FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Robert Phillips ("the grievor") was a senior human resources advisor at the Canada Border Services Agency ("the respondent," "the employer" or the CBSA). On January 20, 2012, the employer terminated the grievor's employment on the basis that he did not respect the administrative procedures put in place to justify his absences from the workplace. The termination happened after the grievor was suspended four times for the same reason between April and November 2011.

2 On February 10, 2012, the grievor grieved the employer's decision to terminate his employment. He stated that the decision was excessive disciplinary action with respect to his alleged misconduct and that it constituted discrimination and harassment on the grounds of disability and family status. The grievor asked to be reinstated to the position that he occupied or to a position at the same group and level within the federal government. The grievor also gave notice to the Canadian Human Rights Commission (CHRC) that he intended to raise an issue involving the interpretation or the application of the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (CHRA). The CHRC notified the Board that it did not intend to make submissions in this matter.

3 The grievance was denied at the final level of the grievance procedure on March 21, 2012, and was referred to adjudication on April 24, 2012. In referring the grievance to adjudication, the grievor advised of his intention to amend the grievance to raise that the employer unreasonably delayed providing him with the requested copies of his Health Canada assessment documentation and that it did not provide him with notice of the termination meeting conducted on January 20, 2012. The grievor also intended to raise that he was not advised of his right to have a representative with him at that meeting and that he was not provided with sufficient notification of the reasons for termination at the time of the termination. Finally, he also intended to raise that the final-level grievance hearing was not conducted by the individual who was charged with rendering the decision at that level. The grievor asked the adjudicator to conclude on a preliminary basis that the termination was void ab initio (from the start).

4 The employer opposed the amending of the grievance on the basis that the grievor added new elements to it. The employer also argued that it is under no obligation to conduct in-person grievance hearings and that the decision maker was under no obligation to attend the final-level grievance hearing. On those points, the employer referred me to Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), and Hagel v. Attorney General of Canada, 2009 FC 329.

5 I advised the parties at the beginning of the hearing that I would reserve my decision on the amendments to the grievance until after hearing the evidence and arguments on the merits of the grievance and on the proposed amendments.

II. Summary of the evidence

6 The employer adduced 58 documents in evidence. It called Margaret Fortin, Elie Saad, Lisa Carpinteiro and France Guèvremont as witnesses. Mr. Saad was the grievor's immediate supervisor. Ms. Fortin was the director of the employer's EX Programs and Services Division from November 2010 to June 2011. In June 2011, Ms. Carpinteiro replaced Ms. Fortin in that position. Ms. Guèvremont was the director general of the EX Services, Leadership and Talent Management Directorate. Mr. Saad reported to Ms. Fortin and Ms. Carpinteiro, who in turn reported to Ms. Guèvremont. The grievor called his family doctor, Dr. John Saar, as a witness. The grievor also testified. He adduced 18 documents in evidence.

A. Background

7 The grievor obtained a bachelor in business administration degree from Ottawa University in 1990. Right after that, he started to work for the federal public service in the human resources (HR) field. He started his career as an HR assistant at Natural Resources Canada, was promoted several times, worked at Statistics Canada for several years and then accepted a position of Senior Human Resources Advisor for the employer in July 2006. That position was classified at the PE-04 group and level. The PE group is not unionized.

8 The grievor produced in evidence a report outlining his accomplishments and challenges at work for the period of July 2006 to March 2007. In that report, Josée Tremblay, the grievor's director at the time, wrote that he had an excellent knowledge of staffing and HR generally and that he worked well both independently and with his colleagues. Ms. Tremblay also wrote that the grievor had to deal with challenges of a personal nature. She wrote that his attendance record had improved and that she was confident that that would continue to do so in the upcoming year. Ms. Fortin testified that the grievor was a knowledgeable and competent HR specialist.

9 The grievor testified that he suffered from chronic anxiety disorder and that he had informed the employer of it. The written evidence supports his testimony on this. The report outlining his accomplishments and challenges contains a written statement by Ms. Tremblay to the effect that the grievor had learned to "speak in confidence about some of these challenges." In 2008, the grievor testified that he had a relapse of his anxiety disorder. As a result, he was absent from work many times between April 2008 and November 2009.

10 According to a medical report prepared by Dr. Saar on May 17, 2012, the grievor was diagnosed with chronic anxiety in July 2003. He has been on medication since then. For a time, he also consulted a psychologist. In his report, Dr. Saar stated that the grievor is still taking medication and that his mood remained stable from June 2009 until January 2012, including during his many suspensions in 2011. On January 11, 2012, Dr. Saar saw the grievor, who stated that his anxiety had increased and that there was an increase of stress in his life. Dr. Saar decided to increase the grievor's daily medication dosage and gave him a note for time off due to his mood from January 6 to 10, 2012. Dr. Saar wrote that the grievor's recurrent exacerbations of anxiety could have contributed to his inefficiencies in following the recommended procedures for reporting absences. Dr. Saar wrote that the grievor could return to work and contribute to the public service but in a different division managed by different people.

11 In 2010 and 2011, Dr. Saar signed several medical notes to justify the grievor's absences from work, but none was for anxiety problems, even though the grievor continued to suffer from chronic anxiety. Dr. Saar stated in his medical report of May 17, 2012 that he suspected that the grievor's other medical problems may have also been contributed to by "anxiety."

12 In January 2010, an occupational health medical officer from Health Canada assessed the grievor for his fitness to work. The medical officer wrote that "medical conditions had been identified which had affected his ability to fulfill his work duties," but that the grievor was then considered fit for work. The medical officer also wrote that "[r]elapses are not anticipated at this point, but can be unpredictable."

13 The grievor testified that his health was not the only personal issue that he had to deal with when he was working for the employer. His 10-year-old child also has serious health and behavioural issues. Among other things, it was a challenge for his child to accept the rules imposed by the school, often leading to a refusal to attend school. This situation is now under control, but his child experienced severe behavioural problems between 2007 and 2012. The grievor had advised the employer about his child's serious health and behaviour issues.

14 The grievor got married in 1995. In 2008, his marriage broke down. He became legally separated in 2011. However, for economic reasons, he continued to live under the same roof as his former spouse until each could afford a different residence. The grievor also experienced serious financial problems. Rather than declare bankruptcy, he completed a consumer proposal in April 2011. Since then, he has complied with his financial obligations. However, during the same period, his former wife declared bankruptcy.

15 The grievor went to work in another division of the employer from September 24, 2010 until February 18, 2011. During those 5 months, he was absent 30 working days for several reasons. At the end of that period, his manager evaluated his performance. She wrote that he had a good knowledge of the work and that he was able to quickly understand the program that he was working in. However, his numerous absences inhibited his ability to engage his team members and his clients. He failed to achieve elements of his job and left many tasks incomplete because of his absences.

B. The disciplinary actions imposed on the grievor before the termination

16 In August 2009, the employer wrote to the grievor to outline its expectations with respect to attendance, hours of work and sick leave. Among other things, the employer asked the grievor to contact his manager by phone within 30 minutes of his start time when he was sick and to leave a voicemail message if the manager was not there. He was to provide a medical certificate within two days of his return to work.

17 On February 8, 2011, the employer sent a letter of reprimand to the grievor for not having provided proper documentation and explanations for his absences from work on January 25 and January 31, 2011.

18 On February 21 and 22, 2011, the grievor did not go to work. The acting director, Ms. Fortin, did not agree with how the grievor reported those absences. She met with him on February 25, 2011 and followed up with an email the same day outlining her expectations of the procedure to report absences from work and some measures to manage the impact of the grievor's frequent absences. Among those, Ms. Fortin asked the grievor to contact his manager by phone before 09:00 to provide an explanation for his inability to report to work. She specified that an email would not be sufficient and would result in the absence being considered unauthorized. She also asked the grievor to provide a medical certificate for each absence resulting from an illness of either him or a family member. She informed the grievor that non-compliance with those directives would be treated as disciplinary infractions.

19 On March 24, 2011, the employer imposed a two-day suspension on the grievor because he did not comply with the instructions given to him on February 25, 2011 as to how to inform the employer of his absences from work and for not providing medical certificates. In the discipline letter, the employer wrote that it took into consideration the fact that the grievor had four years of service with the CBSA.

20 On April 13, 2011, the employer imposed a three-day suspension on the grievor because he did not comply with the instructions given to him several times as to how to inform the employer of his absences from work. Specifically, the employer blamed the grievor for not following those instructions for absences from work on March 31 and April 6, 2011. In the discipline letter, the employer wrote that it took into consideration the fact that the grievor had four years of service with the CBSA. The grievor wrote on the discipline letter that he "was in total disagreement" with it.

21 Starting in February 2011, the employer changed the grievor's duties because of his frequent absences, in order not to disrupt the clientele that he was serving. He would have to meet with his manager daily, who would assign him specific work objectives and deadlines. In March 2011, the grievor wrote to Ms. Fortin and Mr. Saad, stating that he had no motivation to work since the work assigned to him was sometimes menial. Ms. Fortin replied that she agreed to provide him with more meaningful work but that she needed to ensure that his absences would not negatively impact that work. On June 1, 2011, Ms. Fortin wrote to Mr. Saad, stating that, when the grievor "… is here at work, he cries for more files." She wrote that, when she gave him more files, he did not show up for work. She also wrote that she had started to write a draft termination letter.

22 On June 8, 2011 at 12:08, Ms. Fortin wrote an email to the grievor as a follow-up to a discussion that she had with him the previous day. She reminded him that his "…ongoing absenteeism continues to be disruptive for the work unit." She expected that the grievor would meet with his manager daily to be assigned work objectives and deadlines. She also expected that the grievor would phone his manager before 09:00 if he were to be absent to provide an explanation for his inability to go to work and to receive approval for his absence. She specified that an email would not be satisfactory and would result in the absence being considered unauthorized. She also asked the grievor to provide medical certificates for each absence for an illness of either him or a member of his family.

23 On June 8, 2011 at 14:07, Ms. Fortin wrote that, if the grievor failed to demonstrate progress, the termination of his employment for non-disciplinary reasons could result. Ms. Fortin's expectation were the following:

1. You will do everything possible to eliminate the absenteeism problem, which management considers unacceptable (40% absenteeism rate since February 2011);
2. There is a clear expectation that you will be present at work on an ongoing and fully-time [sic] basis, with the exception of pre-authorized absences, sick leave supported by a medical certificate and confirmation from a treating physician that you were in attendance of a sick child when the illness exceeds one day in the same week;
3. It is expected that you will fulfil your obligations as a parent and make any necessary arrangements for the care of your children; and
4. On those occasions where care for your disabled [child] cannot be arranged, it is expected that you will collaborate with management to identify reasonable short-term accommodations i.e. split child care responsibilities with your wife; flexible work arrangements within the meaning of the collective agreement; other leave within the collective agreement, etc.

24 On June 24, 2011, Ms. Carpinteiro, who then occupied the position previously occupied by Ms. Fortin, wrote to the grievor, informing that his absence situation had not improved. In fact, his absence rate had increased from 40% to 60%. She wrote that failure to demonstrate progress could result in discipline, up to the termination of his employment. On July 21, 2011, the grievor wrote to Ms. Carpinteiro, suggesting that it would be better for him to work outside the division elsewhere in the CBSA or in another department. He explained that his health was seriously affected by the situation at work and by other personal challenges that he was facing and that he needed a workplace that was flexible enough to accommodate his needs in raising a disabled child. On July 26, 2011, Ms. Carpinteiro answered that the grievor should advise her two days in advance if he were to miss work for an interview. She also reminded him to follow the procedure when he was absent and that she would schedule a meeting with him and the CBSA's labour relations section to discuss his recent absences.

25 On August 19, 2011, the employer imposed a 10-day suspension on the grievor for failing to respect the employer's instructions to verbally report his absences and to provide medical certificates. In the discipline letter, the employer wrote that it took into consideration the fact that the grievor had four years of service with the CBSA. It also wrote that subsequent offences would not be tolerated and would result in termination. The grievor wrote to the employer, asking that the 10-day suspension be reduced to 5 days. Ms. Guèvremont answered that the 10-day suspension would stand.

26 On October 5, 2011, the grievor wrote an email to Ms. Guèvremont in which he proposed concrete measures to improve his attendance. He testified that he was desperate when he wrote that email. At that time, he felt lost and out of control, and he was not thinking correctly. In that email, he wrote, amongst other things, that he would attend work five days a week unless on preapproved leave and that, if he called in sick, he would submit a medical certificate the next day. He suggested that, if the employer were not satisfied after 30 days, he would be immediately terminated. Ms. Guèvremont thanked the grievor for his email and reminded him of his obligations.

27 The employer asked him to be present at a discipline meeting on November 9, 2011. Upon receipt of that invitation, the grievor wrote to the employer, stating that he was surprised by the subject of the meeting. He thought that he had been keeping up with the employer's requirements in term of reporting absences. He explained that his recent absences were due to a severe chest infection and were justified by a medical certificate. He also stated that he recently changed the dosage of his "stress/anxiety/depression" medication, hoping that that would help him improve his attendance at work. His then-current stress was due in part to his work situation, the problems with his son, his separation and his financial woes.

28 On November 10, 2011, the employer imposed a 20-day suspension on the grievor for failing to respect its instructions to verbally report his absences. In the discipline letter, the employer wrote that it took into consideration the fact that the grievor had 23 years of service with the federal public service. It also wrote that subsequent offences would not be tolerated and could lead to termination. On November 14, 2011, the grievor wrote to the employer and stated that he understood that it had operational requirements. However, he felt that the level of discipline imposed on him was harsh considering that he did not comply with the instructions to report absences only twice out of 10 absences from work.

C. The termination

29 From November 15 to December 12, 2011, the grievor served his 20-day suspension. He worked December 13 and 14, was absent on December 15, 16, 19, 20 and 21, and worked again on December 22 and 23. He was off on statutory holidays on December 26 and 27, 2011 and January 2, 2012 and on vacation leave on December 28, 29 and 30, 2011. He was absent on January 4, 5, 6, 9, 10, 12, 16, 17, 18 and 19, 2012. He went to work on January 11, 13 and 20. Altogether, he worked for 6 of the 26 working days between the end of his 20-day suspension and his termination on January 20, 2012.

30 The grievor was absent from work for 20 days after returning from his 20-day suspension, up to his termination. For the eight days that he was absent in December 2011, he called his manager before 09:00, as per the instructions provided to him many times by the employer. He did the same for his absences of January 6, 9, 16 and 17, 2011. Mr. Saad's notes do not show whether the grievor called for his absence of January 19, 2011. He does not remember whether the grievor called him that day. Mr. Saad did not take note of that information, since he then knew that the employer had already decided to terminate the grievor.

31 The evidence adduced at the hearing showed that the grievor did not follow the employer's instructions as to how to report his absences on January 4, 5, 10, 12 and 18, 2012. Mr. Saad was not at work the first week of January 2012, and the grievor was instructed to report his absences to Ms. Carpinteiro for that week.

32 On January 4, the grievor sent an email to Ms. Carpinteiro, informing her that he would stay home with his son and that he would call her between 08:00 and 09:00. He did not call her.

33 On January 5, the grievor sent an email to Ms. Carpinteiro, informing her that he would stay home with his son, who did not want to go to daycare, and that he would call her between 08:00 and 09:00. He did not talk to her but wrote her an email at 15:38, stating that he had called her a couple of times and had left her messages. He reminded her of his phone number.

34 On January 10, the grievor sent an email to Mr. Saad, informing him that he was not feeling well and that he would stay home. The grievor wrote that he would call Mr. Saad later or that Mr. Saad could call him at home. The grievor did not call Mr. Saad again on that day.

35 On January 12, the grievor sent an email to Mr. Saad, informing him that he would stay home with his child and that he had a meeting with school officials in the afternoon. He also left a voicemail message to Mr. Saad at 07:20, advising him that the school bus was not operating that day due to a snow storm. He did not talk directly to Mr. Saad that day.

36 On January 18, the grievor sent an email to Mr. Saad, informing him that he would stay home with his son but, that he would be at work for the rest of the week. He also left a voicemail message to Mr. Saad at 07:07. He did not talk directly to Mr. Saad that day.

37 On January 20, 2012, the employer met with the grievor and handed him the termination letter. The following passages of that letter summarize its content:

…

Since your return to the Executive Group Services Division in February 2011, management has undertaken exhaustive steps to address your long-standing absenteeism issue. Unfortunately, all efforts to appropriately address the situation failed to achieve the desired results.

Your continued absenteeism has had a serious impact on the work environment and you have not displayed any efforts to better the situation. Management attempted to correct your conduct by putting in place administrative procedures for you to follow in reporting and justifying your absences from the office. However, you continued to ignore the procedure put in place, even though it had been communicated numerous times and agreed upon by all parties. This resulted in management having to impose disciplinary measures in the hope that it would correct your conduct. At this point, your situation causes an undue hardship to the Agency.

In accordance with Section 12 (1)(e) of the Financial Administration Act, I am hereby terminating your employment with the Canada Border Service Agency and the Federal Public Service of Canada effective close of business on January 20, 2012.

…

38 Ms. Guèvremont made the decision to terminate the grievor. She testified that the decision was made on January 17 or 18, 2012. She wrote the termination letter with the assistance of Ms. Carpinteiro and the CBSA's labour relations section. She decided to terminate the grievor because he was insubordinate by not following the instructions to report his absences. Discipline had been imposed on him several times for the same reason, and he did not correct his behaviour. Specifically, the grievor had no reason not to report his absences correctly on January 4, 5, 10, 12 and 18, 2012.

39 The grievor was terminated on January 20, 2012, which was a Friday. According to Mr. Saad's testimony, the decision to terminate the grievor was made earlier that week. At 10:07 on January 19, 2012, Ms. Guèvremont's assistant wrote to the CBSA security office, asking to permanently remove accesses for the grievor to all CBSA and public service facilities. The security office replied that that would be done within one hour. On January 19, a request was also made to have the grievor's email account disabled. At 07:36 on January 20, 2012, an employee from the CBSA's network monitoring section confirmed that the grievor's email account had been disabled.

40 On January 20, 2012, the grievor went to work at around 08:00. He tried to enter the premises, but he could not open the door with his card. Another employee let him in. He went to his office and turned on his computer, but he was unable to log on. He talked to Mr. Saad, who informed him that his access had been cut off. Mr. Saad went to see Ms. Guèvremont. When he came back, he informed the grievor that Ms. Guèvremont wanted to meet with him. The grievor went to Ms. Guèvremont's office with Mr. Saad. He sat down and was given the termination letter. Ms. Guèvremont informed the grievor that he was terminated because he did not follow the protocol to report his absences. The grievor asked if there was any room for discussion. Ms. Guèvremont said that her decision was not negotiable. She insisted that the grievor sign the termination letter, and he did. The grievor testified that he did not receive any notice that the meeting was for disciplinary purposes. He was never asked whether he wanted to be represented or to be accompanied at that meeting. Ms. Guèvremont admitted that the grievor did not receive a notice that the meeting was disciplinary and that he was not informed that he could be represented or accompanied.

41 In cross-examination, the grievor testified that he does not recall raising at the final-level grievance hearing on March 6, 2012 several issues that his representative wrote he was raising again in a letter sent to the employer in April 2012. Those issues are the following: that the employer delayed providing the grievor with the Heath Canada documentation for an assessment, that the employer did not give him any notice of the January 20, 2012 discipline meeting and did not advise him of his right to be represented at that meeting, that he was not advised ahead of time of the reasons for the termination, and that the final-level grievance hearing was not conducted by the employer's representative who was charged with rendering the decision.

D. Request for a Health Canada assessment in 2011 and 2012

42 In February 2011, Ms. Fortin and the grievor discussed the possibility of having him assessed by Health Canada. The grievor testified that he was receptive to the idea. Ms. Fortin abandoned the idea at the time since such an assessment was done in 2010, and it concluded that the grievor was fit for work.

43 On November 9, 2011, the grievor wrote in an email to Ms. Guèvremont that he had no problem with going "right away" for a Health Canada fitness-to-work assessment. At the time, he thought that he might have been declared unfit for work. At the discipline meeting the same day, the grievor reiterated that he was willing to undergo a Health Canada assessment. After the meeting, the labour relations officer confirmed in an email sent at 16:07 that the grievor offered to undergo a medical assessment. She recommended to Ms. Guèvremont not to impose discipline at that time and to refer the grievor for a medical assessment. She added that, even if discipline were imposed, the grievor should be referred for a medical assessment.

44 Ms. Guèvremont testified that, on December 14, 2011, probably in the morning, she left a package on the grievor's desk, including documents for a medical assessment of him. She did not speak to the grievor that day. In her covering note, Ms. Guèvremont wrote that she had prepared the package ". . . to set the ball rolling on an assessment." She also asked the grievor to let her know whether he still wanted to proceed with the assessment and to return the documents to her. The detailed letter of instruction to the medical assessor indicates that four documents are attached. The grievor testified that he did not see that package on his desk when he went to work on December 14. He saw it only on December 22, 2011. However, according to him, there were no attachments with the letter. He understood from it that that letter was a draft. The grievor was absent from work between December 15 and December 21. On December 22, after he saw the assessment letter, the grievor emailed Ms. Guèvremont that he concurred with the Health Canada assessment. Ms. Guèvremont answered the grievor the same day and asked him to return the signed forms to her. The grievor sent the package back to Ms. Guèvremont on January 11, 2012 but did not sign the consent form. On January 16, 2012, Ms. Guèvremont left a Post-it note on the grievor's desk reiterating her request for him to sign the consent form for the medical assessment.

E. Other evidence

45 After his return to work on December 13, 2011 from his 20-day suspension, the grievor justified 8 of his absences from work in December 2011 and January 2012 on the basis that his child was sick or did not want to go to school. In preparation for the adjudication hearing, the employer asked the grievor to provide a letter from the school listing the days that his child missed school. That letter was provided to the employer only during the hearing in February 2013. It indicates that, between December 15, 2011 and January 19, 2012, the grievor's child was absent from school on December 21, 2011 and January 12 and 17, 2012, and that the school was closed from December 23, 2011 to January 6, 2012 for the holiday season.

46 The grievor admitted in his testimony that he lied about the reasons for his absences of December 15, 16, 19 and 20, 2011 and January 18, 2012. For those days, his absences were not related to his child. He testified that he regrets using his child to justify his absences and using his disability as a crutch. He explained that, around December 15, 2011, he "was at [his] limit and had hit rock bottom with [his] illness." He testified that it was easier for him to say that he had to stay home with his child than to admit to a major relapse in his illness.

47 Over the course of 2011 and 2012, the grievor and the employer exchanged communications on options to accommodate him regarding his child. On April 29, 2011, Ms. Fortin had suggested to the grievor in writing that, when his child did not want to go to school, he could stay home with him for half a day, and his wife could take over for the remainder of the day. The grievor could then come to work and stay late to make up for the lost time. The grievor never acted on that suggestion since it was not a practical solution for him. Later in 2011, the employer proposed to the grievor that he work part-time. The grievor felt that that was not a durable solution. In June 2011, the grievor asked the employer if he could make up for some of his absences on weekends. The employer did not find that offer acceptable based on operational requirements and health and safety issues. The grievor testified that, in December 2011, he asked Mr. Saad if he could work from home on some of the days that his child did not want to go to school. He said that Mr. Saad never answered his request.

48 The grievor testified that, in the fall of 2011, he had applied for a deployment in another federal government department. On November 28, 2011, Mr. Saad gave references for the grievor to that department. On December 2, 2011, the grievor was informed by that department that he did not get the job because of the references given by Mr. Saad, who testified that he informed that department of the grievor's attendance problems.

49 The grievor adduced in evidence the Treasury Board's policy on how to deal with unsatisfactory performance for reasons other than discipline. He testified that he knows that policy.

50 The grievor testified that, since July 2012, he has worked full-time as a security guard doing surveillance work in a condominium complex in Ottawa. Since he lost his job with the employer, he has taken positive steps to manage his illness, and his child's situation has improved. As a result, he said that he has not missed one day of work in his new job. He made special arrangements with his new employer to attend this hearing.

51 The grievor testified that he would like to return to work in the federal public service. That is what he did for more than 20 years. His entire career since he graduated had been in HR, and he enjoyed that work. He has extensive knowledge of that field, and he performed very well. The grievor also testified that he regretted his actions and his decision making. He wants to put it behind him, and he looks forward, to the future.

III. Summary of the arguments

A. For the employer

52 When he referred the grievance to adjudication, the grievor advised that he was amending it, in order to raise several procedural issues. Those issues included that the employer delayed providing documentation on a Health Canada assessment, that the employer failed to give notice of the termination meeting and to advise the grievor that he could be represented at that meeting, and that the final-level grievance hearing was not conducted by the person who rendered the decision at that level. The employer argued that an adjudicator does not have jurisdiction to consider allegations of procedural defects in the context of this grievance, given that those defects are not matters that can be referred to adjudication under paragraph 209(1)(b) and subparagraph 209(1)(c)(i) of the Public Service Labour Relations Act ("the Act").

53 The employer also argued that the grievor did not raise those issues during the grievance procedure. When a grievor fails to raise an issue until after the conclusion of the grievance procedure, the grievor has in fact not presented a grievance about the newly raised issue up to and including the final level of the grievance procedure. That constitutes a bar to adjudication.

54 It is undisputed that the grievor failed to follow the employer's direction for reporting absences. He was insubordinate. Even though the grievor might have some disability, he did not provide convincing evidence that there was a nexus between the misconduct and the disability. The employer argued that, on that point, Dr. Saar's evidence is vague, highly speculative and of little probative value. In response to the questions submitted to him in writing by the grievor's representative, Dr. Saar wrote in his report that the grievor's illness could have contributed to inefficiencies in following the recommended absence procedure. He also wrote "… but unfortunately, during the time of his many suspensions in 2011, he did not present to the office with worsening of his anxiety." In his testimony, Dr. Saar was unable to conclude with any certainty whether the grievor's illness contributed to his misconduct.

55  It is settled law that an employee's claim for accommodation, including in the context of disciplinary matters, must be dismissed if the employee fails to participate in the accommodation process. An employer has a need for sufficient medical information to permit it to satisfy its accommodation obligations. It cannot be faulted if the employee fails to provide sufficient medical information to establish the accommodation required. In this case, the grievor failed to sign the consent form for the medical assessment. As a result, the employer was never provided the requested medical information.

56 An employee has a basic obligation to show up for work or to explain why that is not possible. Failing to notify the employer of an absence or failing to seek authorization for it gives an employer just and reasonable cause for imposing discipline. Similarly, requiring an employee to personally notify a specific member of management of any absence is reasonable, and failing to do so gives the employer just and reasonable cause for imposing discipline. In this case, the grievor was clearly communicated a protocol or a series of conditions on how to report his absences. The employer submitted that those conditions were a reasonable exercise of its right to manage operations of the workplace. The conditions were reasonable, were linked to the requirements of the workplace and were imposed in good faith.

57 In 2011, the grievor was given a written reprimand, a 2-day suspension, a 3-day suspension, a 10-day suspension and a 20-day suspension for failing to respect the conditions for reporting his absences. After serving his last suspension, which ended on December 12, 2011, the grievor failed to respect the conditions for reporting his absences on five occasions, namely, January 4, 5, 10, 12 and 18, 2012. The employer relied on those culminating incidents to terminate the grievor's employment.

58 The doctrine of the culminating incident states that, if an employee has engaged in some final, culminating act of misconduct, it is entirely proper for the employer to consider a checkered or blameworthy employment record in determining the appropriate sanction for that final incident. The employer submitted that termination was the appropriate disciplinary measure, given the grievor's disciplinary record.

59 The employer referred me to the following decisions: Bahniuk v. Canada Revenue Agency, 2012 PSLRB 107; Boudreau v. Canada (Attorney General), 2011 FC 868; Burchill; Bygrave v. Treasury Board (Canada Border Services Agency), 2010 PSLRB 78; Canada Bread Co. v. Bakery, Confectionery, Tobacco Workers, and Grain Millers International Union, Local 468, [2011] B.C.C.A.A.A. No. 154 (QL); Cargill Foods, division of Cargill Ltd. v. United Food and Commercial Workers International Union, Local 633, [2009] O.L.A.A. No. 653 (QL); Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Complex Services Inc. (Casino Niagara) v. Ontario Public Service Employees Union, Local 278, [2012] O.L.A.A. No. 409 (QL); Desrochers v. Treasury Board (Solicitor General of Canada), PSSRB File No. 166-02-26340 (19980116); Hagel; Johnston v. Treasury Board (Canada Border Services Agency), 2009 PSLRB 53; Luscar Ltd. v. International Union of Operating Engineers, Local 115, [2002] B.C.C.A.A.A. No. 379 (QL); Maas and Turner v. Deputy Head (Correctional Service of Canada), 2010 PSLRB 123; Mallette v. Treasury Board (Revenue Canada, Customs and Excise), PSSRB File No. 166-02-10203 (19820505); Mohawk Hospital Services Inc. v. Canadian Union of Public Employees, Local 1605, [1993] O.L.A.A. No. 799 (QL); Northern Lights College v. British Columbia Government Employees' Union, [2009] B.C.C.A.A.A. No. 61 (QL); Pajic v. Statistical Survey Operations, 2012 PSLRB 70; Rhéaume v. Canada (Attorney General), 2009 FC 1273; Riche v. Treasury Board (Department of National Defence), 2013 PSLRB 35; Shneidman v. Canada (Attorney General), 2007 FCA 192; Star Choice Television Network Inc. v. Tatulea, [2012] C.L.A.D. No. 32 (QL); Syndicat canadien de la fonction publique (Syndicat des employés de Vidéotron ltée, section locale 2815) c. Vidéotron ltée, [2008] D.A.T.C. no 193 ("Vidéotron"); Tipple v. Canada (Treasury Board), [1985] F.C.J. No. 818 (C.A.)(QL); and Westroc Industries Ltd. v. Teamsters Local Union No. 213, [2001] B.C.C.A.A.A. No. 112 (QL).

B. For the grievor

60 In his arguments, the grievor admitted that there was misconduct and that discipline was warranted. However, mitigating factors should have been considered, and his employment should not have been terminated. The grievor has more than 20 years of service within the federal public service. Before 2009, he had a good record as an employee. Then, in 2009, his attendance problems began because of serious health issues and other personal problems. The grievor's good employment record was not taken into consideration in the decision to terminate him.

61 The grievor has always admitted his faults. After receiving a written reprimand and a two-day suspension, he wrote to the employer and admitted his misconduct. However, he disagreed with the type of discipline imposed on him. The same applies to the 10-day suspension. He admitted his wrongdoing but asked that the suspension be reduced or that the 10-day pay cut be spread over more than one paycheque. After the 20-day suspension, he admitted not meeting the exact protocol to report his absences but argued that the discipline was too harsh. After he was informed that he was terminated, the grievor did not pretend that he had committed no fault but asked for a last chance. Finally, the grievor admitted in his testimony that he did not respect the reporting protocol on five occasions in January 2012.

62 The employer knew that the grievor had a serious medical condition. The evidence shows that he informed the employer of it several times. There are also some documents in which the employer states that the grievor has a medical condition.

63 Dr. Saar's report highlights the potential nexus between the grievor's medical condition, his attendance at work and his lack of respect for reporting procedures. Even though the employer knew that the grievor was sick, it did not send him for a medical assessment in 2011 or in early 2012. The grievor had already indicated to the employer that he agreed to undergo a medical assessment. The employer could have done a lot more to arrange for that assessment to take place, considering that it knew that the grievor was distressed.

64 The employer admitted that the reason for the termination was that the grievor failed to report his absences properly five times in January 2012. The grievor recognized his fault. However, on those days, he was on unpaid leave, no matter the reason for his absence. There was no financial cost for the employer.

65 The grievor's behaviour was erratic. Some days, he respected the employer's instructions on how to report his absences, and some other days, he did not. He was partially compliant with the employer's instruction. That means that he is not an ungovernable employee who never follows the rules.

66 The evidence shows that the grievor was a very competent and fully trained employee. After being terminated, he was very polite and cordial with the employer's representatives. There was no evidence adduced by the employer's witnesses that they would have difficulties working with the grievor again. Those witnesses had nothing to say against the grievor, except for his absences and failure to respect reporting procedures when absent.

67 The grievor asked for punitive damages. The employer ignored the advice from its labour relations specialist, who recommended dealing with the grievor's absences as non-culpable behaviour and referring him for a medical assessment. Instead, the employer decided to discipline the grievor. It admitted in a document that it ignored that advice because it would have led to further delays. In addition, the employer lacked any equity in the termination procedure. It failed to give notice of the termination meeting and to advise the grievor that he could be represented. These procedural flaws are enough to justify rescinding the termination ab initio. In the alternative, the adjudicator should impose punitive damages on the employer for its behaviour. Furthermore, the employer referred to paragraph 12(1)(e) of the Financial Administration Act, R.S.C. 1985, c.F-11 (FAA) to terminate the grievor. That provision relates to termination for non-culpable behaviour. However, the evidence shows that the grievor was terminated for culpable behaviour.

68 The grievor referred me to the following decisions: Wentges v. Deputy Head (Department of Health), 2010 PSLRB 24; Dupont Canada v. Communications, Energy and Paperworkers Union of Canada, Local 28-0 (2011), 208 L.A.C. (4th) 174; McKinley v. BC Tel, 2001 SCC 38; Tipple v. Deputy Head (Department of Public Works and Government Services), 2010 PSLRB 83; and Robitaille v. Deputy Head (Department of Transport), 2010 PSLRB 70.

IV. Reasons

69 The grievor is contesting the employer's decision to terminate his employment. In his grievance, he also alleges that the employer discriminated against him and that it harassed him on the grounds of family status and disability. When he referred the grievance to adjudication, the grievor advised that he wanted to amend his grievance to include in it several procedural issues. At the hearing, he asked for punitive damages for the non-respect of the discipline procedure. I will deal with these questions in the following order: procedural issues and punitive damages, allegations of discrimination and harassment, and termination of employment.

A. Procedural issues and punitive damages

70  The evidence supports the grievor's allegation that he did not receive any notice that the January 20, 2012 meeting was a termination meeting. He learned of it during the meeting. The evidence also supports the allegation that the grievor was not informed of his right to be represented at that meeting. In addition, the employer admitted that the decision maker at the final level of the grievance procedure did not attend the grievance hearing.

71 On the last point, I agree with the employer that there was no obligation for the person who made the decision at the final level of the grievance procedure to attend the grievance hearing. In fact, there are no obligations to hold an oral grievance hearing. On those points, the Federal Court in Hagel wrote the following at paragraph 35:

…

… Further, a duty to conduct an in-person hearing does not arise out of any provisions in the PSLRA and the applicants did not point the Court to any other policy documents that so provide. In these circumstances, I reject the applicants' contention that the decision-maker was under an obligation to attend in-person at the grievors' presentation.

72 I believe that it is poor labour relations practice for an employer not to give any notice that a discipline meeting is to take place and not explain to an employee that he has the right to be represented. In the case of a unionized employee, it might be a violation of the collective agreement as many collective agreements provide for such a right. As a consequence of this employer's poor labour relations practice, the grievor did not have a chance to prepare for the discipline meeting. Nor did he have the opportunity to ask for someone to represent him at that meeting.

73 The injustice created by the employer's poor practice was corrected by giving the grievor the opportunity to express his point of view and his arguments and to be represented if he wished during the hearing of the grievance at the final level. Furthermore, the adjudication to determine whether the employer had just cause to impose discipline is a de novo hearing. On that point, the Federal Court of Appeal wrote the following in Tipple:

…

Assuming that there was procedural unfairness in obtaining the statements taken from the Applicant by his superiors (an assumption upon which we have considerable doubt) that unfairness was wholly cured by the hearing de novo before the Adjudicator at which the Applicant had full notice of the allegations against him and full opportunity to respond to them. In particular, it was no error of law for the Adjudicator to give such weight as he thought right to those statements which were, in our view, properly admitted in evidence by him. The section 28 application will be dismissed.

…

74 Considering that this is a de novo hearing that cures the employer's procedural flaws in the discipline process, I am unable to conclude that the termination was void ab initio.

75 When he referred the grievance to adjudication, the grievor also raised the issue that the employer unreasonably delayed providing him with the requested copies of his Health Canada assessment documentation. The grievor argued that Dr. Saar's report, which was written several months after the termination of employment, highlighted the potential nexus between the grievor's medical condition and his lack of respect for reporting procedure. According to the evidence, the grievor never raised that issue with the employer. Instead, the evidence discloses that the focus of any Health Canada assessment would have been the grievor's health and ability to work on a regular basis. Furthermore, even in the absence of a Health Canada assessment, the grievor was fully capable of obtaining medical documentation from his family physician to confirm his potential inability to report absences according to the employer instructions. This is not a case of an employee who has been terminated for his incapacity to work or even for his absences from work. Rather, this case is about an employee who failed to obey the employer's procedures to report his absences from work. In that context, it is not very relevant to determine whom to blame for the lack of a Health Canada assessment. The grievor has a medical condition but not to such a point that he could not seek an assessment from his own doctor on his capacity to follow the employer's instruction to report absences.

76 I am not prepared to order the employer to pay punitive damages for its poor labour relations practices of January 20, 2012, or for not referring to the right provisions of the FAA in the termination letter, or for ignoring the advice of HR. The grievor referred me to Tipple and Robitaille, in which the adjudicators had ordered the payment of punitive damages. With all due respect, the gravity of the employer's errors or omissions in those two cases is by far greater than in this case. Furthermore, the grievor is an experienced HR specialist who has worked in labour relations in the past. He knew his rights and could have invoked them at the relevant time. He could have asked the employer to delay the January 20, 2012 discipline meeting, but he did not. Finally, there is no obligation for senior management to follow advice received from HR. Discipline decisions are made by line managers, not by the advisors. I do not consider that the employer's actions rise to the level of being egregious, malicious or outrageous or in bad faith. Neither do I find that they are punishable on their own. I therefore decline to award punitive damages.

77 Considering those comments, I do not need to rule on the employer's objections that the grievor could not amend his grievance or that I do not have jurisdiction to rule on these procedural issues.

B. Allegations of discrimination and harassment

78 In his grievance, the grievor alleged that the decision to terminate his employment constituted discrimination and harassment on the grounds of disability and family status. He gave notice to the CHRC that he intended to raise an issue involving the interpretation or the application of the CHRA. However, there was very little said on that at the hearing. Furthermore, no direct argument was made at the hearing that the employer discriminated against the grievor.

79 The employer argued that it did not discriminate against the grievor and that a claim for accommodation must be dismissed. The employer argued that the grievor failed to sign the consent form for the medical assessment. As a result, the employer was never provided with the requested medical information.

80 The evidence shows that the grievor suffers from chronic anxiety disorder and that his child has serious health and behavioural issues. The evidence also shows that the grievor had informed the employer of his health issues and of his child's problems.

81 However, it is important to point out that the grievor was not terminated because of the frequency of his absences from work. Rather, he was terminated because he allegedly failed to respect the procedure to report his absences from work. Absolutely no evidence was adduced that the grievor asked to be accommodated in how he could report his absences from work because of his health condition or of his child's situation. Nor was there any argument that the employer refused any suggestions made by the grievor in that respect. I should also add that, during the hearing, I did not hear the word "harassment" once from any of the witnesses, including the grievor, or in any of the arguments. The grievor seems to have abandoned that allegation.

82 Considering those comments, I conclude that the decision to terminate the grievor's employment does not constitute discrimination or harassment on the grounds of disability and family status.

 C. Termination of employment

83 The employer argued that the grievor was terminated for failing to respect the protocol to report his absences. Ms. Guèvremont testified that that was the reason for the termination. Precisely, the evidence shows that, after his last suspension, the grievor failed to respect that protocol on January 4, 5, 10, 12 and 18, 2012. The grievor admitted that he failed to respect the protocol on those dates. Before January 2012, the evidence shows that, in 2011, the grievor had received a written reprimand, a 2-day suspension, a 3-day suspension, a 10-day suspension and a 20-day suspension for failing to respect the protocol to report absences. None of those facts was contested by either party.

84 There is no doubt in my mind that the grievor's five failures to report his absences in January 2012 as per the protocol constitute misconduct and just and reasonable cause to impose discipline. As stated in Riche or in Luscar Ltd., it is reasonable for an employer to set rules to report absences, and failing to respect those rules gives the employer cause to impose discipline. In this case, the rules were simple; the grievor had to verbally report his absences to his manager by phoning between 08:00 and 09:00.

85 On January 4, the grievor sent an email to Ms. Carpinteiro, informing her of his absence, but he did not call her or talk to her. On January 5, the grievor sent an email to Ms. Carpinteiro, informing her of his absence. He also left her voicemail messages, but he did not talk to her. On January 10, the grievor sent an email to Mr. Saad, informing him of his absence, but he did not call Mr. Saad. On January 12, the grievor sent an email to Mr. Saad, informing him of his absence. He also left him a voicemail message, but he did not talk to him. On January 18, the grievor sent an email to Mr. Saad, informing him of his absence. He left him a message, but he did not talk to him. On each of those five days, the grievor failed to respect the protocol to report his absences.

86 The evidence shows that those are culminating incidents. They all relate to the same reasons that the grievor was disciplined five times in 2011. Considering the doctrine of progressive discipline and that the last penalty imposed on the grievor was a 20-day suspension, I should now decide whether termination was a reasonable penalty to impose on him.

87 In Desrochers, the grievor already had several disciplinary penalties imposed on him related to absenteeism or to a failure to properly report absences. The last penalty before termination was a 14-day suspension. The culminating incident was the failure to contact his supervisor to give him the reasons for his absence and to provide a medical certificate within 72 hours, as per the instruction given to him. The adjudicator maintained the termination.

88 In Westroc Industries Ltd., the grievor already had two written reprimands and three suspensions imposed on him for failing to follow directions to report absences. The last penalty before termination was a six-day suspension. The culminating incident was the failure to telephone his supervisor to notify him that he would be absent. The arbitrator concluded that termination was not an excessive penalty.

89 In Vidéotron, the grievor already had two written reprimands and two suspensions imposed on him for failing to report his absences within the delay specified in the collective agreement. The last penalty before termination was a three-day suspension. The culminating incident was a failure to report his absence as per the collective agreement. According to that collective agreement, for a fifth offence, the employer could impose a suspension or terminate employment. The employer chose termination, and the arbitrator did not overrule the employer's decision.

90 In Luscar Ltd., the arbitration board dismissed the grievance of an employee who was terminated for absences from the workplace. It did not believe that the employer's decision to terminate the grievor was excessive.

91 In Wentges, the grievor was terminated on the basis of three incidents for which the employer felt that he had been insubordinate. He had already been disciplined several times for incidents of a similar nature. The adjudicator concluded that there was no insubordination for two of those incidents. However, the grievor was insubordinate by failing on one occasion to respect the instructions on how to report his absence. The adjudicator partly allowed the grievance and replaced the termination with a 30-day suspension. In that case, the grievor was terminated on the basis of one minor culminating incident of misconduct.

92 The grievor admitted to his wrongdoing, including having lied on some occasions about his child not going to school. He seems to understand the seriousness of his faults. He testified that he regretted his actions and his decision making. The grievor testified that he has been working full-time since July 2012 and that he has not missed one day of work. He also testified that he has taken positive steps to manage his illness and that his child's situation has improved. He has more than 20 years of service for the employer, and there is no evidence that he had an attendance problem before 2009. Furthermore, the evidence on the grievor's performance was positive. He was a competent, knowledgeable and experienced HR specialist.

93 I believe that the grievor is sincere in admitting his wrong doing but he could have done so after each disciplinary action imposed on him, and then corrected his behaviour, which he did not do. Furthermore, even though the grievor admitted his wrong doings, the fact remains that he is culpable of misconduct. He even lied to the employer on multiple occasions, using his child's situation as an excuse for not going to work. Also, I must add that, even though the grievor was a competent employee, the employer could not trust that he would be at work on any given day.

94  The grievor was culpable of misconduct on five occasions in January 2012. Those misconducts were of the same nature as the ones for which he had already been disciplined several times. He did not follow the employer's instruction on reporting absences, and on some of the days that he followed them, he lied about the reason for his absence. The grievor was warned by the employer that he could be terminated after the 10-day suspension and the 20-day suspension if he did not correct his behaviour. He ought to know the consequences of his actions. The warnings were clear and the grievor had full knowledge of their meaning, being an experienced human resources specialist.

95 In such circumstances, I see no reason to change the penalty imposed by the employer for the grievor's misconduct. I find that the employer's decision was entirely reasonable and fully justified in the circumstances of this case. The grievor's misconduct was repeated. The employer imposed progressive discipline because the grievor did not report his absences according to the legitimate procedure that it put in place. The progressive discipline included letters of reprimand, a 2-day suspension, a 3-day suspension, a 10-day suspension and a 20-day suspension. They did not cause the grievor to change his behaviour.

96 The grievor only worked 6 of the 26 working days between the end of the 20-day suspension and his termination. During that period of time, he violated the reporting procedures on five occasions. Obviously, the grievor had not corrected his behaviour, and those five culminating incidents were sufficient to justify the employer's decision to terminate his employment.

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

V. Order

98 The grievance is denied.

June 6, 2013.

Renaud Paquet,
adjudicator