bradford requested a clarification of the boundaries of the grievor´s area of residence. Mr. Archambault testified that he followed up on that request with Ms. Bradford on June 3, 2009. Ms. Bradford also told him that apparently the employer did not intend to accommodate the grievor and that, if she did not show up for work on June 8, 2009, her probationary employment would be terminated.

III. Summary of the arguments

A. Arguments of the employer´s representative

95 The employer´s representative argued that this is a case of rejection on probation under section 62 of the PSEA for employment-related reasons; after working for one-and-a-half days, the grievor decided not to show up for work again. She was hired through an external staffing process to fill a position in Ottawa. The employer´s representative reiterated that, under the circumstances, I have no jurisdiction to hear her grievance.

96 The employer´s representative maintained that, after a day-and-a-half of working in Ottawa, the grievor decided of her own free will to no longer show up at her workplace in Ottawa. The grievor was aware of the work location when she applied for the position. Nothing changed with respect to the work location, and there was never any confusion or discussion about that subject. The offer made to the grievor was clearly for a position in Ottawa.

97 The employer´s representative reviewed the facts of the grievance and pointed out that, unlike other situations that the Board and the courts have had to address, in this case, the grievor worked only one-and-a-half days in the position.

98 The employer´s representative submitted that, on December 2, 2008, Ms. Hammell was happy to finally have someone in the position. At no point did she encourage the grievor to return to her hometown. That decision was made entirely by the grievor.The employer´s representative added that the evidence shows that Ms. Hammell gave the grievor time to recover and to return to work. In fact, Ms. Hammell agreed to place the grievor on sick leave and annual leave from December 3 to 22, 2008, so that she could return to work. The employer´s representative argued that Ms. Hammell categorically stated that she never asked the grievor to cancel the relocation request and that the grievor cancelled it on her own initiative. On that point, The employer´s representative referred me to Exhibit 1, tab 6, in which the grievor clearly expressed that the position in Ottawa was not for her and that she asked the Royal Lepage representative, Ms. Rioux, to cancel the relocation. Similarly, the employer´s representative also mentioned that, when the grievor decided to reactivate the relocation request, the employer did not object.

99 The employer´s representative pointed out that Ms. Hammell also testified that, during the December 2, 2008 meeting, the grievor did not ask for accommodation with respect to the work location.

100 The employer´s representative maintained that the grievor chose to apply for a position in Ottawa and that failing to show up for work was her choice, not that of the employer. The grievor concluded that it would not work out in Ottawa. The employer´s representative noted that, on December 2, 2008, the same day that she concluded that it would not work out in Ottawa, the grievor asked Ms. Richer for a transfer to a position in Montérégie.

101 The employer´s representative pointed out that, after five days of reflection, the grievor still did not express her intention of returning to her position in Ottawa. Nothing indicated that she would be ready to return in the short, medium or long term. After she left the office on December 2, 2008, no attempts were made to consider the possibility of returning to Ottawa. For the employer´s representative, the reason was simple — the grievor was not willing to consider any position outside the Marieville area.

102 The employer´s representative said that he found it interesting that only after she met with the union representative did the grievor mention accommodation.

103 The employer´s representative pointed out that the job for which the grievor was hired was in Ottawa and that, as Ms. Hammell mentioned in her testimony, the duties of a Partnerships Program advisor are part of a national program, and the seven positions are in Ottawa. Given how the work is assigned and the work done by other stakeholders, including finance employees, the program duties cannot be broken down into an individual workload. The employer´s representative argued that, under the circumstances, Ms. Hammell was perfectly justified in insisting that the work be done in Ottawa.

104 The employer´s representative also argued that it was not demonstrated that the grievor´s disability prevented her from performing her duties. The grievor´s work location appears to have been the problem, not the duties that she was asked to perform.

105 Furthermore, the employer´s representative pointed out that the grievor´s medical evidence showed that she suffers from diabetes, but in his opinion diabetes is treatable. He also argued that the evidence adduced for the grievor´s medical condition showed that she was suffering from fatigue and sinusitis. He also noted that the grievor never visited a hospital. He pointed out that no one for the employer ever stated that the grievor´s medical condition rendered her incapable of doing the job for which she was hired. The grievor reached that conclusion on her own.

106 The employer´s representative dismissed the allegation that the employer discriminated against the grievor. He maintained that the burden of proof was hers, were it necessary.

107 The employer´s representative maintained that it was not discriminatory for the employer to request that the work be done in Ottawa, especially since the advertisement for the position for which Ms. Michaux applied clearly indicated that the job and its duties had to be performed in Ottawa. In his view, nothing indicated that the grievor´s disability would prevent her from performing her duties; the work location appeared to be the cause. The grievor decided of her own accord to seek work in Ottawa. How then she could she claim that the employer discriminated against her by requesting that the work be done in Ottawa?

108 The employer´s representative argued that, if the grievor succeeds in proving discrimination due to her medical condition, then the employer believes that the only measure that would satisfy her would be to find her a position at an equal or lower classification level exclusively in the Montérégie area. Such a measure would constitute undue hardship for the employer given that the duties that the grievor was hired to perform must be carried out in Ottawa. The employer´s representative claimed that, under the circumstances, the employer´s effort satisfied any related obligation that it might have.

109 The employer´s representative referred me to International Brotherhood of Electrical Workers, Local 2067 v. Saskatchewan Power Corp., [2011] S.L.A.A. No. 3 (QL), which deals with extended absences by employees. He also pointed out that, in this case, the grievor worked only one-and-a-half days at her new job.

110 The employer´s representative also referred me to Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d´Hydro-Québec, section locale 200(SCFP-FTQ), 2008 SCC 43. He argued that the standard set by the employer — that work be delivered from Ottawa — was not discriminatory against the grievor, whether or not she was diabetic. He claimed that, under the circumstances, the standard was reasonable since a national program was involved that was not broken down geographically and that required exchanges between the unit´s employees because the files were not assigned individually. In his opinion, the grievor´s request that the employer change the work location amounted to her requesting it to change the standard.

111 The employer´s representative claimed that the grievor´s work location was fundamental and that the grievor was fully aware of that work location when she applied. Requesting a change of work location after working only one-and-a-half days constitutes undue hardship.

112 Referring as follows to paragraph 18 of the Supreme Court decision in Hydro-Québec, the employer´s representative pointed out that the grievor never planned to return to Ottawa, which constitutes undue hardship for the employer:

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. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal, Québec (Procureur général) v. Syndicat des professionnelles et professionnels du gouvernement du Québec (SPGQ), [2005] R.J.Q. 944, 2005 QCCA 311: [TRANSLATION] “[In such cases,] it is less the employee´s handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship” (para. 76).

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.

113 The employer´s representative referred me to the attempts made by Ms. Bradford and Ms. Richer and claimed that, by attempting to find the grievor another job in the Marieville area since she could not report to Ottawa in the reasonably foreseeable future, the employer satisfied its obligation of demonstrating undue hardship.

114 Finally, the employer´s representative said that, if I conclude that the employer discriminated against the grievor, then I should recognize that the employer, by attempting to find the grievor a job in the Montérégie area, took the necessary steps to satisfy its burden.

B. Arguments of the grievor´s representative

115 The grievor´s representative submitted that the employer never objected to the five medical certificates and notes from Dr. Gagnon dated December 18, 2008 to May 19, 2009 (Exhibit 1, tab 26, Annex C). Furthermore, the employer never felt that it was necessary to have Health Canada assess the grievor.

116 The grievor´s representative argued that she suffered from depression and that the employer should have been aware of her state. The events of December 2, 2008 and the numerous emails that she sent were signs that she had medical problems.

117 The grievor´s representative maintained that, immediately after the events of December 2, 2008, she clearly requested that she be accommodated. She asked for an additional delay, as indicated in her email on December 9, 2008 to Ms. Simpson in Human Resources (Exhibit 1, tab 10). She repeated her requests in other emails (December 22, 2008, May 15, 2009, June 8, 2009, and June 15, 2009).

118 The grievor´s representative claimed that the employer was wrong when it denied its responsibility of finding the grievor a job in her area of residence, Marieville.

119 The grievor´s representative argued that, although the employer tried to find the grievor a position in the Marieville area, its effort was insufficient. For example, the grievor´s representative pointed out that the steps that Ms. Richer took with the DAP system were very limited since that support system is used primarily by departments located in Ottawa. According to the grievor´s representative, Ms. Richer´s efforts to find a position outside Ottawa were limited to sending a resumé and email on December 4, 2008 (Exhibit E-1). The grievor´s representative further stated that those steps were not communicated to the grievor´s union representative.

120 Citing the statements made by the employer´s witnesses, the grievor´s representative argued that Ms. Hammell´s testimony was incomplete. For instance, she said that her conversation with the grievor on December 2, 2008 lasted approximately 30 minutes. According to the grievor´s representative, it is highly unlikely that the conversation lasted that long if the sole purpose was to discuss the grievor´s health. Furthermore, according to the grievor´s representative, Ms. Hammell did not recall a discussion she had with the grievor that would have taken place on November 12 or 13, 2008 about the letter of offer. Finally, the grievor´s representative pointed out the difference of opinion between Ms. Hammell and Ms. Bradford as to who made the decision to terminate the grievor´s employment. The grievor´s representative concluded that, under the circumstances, preference should be given to the grievor´s testimony over that of Ms. Hammell.

121 The grievor´s representative stated that Ms. Michaux and her spouse always intended to relocate to Ottawa. Contrary to the employer´s claims, she never intended to quit her position. According to the grievor´s representative, there was no way of knowing that the grievor would experience such serious problems, especially since she had moved several times in the past without issue. The grievor´s representative claimed that the problems in large part arose from the grievor receiving her letter of offer late, which left her with only 14 days to prepare for her move to Ottawa, while she continued to work for the Agency. It had a devastating effect on her health, with the result that she was exhausted when she arrived in Ottawa.

122 The grievor´s representative claimed that the evidence demonstrated that the employer discriminated against the grievor because of her medical condition. He said that, after the employer received Dr. Gagnon´s medical certificates, it decided to dismiss the grievor. To support his position, he cited Ms. Hammell´s letters of May 7, 2009 and June 3, 2009 and Ms. Rootham´s of June 15, 2009, directing the grievor either to leave the public service or to show up for work in Ottawa on June 8, 2009; otherwise, her probationary employment would be terminated. In the opinion of the grievor´s representative, the letters, in response to Dr. Gagnon´s medical certificates indicating that the grievor could not relocate outside her area of residence, are evidence that the employer discriminated against the grievor based on her medical information. The grievor´s representative argued that, under the circumstances, the grievor proved a prima facie case of discrimination.

123 As for accommodation measures, the grievor´s representative argued that the employer had the onus to provide them, which it did not do. The grievor worked only two days. Thus, it was difficult for her to be aware of all the possibilities. She was not responsible for coming up with accommodation measures. Although the employer took certain steps to find her another job in her area of residence, its effort was very limited. The employer did not analyze the extent to which telework could have been an option. Furthermore, it refused to meet with the grievor´s union representative to assess potential options and restricted itself to the information provided in the medical certificates. The employer never asked the grievor if the situation was permanent and never asked her about the exact nature of her illness.

124 The grievor´s representative argued that the grievor suffered from diabetes and depression, illnesses recognized as disabilities under the Canadian Human Rights Act. For the applicable test, he referred me to the Supreme Court of Canada decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (Meiorin). He argued that the employer´s standard, requiring that the grievor´s workplace be Ottawa, had a discriminatory effect on her.

125 The grievor´s representative also referred me to Dekoning v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-22971 and 149-02-129 (19930302), O´Leary v. Treasury Board (Department of Indian Affairs and Northern Development), 2007 PSLRB 10, and Kerr-Alich v. Treasury Board (Department of Social Development), 2007 PSLRB 33.

126 The grievor´s representative claimed that, supported by her medical certificates, the grievor established her disability on a balance of probabilities. In case of doubt, the onus was on the employer to question the medical certificates or to send the grievor to Health Canada; see Mellon v. Human Resources Development Canada, 2006 CHRT 3.

127 Finally, the grievor´s representative argued that the employer´s decision to dismiss the grievor was made in bad faith since it was based on her medical condition. Furthermore, the employer did not take all the measures necessary to accommodate her. The employer did not demonstrate that accommodating her would have been an undue hardship.

128 As a corrective measure, the grievor´s representative requested that the grievor be reinstated in her PM-5 position with the HRSDC and that the employer accommodate her.

IV. Reasons

129 On November 7, 2008, the grievor was offered an indeterminate PM-5 advisor position with the HRSDC. Ms. Rootham´s letter of offer indicated clearly that the work location was Gatineau (Ottawa). The grievor agreed to the employment conditions on November 17, 2008. Those facts were not disputed. Nor was the fact that the grievor was subject to a 12-month probationary period.

130 It was also admitted that, on June 15, 2008, Ms. Rootham terminated the grievor´s probationary employment because she failed to show up for work. In her letter, Ms. Rootham informed the grievor that she would receive one month of salary as compensation in lieu of notice.

131 On June 14, 2011, the employer opposed my jurisdiction to hear the grievance on the grounds that it was a case of a rejection on probation. The employer reiterated its objection at the beginning of the hearing. For her part, the grievor maintained that her dismissal was due to her medical condition and that the employer discriminated against her.

132 The following provisions of the PSEA give the employer the right to impose a probationary period and to terminate employment during the probationary period:

…

61. (1) A person appointed from outside the public service is on probation for a period

(a) established by regulations of the Treasury Board in respect of the class of employees of which that person is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act …

…

62. (1) While an employee is on probation, the deputy head of the organization may notify the employee that his or her employment will be terminated at the end of

(a) the notice period established by regulations of the Treasury Board in respect of the class of employees of which that employee is a member, in the case of an organization named in Schedule I or IV to the Financial Administration Act …

and the employee ceases to be an employee at the end of that notice period.

…

133 Under section 211 of the Act, as follows,a grievance filed against a termination of employment under the PSEA, particularly a grievance against a rejection on probation, cannot be referred to adjudication:

211. Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act …

134 In my view, to decide whether I have jurisdiction to hear a grievance about a rejection on probation, I must first determine whether the termination was employment-related and whether the employer used the rejection on probation as a sham or camouflage to hide some other reason for the dismissal. On that point, I turn to the following comments, made by my colleague in Tello v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 134:

[105] The plain reading of the PSLRA and the new PSEA is that a probationary employee can be terminated with notice for any reason (or no reason) and does not have access to adjudication. Under the new PSEA, the only restriction placed on the deputy head is that the employee must be within his or her probationary period and notice (or pay in lieu) must be provided. However, “[t]he interpretation of the law is always contextual …” (Dunsmuir, para. 74). Statutory restrictions on the deputy head´s authority still apply and the deputy head must be acting within the new PSEA for the termination of a probationary employee to be a valid exercise of the deputy head´s discretion.

…

[111] … The deputy head is still required to tender the letter of termination as an exhibit (normally through a witness) to establish that the statutory requirements of notice and probationary status have been met. That letter will usually state the reason for the decision to terminate the employment of the probationary employee. The burden then shifts to the grievor. The grievor bears the burden of showing that the termination of employment was a contrived reliance on the new PSEA, a sham or a camouflage. If the grievor establishes that there were no legitimate “employment-related reasons” for the termination (in other words, if the decision was not based on a bona fide dissatisfaction as to his suitability for employment: Penner at page 438) then the grievor will have met his burden…

135 In this case, it was not disputed that the employer met its obligations under the PSEA. The termination was made during the probationary period, and the grievor received compensation in lieu of notice. Therefore, the grievor had the burden of showing that the real reason for the dismissal was her medical condition and that the employer acted in a discriminatory manner and, if that could be established, of determining whether the employer met its obligation to accommodate her.

A. Did the employer discriminate against the grievor due to her medical condition?

136 Before examining this question, it is useful to review certain facts. The employer offered the grievor a PM-5 position in Ottawa. From the start, the parties agreed that the grievor would have to relocate from Marieville to Ottawa. The grievor accepted the position in Ottawa with full knowledge of what was involved. It is important to point out that the nature of the position´s duties is not at issue. In other words, the grievor did not allege that she was somehow unable to perform the duties of the position. Moving to and performing the duties in Ottawa were the alleged causes of her health issues.

137 The evidence demonstrated that, when she was hired, the grievor´s medical condition was not discussed with the employer. The grievor testified that, after 14 days of preparing, during which she continued to work in her previous job, she showed up for work in Ottawa on December 1, 2008 feeling exhausted and “[translation] worn out.” According to her, the first day of work went well. However, the next day, December 2, 2008, her sinuses were congested, she had not slept well and she was feverish. She felt so sick that she returned to Marieville, after reaching an agreement with her manager that she would take sick leave and annual leave to reflect on her options. Despite her condition, the evidence showed that the grievor did not visit a hospital or consult a physician on that day or on the following days. The grievor saw her physician, Dr. Gagnon, on December 18, 2008, two weeks after leaving Ottawa. He issued a certificate indicating that she would be off work from December 2, 2008 until March 24, 2009 and that the move to Ottawa had caused her medical condition to deteriorate.

138 It should be noted that, on the afternoon of December 2, 2008, the grievor already stopped her relocation to Ottawa. Although the grievor testified that she did so at her manager´s request, Ms. Hammell testified to the contrary and pointed out that, when the relocation request was reactivated, she was happy to learn that the grievor had finally decided to return to Ottawa. The evidence demonstrated that the employer learned that the grievor was tired after moving. The employer believed it a temporary situation; it had no reason to believe that the situation might be permanent. Therefore, the employer had no reason to suggest that the grievor cancel the relocation request. Furthermore, in her correspondence with Ms. Ethier on December 22, 2008, a copy of which was sent to the union representative, Ms. Koo, Ms. Hammell clearly indicated that the grievor stopped the initial relocation request (Exhibit 1, tab 14).

139 It should also be noted that, on December 4, 2008, two days after leaving Ottawa, the grievor told Ms. Rioux of Royal Lepage that “[translation] I feel that transferring to Ottawa is not the right thing for me to do at this time…”

140 The evidence demonstrated that, on December 9, 2008, the grievor contacted Ms. Simpson, from the HRSDC´s human resources section, and stated that she had a disability and that she was seeking delays or accommodation, such as telework.

141 On April 16, 2009, Dr. Gagnon issued a medical certificate indicating that returning to work outside the grievor´s area of residence would be detrimental to her health and that she could not return to Ottawa. Dr. Gagnon later explained that the grievor´s area of residence fell within a 30 to 40 km radius of Marieville, excluding the island of Montreal.

142 With respect to the grievor´s medical condition, I must state that, although the employer never contested the validity of the medical certificates issued by the grievor´s physician when they were issued or during the hearing, the evidence of the grievor´s medical condition from December 2, 2008 until her employment was terminated remains somewhat unclear. I must point out that the grievor´s physician did not testify at the hearing.

143 In fact, although the grievor testified that she suffers from Type 2 diabetes and that situations such as stress and a lack of sleep can aggravate diabetes-related symptoms, it is not clear to what degree the situation that occurred on December 2, 2008 could be attributed to diabetes or its symptoms. The grievor testified that she was exhausted on arriving in Ottawa; she also said that she had a fever and sinusitis. However, no evidence established a cause-and-effect relationship between those conditions and diabetes. Uncertainty exists about how the grievor´s symptoms of December 2, 2008 could have been treated in a large city like Ottawa and about the risk of them recurring. Furthermore, no evidence was adduced to prove the temporary or permanent nature of the grievor´s symptoms of December 2, 2008. I must point out that it appears that, without proof to the contrary, the symptoms that she experienced on that day, which included sinusitis, fever and lack of sleep, were temporary and that they could have been treated.

144 Finally, it was not determined to what degree one-and-a-half days of work in Ottawa were sufficient to measure the true impact of the move on the grievor´s medical condition and to what degree the impact was temporary or permanent. The grievor maintained that her medical condition deteriorated because of her move to Ottawa. It appears to me that that was a temporary situation. It is reasonable to believe that, after an adaptation period and given the proper care, the situation could have improved. Clearly, a new job that requires a move can increase any person´s stress. The degree to which the grievor´s situation was different, permanent and uncontrollable was not explained at the hearing.

145 The evidence also showed that, when the employer received the medical certificate from Dr. Gagnon dated April 16, 2009 in which he indicated that the grievor could not return to Ottawa, the employer informed the grievor on May 7, 2009 that she had a choice between resigning from the public service and showing up for work on June 8, 2009; otherwise her probationary employment would be terminated. The employer reiterated its order on June 3, 2009 via another letter from Ms. Hammell, to no effect.

146 Under the circumstances, did the employer discriminate against the grievor by insisting that the duties of the PM-5 position had to be performed in Ottawa? In other words, using the Supreme Court test in Meiorin, did the employer justify the standard in dispute, which in this case meant maintaining the duties of the position in Ottawa?

147 In Meiorin, the Supreme Court established a test for determining the obligations of an employer toward an employee with a disability, based on the balance of probabilities. At paragraph 54, the Supreme Court essentially asked the following:

1) whether the employer adopted the standard for a purpose rationally connected to the performance of the job;

2) whether the employer adopted the particular standard in an honest and good-faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and

3) whether the standard is reasonably necessary to the accomplishment of thatlegitimate work-related purpose.

To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate employees sharing the characteristics of the claimant without imposing undue hardship on the employer.

148 There is no doubt that the first two statements are true. In her testimony, Ms. Hammell essentially stated that the employer´s decision was driven by a purely objective motive based on efficiency and work organization. At no point did the grievor question the merits of those two Meiorin test criteria.

149 The third criteria consists of determining whether the standard — in this case, requiring that the duties of the position be performed in Ottawa — was reasonably necessary and whether it was demonstrated that it was impossible to accommodate employees sharing the grievor´s characteristics without imposing undue hardship upon the employer. Ms. Hammell testified that it is not possible to perform the duties of the position outside Ottawa because it is part of a national program managed from Ottawa; the program is not divided geographically; the seven employees in the division must work together as a team; due to the nature of the funding requests, files are not assigned individually; and the work requires consulting with other colleagues in finance services, also located in Ottawa. Once again, the merits of Ms. Hammell´s testimony were not questioned at the hearing.

150 Despite the fact that the employer´s evidence that the duties needed to be performed in Ottawa was not questioned, the question remains whether the grievor could have performed her duties in a modified or reorganized way. Under the circumstances, I must reply in the negative because, in this case, the problem is not with the nature of the duties to be performed but rather with where they must be performed.

151 The evidence was clear. Although the grievor claimed that she was willing to accept another position, even if it meant a demotion, the position had to be within 40 km of Marieville. According to the Dr. Gagnon´s medical certificate of May 29, 2009 and the testimony of the grievor´s spouse that “[translation] they did not have any wish to return,” a job in Montreal was not an option for the grievor. Under the circumstances, I find that the employer did not discriminate against the grievor given that she cannot work in Ottawa and that neither relocating her position nor teleworking were possible.

152 In my opinion, in this case, requiring that the employer modify its working conditions so that the grievor could work in the Marieville area would mean that the employer would have to fundamentally change the work conditions for all employees in the HRSDC´s Partnerships Program. In Hydro-Québec, the Supreme Court concluded as follows:

…

… The test is not whether it was impossible for the employer to accommodate the employee´s characteristics. Although the employer does not have a duty to change working conditions in a fundamental way, it 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…

…

153 In my opinion, once the grievor left the office on December 2, 2008, she had no intention of returning to Ottawa. Although the relocation request was reactivated at one point, the grievor already indicated on December 4, 2008 that “[translation] the transfer to Ottawa is not the right thing for me to do.” The grievor´s later correspondence and interventions made on her behalf were focused on finding a job in the Marieville area. I find that the grievor never demonstrated an interest in returning to Ottawa in the foreseeable future. The Supreme Court stated the following at paragraph 18 of Hydro-Québec:

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. In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. I adopt the words of Thibault J.A. in the judgment quoted by the Court of Appeal … [TRANSLATION] “[In such cases,] it is less the employee´s handicap that forms the basis of the dismissal than his or her inability to fulfill the fundamental obligations arising from the employment relationship” …

154 Although it has already been established that the employer did not discriminate against the grievor and that therefore it was not obliged to implement the measures that she sought, it should be noted that the evidence showed that the employer attempted to find her a position in the Marieville area, both within the HRSDC and in other departments. I should point out that the grievor also was responsible for seeking a job near her place of residence. However, the grievor did not adduce evidence that she made such an attempt, and the facts in this case demonstrated that only a position in the Marieville area, at the PM-5 or another level, would have satisfied her accommodation request.

155 Therefore, I find that the employer demonstrated that the grievor´s rejection on probation was driven by an employment-related reason and that she did not demonstrate that the employer´s decision was discriminatory.

156 Under the circumstances, I do not have jurisdiction to hear this grievance.

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

V.Order

158 I order file 566-02-3632 closed.

159 The grievance in file 566-02-3631 is dismissed.

March 26, 2012.

PSLRB Translation

Linda Gobeil,
adjudicator