FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Maria Okrent ("the grievor") was working for the Department of Public Works and Government Services (PWGSC or "the employer") as a senior financial analyst in its Toronto regional office. On February 18, 2010, the employer terminated her employment. On March 29, 2010, she filed a grievance against the employer's decision to terminate her employment for cause. The employer replied to the grievance at the final level of the grievance procedure on November 25, 2010, and the grievance was referred to adjudication on January 10, 2011. The employer did not raise any timeliness issues. On the notice of the reference to adjudication, the grievor indicated that her union was no longer representing her.

2 The termination letter dated February 18, 2010 was signed by Alex Lakroni, Acting Chief Financial Officer for the employer. It reads as follows:

…

The department has corresponded with you on numerous occasions since October 2008 with regards to your absence from the workplace. The purpose of those communications was to establish your leave status and to ensure that you had all the required information surrounding your leave options. As well, information was provided to you, to ensure that you were well aware of your rights under the Treasury Board Policy on the Prevention and Resolution of Harassment in the Workplace, as you had corresponded with the department on this subject.

You have been absent from the workplace since September 3, 2008, and to date, we have not received the requested information about your leave status. In spite of our numerous attempts to get this information, you have continuously failed to provide the requested documentation with regards to your intentions concerning your employment. I also note that the department has received no information regarding your alleged harassment complaint.

This matter has been ongoing for well over a year now. The latest correspondence with you in September an [Sic] October 2009 warned you that a failure to respond would lead to a termination recommendation. I conclude that there is no indication on your part of any willingness to resolve this matter, which leaves the department with no other option but to proceed with a separation of employment.

Therefore, under my authority pursuant to Section 12 (1) (e) of the Financial Administration Act, I hereby terminate your employment with Public Works and Government Service Canada, for cause. Your last day of employment with the Federal Public Service will be at the date of this letter, at the close of business.

Should you disagree with this decision you may file a grievance in accordance with your collective agreement, within twenty-five (25) working days of receipt of this letter.

…

3 In the "details of the grievance" section, the grievor wrote that she was grieving the termination letter dated February 18, 2010. In the requested corrective action section of her grievance, she wrote the following:

That I be reinstated retroactive to February 18, 2010 and be made whole from that date.

• copy of human resource file indicating disruptions and reviews
• an apology
• back pay
• reinstatement of all pay retroactively at appropriate level
• copy of job description and all revised versions from the time I started FI-02 position
• career opportunity denied due to supposed disruptions due to sick leave
• monetary compensation for pain, suffering, loss of opportunity, various leave, etc.
• personal leave with pay because some things are not remedied with money
• evaluation criteria for course reimbursement
• reinstatement of all sick leave that was put into system, unnecessarily – i.e. not a requirement by myself or colleages but I insisted since I wanted to ensure that each and every absence was accounted for given the non-existant ("disrespectful" etc.) relationship

[Sic throughout]

II. The process

4 The hearing of the grievance had been scheduled for September 20 to 23, 2011 in Toronto. In late August 2011, the grievor called the Registry of the Public Service Labour Relations Board ("the Board") several times to enquire about such issues as witness summonses and compensation, privacy concerns, and a press ban. In light of the documents that I had in the file at the time, at my request, the Board's registry wrote to the parties to obtain their availability for a preparatory telephone conference to discuss the management of the hearing and the order of proceedings. The grievor indicated that she would not participate in such a conference. Considering the circumstances of this case and the fact that the grievor was self-represented, I felt that such a conference was necessary for an efficient hearing. Furthermore, it was very difficult to directly communicate with the grievor. She would not answer her phone most of the time, she did not provide an email address or a fax number, she informed the Board that she could not pick up her registered mail, and she called the Board's office outside working hours and left many messages, many of them containing information entirely unrelated to the proceedings.

5 On October 3, 2011, the Board tentatively rescheduled the grievance hearing for April 24 to 27, 2012 in Toronto. Shortly after that, the employer indicated that it was not available on those dates. On November 8, 2011, the Board's registry wrote to the parties to ask them to provide their availability for May and June 2012. Following that consultation, the hearing was scheduled for June 26 to 29, 2012. A telephone pre-hearing conference was held on March 2, 2012. Much discussion ensued during that conference and during the weeks immediately preceding the hearing about the disclosure of information to the grievor by the employer and the issuing of summonses to witnesses. On May 24, 2012, the Board's registry wrote the following letter to the grievor:

This is a brief reminder of our recent exchanges of correspondence with you regarding disclosure of documents and summonses to be sent to witnesses for your upcoming grievance hearing, and also a response to your May 10, 2012 letter to us.

Background

On March 2, 2012, the adjudicator held a pre-hearing teleconference with the parties in order to discuss several issues in preparation for the upcoming hearing of your grievance. The same day, a letter was sent to you reminding you of the procedure to follow regarding the disclosure of documents and the issuing of summonses to potential witnesses.

In that letter, you were asked to provide to us by March 19, 2012 a detailed list of all the documents that you wanted the employer to disclose, including where feasible the title of the documents, the authors, the dates or period of time when the document was produced. You were also asked to explain in detail why the requested documents were relevant to your grievance. The adjudicator informed you that he would not issue any disclosing order for documents for which he did not have this information.

In that same letter, you were asked to provide to us by May 4, 2012 a list of the witnesses that you wanted to call at the hearing, including their title, so they can be more easily located. You had to explain in detail why their testimony was necessary to your grievance. The adjudicator informed you that he would not issue any summonses for witnesses for which he did not have this information.

On March 20, 2012, you responded to our March 2, 2012, letter. The adjudicator reviewed your disclosure request and the respondent's reply to your request. He informed you on April 16, 2012 that he found the respondent's position adequate and reasonable. The adjudicator then asked you to explain what you were requesting before he could decide what needed to be disclosed. You were asked to provide that information by April 30, 2012.

On April 24 and 26, 2012, you provided several pages of handwritten notes related to the disclosure of documents. On May 1, 2012, the adjudicator informed you that, on the basis of those notes, he was not prepared to order the disclosure of any documents. You were also reminded in that same letter to provide by May 9, 2012, the list of witnesses you intended to summon including an explanation as to why their testimony was relevant.

Your May 10, 2012 request

On May 10, 2012, among other things, you wrote: "Until the PSLRB clarifies what details it expects me to provide, in order to gain access to the information in the files that I am seeking. I cannot possibly provide the names and supporting information to justify the subpoena of individuals." You added that you had "sufficient justification for the issuance of not only a subpoena, but a pre-trial examination, of Jane Robertson". You provided some details as to why she should be called as a witness.

On your question regarding the disclosure of documents, you must explain in detail why the documents are relevant to your grievance, and, where feasible the title of the documents, the authors, the dates or period of time when the document was produced. The details of your grievance read as follows: "I grieve my termination letter of February 18, 2010." We will only order the disclosure of documents that are related to your grievance or to the content of the termination letter. You must explain to us the relation between your disclosure request and the termination letter. In essence, the same logic applies to issuing summonses to witnesses.

You ask that a summons be issued for Jane Robertson. You provided some details on the reasons as to why Ms. Robertson should testify at the hearing. Please confirm to us by June 1, 2012 whether those reasons are related to the termination letter. We also need Ms. Robertson's title and working mailing address. I must inform you that Ms. Robertson will not be "pre-trialed" as you wrote, but if called as a witness, will answer your questions which must all be related to your grievance and termination of employment. The employer and the adjudicator will also have the opportunity to ask her questions.

[Emphasis in original]

6 After that letter to the grievor, several exchanges occurred with her before the June 2012 hearing on the issues of disclosure and summonses. One of her remaining requests was to issue summonses to two witnesses who were involved in some incidents that occurred in 2006 that the grievor was unable to relate to her 2010 termination of employment. The following letter was sent to the grievor by the Board's registry on June 21, 2012:

…

The adjudicator has reviewed your fax dated June 20, 2012, and has decided he will not summon Judy Harris and Karen Beck to appear as witnesses in the June 26 to 29, 2012 hearing. You have not established how these two individuals are related to your termination of February 2010, which I must remind you, is the object of your grievance. The upcoming hearing will deal with the 2010 termination and not with some incidents that could have occurred in 2006. You would have had 25 days to grieve those incidents and that time limit has long expired.

In the last paragraph of your letter you wrote that you will not be acting in your "legal defence" and that "a transcript will be critical for any appeal" on your behalf. You added that you will be "strictly using the hearing for information purposes to obtain disclosure". The adjudicator would like to advise you that no recording devices will be tolerated at the hearing and that no transcript will be produced after the hearing. The employer will first make its case as to why it decided to terminate your employment. After that, you are expected to make your case as to why the employer could not terminate your employment. The hearing is not limited to fact finding and its purpose is not the disclosure of information to the grievor. You must be aware that the adjudicator will make a decision as to whether the employer had the right to terminate your employment. As per subsection 233(1) of the Public Service Labour Relations Act, the adjudicator's decision is final. Please, prepare yourself accordingly.

7 The hearing took place on June 26 to 28, 2012. It was adjourned a day early because the grievor wanted to access some documents in order to complete her cross-examination of one of the employer's witnesses. At that time, the grievor had started but not completed the cross-examination of a witness for the employer, namely Charles Spivak. At the end of June 2012, the Board's January 2013 preliminary schedule had already been set. On July 5, 2012, the Board's registry wrote to the parties, asking them for their availability in February 2013 for the continuation of the hearing. The grievor indicated that she was available in February 2013, but the employer indicated that it was not. On July 26, 2012, the parties were informed that the hearing would take place on March 18 to 22, 2013. At my request, those dates were later changed to March 18 to 20, 2013.

8 During this time, the grievor continued to leave tens of phone messages for the Board's registry many of them containing information entirely unrelated to the proceedings. On July 16, 2012, the Board's registry, at my request, wrote to her, asking her to communicate solely in writing, in order to assist in the management of her case. The grievor ignored that request. In 2012 and early 2013, the Board's registry listened to most of those messages from the grievor. As mentioned above, a large part of their content was of little or no relevance to the grievor's case. However, some of the messages related to the upcoming March 2013 hearing and to procedural issues. To avoid any misunderstanding, the Board's registry, at my request, wrote the following letter to the grievor on January 28, 2013:

…

As mentioned in my letter of July 16, 2012, you have been asked to communicate solely in writing as this will assist in maintaining an accurate record as well as assist in the management of your case.

Notwithstanding the above, the contents of your voicemails were conveyed to the adjudicator and I was directed to inform you of the following:

If the grievor intends to request a postponement, request production of documents, or request summonses be issued, she is asked to provide that request in writing and to provide a brief explanation as to why she is making that particular request.

…

9  On February 15, 2013, the grievor wrote to the Board, objecting to my decision to shorten the hearing and expressing some concerns about the disclosure of information. During that period, she continued to leave many phone messages for the Board's registry. On February 28, 2013, the Board's registry, at my request, wrote her the following letter:

…

The above-mentioned communications were brought to the attention of the adjudicator and I was directed to inform the parties of the following:

As mentioned in the Board's letter of February 1, 2013, the adjudicator assigned to this matter believes that 3 days will be sufficient to complete the hearing.

It is noted that despite several reminders (both written and verbal), Ms. Okrent continues to leave numerous, lengthy voicemails on the Board's general mailbox. This is a final reminder that her communications with the Board, as a matter of course, should be in writing.

Furthermore, much of the content of Ms. Okrent's recent voicemails appears to be of a personal nature and irrelevant to the matters being heard. The Board's Registry will no longer listen to voicemails of this nature.

Finally, regarding Ms. Okrent's request for disclosure; the grievor is reminded of the procedure that was outlined to her in the Board's letter of March 2, 2012 [cited below].

Disclosure of documents

You are asked to provide… a detailed list of all the documents that you want the employer to provide to you, including where feasible, the title of the documents, the authors, the dates or period of time when the document was produced.

You also have to explain in details why the requested documents are relevant to your grievance.

The adjudicator will not issue any disclosure orders for documents for which he does not have this information.

…

10 As planned, the continuation of the hearing started on March 18, 2013 in Toronto. The hearing was scheduled to start at 09:30. The grievor was more than one hour late. She explained that she had to photocopy some documents and that the location where she made the photocopies did not open before 09:30.

11 I will return later in this decision to the evidence adduced by the employer and to the details of the grievor's cross-examination of the employer's witnesses during the days of hearing in June 2012. Suffice it to say for now that, on March 18, 2013, the first item of business was for the grievor to complete her cross-examination of Charles Spivak which had been left unfinished at the close of proceedings on June 27, 2012. That never happened. From approximately 10:45 to approximately 12:15, the grievor raised issues about the disclosure of documents and about a transcript of the contents of phone messages that she left for Mr. Spivak. She also wanted to adduce in evidence her personal notes of those telephone messages, in order to question Mr. Spivak from those notes. However, she wanted first to redact her handwritten remarks from the document before adducing it in evidence.

12 The grievor informed me that she was unhappy about my past rulings on her requests for the disclosure of information and on issuing summonses to witnesses and on my way of conducting the hearing. She suggested that I should recuse myself because she felt that I was biased against her. I informed her that she should present a request for my recusal with her arguments in support of the request for recusal. I explained that the employer would also be given the opportunity to present its arguments. In the end, I would decide whether I would recuse myself based on the test developed by the courts.

13 At approximately 12:15, I adjourned the hearing for a lunch break. The grievor asked for a longer break than normal, in order to redact her personal notes on the telephone messages she left for Mr. Spivak or to prepare her request for my recusal, in which case she would not need to work on her personal notes. She agreed to be back at the hearing before 14:30. At 14:30, the grievor did not show up. The Board's registry was able to reach her later, by phone. She said that she would not return to the hearing and that she would submit a formal request later in writing asking for my recusal. I elected to adjourn the hearing dates scheduled for the rest of the week.

14 In the three days following the hearing, the grievor left many lengthy phone messages with the Board's registry. I thought that it was important to reiterate to the grievor to stop using that method of communicating with the Board. I also wanted to clarify her intent with respect to her recusal request, in order to be able to continue with the case or to ask that a new adjudicator be appointed should I elect to recuse myself based on the legal test applicable to a request for recusal. On March 22, 2013, I asked the Board's registry to write the following letter to the grievor:

…

The adjudicator seized of the above-noted matter has directed me to advise the parties as follows:

1. Request for Recusal

This is further to the continuation hearing in the above-noted matter which was scheduled for March 18 to 20, 2013, but adjourned the afternoon of March 18, 2013, when the grievor failed to return to the hearing.

The hearing day of March 18, 2013, was scheduled to begin at 9:30 a.m. as indicated in the Notice of Hearing sent to the parties on February 19, 2013. During the morning of March 18^th, the grievor advised the Board's Registry that she needed to photocopy some material prior to the hearing. She ultimately arrived at the hearing at approximately 10:45 a.m. and the proceedings began shortly thereafter.

Prior to the lunch break on March 18, 2013, a discussion occurred regarding the grievor's dissatisfaction with various issues. The grievor requested a short adjournment in order to review, edit and copy a document that she wanted to adduce in evidence. At such time, the grievor also indicated that she was considering making an application for my recusal. I granted the grievor an adjournment until 2.30 p.m.

I also clearly asked that the grievor return to the hearing at 2.30 pm, either to provide submissions on her request for recusal, or to proceed with the merits of her case. However, the grievor failed to return to the hearing.

Therefore, I then instructed the Board's Registry to contact the grievor by telephone to inquire as to her whereabouts and intentions. The grievor indicated that she would not be returning to the hearing and would instead be submitting a written application for my recusal, as well as a complaint to the Acting Chairperson of the Board.

In the event that the grievor intends to file an application for my recusal, she is required to do so by no later than April 12, 2013. Her application must be in writing and include the reasons on which she is basing the application. Her submissions must address the legal test for determining whether reasonable cause exists for the apprehension of or a reasonable likelihood of bias as developed by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, namely:

"… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically --- and having thought the matter through --- conclude …."

In addition, as is required by the case of Adams v. British Columbia (Workers' Compensation Board) (1989), 42 B.C.L.R. (2d) 228 (B.C.C.A.), her submissions must contain "… sufficient evidence to demonstrate that, to a reasonable person, there is a sound basis for apprehending that the person against whom it is made will not bring an impartial mind to bear upon the cause … suspicion is not enough…"

Copies of these decisions can freely be found at http://www.canlii.org/en/index.php.

Once the application is received, the employer will be afforded the opportunity to respond. Once the exchange of written submissions is complete, the matter will be referred to the adjudicator, who may issue a decision based on the submissions filed and the existing record. Should the adjudicator require further submissions, or determine that an oral hearing is required, the parties will be advised accordingly.

2. Ongoing Communications with the Board

The grievor has been asked multiple times to communicate with the Board in writing, most recently by way of letter to the parties on February 28, 2013. Despite very clear instructions, the grievor has continued to communicate with the Board by way of telephone calls and telephone messages. We note that she left more than 6 lengthy voicemails on the Board's system during the present week alone. With the possible exception of notifying the Board of her late appearance at the hearing on March 18th, the voicemails contained no information that could not have been provided in writing. This will confirm that from this point forward, unless the Board informs the parties otherwise, the Board will only accept written communications from the grievor. Telephone calls and telephone messages will not be accepted. The grievor is reminded that her written communications may be sent to the Board at the following coordinates:

…

15 The grievor did not reply to the March 22, 2013 letter from the Board's registry. At my request, on May 2, 2013, the Board's registry sent her the following letter:

…

The adjudicator seized of the above-noted matter has directed me to advise the parties as follows:

"On March 18, 2013, I adjourned the hearing because the grievor did not show up after lunch even though I had instructed her to be back by 14h30. On her return at 14h30, she was supposed to adduce a document into evidence that she needed to edit and review during the lunch break, or provide submissions on her request for my recusal. Shortly after 14h30, when the grievor had failed to appear, the Board's Registry contacted the grievor by telephone. She indicated that she would not be returning to the hearing and would be submitting a written application for my recusal.

On March 22, 2013, at my request, the Board's Registry wrote to the grievor and invited her to file her application for my recusal, in writing, by no later than April 12, 2013. The Board's Registry's letter also explained to her the legal test for an adjudicator to recuse himself. The grievor never submitted such an application. On March 22, 2013, the grievor was also reminded that she had been asked multiple times to communicate with the Board in writing, but continued to call the offices of the Board. In the April 12, 2013 letter, she was advised that the Board would only accept written communications from her and that telephone calls and telephone messages would not be accepted. She was reminded of the Board's postal address. Despite these directions, the grievor has continued to leave phone messages at the Board but the Board employees do not listen to these messages anymore.

Since the beginning of the adjudication hearing, the employer has presented its documentary and testimonial evidence. Its last witness was Mr. Charles Spivak who was examined by the employer's counsel. The grievor has already cross examined Mr. Spivak for two days. On March 18, 2013, when the hearing resumed, the grievor was supposed to complete her cross-examination but did not because she left the hearing and did not come back. After completing Mr. Spivak's cross-examination, the grievor was supposed to call Ms. Ferguson, a former HR advisor for the employer, as a witness. No other witnesses are supposed to testify, and the grievor had already indicated that she would not testify.

In order to continue the proceeding, I am instructing the grievor to submit in writing to the Board, by no later than May, 24, 2013, the questions that she still has for Mr. Spivak, including a copy of the document that she wished to adduced in evidence in the afternoon of March 18, 2013. Those questions must be related to the events and the facts that relate to the grievor's termination of employment. I will review these questions and direct the Board's Registry to submit the relevant ones to Mr. Spivak for his written replies to the questions. The grievor will be allowed to ask further clarifications after Mr. Spivak's replies if she wishes. At the end of that process, I will give the opportunity to the employer to reexamine Mr. Spivak in writing.

Adjudicators normally hear evidence orally. However, considering that the March hearing was a waste of time since nothing was accomplished and not one single question was asked to Mr. Spivak, I have decided to use this fairly unusual process to progress in the proceedings and to complete, if possible, the grievor's cross-examination of Mr. Spivak.

If the grievor does not make the required submissions in writing by May 24, 2013, I might conclude that she is deemed to or that she has abandoned her grievance. I might also decide the grievance on the basis of the evidence that has already been presented to me."

…

16 The grievor did not reply to that letter.

III. Summary of the evidence

A. Introduction

17 During the hearing days in June 2012, the employer adduced 23 documents in evidence. It called Robert Fowlie, Catherine Vick, Jennifer Touhey, Mark Cann, Jean-Luc Caron and Charles Spivak as witnesses. At the time the grievance was filed, all the witnesses worked for the PWGSC. Mr. Fowlie was the director of finance for its Ontario region, Ms. Vick was the director of human resources for the Ontario region, Ms. Touhey was a senior labour relations advisor, Mr. Cann was the director of transformation strategies and services (regions), Mr. Caron was the director general of finance management, and Mr. Spivak was the manager of financial operations for the Ontario region.

18 The grievor adduced five series of documents in evidence. They included emails involving her and representatives of the employer and her union, the 2001 version of her job description, personal notes related to phone calls between her and representatives of the employer, and some notes to file written by Mr. Spivak in 2008.

19 The grievor asked me to issue summonses to several employer representatives to testify. With the exception of Jane Robertson, I refused on the basis that the grievor never provided me with any satisfactory explanation as to how those potential witnesses were related to her termination of employment. Instead, they were related to some incidents that happened in 2006 that were not related to the termination of employment.

20 As for Ms. Robertson, I agreed to hear her as a witness even though I had doubts that her testimony would shed any light on the termination of the grievor's employement. Ms. Robertson is now retired. At the time the grievance was filed, she was a labour relations officer working for the employer in its Toronto regional office. She did not make the decision to terminate the employment of the grievor. However, according to the grievor, Ms. Robertson could have been involved with her termination of employment. Ms. Robertson never testified. I should add that nothing in the evidence adduced at the hearing, including the long cross-examination of witnesses by the grievor, could lead me to believe that Ms. Robertson had any role or involvement in the decision to terminate the grievor's employment.

21 The grievor indicated at the beginning of the hearing that she would not testify. Several times during the hearing, she asked to introduce some of her personal notes. I told her that it was difficult for me to accept those notes without her testifying. She steadfastly maintained her position that she would not testify. I suggested to her again on March 18, 2013 when the hearing resumed that she could benefit from testifying, in order to provide her own evidence on the facts that led to her termination of employment. She maintained her position and explained that a prominent Toronto labour lawyer who is now deceased had advised her that it was better for her not to testify.

22  Throughout the hearing, the grievor tried several times to introduce evidence related to incidents involving issues that dated back to 2006 that had nothing to do with her termination of employment. I refused to accept that evidence since she could not provide any explanation as to why the evidence was relevant to her termination of employment. I explained to the grievor many times that she would benefit from focusing on the reasons that led the employer to terminate her employment and on evidence that could convince me that the employer did not meet its burden of proving that the termination was justified.

B. The substance of the evidence

23 On August 12, 22 and 26, 2008, the grievor sent emails to several employer representatives, including the deputy minister of the PWGSC. She asked them to be removed from the division in which she worked because she felt that the work environment was toxic and that it was damaging her. She also wanted to know about the options available to her in dealing with her situation. On August 28, 2008, Ms. Vick responded to the grievor, stating that she wanted to meet with her and her director to discuss her allegations and her request to be accommodated. On September 2, 2008, the grievor responded as follows to Ms. Vick:

…

Regarding your request for a meeting, today is impossible. I need to somehow get my DMR out this morning because I have my doctor appointment this afternoon. Also, if a decision has been made to not accommodate me then there is no point in meeting. You and management combined have all the documentation necessary to reach the correct decision. My situation warrants accommodation. I'm simply providing the Deputy Minister with the documentation that I have to make my case because I know he can overrule the decision.

…

24 On September 3, 2008, the grievor advised the employer that she would not come to work because she was sick. Around September 22, 2008, the grievor submitted a medical certificate dated September 18, 2008 in which the physician wrote the following: "She is able to return to work when she is accommodated with request to the persons she must report to provide services to [sic throughout]." After September 2, 2008, the grievor never went back to work.

25 On October 7, 2008, Ms. Vick wrote to the grievor. Among other things, she wrote the following on the request for accommodating the grievor:

…

You also have requested accommodation. For accommodation issues, there is a need for satisfactory information from a medical expert that confirms the need to accommodate a disability, and recommendations as to how this can be accomplished. Your medical certificate has been received, however it does not clearly provide this type of information. For further clarification on this point you should communicate with your Director, Charles Spivak, who will discuss the need for further communication from your doctor or a possible assessment performed by Health Canada.

[Sic throughout]

…

26 On December 15, 2008, Mr. Cann wrote to the grievor and, among other things, reminded her of Ms. Vick's request for submitting leave documentation. He stated that failing to submit a completed leave form could result in her absence being considered unauthorized.

27 On January 21, 2009, Ms. Touhey wrote to the grievor. Among other things, she reminded her of the content of Ms. Vick's letter of October 7, 2008 on the issue of accommodation. She also added the following:

…

Your medical certificate has been received, however it does not clearly provide this type of information. Attached you will find a medical form. Management is requesting that you take this to your treating physician for completion and return it to the department as soon as possible.

Please be advised that if necessary, management is prepared to have your medical file reviewed by a Health Canada specialist to corroborate the conclusions. I would ask that this be completed and returned to your manager no later than February 1, 2009.

To date, management has not received the proper documentation with regards to your sick leave. I have enclosed leave forms and a prepaid, addressed envelope for you to complete and return to Charles Spivak immediately, to confirm your request for sick leave. Failure to submit the completed leave forms immediately may result in your absences being considered unauthorized. It is not sufficient to only submit a medical certificate. The employer must authorize your leave.

…

28 On February 23, 2009, Mr. Spivak wrote to the grievor. Among other things, he reminded her that she was required to submit proper documentation to substantiate her leave and that she had not yet done so.

29 On April 2, 2009, Mr. Spivak wrote to the grievor. Among other things, he reminded her that she had to submit the required medical documentation. He wrote the following:

…

… This should include a possible return to work date, recommendations from your treating physician on what steps management can take to fulfill the accommodation request and any other information that may assist in your return to work. As already stated in previous correspondence, a medical certificate was received in September 2008, however it does not clearly provide this type of information.

I would like to advise you that failure to provide this information by April 30, 2009 may result in your leave being considered as unauthorized. Unauthorized leave may be subject to administrative/disciplinary action and as a result may have an effect on your pension and benefits.

…

30 On June 19, 2009, Mr. Spivak and André Latreille, Director General, Labour Relations and Compensation, PWGSC, wrote to the grievor. They told her that, contrary to the messages that she left on their voice mails, no harassment investigation was underway because she never filed a formal harassment complaint. They reminded her that Mr. Cann and Ms. Touhey had already informed her in writing in December 2008 and January 2009 as to the process that she had to follow to submit such a complaint. They also reminded her that she failed to provide the required medical information. On that point, they wrote the following:

…

In reference to the letter sent to you on April 2, 2009, you have still not provided the leave forms and medical from your physician as required. It is your responsibility to respond to the employer's requests in order to substantiate your absence. Despite numerous attempts by departmental officials to communicate with you concerning your absence, you have not contacted the department to inform management of your intentions concerning your employment. As a consequence, I consider your absences to date to be unauthorized and I must advise you that continued failure to comply with this request may lead management to consider disciplinary measures up to and including termination of employment.

You have until July 10, 2009, to submit the leave and medical information requested.

…

31 On September 23, 2009, Mr. Cann wrote to the grievor, reminding her that she had been advised many times to provide leave forms and medical information to substantiate her absences from the workplace since September 3, 2008 and that she had failed to. He gave her the following warning:

…

After a review of your file with our Labour Relations experts, it has been determined your continued noncompliance with regard to the requested leave and medical information will not be dealt with in a disciplinary fashion at this time. Rather, should you not comply by October 7, 2009, I will have no choice but to proceed with a recommendation of termination of employment under Section 12(1) (e) of the Financial Administration Act.

…

32 On October 5, 2009, Mr. Spivak wrote to the grievor, reminding her that she had been advised on several occasions that an updated medical certificate and leave forms were required. On October 16, 2009, Mr. Spivak wrote to the grievor again, asking for the same information and stating that, if she failed to provide it, the employer ". . . will be proceeding with a recommendation to terminate your employment under section 12(1) of the Financial Administration Act."

33 The grievor did not reply in writing to any of the employer's letters dated October 7 and December 15, 2008, and January 21, February 23, April 2, June 19, September 23, October 5 and October 16, 2009.

34 On February 18, 2010, Mr. Caron wrote a memo to Mr. Lakroni, Chief Financial Officer, PWGSC, summarizing his view of what had happened with the grievor since September 2008 and recommending that her employment be terminated. He attached to his memo a draft termination letter that he had prepared with the labour relations division. Mr. Lakroni agreed with Mr. Caron's recommendation and signed the termination of employment letter the same day.

IV. Reasons

35 I find it unfortunate that the grievor chose not to testify at the hearing. It would have given her the opportunity to present some explanation as to why she did not answer the employer's numerous requests for medical information and leave forms. She was the only one who could have provided those explanations. As for Ms. Robertson, I am firmly convinced based on all the documentary evidence and oral testimony presented that she had nothing to do with the grievor's termination and that her testimony would not have been useful in deciding this grievance.

36 On May 2, 2013, the Board's registry wrote to the grievor and asked her to submit her outstanding questions for Mr. Spivak by May 24, 2013. She was advised that, if she did not submit her questions and comply with my clear instructions, I might decide the grievance on the basis of the evidence that was already presented to me. The grievor did not answer the letter of May 2, 2013.

37 While this is a rather unusual process, due to the grievor's ongoing non-compliance with clear instructions issued by the Board's registry under my instructions, and due to the grievor's lack of follow-through on pursuing the various options I put to her on the management of the hearing, I fundamentally believed that the grievor would not bring any further relevant evidence that would help me determine the merits of the grievance. Therefore, I have reviewed the evidence already presented to me, and I feel confident that I have enough information to make an informed decision.

38 There is no doubt in my mind that the employer gave many clear and explicit warnings to the grievor to provide medical information and to complete leave forms or to face administrative termination from employment. The grievor never complied with the employer's requests. After an absence of 17 months from the workplace with no detailed medical evidence other than that submitted by the grievor on September 22, 2008, it was legitimate for the employer to terminate her employment in February 2010.

39 I find that the employer terminated the grievor's employment for administrative reasons for "cause" pursuant to paragraph 12(1)e) of the Financial Administration Act (the "FAA"). She was asked in writing on numerous occasions to complete leave forms and to provide medical information in order to justify her absences from the workplace and substantiate her request for accommodation. On September 23, 2009, after many detailed letters that clearly explained the consequences of a failure to collaborate with the employer, Mr. Cann warned her one final time that she had to comply with the employer's request by October 7, 2009; otherwise, her employment would be terminated. The grievor ignored that final warning and did not provide the information required by the employer. Her employment was terminated.

40 The grievor did not present any evidence to justify her lack of cooperation with the employer in providing the information it required from her. Furthermore, she did not even write back to the employer following its requests for information sent to her on October 7 and December 15, 2008, and January 21, February 23, April 2, June 19, September 23, October 5 and October 16, 2009.

41 Through her actions or lack thereof, she is deemed to have abandoned her position. The following was stated in Lindsay v. Canada Border Services Agency, 2009 PSLRB 62:

…

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…. The only exceptions to that basic logic would be situations in which an employee, for compelling reasons, cannot contact the employer to obtain leave authorization.

…

I concur with this reasoning. There is absolutely no evidence that the grievor had compelling reasons preventing her to obtain leave authorization. Despite very clear instructions and explanations as to the consequences of a failure to cooperate, the grievor chose to ignore the employer's legitimate requests. For months, she was absent from work on unauthorized leave. Consequently, I find that the grievor is deemed to have abandoned her position as it was the case in Lindsay where the adjudicator wrote at paragraph 97: "In this case, I find that the grievor has abandoned her position by being absent from work without authorization for a lengthy period of time."

42 I find that the employer had ample administrative reasons to terminate the grievor's employment based on her ongoing failure to respond to its legitimate requests for information to substantiate her absences from the workplace. The employer had the right to terminate the grievor's employment pursuant to paragraph 12(1) e) of the FAA.

43 On a balance of probabilities, the employer has proven that it acted fairly and in good faith when it terminated the grievor's employment. I should add that the employer was very patient with the grievor and that it could have terminated her employment sooner due to the numerous attempts it made to facilitate her compliance with clear and legitimate instructions and her ongoing failure to do so. 

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

V. Order

45 The grievance is denied.

June 4, 2013.

Renaud Paquet,
adjudicator