FPSLREB Decisions

Individual grievance referred to adjudication

1  This reference to adjudication concerns a grievance arising out of the employer’s termination of employment of Michelle Laye (“the grievor”), a Senior Programs Officer at the PM-02 group and level at the Farm Incomes Program Directorate of the Department of Agriculture and Agri-Foods (“the employer”) located in Winnipeg, Manitoba.

2 The grievor’s employment was terminated pursuant to the provisions of paragraph 12(1)(e) of the Financial Administration Act, for reasons other than discipline. The termination letter, dated March 22, 2011, signed by Rita Moritz, Assistant Deputy Minister, Department of Agriculture and Agri-Food, reads in part as follows:

…

Although you applied for and were granted sick leave without pay for a period from February 20, 2006 to April 2, 2006, a further period of absence was not authorized by management. However, based on the evidence and information gathered, the employer has decided it will authorize your absence period from April 3, 2006 to November 16, 2007 as sick leave without pay.

This being said, your absence after November 16, 2007 was not authorized. It was determined at the fact-finding meeting that you were aware of your obligation to maintain regular and direct contact with your employer; however, after November 16, 2007 you failed to maintain communication with management.

You did finally contact management on January 5, 2011 after you received the most recent letter sent by the employer on December 23, 2010 which advised that failure to report for work and to provide a satisfactory reason could result in the termination of your employment.

Following the fact-finding meeting with you, the employer is not satisfied that there is any reason why you failed to comply with management’s legitimate instructions to substantiate your absence during the period between November 2007 and January 2011. You raised no mitigating factors to explain your unauthorized absence or lack of communication with the employer. As a result, the employer has concluded that you had abandoned your position.

…

3 Five witnesses testified and nine exhibits were introduced into evidence.

Summary of the evidence

4 The facts leading up to the termination of the grievor’s employment are not materially in dispute and can be summarized as follows:

5 The grievor commenced employment with the employer in 1999 as a CR-04. In 2002, she applied for a PM-02 position and was successful in a competition and was appointed to the position. She worked in the Client Services Processing Division. She was responsible for section 34 approvals which involved the processing of applications for payment under the Farm Income Program.

6 She testified that she suffered many injuries in a motor vehicle accident in March 2006, the result of which she was unable to attend work. She was under the care of a physician and other health care professionals.

7 She testified that she provided doctors’ notes and applications for leave as well as additional information to a number of individuals in the workplace including Lincoln Smith, her Pay Advisor, and Martin Bidzinski, her Director, and subsequently to Fred Retzlaff and Bryan Yusishen. She also provided various medical notes to Nancy Grant, her Team Leader.

8 She testified that some of the doctors’ notes covered specific periods of absence as determined by the doctors; however, one was indefinite because her physician was not able to foresee a specific date of return to work. She stated that these doctors’ notes were accepted by her supervisor. She also stated that she provided forms from her physiotherapist as well as other health care professionals.

9 She stated that her physician was treating her for major pain in her neck and lower back as well as problems with her jaw arising from a whiplash injury. She had to consult a dentist with respect to the problems with her jaw. As a consequence of the pain she was suffering from sleep disturbances and undergoing considerable stress as she was not able to work and had limited funds.

10 Mr. Yusishen was the Director of the Client Services Processing Division of the Department of Agriculture and Agri-Food for the period of July 2007 until October 1, 2010, returning to the position in September 2012. When he took over responsibility for the department in July 2007, the grievor had been absent from the workplace. The Director General asked him to meet with Human Resources concerning a number of cases including that of the grievor. He had discussions with Mr. Retzlaff, the previous Director, and received background information concerning her absence. He reviewed a number of letters on her personal file related to unauthorized leave as well as medical documentation with open-ended dates of likely return to work. He also learned that there was difficulty in maintaining contact with her. As a result of his review, he decided to schedule a face-to-face meeting.

11 In cross-examination, he acknowledged that he had been advised that illness had been involved in the grievor’s absence.

12 Cindy-Lou Zallack worked in Human Resources, Staffing and Labour Relations. She worked on the grievor’s file in summer 2007. She attempted to reach her because she had not been to work and she wanted to know if she was planning to return. She had a number of telephone conversations with the grievor and attended a meeting concerning the grievor’s file.

13 During a telephone discussion on July 29, 2007, the grievor informed her that she was planning on returning to work in September of that year. She was informed that she would have to obtain a fitness to work assessment by her physician before she would be permitted to return to work given the length of her absence.

14 A meeting occurred on August 14, 2007. Present at the meeting were the grievor, Bryan Yusishen, Ms. Zallack, Mr. Retzlaff and Linda Brown, a consultant. At the meeting the grievor advised that she thought she was ready to return to work in September. She was given the fitness to work assessment documentation to be completed by her physician.  Mr. Yusishen stated that it was agreed that the fitness to work forms would be completed by September 15, 2007.

15 At the meeting, Mr. Retzlaff advised her that the medical documentation that she had submitted for her absence to date was insufficient as the duration of absence section on the form did not contain an end date. Mr. Yusishen recalled that the grievor provided a medical certificate at the August 14 meeting that contained a start date for the absence but no end date.

16 The grievor was also advised at the meeting that she was not holding up to her obligation to keep in contact with the department. She was advised that she was required to keep in touch with the department every two weeks.

17 The grievor testified that she attended the August 14, 2007 meeting. She provided a physician’s note as well as a leave form. The leave form stipulated a commencement date and the date of the accident; however, it did not contain an end date because she was not sure when she would be able to return to work at full capacity although she felt confident going forward.

18 The employer filed as an exhibit a note dated April 4, 2007, purportedly signed by a medical doctor, that reads in part:

Duration of absence according to the patient

From 29/3/06

To _____ inclusive.

1. On the basis of the information given to me I confirm that the above is fit to return to work.
   
   

   Yes

   No X

2. On the basis of my review of the patient’s illness I conclude that the patient would have been required to be off work for the time noted above
   
   ------------------------ review limited to history
   -----X---------------- objective evidence confirmed

19 The grievor stated that she was told to provide fitness to work assessment forms completed by her physician.

20  During her testimony. Ms. Zallack also acknowledged that there may have been other documentation from a physiotherapist indicating that the grievor was not able to return to work; however, in the department’s view, this documentation was insufficient.

21 The grievor called Ms. Zallack on September 10, 2007, leaving a voicemail advising that she would have to reschedule her proposed return to work for September because she was not able to get in to see her doctor. She left Ms. Zallack another voicemail on September 28 advising that she was still waiting to get in to see her doctor.

22 On October 26, 2007, Mr. Yusishen sent a letter to the grievor that read, in part as follows:

You have been absent from the workplace since February 20, 2006. You attended a meeting on August 14, 2007 with Fred Retzlaff, Human Resources and myself. At this meeting, you indicated you would be ready to return to work by the middle of September. You were advised that you would be required to provide a Fitness to Work Assessment to be completed by your Doctor and that you must call in weekly to report on your progress. You are also advised that you are required to submit up-to-date leave forms and the supporting doctor’s note.

…

…This is my final direction to you. You are to report to me with a completed Fitness to Work Assessment… by November 5, 2007 at 10 a.m. Failure to comply will result in the recommendation of termination for cause.

…

23 Ms. Zallack and the grievor spoke again directly on October 30 at which time Ms. Zallack advised her that it was critical that she get the medical note to cover the absence. The grievor advised her that she may need two weeks to get the medical note.

24 The grievor testified that when she went to see her physician in November 2007, her physician was not comfortable filling out the fitness to work assessment forms as she was not ready to return to work. She relayed that information to human resources.

25 On November 16, 2007, the grievor left Ms. Zallack a message saying that she would be getting a medical note on November 23. She did not say anything in the message about the fitness and return to work assessment. From this message, Ms. Zallack formed the opinion that the grievor would not be returning to work at that time.

26 Ms. Zallack left the grievor a message on November 29, 2007 to call her. The grievor did not contact Ms. Zallack.

27 In January 2008, not having heard from the grievor, Mr. Yusishen met with labour relations, at which time a decision was made to wait until the second anniversary of the grievor’s proceeding on sick leave, namely February 26, 2008, at which time, assuming they had not heard further from the grievor, the department would take steps to proceed to terminate her employment.

28 In April 2008 Ms. Zallack was tasked with preparing a briefing note and attempted to reach the grievor to see if she was interested in meeting with compensation to review various options.

29 Ms. Zallack attempted to telephone the grievor and was advised that her telephone was out of service. She attempted to find another number for relatives of the grievor and left a message for her to call. She did not receive a response.

30 The grievor testified that over the next three years her physical condition did not improve; if anything, the pain from her injuries became more pronounced. She had zero income yet she was still responsible for her family. She met with her physicians; however, there was not much they could do for her in the way of providing relief. She continued to suffer from sleep disturbances and limited mobility. The reason she gave for not contacting the employer was that she was not yet fit to return to work.

31 Ms. Zallack acknowledged in cross-examination that although the department was hopeful that the grievor would be coming back to work, the department was contemplating taking some type of action and was discussing with Mr. Yusishen options for a possible termination of employment. She was asked what action was taken. She stated that she did not do anything at that particular time as there were other priorities and she was assigned to other files.

32 Ms. Zallack did not continue to work on the grievor’s file after April 2008 as she moved to a different area of responsibility.

33 Mr. Yusishen stated that as the department was unable to reach the grievor, her file was moved to employee representation with instructions to prepare a briefing note and chronology for possible discussions with the Treasury Board with respect to termination of the grievor’s employment.

34 Mr. Yusishen was asked in cross-examination when the employer made the decision to terminate the grievor’s employment. He answered that the decision was made after he left on education leave, sometime after October 2010.

35 Mr. Yusishen acknowledged in cross-examination that he recommended to his Director General that the grievor’s employment be terminated. He stated that the Director General did not follow through with his recommendation. He was never given any explanation as to why his recommendation for termination was not acted upon. He stated, however, that he was under the impression that the file was still being worked on prior to his leaving on education leave.

36 The grievor testified that it was a complete shock to her when she heard Mr. Yusishen’s testimony that he was considering dismissing her subsequent to November 2007. She stated that she had never been disciplined and had received no information that her job was in jeopardy.

37 On February 9, 2009, Mr. Yusishen wrote to the grievor with respect to the obligation of public servants to comply with the Values and Ethics Code for the Public Service while on leave of absence.

38 The letter read in part as follows:

I am writing to remind you of your obligations as a federal Public Servant while you are on approved Leave Without Pay (LWOP).When you request LWOP, which includes leave with income averaging, you remain a public servant with a right of return to your employment once your leave is completed. When LWOP is granted, your position as a Public Servant is maintained. As a result, your responsibilities as an employee of the federal public service continue to be in effect.

39 The letter then referred to the Values and Ethics Code for the Public Service and reminded the grievor that she must not engage in activities that could place her in situations where she would be in violation of the code. She was invited, if she wished, to discuss the requirements with Mr. Yusishen at any time during her leave.

40 Mr. Yusishen was asked by counsel whether the letter correctly described the grievor’s employment status. He answered no. He stated that she was on unauthorized leave. He explained that the letter indicated that she was on approved leave because the letter was developed out of the Director General’s office with the intention that it be sent out to some 60 employees in the directorate who were on leave of absence. In addition, all active employees were required to attend meetings on the subject matter of values and ethics.

41 Mr. Yusishen saw the letter before it was sent to the grievor, observed that it was in error and raised his concerns to the Director General’s office about sending the letter out as it was then drafted, informing the Director General’s office that the person was not on approved leave. He testified that he was told that the letter must go as is.

42 Ms. Laye received the letter and reviewed it. She thought that the letter accurately described her employment status as being on authorized leave. She did not feel any need to discuss the requirement to not engage in activities that could place her in situations where she would be in violation of the Values and Ethics Code. She agreed that she was still obligated to follow the code.

43 On June 24, 2009, the Director General wrote to the grievor concerning negotiations on the transfer of the stability program delivery to the provinces of British Columbia and Saskatchewan. This involved the transfer to the provinces of a large portion of the work being performed in the division, with significant implications for the workforce. The letter advised that the department was in the early stages of the transfer process.

44 The letter read in part as follows:

There are a multitude of circumstances in which an indeterminate employee may be on long term leave from the employer. To ensure all indeterminate employees on long term leave are treated in a fair and reasonable manner, each case will be managed on an individual basis. Our commitment to you is that we will keep you apprised of developments in the workplace. This means additional information will be provided to you as it becomes available.

Just one additional reminder, even though you are currently on long term leave, EAP services remain available to you on an ongoing basis…

45 The grievor received this letter and believed it reiterated that she was on approved leave without pay and that her position was being maintained.

46 Mr. Yusishen testified with respect to the impact on operations, of the employee’s absence, observing that the absence could result in the need to bring in casuals or to increase the overtime budget in order to maintain service standards.

47 Jon Friesen was the Acting Director of the Program Planning and Administrative Policy Integration Branch between October 2010 and August 2012, replacing Mr. Yusishen. When he assumed responsibility for the position he did not know of the grievor nor was he aware of the circumstances relating to her employment. There were a number of matters that were brought to his attention, including a number of human resources files which contained insufficient documentation in support of employees who were on leave.

48 He asked for a review of the grievor’s file and for further efforts to be made to contact her, which were unsuccessful.

49 On December 3, 2010, he wrote a letter to the grievor. The letter read, in part:

…

You have been absent from the workplace without authorized leave since April 3, 2006.

We have made repeated attempts to contact you at your last known address, phone number and e-mail address. In addition, we have also tried to contact you through a Canada 411 search. On each occasion we have been unsuccessful in locating you.

It is critical that you contact me no later than close of business Friday, December 10, 2010 regarding your continued employment status…

Failure to contact me by close of business Friday, December 10, 2010 may result in a recommendation for termination of your employment with Agriculture and Agri-Food Canada.

50 He sent the letter by priority post; however, he did not receive a response to the letter. He then decided to send the letter by regular mail. In cross-examination, he acknowledged that he had never had any problems contacting the grievor and that contacting her by regular mail was always successful as she seldom went to the local post office to pick up registered mail sent by priority post.

51 On December 23, 2010, he sent another letter by regular mail that read as follows:

Subject: Unauthorized leave

You have been absent from the workplace without authorized leave since April 3, 2006. The attached letter was couriered to you on December 3rd and was not been collected by you from the post office. As a result, I am now sending this letter by regular post to your last known mailing address.

It is critical that you contact me no later than close of business Friday, December 31, 2010 regarding your continued employment status…

Failure to contact me by close of business Friday, December 31, 2010 may result in a recommendation for termination of your employment with Agriculture and Agri-Food Canada.

[Sic throughout]

52 Mr. Friesen was asked about the reference in the letter to continued employment status. He stated that it was the understanding of the department that the employee was on unauthorized leave; however, he did not understand the perspective of the employee and wanted to get this input in a timely fashion.

53 The grievor did not contact him by December 31, 2010; however, she left a phone message for him on his voicemail on January 5, 2011 in response to his letter.

54 He spoke with her by telephone the next day. He testified that he started out by asking her about the leave situation and wanted her view. He advised her that the department’s records showed that she was not on authorized leave. Her view was that there was a misunderstanding and that she was on authorized leave. He asked what type of leave and who had approved it. She said that she was on sick leave that had been approved verbally in her last meeting with management in August 2007.

55 They also talked about the grievor’s intentions and she indicated that she was ready to return to work at that time. He said that the organization had downsized and that employees who had been on long-term leave were subject to assessment.

56 He advised her that there was going to be a fact finding investigation into the status of her leave and that there could be disciplinary consequences arising from that fact finding.

57 The grievor’s recollection of the discussion was that she felt confident she would be returning to work because he had asked her to return to work. She did not believe there were any outstanding issues.

58 He asked her to report to work the following Monday, directing her to report to reception. In his view, the purpose of the request was to get more details and to discuss matters in person and to determine whether she was ready to work.

59 Subsequent to the telephone discussion, he learned that the grievor’s security clearance had expired. He telephoned the grievor and advised her that her security clearance had expired and instructed her to come back in to work on Monday for the purpose of completing her security clearance forms. He testified that it took several months to complete a security clearance. He stated that it was his intention to wait until the security clearance had been completed before pursuing the question of the grievor’s leave status during her absence. He reasoned that if her security clearance was not approved, he would not have to deal with the issue of her continued employment.

60 The grievor went to the workplace as directed, completed the security clearance forms and was sent home.

61 The grievor was asked to attend a workforce adjustment meeting at the workplace on January 26, 2011, which she did as well as two additional meetings on the same subject.

62 She also attended seminars facilitated by human resources on January 26, February 1 and February 8, 2011.

63 As the process for completing the security clearance was taking an inordinately long time, Mr. Friesen decided to proceed with his fact finding meeting. He wanted to address three concerns: the unauthorized leave, the specific instructions with respect to leave documentation and the maintaining of contact with management. He wanted to obtain the grievor’s side of the story.

64 On March 4, 2011, he sent a letter to the grievor entitled “Mandatory meeting to discuss absence without authorization”. The letter read in part as follows:

As per our phone conversation on March 4, 2011, you are hereby required to report for a meeting to discuss your unauthorized absence from the workplace, as well as your failure to comply with our instruction [sic] related to your absence and maintaining acceptable contact and communications with your employer. This is a fact-finding meeting at which you will have the opportunity to explain your actions. You must bring to this meeting any documentation which supports your explanation(s). As subsequent decisions may lead to discipline related to this matter, up to and including termination, I encourage you to be accompanied by a union representative… Should you choose not to attend the above meeting as scheduled, we shall complete our review of this matter, based on the information available, without further delay.

65 The grievor testified that she was very surprised when she was invited to a mandatory meeting to discuss her absence without authorization as she was expecting to be recalled to work upon the completion of her security clearance.

66 Mr. Friesen scheduled the meeting for March 9, 2011. Attending the meeting were the grievor, Lindsay Sparks, her union representative, Charlene Desjarlais, and Mr. Friesen.

67 Mr. Friesen testified that he wanted to have the opportunity to speak with the grievor. He confirmed that up to that point no discipline had been imposed. He asked the grievor to tell her story as of the commencement of her absence in February 2006.

68 She advised him that she had been involved in a motor vehicle accident in early 2006. She described the interactions she had had with management subsequently and indicated that she had been continuing to recuperate from the motor vehicle accident since November 2007. She had been recovering her health when she received Mr. Friesen’s letter of December 2010. She advised him that she had been startled by the letter and concerned that she would have to make arrangements for daycare.

69 Mr. Friesen discussed management’s concern that the medical note of 2007 was open-ended, with no specific time frame for her to return to work.

70  He also mentioned the department’s request that she make contact every two weeks during her absence. The grievor responded that she thought the requirement to phone the office every two weeks was harassing and that the requirement caused her considerable stress.

71 She advised him that she felt her leave was recognized and authorized by management by reason of the fact that she had received two letters during her absence, one dealing with management values and ethics and the other concerning the transfer of the Agristability Program to the provinces, referring to her being on authorized leave.

72 Mr. Friesen stated that she provided a medical note from her doctor at the time of the fact-finding meeting that said that she was now fit for work and that she had been absent during the time in question due to a motor vehicle accident. Mr. Friesen acknowledged in cross-examination that he did not question the validity of the note nor did he ask for an independent medical review. He acknowledged that the note said she was absent from 2006 until on or about the date of the interview. Mr. Friesen agreed but stated that she did not provide documentation in the period subsequent to November 16, 2007.

73 He did not make any inquiries concerning the need for a fitness to work assessment. There was no discussion of this issue.

74 Mr. Friesen stated that the meeting lasted approximately two hours. He concluded the meeting by asking if there were any further submissions, at which time he reiterated that any decision would consider representations made at the meeting.

75 The grievor testified that there was no discussion at the meeting with respect to whether she had abandoned her position. The concern of the employer expressed at the meeting was the necessity for her to validate her time off. She stated that she provided the doctor’s note covering the time from the date of the accident until the date of the meeting. She testified that Mr. Friesen did not indicate that he had any difficulty with the validity of the note.

76 Subsequently, notes of the meeting were prepared and a number of discussions took place with labour relations. From Mr. Friesen’s perspective, the primary issue was the grievor’s absence from November 16, 2007. Prior to that time, there was contact and some medical information provided, although not in the form required by the department. His concern was that following November 16, 2007, when there had been a phone message indicating that she would not be returning to work and would be getting a doctor’s note to that effect, there was no note provided or leave application submitted. He stated that he was unable to verify the grievor’s information that she had tried to contact the department on a number of occasions.

77 He decided to give the grievor the benefit of the doubt and authorize her leave up to November 16, 2007; however, he was not prepared to authorize any leave subsequent thereto. He made a recommendation to his Director General to terminate her employment on the basis that the grievor had abandoned her position as of November 16, 2007. The Director General approved his recommendation and forwarded the recommendation together with a draft letter of termination to the Assistant Deputy Minister. His Director General advised him that the recommendation was accepted.

78 Mr. Friesen was asked in cross-examination whether he advised the Director General of the medical note that was produced at the March 16 meeting. He testified that he had indicated that there was a medical note produced but that it was retroactive.

79 On March 22, 2011, the Assistant Deputy Minister wrote to the grievor as follows:

This letter is to inform you of the termination of your employment with Agriculture and Agri-food Canada (AAFC) effective the March 22, 2011. This decision to terminate your employment is made in accordance with paragraph 12(1)(e) of the Financial Administration Act, for reasons other than discipline.

On Wednesday, March 9, 2011 a fact-finding meeting was held to discuss your unauthorized absence from the workplace, as well as your failure to comply with our instructions related to your absence and maintaining acceptable contact and communications with your employer.

Although you applied for, and were granted, sick leave without pay for a period from February 20, 2006 to April 2, 2006, a further period of absence was not authorized by management. However, based on the evidence and information gathered, the employer has decided that it will authorize your absence period from April 3, 2006 to November 16, 2007 as sick leave without pay.

This being said, your absence after November 16, 2007 was not authorized. It was determined at the fact-finding meeting that you were aware of your obligation to maintain regular and direct contact with your employer; however, after November 16, 2007 you failed to maintain communication with management.

You did finally contact management on January 5, 2011 after you received the most recent letter sent by the employer on December 23, 2010 which advised that failure to report for work and to provide a satisfactory reason for your continued absence could result in the termination of your employment.

Following the fact-finding meeting with you, the employer is not satisfied that there is any reason why you failed to comply with management’s legitimate instructions to substantiate your absence during the period between November 2007 and January 2011. You raised no mitigating factors to explain your unauthorized absence or lack of communication with the employer. As a result, the employer has concluded that you had abandoned your position.

80 It was suggested in cross-examination that he had taken steps to terminate the grievor’s employment in December 2010 and that the final warning was meaningless as it did not matter what she did - whether she reported to work or not - her employment was still going to be terminated. Mr. Friesen said that was not true; he had not reached the conclusion that she had abandoned her position until after the fact‑finding meeting.

81 Ultimately, Mr. Friesen acknowledged that the grievor was on authorized leave from January 2011 until the date of her termination.

82 Mr. Friesen was asked about the letters from the department stating that she was on authorized leave. He stated that they were sent in error and that they were generic letters. He was asked whether he was advised by, or inquired of, Mr. Yusishen or the Director General, whether the letters were sent in error. He stated that he did not expect the Director General to be aware of the grievor’s leave status.

83 He acknowledged that the employer had not disciplined the grievor for her absence after November 2007 and did not issue her a record of employment. It was suggested to him that the employer had condoned her behaviour. He stated that he did something about her absence although it was three years later. He was not able to explain why it took three years to bring this file to a head. He suggested that there were quite a number of files and not enough attention was paid to this file. He did not know if there had been recommendations to terminate the grievor’s employment prior to December 2010. He emphasized that he had not reached the conclusion that she had abandoned her position until after his fact-finding investigation, as there may have been mitigating circumstances.

84 He acknowledged that after the warning given to the grievor in the letter of December 23, 2010, there was no subsequent indication that she had abandoned her position.

85 He acknowledged that he directed her to return to work on or about January 10. He suggested that her status was that of an employee of uncertain standing. Ultimately, he acknowledged that he was unable to confirm that she was not an employee subsequent to January 10, 2011.

86 The grievor testified that she never told anyone she was not returning to work and took no steps to clean off her desk, remove mementos of her family or clean out her locker. She only sought other employment after she learned she was not being allowed to return to work. She initially volunteered in some workplaces and subsequently found employment in the summer of 2011.

Arguments for the employer

87 The first question that must be addressed is whether the employer can terminate an employee by reason of abandonment, given the repeal of the express provision of the Public Service Employment Act dealing with abandonment. The employer argues that it now has authority to terminate the employment relationship under such circumstances pursuant to the provisions of the Financial Administration Act.

88 In the alternative, the employer argues that under common law, it has authority to terminate employment by reason of abandonment.

89 Section 27 of the Public Service Employment Act provided as follows:

An employee who is absent from duty for a period of one week or more, otherwise than for reasons over which, in the opinion of the deputy head, the employee has no control or otherwise than as authorized or provided for by or under the authority of an Act of Parliament, may by an appropriate instrument in writing to the Commission be declared by the deputy head to have abandoned the position occupied by the employee, and thereupon the employee ceases to be an employee.

90 Section 18 of the Public Service Reform Act, (PSRA) assented to on December 17, 1992, repealed section 27 of the Public Service Employment Act.

91 Section 81 of the PSRA repealed paragraph 11(2)(f) of the Financial Administration Act and substituted paragraphs (f) and (g). Paragraph (f) empowered the Treasury Board to establish standards of discipline in the public service and (g) empowered the Treasury Board to provide for the termination of employment for reasons other than discipline.

92  Paragraphs (f) and (g) read as follows:

6. establish standards of discipline in the public service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct, and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part; and
7. provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;

93 Section 81 of the Act provided as follows:

81. Disciplinary action against, and termination of employment or demotion of, any person pursuant to paragraph 2(f) or (g) shall be for cause.

94 Section 68 of the PSRA amended subsection 92(1) of the PSSRA, the predecessor of the PSLRA, dealing with matters that could be referred to adjudication as follows:

92(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty.

95 The combination of these amendments provides authority to terminate employees for non-disciplinary reasons and provides recourse to adjudication for terminated employees. Termination must be for cause.

96 The effect of the repeal of section 27 of the Public Service Employment Act was to remove the authority for termination for abandonment from that act and to place it under the Financial Administration Act. The employer argued that its submission was supported by the compilation of suggested amendments to Bill C-26 prepared by the Library of Parliament Research Branch for the House of Commons legislative committee and dealing with the Public Service Reform Act, which document it entered into evidence.

97 That document indicates that the committee was considering either an amendment to the then existing section 27 of the Public Service Employment Act whereby the necessity of having the deputy head write to the Public Service Commission to advise of an abandonment would be eliminated or, alternatively, section 27 would be deleted.

98 The deletion of section 27 did effectively remove the requirement for the deputy head to notify the Public Service Commission of abandonment and left the decision‑making power solely in the hands of the deputy head. Since the Public Service Reform Act amended the Financial Administration Act to empower the deputy head to terminate employment for non-disciplinary reasons, it was no longer necessary to maintain section 27 in the statute. Authority for terminating employment by reason of abandonment was moved from the Public Service Employment Act to the Financial Administration Act and provided recourse to the employee.

99 Alternatively, the employer argued that the deputy head’s authority to terminate employment by reason of abandonment still exists in common law. In Dunsmuir v. New Brunswick, [2008] 1 S.C.R 190, the Supreme Court of Canada recognized at paragraphs 95, 96 and 97 that most public employees are employed on a contractual basis. Common law therefore still applies unless overridden by contract or by statute. Under common law, employees had the responsibility of presenting themselves for work and failure to do so in a timely fashion constituted a without authorization breach of the employee’s implied common-law duty. Under common law, employers were justified in dismissing employees because they were absent from work. See Lucking v. Thomas, [1919] S.J. No. 104.

100 Assuming that the employer has authority to terminate the employment relationship by reason of abandonment, then what is the standard for an adjudicator to review that decision? The employer argued that the test is one of reasonableness, that is, did the deputy head form the opinion that the employee had abandoned her position in a reasonable manner? This test is supported by analogy to section 230 of the Public Service Labour Relations Act.

101 Section 230 of the Public Service Labor Relations Act provides as follows:

230. In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator to have been reasonable.

102 In Raymond v. Treasury Board, 2010 PSLRB 23, the grievor had been demoted from a position at the EX-01 level to a position at the AS-06 level due to her unsatisfactory work performance. Relying upon section 230, the adjudicator concluded that “an adjudicator seized of a grievance against a termination or demotion for unsatisfactory performance must answer the following question: Was it reasonable, based on the evidence, for the deputy head to deem the performance of the employee in question unsatisfactory?”

103 Counsel for the employer submits by way of analogy that the reasonableness test should be applied in determining whether the deputy head’s decision to terminate an employee by reason of abandonment is for cause. Did the deputy head form the opinion that the employee abandoned his/her position in a reasonable manner? In the circumstances of this case, did Mr. Yusishen reasonably form his opinion that the grievor had abandoned her position? Similarly, was Mr. Friesen’s opinion reasonable?

104 In the private sector, when an employee is deemed to have abandoned his/her position, the test to be applied is an objective one: “namely, whether, viewing the circumstances objectively, would a reasonable person have understood from the employee’s words and actions that he or she had abandoned the contract”…Pereira v. Business Depot Ltd.,2011 BCCA 361 at page 14. In the federal public sector the test by analogy to the provisions of the Financial Administration Act is based on whether the deputy head’s opinion that an employee abandoned his/her position is reasonable.

105 The facts are straightforward. The grievor was absent from the workplace for an extended period of time. The last contact with the employee was in November 2007, when she left a message saying she would be getting a medical note. Thereafter, the employer did not receive anything from her, nor did she attempt to maintain contact with the employer, until she responded to Mr. Friesen’s letter early in January 2011.

106 It was Mr. Friesen’s view that he had to conduct a fact-finding investigation into the grievor’s absence. A presumption of abandonment can be rebutted by an employee. The employer took the position that, based on the information provided in the fact‑finding meeting in March 2011, the grievor was able to justify a certain period of her absence but could provide no reasonable explanation for her absence from November 2007 onward. Accordingly, Mr. Friesen was not prepared to authorize her leave from November 2007 until December 2010.

107 It was not reasonable for the grievor to rely upon the two pieces of correspondence that the employer sent her in 2009 as representative that her absence had been authorized; she was also well aware of her obligations to the employer.

108 The facts are what they are. The submission of the doctor’s note at the fact‑finding meeting brings to mind the decision in Pachowski, [2000] F.C.J. No. 1679.

Submissions of the Grievor

109 The majority of the evidence introduced by the employer with respect to the events that occurred prior to November 2007 is not relevant. It is prejudicial and has no probative value as the employer authorized her leave up to that date.

110 There was no discipline on her file nor were there any warnings that her employment was in jeopardy until the letter of December 13, 2010, when she was warned that failure to contact the employer may result in a recommendation for termination of her employment with the Department of Agriculture and Agri-Food. She did in fact contact the employer in a timely manner and returned to work in January 2011 to renew her security clearance. She was sent home until the security clearance was approved.

111 She acknowledged that the medical note that she provided in August 2007 was open-ended; however, the employer knew she was sick. She was aware of the employer’s concerns; however, the employer took no action against her, by way of discipline or by way of notification that her employment was in jeopardy, until December 2010. The employer was fully aware of all of the relevant facts as of November 2007 and decided to do nothing with respect to the grievor’s employment situation. Mr. Yusishen was going to discipline her; however, he chose not to. He signed a letter stating that she was on approved leave after having raised her leave status to his supervisor, who directed him to send the letter as originally drafted.

112 The absence of the grievor from November 2007 until December 2010 was not onerous, nor did it create a burden for the employer, as the grievor was on leave without pay.

113 In December 2010, Mr. Friesen sent a warning letter to the grievor telling her to return or be fired. She returned. There was no suggestion that she had abandoned her position. At the March 11 fact-finding meeting, she provided a doctor’s note. It was never suggested that there were any issues with respect to the doctor’s note. There was no question or suggestion that the grievor had abandoned or quit her job. There was no opportunity provided to her to address issues of alleged abandonment.

114 The employer states that it should be allowed to presume that she abandoned her position as of November 2007. The letters sent to her by the employer in 2009 stated that she was on authorized leave. She returned to work in January 2011 and remained on authorized leave until her employment was terminated on March 22, 2011.

115 There is no provision or authority, either in the legislation or in the collective agreement, for the employer to terminate employment by reason of deemed abandonment. The employer does have the right to terminate employment for non‑disciplinary reasons. However, the employer cannot make up the rules retroactively.

116 There is no evidence that the grievor resigned from her position which is the private sector test for a deemed resignation or quit. There is no subjective evidence of an intention to resign nor objective behavior confirming a resignation.

117 Whatever common law rights and privileges the employer may have had with respect to the contract of employment, once there is a collective agreement in place, it is the agreement that establishes the terms and conditions of employment for all employees in the bargaining unit.

118 The standard of review for a deputy head’s decision to terminate an employee by reason of abandonment, assuming such a right exists, is correctness.

119 However, before applying the test of correctness, the employer must warn the employee that her position is in jeopardy by reason of alleged abandonment. Nothing gives the deputy head the right to terminate employment without cause.

120 She was given a warning. She was told to come back to work or else. She did return to work. There are no facts subsequent to her return to work that indicate any intent to resign. Management has a duty to act fairly. In March 2011, without any warning that it was considering that she had abandoned her position, management deemed her to have abandoned her position over three years earlier.

Issues

121  Does the deletion of the express statutory authority of the deputy head to deem an employee to have abandoned his/her position preclude the employer from terminating employment on this ground? Assuming the answer is yes, does the employer possess the common law ability to terminate for abandonment?

122 Assuming the answer to the first question is no, and that the deputy head is empowered to terminate  employment by reason of abandonment under the provisions of the Financial Administration Act for non-disciplinary reasons, what are the substantive elements of abandonment in the absence of a statutory or contractual definition?

123 What is the standard of review by an adjudicator for the deputy head’s decision to terminate employment for non-disciplinary reasons other than unsatisfactory performance?

124 Did the employer, in its conduct and in the time it took to terminate the grievor’s employment by reason of abandonment, condone her conduct and/or waive its authority to terminate her employment?

Analysis

125 Does the deletion of the express statutory authority to deem an employee to have abandoned his/her position preclude the employer from terminating employment on this ground?

126 As noted in the employer’s argument, the Public Service Reform Act, 1992 repealed section 27 of the Public Service Employment Act that expressly authorized the deputy head to declare that an employee had abandoned his or her position on the grounds set out in the section, as a consequence of which the employee ceased to be an employee.

127 However, the employer argues that it maintains the authority to terminate the employment relationship for reasons of abandonment under the provisions of the Financial Administration Act which was amended by the Public Service Reform Act to empower the Treasury Board to provide for the termination of employment for reasons other than discipline. It submits that the authority for termination by reason of abandonment was repealed from the Public Service Employment Act and re-enacted in the Financial Administration Act and at the same time provided recourse to the affected employee.

128  This interpretation is supported by the compilation of suggested amendments to Bill C-26 prepared for the House of Commons legislative committee by the Library of Parliament Research Branch, which indicates that parliamentary intent was to remove the requirement for the deputy head to notify the Public Service Commission of an abandonment and leave the decision-making power solely in the deputy head’s hands.

129 The grievor argues that given the repeal of the express authority of the deputy head to terminate employment by reason of abandonment, there is no provision or authority, either under the relevant legislation or in the collective agreement, for the employer to terminate employment by reason of abandonment and consequently, the employer cannot rely upon a deemed quit or deemed resignation. If it wishes to rely upon an actual resignation, it must present proof that the grievor formed and communicated that intention. The rule of thumb is well established in the unionized private sector that the act of quitting a job has a subjective as well as an objective element. An employee who wishes to leave the employ of a company must first resolve to do so and then must do something to carry his or her resolution into effect. That something may consist of notice or it may consist of conduct, such as taking another job, which is inconsistent with remaining in the employ of the company. The grievor supported her contention by referring to the 1949 decision in U.E. Local 512 v. Anchor Cap and Closure Corp. of Canada Ltd., 1 L.A.C. 222 at 223.

130 I conclude that even though the express authority of the deputy head to terminate employment by reason of abandonment was repealed by the Public Service Reform Act of 1992, the provisions of the same statute expressly empowering the deputy head to terminate employment for non-disciplinary reasons include in that broad authority the power to terminate employment by reason of abandonment.

131 I consider that the compilation of suggested amendments to Bill C-26 prepared by the Library of Parliament Research Branch for the House of Commons legislative committee indicates that the purpose of repealing section 27 of the Public Service Employment Act was to remove the requirement for the deputy head to notify the Public Service Commission of an abandonment, leaving the decision-making power solely in the deputy head’s hands. I find that this document is of assistance in determining the legislative purpose of the amendments. See R. Sullivan, Construction of Statutes, 5th Ed. 2008 at page 272.

132 What are the substantive elements of abandonment in the absence of a statutory or contractual definition?

133 Paragraph 12(1)(e) of the Financial Administration Act empowers the deputy head to provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service for reasons other than breaches of discipline or misconduct.

134  The term abandonment has not been statutorily defined, as was the case of the repealed provision in the Public Service Employment Act, nor has the term been defined in the collective agreement between the parties. The Treasury Board has issued guidelines for: termination or demotion for unsatisfactory performance; termination or demotion for reasons other than breaches of discipline or misconduct; and termination of employment during probation. The guidelines expressly deal with unsatisfactory job performance, situations of medical incapacity and terminations during the probationary period. There are no guidelines with respect to terminations for abandonment of position.

135 The repealed provision set out certain conditions that had to be met before an employee’s employment could be terminated: namely, the employee must have been absent from duty for a period of one week or more otherwise than for reasons over which, in the opinion of the deputy head, the employee had no control or otherwise than as authorized or provided for by or under the authority of an Act of Parliament.

136 A number of collective agreements between employers and other bargaining agents in the federal sector contain provisions dealing with abandonment. Invariably, these clauses include certain prerequisites, such as absence from work without valid reasons for varying periods of time, without notice to the employer.

137 In Lindsay v. Canada Border Services Agency, 2009 PSLRB 62, the adjudicator dealt with a grievance involving a termination for abandonment. In May 2000, the grievor left work. She sought a leave of absence to pursue a post-secondary education and to withdraw from the atmosphere in the workplace. The employer refused to grant a paid leave of absence but agreed to an unpaid leave or other assignment. The grievor continued to seek paid leave, despite being informed that it was not available. She enrolled in a four-year university-program. The employer wrote to the grievor advising her that her employment would be terminated if she did not return to work. Despite being expressly warned that that her employment was in jeopardy, the grievor did not return to work. In December 2001, the employer terminated her employment.

138 The adjudicator concluded that the grievor did, in fact, abandon her position. He stated at paragraph 93:

[93] An employer is fully entitled to expect an employee to show up for work. That is an intrinsic part of the employment relationship and contract. The employee needs advance authorization to be absent from work. Such authorization is given according to the rules set out in the collective agreement. The only exceptions to that basic logic would be situations in which an employee cannot for compelling reasons, contact the employer to obtain leave authorization. That is not the case here. Consequently, the employer had the right to terminate the grievor’s employment for an administrative reason namely that the employee was not available for work.

139 The adjudicator expanded on his reasoning at paragraph 97:

[97] It is not necessary for the employer to prove that the grievor wanted to abandon her position to conclude that she had abandoned her position. An employer can conclude that an employee has abandoned his or her position when he or she has been absent from work without authorization under circumstances within the employee’s control…

140 I conclude therefore, based on jurisprudence, that even in the absence of an express definition of abandonment in the legislation, the employer’s  guidelines or the collective agreement, an employee may still be deemed to have abandoned his or her position in circumstances where the employee has been absent from work for a significant period of time without authorization and without valid reasons, under circumstances within the employee’s control, and without notice to the employer, unless the employee shows that he/she was unable to notify the employer because of exceptional circumstances.

141 What is the standard of review by an adjudicator for the deputy head’s decision to terminate employment for non-disciplinary reasons other than unsatisfactory performance?

142 By way of analogy to the provisions of section 230 of the Public Service Labour Relations Act, which provide that, in making a decision in respect of individual grievances relating to termination or demotion for unsatisfactory performance, the adjudicator must determine the action to have been for cause if the opinion of the deputy head is determined by the adjudicator to have been reasonable, the employer submits that the reasonableness test should be applied in determining whether the deputy head’s decision to terminate employment by reason of abandonment is for cause.

143 Subsection 12(1) of the Financial Administration Act provides as follows:

12(1) Subject to paragraphs 11.1(1)(f) and (g) every Deputy Head in the core public administration may, with respect to the portion for which he or she is Deputy Head,

…

(d) provide for the termination of employment, or demotion to a position at a lower maximum rate of pay, of persons employed in the public service whose performance, in the opinion of the Deputy Head, is unsatisfactory;

(e) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service for reasons other than breaches of discipline or misconduct;

…

144 Parliament has expressly provided that adjudicators must determine whether terminations or demotions for unsatisfactory performance have been for cause if the opinion of the deputy head is determined by the adjudicator to have been reasonable. Deputy heads exercise this authority under paragraph 12(1)(d) cited above.

145 Paragraph 12(1)(e) is the authority by which the deputy head exercises his or her authority to terminate employment for reasons other than breaches of discipline or misconduct, which I have found to include abandonment. There is no express provision in the Public Service Labor Relations Act that mandates an adjudicator to determine that a termination by reason of abandonment is for cause if the opinion of the deputy head is determined to have been reasonable.

146 Nonetheless, a review of the jurisprudence on the issue of abandonment supports the employer’s contention that its decision should be reviewed on a standard of reasonableness. The employer’s decision is reasonable if, in viewing the factual situation at hand, it decides that the employee’s conduct, viewed objectively, supports a conclusion of abandonment.  In Perieira v. Business Depot Ltd., a wrongful dismissal case involving an employee whose employment was terminated on March 22, 2011 based on the conclusion of his employer that he allegedly abandoned employment; the British Columbia Court of Appeal described the test for determining whether an employee had abandoned their position. The Court reasoned that the words and actions of an employee should be reviewed objectively to determine whether the employee abandoned the employment contract.

147 In addition to determining the reasonableness of the employer’s conclusion, certain issues must be considered. Is there an obligation on the employer’s part to act fairly and in good faith in terminating an employee for non‑disciplinary reasons? In particular, do the principles of notice, waiver and condonation apply? If the answer is yes, has the employer condoned the grievors conduct and/or waived its authority to terminate employment?

148 In Lindsay v. Canada Border Services Agency, adjudicator Paquet determined that there is an obligation for the employer to act fairly and in good faith in terminating an employee for non-disciplinary reasons. See also Nicholson v. Haldimand Regional Board of Police Commissioners (1978), 88 D.L.R. (3d) 671.

149 In York Finch General Hospital v. O.P.S.E.U., Local 565 (1980), 27 L.A.C (2d) 142 arbitrator Adams was dealing with a situation involving a deemed termination provision and determining whether there was an obligation on the employer’s part to provide notice of the deemed termination provision to the employee. Arbitrator Adams stated at pages 151-152:

Having regard to the severe impact of the provision, it would seem reasonable to conclude that the parties did not intend the article to be applied in an arbitrary or unreasonable manner. We find that failure to provide the grievor with notice of his predicament to be [sic] arbitrary and unreasonable in the circumstances.

150  In Sure-Way Transport Ltd. v. Canadian Union of Heavy Haulers and Maintenance Workers (1994), 45 L.A.C (4^th)193, arbitrator Brent dealt with the issue of waiver. In that case, the grievor, a truck driver, was experiencing seizures, as a consequence of which his driver’s license was suspended. He informed the company that his license would likely be suspended for one year. In July 1992, the grievor was advised by the Ministry of Transportation that his license was being returned to him. The grievor contacted his employer about returning to work and was advised that he was no longer an employee and had been deemed to have been terminated in December 1991.

151 Arbitrator Brent reasoned as follow at page 204:

The company also knew that it had certain rights under article 4.11 which crystallized on or about December 14, 1991. It is our finding that it failed to exercise those rights at that time, and did not intend to exercise them until the end of July, 1992, when the grievor’s prospective return to work became a reality rather than a hope. In our view, the time lapse is unreasonable and would serve to lull the grievor into believing that a driving job was waiting for him once he was able to regain his license.

In our view, given the drastic consequences of article 4.11 it would be unreasonable to allow an employer such a long time to decide whether or not it would exercise its rights under the clause. The failure to exercise the right in a timely fashion is in our view tantamount to continuing to treat someone as an employee in a manner which is inconsistent with employment termination. We therefore find that the company did not exercise its right to terminate the grievor’s employment in a timely fashion, that it continued to treat him as an employee on leave, and that it would be an unreasonable interpretation of the collective agreement if in these circumstances the company were allowed to exercise its rights under article 4.11 some six or seven months after it knew that those rights had crystallized… We therefore find in these circumstances that the company has indeed waived its rights to rely on article 4.11, and that the grievor’s employment was never terminated under that provision.

152 In Horizon Poultry Inc. v. Schneider Employees’ Association (1993), 34 L.A.C. (4^th) 7, arbitrator Brent, in dealing with a case of a deemed resignation, stated at page 12:

The company’s right to regard something as a deemed resignation can be waived, and that once it has embarked upon a course of action which is inconsistent with that right it should be taken to have waived that right…

153 I conclude, on the basis of arbitral jurisprudence, that there is an obligation on the employer to act fairly and in good faith in terminating an employee for non‑disciplinary reasons and that, when appropriate, the principles of notice, waiver and condemnation may apply.

154 I will examine the grievor’s actions in the period immediately preceding November 6, 2007, and up to the date of her termination since the employer has agreed that her absence to that point had been authorized. 

155 In August 2007, there was a meeting between management and the grievor in which she advised that she thought she would be ready to return to work in September. She was provided with fitness to work assessment forms to be completed by her physician. At that meeting, she provided a medical certificate dated April 4, 2007, indicating the start date of her absence as March 29, 2006 and also indicating that she was not fit to return to work at that time. The medical certificate did not contain an end date because the grievor was not sure when she would be able to return to work at full capacity. Management stated that it was agreed that the fitness to work forms would be completed by September 15, 2007. Therefore, in the fall of 2007, the employer could only be of the opinion that the grievor intended to return to work. While the employer may have been unhappy with the manner in which the grievor had comported herself during her absence, it could not be under any illusion that the grievor had abandoned her position or that the employer could have reasonably concluded that she had done so.

156 In September 2007, the grievor advised the employer that she would have to reschedule her proposed return to work because she was not able to see her doctor. Still, the clear indication to the employer on the part of the grievor was that it was her intention to resume her position as soon as she obtained medical clearance, which she also indicated was imminent.

157 On October 26, 2007, Mr. Yusishen wrote to the grievor referring to the agreement that was reached in the August meeting and the requirement for her to provide fitness to work assessments, up-to-date leave forms and supporting doctors’ notes. The letter concluded in part as follows: ”This is my final direction to you. You are to report to me with a completed fitness to work assessment by November 5, 2007 at 10 a.m. Failure to comply will result in the recommendation of termination for cause.” While the employer may have had cause to reproach the grievor’s failure to abide by what it felt had been agreed to, and may perhaps have had cause to take action against her for it, the facts do not support an indication that the employee had abandoned her position.

158 On November 16, 2007, the grievor left a message for management saying that she would be getting a medical note on November 23. At this point, the employer had a very clear indication that the grievor was still pursuing a return to work, leaving the employer without any reasonable basis on which to conclude that she had abandoned her position. However, the grievor once again failed to follow through on obtaining the medical note she had indicated that she would obtain and, not having heard from her, the employer, in January 2008, recommended to the Director General that her employment be terminated. The Director General, however, did not act upon or follow through with this recommendation. Mr. Yusishen apparently was not given any explanation as to why his recommendation was not accepted. Ms. Zallack, who had been mandated to prepare the termination documentation, did not work on the file after April 2008 as she moved to a different area of responsibility. The grievor’s file appears to have languished for a little over a year.

159 The employer’s next contact with the grievor appears to have occurred in February 2009, when, under the direction of his Director General, Mr. Yusishen wrote to the grievor with respect to the obligation of public servants to comply with the Values and Ethics Code for Public Servants; that letter expressly stated that the grievor was on approved leave without pay.

160 A subsequent letter from the Director General in June 2009, pertaining to the transfer of the Agristability Program, again confirmed to the grievor that she was on long‑term leave.

161 The employer states that I should ignore the reference in these letters to the grievor’s status as an employee on authorized leave. While I agree that these letters are not determinative of her status, I am unable to ignore them in the sense that I find that they support the grievor’s contention that as far as she was aware, she was authorized to be on leave and maintained her employee status.  The letters confirmed for her that there was no issue concerning her status or leave and no reason to contact the employer. This changed however in the fall of 2010, after Mr. Friesen took over the responsibility of Acting Director, at which point the grievor’s human resources file was brought to his attention.

162 On December 23, 2010, Mr. Friesen wrote to the grievor advising her that she had been absent from the workplace without authorized leave since April 2006. The letter stated that it was critical that she contact him no later than close of business Friday, December 31, 2010 regarding her continued employment status. The letter expressly stated: “…Failure to contact me by close of business Friday December 31, 2010 may result in a recommendation for termination of your employment with Agriculture and Agri-Food Canada.”

163 Once again, the employer allowed a deadline to pass. The grievor contacted Mr. Friesen only on January 5, 2011. They spoke the next day, at which time she advised him that she was ready to return to work. He asked her to report to work the following Monday. She showed up at the workplace as directed for the purpose of renewing her security clearance. She was directed to return home until her security clearance had been renewed. Her actions on that day clearly indicate an intention on her part to return to work and are clearly inconsistent with any conclusion that she had abandoned her position.

164 Mr. Friesen stated that since it took several months to renew a security clearance, it was his intention to wait to see if her security clearance would be approved, rationalizing that if it was not approved, he would not have to deal with her employment status. Mr. Friesen acknowledged that she was still an employee during this period.

165 The grievor went to the workplace in the winter of 2011 to attend various meetings on workforce adjustment and other seminars facilitated by Human Resources, a further indication on her part that she had not abandoned her position.

166 Three months later, the employer changed its mind and instead of waiting for the outcome of the security clearance, Mr. Friesen wrote to the grievor in March, requesting that she report for a mandatory meeting to discuss her unauthorized absence from the workplace as well as her failure to comply with the employer’s instructions to maintain acceptable communications. The letter read in part: “… As subsequent decisions may lead to discipline related to this matter, up to and including termination, I encourage you to be accompanied by a union representative…”

167 The grievor testified that she was very surprised to receive this letter as her expectation was that the next call from the employer would be one indicating that her security clearance had been obtained and recalling her to the office. She attended the meeting, as requested, further laying to rest any indication that she had abandoned her position. At the meeting of March 9, 2011, Mr. Friesen raised the issues of the open‑ended medical note of 2007 and the request that she make contact every two weeks during her absence. The grievor produced a new medical note stating that she had been absent during the period up to the meeting due to a motor vehicle accident. Mr. Friesen did not question the validity of the note. There was no discussion of the need for work assessment nor was there any notice or discussion of whether she had abandoned her position.

168 Following the meeting, the employer considered its position and it then sent the grievor the letter of termination. Based on the above outline of the facts, I find that there was no reasonable basis on which the employer could conclude that the grievor had abandoned her position. The grievor’s compliance with documentation was less than stellar but her actions clearly indicate an intention on her part to continue the employment relationship. She spoke on several occasions of obtaining a medical certificate clearing her for a return to work, she attended meetings when requested and complied with the employer’s request for her to complete the paperwork required to obtain reinstatement of her security clearance. The facts indicate that the grievor was under the clear impression that she was only awaiting her security clearance, and she would then at that point resume her duties. The employer’s actions also support such a conclusion. Requesting that the grievor attend work meetings to update her knowledge and obtain her security clearance is an indication of an ongoing relationship with an employee who intends to return to work in the near future and is not indicative of a belief on its part that she had abandoned her position.

169 The letter of termination refers to a number of facts upon which the employer based its conclusion that the grievor had abandoned her position. Those factors were her unauthorized leave and her failure to maintain regular contact. With respect to the issue of her unauthorized leave subsequent to November 2007, and as I have already stated, the evidence supports the conclusion that she reasonably believed that she was on authorized leave, given the correspondence from the employer in 2009 that confirmed her status. The evidence further supports the conclusion that the employer was aware of her belief and of the reasons for that belief, which reasons she reiterated to the employer during the last meeting that she had with them on March 9, 2011. While the employer might have had concerns about the grievor’s compliance with its requests, it could not be under any illusion regarding her intention to continue in its employ.

170 The grievor’s employment was terminated on March 22, 2011 based on the conclusion of the deputy head that she had abandoned her position. Mr. Friesen, the Acting Director of the branch, recommended that her employment be terminated on the basis that she had abandoned her position as of November 16, 2007.

171 In the period immediately subsequent to November 2007, the employer was well within its rights to be concerned about the manner in which the grievor was interacting with them. She clearly did not uphold her obligation to keep them advised of her medical condition and how to reach her. This conduct may have constituted cause for the imposition of discipline, but for whatever reason the employer chose not to act on it at that time.

172 The fact that she was unable to advise the employer exactly when she would be able to return to work may have formed the basis for a decision to terminate her employment for reasons of medical incapacity because there appeared to be, at that time, little or no reasonable prospect of a return to work within a foreseeable future. Again however, the employer did not act at the appropriate time.

173 As discussed, an employee may be deemed to have abandoned his or her position in circumstances where the employee has been absent from work for a significant period of time without authorization and without valid reasons under circumstances within the employee’s control. Although the grievor was absent from the workplace for an extended period of time after November 2007, the evidence reveals that not only did she have a valid reason for her absence, but that the employer accepted it. It was aware that she had been in a car accident, it was aware that she was unable to work for a long period of time and did not, even in the final meeting of March 2011, question the truthfulness of her stated medical situation. Indeed, it appears that management’s central issue with the grievor concerned the documentation of her situation rather than its veracity as it authorized her leave from March 2006 until November 2007.

174 The reason for which the employer rejected the medical certificate for the period following November 2007 is not clear but appears to be based on the fact that it was “retroactive”. The employer did not, in argument, indicate why it was that the medical note was defective in any way and did not explain its refusal to accept if for the period following November 2007.

175 The facts that might support the contention that the grievor abandoned her position occurred in the timeframe immediately following November 2007. However, management did not deem the grievor to have abandoned her position until it was too late for it to do so. To the contrary, through its actions, management knowingly treated the employment relationship as continuing right up until her termination in March 2011. The Director General at the material time elected not to act upon the recommendation to terminate the grievor’s employment and knowingly directed Mr. Yusishen to confirm to the grievor that she was on an authorized leave of absence. The Director General confirmed her employment status in correspondence as well.

176 The letter of December 23, 2010 unequivocally treated her as an employee and advised her that failure to contact the employer could result in a recommendation for termination. She did, in fact, contact the employer and advised that she was ready to return to work. She went to the workplace for the purpose of renewing her security clearance and attended a number of meetings in the workplace. Management regarded her as an employee during this timeframe and directed her to attend a mandatory meeting in March to discuss her absence, and stated that she was encouraged to be accompanied by a union representative as subsequent decisions could lead to discipline up to and including termination. In sum, the evidence does not support the conclusion that the grievor was on unauthorized leave from November 2007 until March 2011.

177 I conclude, therefore, after an objective review of the facts, that the employer has not established that it had a reasonable basis upon which to conclude that the grievor had abandoned her position. I also conclude that the employer’s actions in continuing to treat the grievor as an employee from November 2007 through to March 2011 are inconsistent with the exercise of its right to deem an employee to have abandoned their position. Therefore, in addition to deciding that the employer’s conclusion that the grievor had abandoned her position was unreasonable, I also conclude that the employer has waived that right in accordance with the cited jurisprudence.

178 The letter that directed the grievor to attend the mandatory meeting in March 2011 did not give her notice that she might be deemed to have abandoned her position but rather notified her that the employer wished to discuss her unauthorized absence and her failure to maintain acceptable communications, which could lead to discipline up to and including termination. Further, there was no warning at the meeting of March 11 that her employment might be terminated because she had abandoned her position. She was not provided with any opportunity to provide input on that issue. I conclude that the failure to provide the grievor with notice that she may be deemed to have abandoned her position was arbitrary and unreasonable in the circumstances.

179 I would be remiss if I did not express a certain amount of sympathy for Mr. Friesen, who attempted to manage a difficult human resources file that he inherited, which appears to have been unattended to in a timely manner over a lengthy period of time. His ability to manage that file was hampered by the actions or inactions of his predecessors, to which the employer is bound.

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

Order

181 For all of the foregoing reasons, I allow the grievance and direct that the matter of remedy be remitted to the parties to be addressed within 60 days.

182 I remain seized to deal with the remedy should the parties prove unable to resolve the matter to their satisfaction.

March 21, 2013.

David Olsen,
adjudicator