FPSLREB Decisions

I. Individual grievance referred to adjudication

1      On July 28, 2009, the grievor, Denys Fontaine, was terminated from his employment under subsection 12(1) of the Financial Administration Act (FAA). In support of its decision, the Department of Fisheries and Oceans (“the employer” or “the Department”) cited the grievor’s inability to hold any position, even an altered position, with the Department.

2      The grievor had worked in the Department’s Materiel Management, Asset Management, Finance and Administration Section since 1992 and had worked in the federal public service for 29 years. Before his termination, he held the position of Audit and Control Assets Officer, classified at the CR-04 group and level, in one of the Department’s buildings located at 104 Dalhousie Street in Québec. His main responsibilities included coordinating and performing duties related to the management of Department assets, such as control, physical inventory and information system updates. He was also required to update the asset inventory in the Department’s national information system and to ensure data integrity.

3      The grievor challenged his termination by filing a grievance on August 28, 2009. He also filed a notice with the Canadian Human Rights Commission on October 27, 2009, but the Commission indicated that it would not intervene in this case.

II. Summary of the evidence

4      During the hearing, I heard testimony from Annie Bélanger, the team leader and the grievor’s manager; Richard Nadeau, Regional Director General, who signed the termination letter; Maxime Daigle, a labour relations advisor at the Department; and the grievor.

5      According to the grievor, work conflicts that dated from 1996 and that continued forced him to take extended sick leave from May 2000 to September 2002. On his return to work in 2002, other work conflicts forced him to once again take sick leave as of May 25, 2006. During the second sick leave, he received disability insurance from Sun Life Financial from August 25, 2006, to August 25, 2008. It should be noted that the parties submitted no evidence as to the natures of those conflicts or any resulting disputes, the persons involved or the effects of those conflicts on the grievor.

6      In 2008, the grievor sought the services of a rehabilitation consultant, Ginette Delage, to negotiate a gradual return to work. A medical certificate from his attending physician dated March 10, 2008, a handwritten note of fewer than 25 words, confirmed that the grievor was fit to work and that he had no functional limitations if the return involved a relocation acceptable to him.

7      A meeting was arranged for May 12, 2008 to discuss the grievor’s return to work and any attached conditions. Before the meeting, Ms. Bélanger asked Ms. Delage to send her, ahead of time, an agenda, the specific objectives of the meeting, and the grievor’s expectations as to the type of job and the working conditions that he would consider reasonable.

8      At Ms. Delage’s request, the meeting was held outside the grievor’s workplace, at Parks Canada offices. The following attended: the grievor; his bargaining agent representative; Michel Plamondon; Mr. Daigle; André Dubé, a human resources representative for the employer; Ms. Bélanger; and Ms. Delage.

9      According to Ms. Bélanger, a summary of the grievor’s claim is that he was prepared to return to work but not at the Department, because he wanted to avoid, at all costs, contact with the persons with whom he had had past conflicts. Therefore, he wanted to be appointed to a position in a different department, which was not possible, according to her.

10 To improve her understanding of how the employer could help the grievor return to work, Ms. Bélanger asked for a more detailed medical certificate specifically explaining the nature of his functional limitations. On July 24, 2008, she received a short handwritten note from his attending physician, which read as follows:

[Translation]

This is to clarify the conditions of Mr. Fontaine’s return to work. It would be preferable were Mr. Fontaine relocated to another workplace, at which he would not have contact with those persons directly or indirectly involved in earlier disputes with Mr. Fontaine.

A relocation to another department would obviously be preferable. These conditions would normally be considered acceptable and reasonable.

11 In a letter dated August 1, 2008, a Health Canada physician confirmed meeting with the grievor’s attending physician and confirmed the recommendation that the grievor have no contact with the employees with whom he had had problems. However, to this day, the grievor has not disclosed to either physician or to his employer the names of the persons referred to in that recommendation.

12 On August 13, 2008, Ms. Bélanger wrote to the grievor and offered to reinstate him in his position of Audit and Control Assets Officer on the second floor at 104 Dalhousie Street as of August 25, 2008. She told him that the employer had reviewed his file and had identified the employees involved in the earlier conflicts and that it was able to confirm that those employees no longer worked for the Department. The employer also stated that the three employees with whom the grievor would be working daily were definitely not the employees with whom he had had past problems. Mr. Daigle corroborated that point. He assisted Ms. Bélanger with the reintegration process. Ms. Bélanger added that a clear communication procedure had been established so that the grievor would at all times know whom to refer to in the event of potential contact with the employees with whom he had had past problems or in case of uncertainty. Ms. Bélanger also informed the grievor that, if he did not want to be reinstated on August 25, 2008, the employer could consider other options set out in the Treasury Board Secretariat’s “Leave Without Pay Policy,” including a layoff under Part 3, section 64 of the Public Service Employment Act, S.C. 2003, c. 22 (PSEA), or termination for reasons other than breaches of discipline or misconduct under paragraph 12(1)(e) of the FAA.

13 According to Ms. Bélanger, the employer’s offer adequately covered the functional limitations that the grievor and his physician had identified. The grievor identified none of the employees from the division in which he would be working and whom he might have to deal with daily as anyone he had problems with in the past.

14 On August 19, 2008, the grievor, outraged by the employer’s offer, refused it outright and reiterated his demand for reinstatement in a CR-04 position in another federal government department or agency. He suggested that several people, including “[translation] the highest authorities in the Department,” were the subject of his physician’s recommendation but did not clarify that statement or provide their names.

15 On August 20, 2008, Ms. Bélanger once again told the grievor that, according to the employer’s inquiries, all the employees with whom he had had past problems no longer worked at the Department. She added that the employer remained entirely open to discussing viable and reasonable alternatives with the grievor that might suit him, with the goal of a return to work. She also offered the employer’s support in obtaining a job in another department and encouraged the grievor to send her his resumé. The employer even covered the cost of a consultant to help the grievor prepare his resumé.

16 The grievor did not report to work on August 25, 2008; nor did he respond to Ms. Bélanger’s letter of August 20, 2008. Instead, he opted to deal with Regional Director General Marc Demonceaux from that moment. However, since Mr. Demonceaux was about to leave the Department, the grievor began to deal with his replacement, Richard Nadeau, as of September 15, 2008, after exchanging several emails with Mr. Demonceaux.

17 Mr. Nadeau met with the grievor on October 31, 2008 to find a solution that would allow him to return to work. Mr. Nadeau indicated in his testimony that he searched extensively through the positions available within the Department of Fisheries and Oceans before the meeting to find one or more positions that might meet the grievor’s functional limitations. He also contacted a number of other departments in an attempt to find the grievor a permanent or even temporary position, but his efforts were in vain. Mr. Daigle confirmed that he searched for available positions within the Department but that no positions at an equivalent level were vacant or available. According to him, the grievor was not willing to work outside the immediate Québec area, which limited the opportunities, and insisted on being appointed or transferred to another department, which was simply not possible without consent from that other department. Mr. Daigle indicated that, nevertheless, he sent the grievor’s resumé to several departments and the Public Service Staffing Tribunal and that he contacted a number of his counterparts in different departments, but his efforts were for naught. He produced some of his search reports to support his testimony.

18 During the October 31, 2008 meeting, Mr. Nadeau offered the grievor a position as a regional clerk with the Coast Guard. According to Mr. Nadeau, the position was unique, and it would have allowed the grievor to work autonomously. The position reported directly to Headquarters in Ottawa through the Information Management and Technology Services Branch, thus eliminating direct contact with employees in the Quebec Region with whom the grievor might have had past conflicts. It would also have allowed the parties to jointly manage the problem of indirect contact with those persons since the position was located in a different building nearly a kilometre away from 104 Dalhousie Street. According to the testimonies of Mr. Nadeau and Mr. Daigle, none of the employees working in that branch had worked with the grievor in the past. According to Mr. Nadeau, it was considered a reasonable accommodation, consistent with the grievor’s functional limitations. However, the grievor did not appear interested in the offer, and instead, to Mr. Nadeau’s great surprise, he demanded a promotion to a CR-05 position.

19 The employer’s offer was confirmed in Mr. Nadeau’s letter dated November 5, 2008. In it, he indicated that, were the grievor to decide to not accept the offer, he would have to provide reasons and explanations for his refusal in writing, including a list of names of the people with whom he felt he had a conflict, along with the natures of those conflicts and the dates on which they began.

20 On November 10, 2008, in writing, the grievor formally refused Mr. Nadeau’s offer and did not provide a list of people with whom he had had past conflicts. Nevertheless, he continued to suggest in his letter that those persons still worked for the employer and that it was possible for him to run into them, even though the new position was nearly a kilometre away from his previous workplace. In his testimony, the grievor confirmed that he never provided the employer with the names of those persons. He added that it was up to the employer to make the request, despite Mr. Nadeau making one on November 5, 2008, and that the employer should have known the identities of those people.

21 On November 17, 2008, Mr. Nadeau once again wrote to the grievor and asked him to show his attending physician the employer’s offer as well as the work description for the position in question to obtain his medical opinion on the accommodation being offered to the grievor. However, in a letter dated November 24, 2008, the grievor indicated that he refused to follow up. According to Mr. Nadeau, that information was essential for determining an accommodation. In a letter dated November 28, 2008, Mr. Nadeau reiterated to the grievor that his cooperation was essential to the accommodation process and asked him to provide his attending physician’s opinion on the employer’s proposed offer no later than December 19, 2008.

22 The grievor did not respond to the November 28, 2008 letter. Instead, a few days before that date, he opted to file a harassment complaint against Mr. Nadeau and Mr. Daigle with the minister responsible.

23 On January 12, 2009, Mr. Nadeau informed the grievor that his absence was deemed unauthorized since January 9, 2009 and that, unless he provided the requested medical opinion by January 30, 2009, the employer could terminate his employment. Receiving no response, Mr. Nadeau wrote to the grievor again on February 2, 2009 and ordered him to report to work on February 9, 2009.

24 The handling of the grievor’s files was suspended temporarily between February 13 and 27, 2009, when his complaint was forwarded to the executive director of the Department’s Centre for Values, Integrity and Conflict Resolution. Further to the executive director’s findings, which did not show any proof of conflict of interest or bad faith in the handling of the grievor’s files, Mr. Nadeau resumed the steps that he had begun before February 13. In a letter dated March 3, 2009, he ordered the grievor to report to work on March 9, 2009. If he did not, the employer would terminate his employment.

25 Only after he sent that letter did Mr. Nadeau receive a copy of the medical opinion from the grievor’s attending physician dated January 30, 2009. The grievor had sent it to the Minister’s office without copying Mr. Nadeau. According to that opinion, the employer’s offer of a regional clerk position did not meet the “[translation] criteria to protect the physical and psychological integrity” of the grievor due to his chronic asthma problems, a factor that had never before been raised or documented. The opinion further stated that it would be difficult to eliminate the possibility of the grievor running into the persons involved in past disputes during his movements in the workplace. The physician concluded by saying that a transfer to another department “[translation] would be preferable.” The attending physician’s recommendations were supported by Health Canada in a letter dated June 30, 2009. I note that the two work descriptions provided to the attending physician for the audit officer and regional clerk positions indicated that the grievor would be required to work in dusty places and that the physician had never raised those asthma problems before January 30, 2009.

26 Considering that information and the efforts made earlier by Mr. Daigle and Mr. Nadeau to accommodate the grievor, Mr. Nadeau concluded that the grievor could no longer hold his substantive position, even were it modified. According to him, the employer was unable to accommodate the grievor by offering him a position within the Department, despite all the efforts and approaches made to accommodate him. Moreover, his and Mr. Daigle’s efforts to find a reasonable arrangement in another department did not yield any results. Given the grievor’s inability to hold any position with the Department, Mr. Nadeau terminated his employment on July 28, 2009 for reasons other than a breach of discipline or misconduct under paragraph 12(1)(e) of the FAA.

27 On September 14, 2009, the grievor was given priority status with the Public Service Commission of Canada.

28 Service Canada eventually hired the grievor into a CR-04 position on May 10, 2010, where he worked full-time until his retirement on March 1, 2012.

III. Summary of the arguments

A. For the employer

29 The employer recognized that it had a duty to accommodate in this case. However, it pointed out that it was not required that the grievor be happy about performing or that he want to perform the duties of the offered position, that the accommodation did not have to be perfect or instant, and that the accommodation had to be assessed based on the information available to the employer. According to the employer, the real question is whether the offered position was considered a reasonable accommodation, given the grievor’s functional limitations. The employer maintained that no employer is obliged to take measures that would cause undue interference in its affairs and that the duty to provide accommodation is neither limitless nor one-way.

30 According to the employer, the grievor’s conduct must be reviewed to ensure that he fulfilled his duty to help implement a suitable compromise. The employer pointed out that an employee must be cooperative and open‑minded with his or her employer’s accommodation attempts. The employer is not responsible for unilaterally determining the nature of the accommodation without some input from the affected employee.

31 With respect to those points, the employer referred me to the following decisions: King v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 122, at para 84; Zaytoun v. Canadian Food Inspection Agency, 2010 PSLRB 35, at para 45; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Sioui v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 44, at para 87; and McNeil v. Treasury Board (Department of National Defence), 2009 PSLRB 84, at para 88, 89 and 92.

32 According to the employer, the employment offers that it made to the grievor in August and October 2008, as well as its efforts and attempts to find an internal position, were reasonable and adequately addressed the functional limitations that he reported. The employer argued that the information that he and his attending physician provided was insufficient and vague. Neither ever indicated the identities of the persons with whom the grievor had had disputes and was to avoid, the exact natures of the past conflicts or disputes, the specific dates of those conflicts or disputes, or the reasoning behind the accommodation sought and the grievor’s needs.

33 The only acceptable accommodation for the grievor and his attending physician, according to the employer, was an appointment to another department, failing which the grievor was to be considered disabled.

34 Under section 29 of the PSEA, the minister of Fisheries and Oceans did not have the authority to appoint the grievor to a position in another department. That section states the following:

29. (1) Except as provided in this Act, the Commission has the exclusive authority to make appointments, to or from within the public service, of persons for whose appointment there is no authority in or under any other Act of Parliament.

(2) The Commission’s authority under subsection (1) may only be exercised at the request of the deputy head of the organization to which the appointment is to be made.

…

35 The employer maintained that the evidence clearly demonstrated that it tried to help the grievor find a position in another department by providing help for him to prepare his resumé and by circulating it, by contacting other departments and the Public Service Staffing Tribunal in an attempt to find a vacant position or new opportunity, and by giving the grievor priority status with the Public Service Commission of Canada.

36 The employer also pointed out that the facts clearly demonstrated that the grievor did not fulfill his duty to help implement a suitable and reasonable accommodation before his termination and that it should not be required to do the impossible.

B. For the grievor

37 The grievor argued that it was up to the employer to prove that it fulfilled its duty to accommodate to the point of undue hardship, which it did not.

38 According to the grievor, the employer’s two offers were unreasonable and unacceptable. He did not understand why the employer did not loan or transfer him to another department. He added that the employer’s efforts to find him a position in another department were only for show and that they could not be deemed sufficient if the duty to accommodate is given its strictest meaning.

39 The grievor also pointed out that, although the employer did not have the authority to appoint him to another department, it should not have limited its search to internal positions within the Department, and it should have made a diligent search outside the Department; it did not.

40 The grievor referred me to the following decisions: Giroux v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 102, and Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173.

IV. Reasons

41 The duty to accommodate is limited by the principle of undue hardship, as the Supreme Court ruled in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, and in 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. Several Public Service Labour Relations Board (“the Board”) decisions have interpreted that principle. In Sioui, the Board commented on Hydro-Québec as follows:

79  The Supreme Court ruled that 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.

42 In other words, the employer does not have the duty to completely alter the employee’s working conditions. Nevertheless, it has the duty to alter, if doing so does not cause it undue hardship, an employee’s workplace or duties to allow the employee to do his or her job.

43 In this case, the employer made considerable efforts to fulfill its duty to accommodate to the point of undue hardship. Before making the first return to work offer, Ms. Bélanger and Mr. Daigle reviewed the grievor’s file and identified, to the best of their knowledge, the names of the employees who had been involved in the earlier conflicts and who were the subject of the grievor’s past complaints. The employer confirmed that those employees no longer worked for the Department and that the three employees with whom the grievor would work in the future were not those with whom he had had earlier work conflicts. The grievor did not demonstrate the contrary. Moreover, the employer proposed establishing a clear communication procedure by which the grievor would know at all times to whom he should refer in the event of a risk of contact with the employees with whom he had had past problems or in case of uncertainty. Therefore, his substantive position was acceptable in the circumstances.

44 Although he felt outraged by the employer’s proposed accommodation, the grievor never saw fit to provide a list of the persons in question, to show that they indeed worked for the Department and could be in contact with him, and to clearly state why the proposed communication procedure was not appropriate.

45 Before proposing its second accommodation option, the employer looked for available positions within the Department and attempted to identify one or more that would likely satisfy the grievor’s functional limitations. It also contacted several other departments in an attempt to find the grievor a permanent or temporary position, but its efforts were in vain. Mr. Daigle circulated the grievor’s resumé with several departments as well as the Staffing Tribunal, but his efforts simply yielded no results.

46 I agree with the employer that regional clerk position with the Coast Guard was unique, that it would have enabled the grievor to work autonomously and that it was a reasonable accommodation, given his functional limitations as described at the time. It reported directly to Headquarters in Ottawa through the Information Management and Technology Services Branch, thus eliminating direct contact with employees from the Quebec Region with whom the grievor might have had past conflicts. It made it possible to jointly manage the issue of indirect contact with those persons, since the position was located in a different building close to one kilometre from the grievor’s former workplace. None of the employees in that branch, including senior management, had ever worked with the grievor. In my opinion, it was a reasonable accommodation option that was in line with the grievor’s functional limitations. He should have at least given it a chance. However, he categorically rejected the opportunity without reasonable justification. As I indicated, both work descriptions submitted to the attending physician, for the audit officer and regional clerk positions, indicated that the grievor had to work in dusty places; the physician never raised asthma issues before January 30, 2009.

47 The employer was unable to arrange any accommodation within the Department that the grievor would have found satisfactory because he felt utterly incapable of continuing to work with the Department, which he confirmed more than once during his testimony and in his documents. He felt that the only viable accommodation option was an appointment to another department.

48 Contrary to the grievor’s allegations, I am convinced that the facts established that the employer made a diligent search to find an appropriate position for him, both inside and outside the Department. Therefore, I find that it did not fail to fulfill its duty to find a reasonable arrangement that would have allowed him to continue working in the federal public service.

49 As the Board suggested as follows in Sioui, an employee must do his or her part in accommodation situations:

87 Based on the previous analysis of court decisions, I must conclude that the obligation to accommodate is not unlimited nor one sided. It requires that the employer examine the possibility of adjusting the occupational requirements of the work to facilitate the employee’s return to work or that it make serious efforts to find the employee alternative work. The employer may not refuse to help the employee return to his job unless it can demonstrate that the changes to the occupational requirements would themselves cause undue hardship. For his or her part, the employee must show cooperation and open-mindedness to the efforts by the employer to find a solution to his or her return to work.

50 I am not convinced that the grievor was cooperative and open‑minded before he was terminated. From when he was declared fit to work in March 2008 to his termination on July 28, 2009, in other words, for 16 months, there is no evidence that he made any serious attempts to find a job within the Department or in any other department in the federal public service. He also refused to provide a list clearly identifying the persons with whom he could not be in contact.

51 Zhang, essentially on which the grievor based his case, refers to different facts and the application of the Personnel Security Standard, which does not apply in this case.

52 As for the notes from the two physicians adduced as evidence by the parties, namely, from the grievor’s attending physician and the Health Canada physician, I cannot blame the employer for trying to obtain clarification from them under the circumstances. The pitiful and vague information that each physician provided did nothing to support the grievor’s cause. I dare hope that they had the necessary information to reach their conclusions. One thing is certain: they did not see it fit to share that information with the employer so that the most appropriate accommodation could be found as quickly as possible. It is inconceivable to me that a practitioner would suggest that a patient is fit to work but cannot “[translation] be in contact with persons directly or indirectly involved in past disputes” without naming those persons, the disputes in question, the period referred to by the term “past,” the reasons justifying the accommodation and the type of accommodation sought. Moreover, I note that his physician’s recommendation to “relocate” the grievor to another department was deemed “preferable.” The recommendation to find the grievor a job in another department is far from meeting the criteria to which I have just referred. That recommendation fails to mention the possibility of the grievor running into the implicated persons while entering the workplace, taking breaks or leaving work, if the new department were located in a building adjacent to the grievor’s original workplace, which is not unusual in large cities, such as Québec. Nor did it account for the possibility that the persons in question were employed in the new department.

53 Nevertheless, in light of the available medical information and the positions taken by the grievor, the employer found itself in a situation in which it had become impossible to help the grievor without undue hardship. Demanding that a department appoint one of its employees to a new position in another department is not only excessive but also clearly contrary to the PSEA. Therefore, I conclude that the employer did not fail in its duty to accommodate the grievor within its department or in its duty to find a reasonable arrangement that would have allowed him to continue working in the federal public service.

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

V. Order

55 The grievance is dismissed.

September 7, 2012.

PSLRB Translation

Stephan J. Bertrand,
adjudicator