FPSLREB Decisions

I. Individual grievance referred to adjudication

A. Introduction

1 Kim Magee, the grievor, was a correctional officer, CX-02, with the Correctional Service of Canada (CSC). He was injured while performing the duties of his position and required an extended period of treatment and rehabilitation. In 2008, he left the workplace to undergo further treatment. A physical assessment in February 2009 indicated that he could return to the workplace with the limitation that he was not to have inmate contact as he could no longer restrain inmates. Ultimately, he was accommodated in the position of a victim services officer, WP-03.

2 It is not disputed that the position of a victim services officer is a reasonable accommodation; however, Mr. Magee maintains that there were preferable accommodations, namely, as an AS-05, to which he should have been promoted, or alternatively, a position in his existing position classification, CX-02 — a hybrid job working at the front gate of the Regional Psychiatric Centre in Saskatoon, alternating with the control centre of the institution, that did not require restraining inmates. Either of these positions would have maintained his base salary, together with premiums and overtime, relatively intact. He maintains that the employer breached its duty to accommodate by placing him in the victim services officer position at a lower salary, and as a consequence, he has suffered significant monetary and other damages.

3 At issue, among others, is whether the employer's duty to accommodate includes promoting a disabled employee in order to maintain his or her gross compensation. Also at issue is whether it would constitute undue hardship for the CSC to assign the grievor to posts in the control centre or the front gate of the Regional Psychiatric Centre.

4 On October 21, 2009, Mr. Magee presented a grievance to his employer, the Correctional Service of Canada, that reads as follows:

I grieve that my employer has been negligent in their duties by failing to put forth accommodation measures in the workplace as per the Treasury board's duty to accommodate policy thus causing me serious financial, physical and psychological damages. I grieve that because of my disability my employer has discriminated against me in an ongoing manner plus the employer has violated the Canadian human rights act, as well as section 19 and all other related articles of our collective agreement.

5 By way of corrective action, Mr. Magee requested that:

Management put in permanent accommodation measures immediately as per my outlined medical condition and that I suffer no loss of wages as a result of any permanent accommodation. That I be compensated for all losses including pay and benefits as well to include any lost wages and any additional expenses that may result from the situation. That I am compensated by the employer in the amount of $20,000 for pain and suffering, psychological and physical damages I have suffered and will continue to suffer in an ongoing manner due to my employer's neglect. That I am compensated by the employer in the amount of $20,000 for the reckless and willful discrimination I suffered. I ask that this grievance does not prejudice me in my future dealings with my employer. I demand that any tax implications resulting from this grievance be the responsibility of the employer. I request a written apology from the department.

6 The employer responded to the grievance at the second level on January 6, 2010, after reciting the substance of the grievance, as follows:

Although you grieve that the employer has not put forth accommodation measures in the workplace, it is noted that you have been temporarily accommodated at regional headquarters, prairies since May 26, 2009 further, during our subsequent meeting December 23, 2009 it was confirmed that you would continue to be on assignment at your substantive rate of pay in the in inmate affairs sector commencing January 4, 2010 to April 30, 2010 at which time with the assignment through satisfactory to yourself and management, a permanent offer at the ASO four level will be provided to you. Accordingly, your grievance and corrective action are denied.

[Sic throughout]

7 The employer responded to the grievance at the final level of the grievance procedure on September 27, 2010, after reciting the substance of the grievance, as follows:

Prior to a decision being rendered at the final level consultation was held with Fred Sadori, Union of Solicitor General Employees (USGE) representative.

After carefully reviewing all of the pertinent information on file, I have concluded that management has worked with you, as well as the Saskatchewan Worker's Compensation Board from the outset, in order to find a solution that meets your medical needs, and thus, you have been properly accommodated in accordance with the Canadian Human Rights Act, the Treasury Board Policy on the Duty to Accommodate, and the PSAC collective agreement.

8 On December 8, 2010, the Public Service Alliance of Canada referred the grievance to adjudication, advising the former Board that the grievor was a member of the AS group employed by the Correctional Service of Canada and that the grievance concerned article 19, "no discrimination," of the program and administrative services collective agreement, expiring on June 10, 2010.

9      On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board ("the Board") to replace the former Public Service Labour Relations Board ("the former Board") as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40), also came into force (SI/2014-84). Pursuant to section 396 of the Economic Action Plan 2013 Act, No. 2, an adjudicator seized of a grievance before November 1, 2014, continues to exercise the powers set out in the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) (PSLRA) as that Act read immediately before that day.

10 The grievance came on for hearing in Saskatoon on September 23 to 25, 2014, and June 9 to 12, 2015.

11 Mr. Magee, gave evidence at the hearing, and he called two other witnesses to testify; his physician, Dr. Robert Parker, and the Regional Fire Safety Advisor and Vice President of Local 401, Terry Taylor. The employer called as its witnesses Paul Urmston, who at all material times was the Assistant Deputy Commissioner, Community Operations, with responsibility for 11 institutions, 3 healing lodges and the Regional Psychiatric Centre; Caleigh Miller, who from March 2009 until September 2010 was the Chief of Human Resources for correctional services, responsible for the Regional Psychiatric Centre and a healing lodge, and who from the spring of 2010 was the Regional Return to Work Coordinator; Ed Suchorab, currently the Manager of Assessment and Intervention, responsible for managing parole officers, and who in 2009 was the Acting Return to Work Coordinator; and Laurie Burnouf, the Regional Manager of Victim Services, and Mr. Magee's manager since March 2010.

II. Summary of the evidence

12 Mr. Magee commenced employment with the CSC in September 2001 as a correctional officer at the CX-01 group and level in the Saskatchewan Penitentiary. After several months, he was appointed to an acting CX-02 position and was seconded to the Regional Psychiatric Centre. In 2006, he was appointed to a permanent CX-02 position.

13 He described the duties of a CX-01 and CX-02 correctional officer as being basically the same, with certain additional duties and responsibilities assigned to the CX-02 position. The common duties involve taking care and control of inmates, escorting them within the institution, breaking up disturbances and escorting them to appointments outside of the institution, such as to court or to doctor's appointments. The CX-02's additional responsibilities include being in charge of segregation units and supervising inmates' showers and exercise time. Correctional officers at the CX-02 level also carry a caseload and do case work with individual inmates.

14 Mr. Urmston testified that the Regional Psychiatric Centre is a 240- to 250-bed facility for men and women, including a 24- and 12-bed hospital. There is a psychiatric wing for patients. Men and women are kept separate, under specific operating procedures. The centre is staffed with a combination of nurses, correctional officers, program staff, psychiatrists and psychologists.

15 There are different units in the facility with different specializations. There is a segregation unit, which deals with more intense psychiatric illnesses. This unit is completely disassociated from the rest of the institution. The Churchill unit is for women. The Assiniboine unit deals with offenders with sexual dysfunction with a psychiatric causation, and the McKenzie unit is a facility providing a variety of services.

16 Although inmates are largely confined to their units, they do move about the facility, to the gymnasium and the library. There is a need for them to go outside the institution to hospital and to the courts. Some of the inmates perform work activities in their units.

17 Inmates do not have access to a number of locations in the facility that are not built securely enough to withstand a breach of more than 12 hours. Those locations are the Main Communications and Control Post (MCCP), the principal entrance, the nursing area, the dispensaries and the segregation units, where the more acute patients are located.

18 There had only been one breach of the MCCP in 29 years.

19 In April 2003, Mr. Magee was escorting an inmate when he slipped on ice in front of the institution and fell on his neck, shoulder and arm. Initially, he thought he had just strained a muscle, and continued to work. Approximately a year later, he was sent for an MRI. The diagnosis disclosed that he had torn his rotator cuff and that the movement of his tendons had been impinged.

20 He underwent surgery on his shoulder in 2006.

21 He returned to work at the Regional Psychiatric Centre. His surgery was not successful. He complained of pain. He was advised that the surgery had been intrusive and that it would take up to a year for the pain to diminish.

22 Approximately one year after the surgery, he returned for another MRI. During the course of that year, he had restrained offenders. He learned that he had snapped a tendon, torn the rotator cuff and torn other muscles in his shoulder. His doctor advised him that he required another surgery and informed him that he might not be able to return to work as a correctional officer.

23 He informed Dave Burbach, the correctional manager of scheduling and deployment, that his doctor had indicated that he may not be able to return to work as a correctional officer. Mr. Burbach purportedly advised him that he need not worry as there were a number of positions in which he could be placed when he returned to work. They started to discuss some options. Mr. Burbach suggested that he would be a good fit at the Staff College, where he would be able to continue in his correctional officer role; however, no concrete steps to pursue this option were taken prior to the operation.

24 The second operation took place in 2008. The recovery time took a little over a year. Mr. Magee stated that the operation was not very successful. His arm had to remain in a sling for an inordinately long period of time. He had very little movement in his shoulder, and he underwent prolonged physiotherapy. He was not able to return to work until 2009.

25 Sometime after his second surgery in 2008, Mr. Magee testified that Ed Suchorab, the then-acting return to work coordinator, telephoned him at home and indicated that he wanted him to return to work in a social officer position. The social officer position looked after the offenders' gymnasium, supervised offenders in the weight room and the inmate workers' locker room. The social officer also dealt with the general prison population during exercise time and worked directly with offenders in the gym. Mr. Magee stated that there is frequently violent conflict in these areas so he replied to Mr. Suchorab that having just undergone surgery, with his arm now in a sling, he would be putting himself at risk if he accepted the position.

26 Mr. Magee testified that in response, Mr. Suchorab said that he was lazy, that he did not want to work and that he was responsible for his injury. Mr. Magee stated that he felt belittled and that Mr. Suchorab had no concern for his well-being and safety.

27 Mr. Magee acknowledged that he did not file a harassment complaint; nor did he recall approaching his union about the incident.

28 Mr. Suchorab, in his testimony, denied making the comments attributed to him by Mr. Magee.

29 Mr. Magee stated that he had further interactions with Mr. Suchorab after he returned to work and performed in an acting AS-05 position. Mr. Suchorab at that time was the acting return to work coordinator. He had several discussions with Mr. Magee about his placement, at which time Mr. Suchorab said that he did not deserve any promotion and that he should be so lucky as to get a groundskeeper or janitor job. Mr. Magee did not file a harassment complaint; nor does he remember going to the union about this incident.

30 Mr. Suchorab did not recall any conversation of that nature with Mr. Magee. As the acting return to work coordinator, they did have conversations, likely about the accommodation process, and he would have referred him back to Caleigh Miller at the Regional Psychiatric Centre as it was that site that was responsible for his return to work. He stated that he was very irritated that Mr. Magee had made those allegations against him, and they go against his character.

31 As of January 2009, Mr. Magee's physiotherapist wrote to Mr. Burbach, advising that he would likely be left with a number of restrictions: overhead lifting limited to approximately 15 to 20 pounds; shoulder-height lifting limited to approximately 25 pounds; and overhead reaching limited to a few minutes. The physiotherapist also advised that his direct contact with inmates be limited due to his inability to provide restraint. She requested that the employer accommodate him in a position with the above restrictions.

32 Human Resources sought clarification regarding his restrictions, whether they were permanent or temporary, and when he could return to full unrestricted or accommodated duties. On February 4, 2009, the Physical Rehabilitation Centre recommended that Mr. Magee not return to a position with his pre-injury employer that would potentially place him in a situation where he would have to restrain an inmate and/or defend himself given the impaired range of motion and strength in his right (dominant) shoulder.

33 Ms. Miller first became involved in facilitating Mr. Magee's return to work in March 2009, working with union representatives, the institution's management and Mr. Magee. They were looking at a variety of jobs. Initially, they examined his existing CX-02 job; however, it was determined that he would be unable to perform the substantive duties of the position.

34 This determination was based on the February 4, 2009, report of the Saskatchewan Workers' Compensation Board (WCB) physical and functional capacity evaluation provided to the employer by Mr. Magee on March 24, 2009.

35 On March 6, 2009, Ms. Miller wrote to Mr. Burbach, indicating that Mr. Magee had advised her that he had had some discussions with him regarding his return to work at the Staff College. She looked into the availability of a position at the Staff College; however, there was no position available. She so advised Mr. Magee.

36 On March 17, 2009, she contacted the manager of programs/mental health interventions, looking for a position as a social programs officer for Mr. Magee, based on her understanding that he had both the education and experience in the area and that it would be a good fit. The position was at an equivalent level as Mr. Magee's substantive position, based on the salaries in the collective agreements.

37 She was advised that there was no permanent vacancy in the branch and that they were not expecting one in the near future.

38 In May 2009, Ms. Miller located a vacant AS-05 position at regional headquarters. Mr. Magee had several discussions with Mr. Burbach, who informed him of the position, and he spoke with Regan Carver, the head of security, to whom he would be reporting. Mr. Magee was given what Ms. Miller described as an "acting assignment" in the position for a period of four months less a day starting on May 26, 2009, until September 25, 2009. The job description was shared with both the WCB and the employee, and no concerns were noted.

39 The job entailed reviewing the planned use-of-force videos for the Prairie region and making recommendations to staff, comparing their actions with the commissioner's directive on the use of force.

40 On May 28, the position was advertised to be staffed on an indeterminate basis. Mr. Magee applied for the position. He met the screening criteria and was invited to write an exam on June 10, 2009, designed to assess the essential merit qualifications.

41 He wrote the examination and was ultimately informed that he had failed by one point. He testified that he was under a lot of stress when he wrote the exam and that he had never written an exam of that nature before.

42 On July 30, 2009, Mr. Magee informed Ms. Miller that he did not qualify in the AS-05 appointment process. She advised him that he could not be deployed to the AS-05 position because it would be considered a promotion. Mr. Magee did not raise, nor did he request, an opportunity to attempt to be reassessed for the AS-05 position. Ms. Miller testified that even if an employee has priority status, he or she could only be assessed once during an appointment process.

43 Mr. Urmston was aware that Mr. Magee was being accommodated in an AS-05 position for four months less a day working for Mr. Regan, the director of security, reviewing use-of-force tapes. Mr. Urmston stated that in his view, Mr. Magee was not performing the full duties of the analyst position as the analyst is required to go out to the institutions to review camera angles. Because he was not able to go into the institutions, he was not able to perform this aspect of the job.

44 Mr. Urmston was unaware that Mr. Magee had on occasion gone to institutions to pick up or return use-of-force tapes.

45 Mr. Urmston testified that as Mr. Magee was unsuccessful in the appointment process, he did not demonstrate that he had the ability to do the job; nevertheless, Mr. Urmston agreed to "second" him to the position for an additional time because he had no other work for him to perform. He stated that if an employee is home for six months or more, there is less than a 20% chance that he will come back to work. He stated that in "seconding" him to the position for an additional time, he was not expressing an opinion on Mr. Magee's qualifications for the job, although he understood the work he was performing was adequate.

46 Human Resources gave some consideration to making a non-advertised appointment of Mr. Magee to the AS-05 position retroactively based on his priority status. However, Mr. Urmston was not prepared to consider this option as he had not met the essential qualifications for the position and he had already "broken the rules" in extending him.

47 On September 3, 2009, Mr. Magee advised Ms. Miller that he was very unhappy with the process and he felt he should have been appointed to the AS-05 position on an indeterminate basis because he had been hurt at work and it was the department's responsibility to take care of him.

48 Mr. Carver, Mr. Magee's manager, prepared a performance evaluation report for him for the period of May 20, 2009, to September 30, 2009 in which he stated that his work on the use-of-force portfolio had been good.

49 Mr. Magee eventually complained to the Public Service Staffing Tribunal (PSST) that the Correctional Service of Canada should have accommodated him by appointing him to the AS-05 position, alleging that the failure to appoint him indeterminately to the position was an abuse of authority.

50 I depart from the chronology of the evidence at this juncture to review the evidence relating to the complaint before the PSST.

51 The complaint was heard by the PSST on February 24 and 25^th, 2011. The complaint was dismissed with reasons for decision dated April 13, 2011, on the basis that the Tribunal found no abuse of authority (see Magee v. Commissioner of the Correctional Service of Canada, 2011 PSST 12).

52 In the reasons for decision, the Tribunal notes at paragraph 6:

The complainant … took no issue with the AS-05 assessment process itself or the qualifications of the appointed persons. His concern was limited to the issue of the respondent's failure to accommodate his disability by appointing him to the AS-05 position.

53 The Tribunal notes at paragraph 11:

Ms. Miller testified that if the complainant had met the essential qualifications when assessed for the AS-05 position, he would have been appointed to it using his priority status. However, when it was determined that he did not meet the essential qualifications , the indeterminate appointment was not further considered.

54 At paragraph 14, the Tribunal states that it:

… finds no abuse of authority in the respondent's decision not to appoint the complainant from the internal advertised appointment process for the AS-05 position. The Tribunal finds that the complainant failed to meet the essential qualifications for this position. He has not challenged the knowledge examination or his results and takes no issue with the assessment process that found him not qualified. Section 30(2)(a) requires that to be appointed, a person must meet the essential qualifications established for the position. A person who does not meet the essential qualifications cannot be appointed.

55 The Tribunal notes at paragraph 16 that:

The complainant argues that he was nonetheless entitled to be appointed to the … position as a priority… based on his contention that he was qualified and the respondent should accommodate [him] by appointing him to the position.

56 The Tribunal observed that the foundation for the complainant's claim that he was qualified was unclear as he had not argued against the assessment board's finding that he failed the written knowledge examination. The Tribunal stated that if, however, the complainant was relying on his initial appointment as an indication that he was qualified, he had only been appointed for a period of less than four months and that the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) (PSEA) creates an exception for appointments of less than four months from satisfying the merit criteria set out in section 30.

57 Ms. Miller testified in this case that the essential qualifications for the AS-05 position would have been determined by more than just the written tests. The essential qualifications include education, experience, knowledge factors and personal suitability, which were set out in the job opportunity advertisement for the position.

58 Returning to the chronology, Ms. Miller wrote to Mr. Suchorab on September 22, 2009, outlining the events to date from her perspective. She noted that during a conversation that day with Mr. Magee, he advised her that both the WCB and his doctor have "no inmate contact" as a restriction. Mr. Magee provided her with a medical note from Dr. Parker that stated: "This patient can return to work -advise no inmate contact- permanent impairment". To her, this was new information as anecdotal conversation with the WCB had indicated that there was no concern with various positions, simply that he could not return to a CX position or be a primary responder. She noted that given this new information, in good conscience, she could not facilitate a return to the Regional Psychiatric Centre, where all positions have some element of inmate contact.

59 She wrote to the WCB, requesting updated information of Mr. Magee's claim status, and was advised that there was no change in his work restrictions, namely, that he would not be able to return to a position that could or would leave him in a situation where he would have to restrain an inmate and/or defend himself. Ms. Miller testified that based on the note from Dr. Parker and the information from Mr. Magee, she concluded that Mr. Magee could not be placed in the Regional Psychiatric Centre in a CX position or any position in the institution as inmates have access to all of the areas.

60 Dr. Parker testified that when he wrote the note, he was concerned that Mr. Magee could not safely do a job with inmate contact as he could not restrain an inmate or defend himself. He stated at the hearing that if Mr. Magee was in a safe area or being escorted, he would not be as concerned. Dr. Parker agreed in cross-examination that it could have been useful if he had written that in his note at the time.

61 In or about this time, Mr. Magee expressed interest in an AS-04 analyst position, which required a university degree or a public service equivalency. He raised with Ms. Miller the possibility of writing an AS-04 university equivalency exam as he did not possess a university degree.

62 He also advised her that a security and maintenance officer CX-02 position might be open soon. He indicated that he might be interested in a disability priority status but was reluctant because it might entail his taking a position at another department and he did not want to leave the Correctional Service of Canada. Ms. Miller responded that the position was not available. In her note to Mr. Suchorab, she stated that ideally she would like to assign Mr. Magee to the AS-04 analyst position for a temporary period of four to six months. She noted that she would arrange for him to write the university equivalency exam and that if he passed, they should endeavour to deploy him to that position as it did not constitute a promotion. She noted that if he did not qualify, they would continue to seek other options.

63 Ms. Miller made arrangements for Mr. Magee to write the equivalency exam and provided him with some preparatory material that would not compromise the examination process. Mr. Magee took the university equivalency test on November 17, 2009. He was not successful.

64 Ms. Miller was strongly recommending that Mr. Magee register for a disability priority, where hiring managers in other departments would be required to consider him before others. Ultimately, he did register at the end of September 2009. Mr. Magee advised her that he preferred to have a position outside the Regional Psychiatric Centre and expressed concern with his safety and the safety of others if he was inside the institutional walls.

65 Mr. Magee's acting appointment as an AS-05 was renewed from September 26, 2009, until January 22, 2010. Management was not prepared to extend the appointment beyond January 22, 2010, as it planned to move forward with the AS-05 appointment process that was just about complete to staff the position on an indeterminate basis.

66 On October 8, 2009, he was asked whether he was interested in another AS-04 analyst inmate affairs position that had been posted. He was advised that because he was now a departmental priority, he need not apply. Mr. Magee advised that he was not interested in the position due to the salary difference.

67 On December 10, 2009, Ms. Miller advised labour relations, who were preparing for his grievance hearing, that the "no inmate contact" restriction came from both Mr. Magee's physician and the WCB. In her view, this restriction ruled out the Regional Psychiatric Centre as an option since all positions have some element of inmate contact. She advised that they were in the process of requesting additional medical information to look at other options for a placement to determine whether he could work with parolees and offenders who were at large. She also advised that she and Mr. Suchorab would be meeting with the WCB case manager and vocational rehabilitation to discuss further options.

68 I depart from the chronology at this point to review the evidence with respect to possibly accommodating Mr. Magee at the MCCP and the principal entrance. On December 22, 2009, Ms. Miller and Mr. Burbach discussed this possibility. Mr. Burbach was of the view that both the MCCP and the principal entrance were non-responder posts. Ms. Miller noted, however, that the principal entrance post was an armed post but she did not know if there were concerns with using firearms given Mr. Magee's physical restrictions. She observed that the visitor security area at the front gate required the correctional officer to search vehicles and lift packages onto the x-ray machine and scan them, as well as search inmate visitors. There was a risk of altercation with the visitor in the event that contraband was located or entry was denied. Mr. Burbach advised that the CXs typically rotated through the MCCP every four hours due to the physical environment inside (dimly lit, video cameras, buzzers/alarms) and due to the concentration required. She observed that she would expect mental fatigue and physical symptoms to arise after an 8-, 12- or 16-hour shift in that post.

69 She testified that there was a disagreement between her and Mr. Suchorab as he felt they could put Mr. Magee in positions where there was limited inmate contact, whereas she was of the view that there could be no inmate contact based on the reports from Mr. Magee's physician.

70 On December 22, 2009, Dr. Parker wrote to the WCB, stating in part:

You were asking about inmate contact during his return to work program and as I expressed above this is a safety issue and would have to be looked at as far as the risk of Mr. Magee not being able to defend himself or help another prisoner or co- worker [sic]. I would like to see a job demands analysis of any job that they propose for him. Mr. Magee thinks the only safe place for him would be away from direct inmate contact.

71 Mr. Magee's case was referred to the Return To Work Committee, composed of representatives of the Union of Canadian Correctional Officers and management, namely a Correctional Manager, the local president of the union, a local representative of the union, and Ms. Miller, as the Human Resources representative. The committee concluded that placing Mr. Magee in either of these positions, in the MCCP or at the front gate, would be a violation of the medical restrictions in place.

72 Mr. Magee was asked whether there was ever a point where the employer considered appointing him to the CX-02 position at the front gate. He stated, "not to his recollection"; however, he would have accepted such a position as he would have been able to stay as a CX-02.

73 He had a meeting with Mr. Urmston and Mr. Barry Stolar on December 23, 2009, at which time Mr. Urmston advised him that he was not going to put him back into the institution in the front gate and the MCCP posts. He advised him that he had decided to put him into a grievance analyst position on a three-month assignment. An agreement to that effect was signed by Mr. Urmston, Mr. Magee and Mr. Stolar.

74 On December 31, 2009, the WCB wrote to Dr. Parker, stating that the employer and the WCB needed clarification as to what "no inmate contact" means. The letter stated in part as follows:

The fact that Mr. Magee works in a correctional facility means he will always be in contact with inmates. This is a concern of mine and of this employer. Currently his employer is trying to find a suitable position within the facility; however there are barriers as to where he would be able to work given the fact that he is unable to have contact with inmates.

75 Mr. Magee testified that in his view, the CX-02 position at the front gate had no direct contact with inmates. He stated that the front security entrance was a stand-alone building located approximately 100 metres from the Regional Psychiatric Centre. In Mr. Magee's view, the front gate was not part of the correctional institution. He stated that there were two posts in the building. There was a secure post enclosed with bulletproof glass, which was an armed post. Prior to his second surgery, it was staffed with CX-02s, and thereafter, it was staffed with CX-01s as all of the armed posts were staffed with CX-01s. He stated that the post was armed in order to prevent someone from attacking the institution or an offender trying to escape. There were portholes in the post to accommodate rifles. The person on this post controls the gate to the institution. Offenders are taken out of the gate under escort for appointments in secure vans.

76 Mr. Magee stated that visitors enter the front door and speak with the officer in the armed post. The officer, if satisfied, opens a second door, and the visitor enters into the facility, where the person is met by the CX-02, who is unarmed but carries hand cuffs and pepper spray. Visitors are prohibited from bringing in cell phones or any money in excess of five dollars. The purpose of the visit is documented by the correctional officer CX-02, and the visitor's items go through a scanner. As the correctional officer is a peace officer, he can do a search with a wand if necessary. Mr. Magee stated that there were no incidents when he worked in that area, although there have been visitors denied entry. Visiting hours are between 6:45 a.m. until 11 p.m. After 11 p.m., the front gate is locked down.

77 Once a vehicle has been let in through the gate, this officer goes into the sally port and searches the vehicle for contraband, weapons, drugs and alcohol. If the correctional officer is not satisfied, the vehicle is locked in the sally port, and the correctional manager and police are called. If the officer has any concerns for safety and security, he or she will radio to the MCCP to send assistance. Mr. Magee stated that the officer has no dealings with offenders.

78 Mr. Magee had worked at the front gate prior to taking an absence for his second surgery. He was not aware that the deployment standards had been changed to provide that the CX positions at that post could be operationally adjusted and assigned to another part of the institution after the gate was closed to visitors. He acknowledged that he would not be able to perform those duties unless escorted.

79 Mr. Magee acknowledged that if the officer searching vehicles located contraband it could be a potentially volatile situation in which there could be a risk of conflict. If there was a disturbance, with his restrictions, he could not respond. He was asked when looking under a vehicle whether there could be a person hiding under it and was asked whether there could be potential risk. Mr. Magee responded that he had never heard of anyone trying to break into an institution.

80 He also agreed that firing a rifle could potentially cause additional injury to his shoulder and worsen his condition.

81 Mr. Taylor testified that he had been a correctional officer for 8 or 9 years of his career, last serving in that capacity in 1988. He also described the role of the correctional officers at the front gate. He acknowledged that he had never worked at the front gate at the Regional Psychiatric Centre. He added that the CX-02 officer in the unarmed position carried pepper spray for protection. He is aware of only one physical assault of an unarmed officer by a visitor at the Saskatchewan Penitentiary over the course of his career. In addition, he knew of one CX-02 of long service with the Correctional Service of Canada, who has worked at the front gate of the Saskatchewan Penitentiary for 4 or 5 years scanning visitors and who was not as capable of getting around as he once was.

82 Mr. Taylor stated that there are other circumstances where individuals are posted at the front gate in the unarmed position; for instance, pregnant women and persons with temporary disabilities such as those who have their arm or leg in a cast.

83 Mr. Magee described the role of the MCCP, the Main Communications and Control Post. This post is responsible for all of the safety and security of the institution. The person assigned to the post monitors all of the alarms for the external gates as well as internal gates. The person is responsible for fire alarms and is also responsible for providing assistance by radio backup to correctional officers on the unit. The post is responsible for monitoring video screens for the surveillance of inmates. He stated that inmates are never allowed into the control room as it could jeopardize the security of the institution. The post is located inside the institution; however, he stated that there is no direct interaction with inmates on the way in or out. He acknowledged that inmates do clean the area and if they do so, they are under escort, although most of the work is done by institutional cleaners.

84 He also recognized that this post can be overwhelming on the senses and it is a rough four-hour rotation. Part of the reason correctional officers rotate during their shifts is so that they can stay alert. He proposed that he alternate between the front gate and the MCCP as it would not be ideal to spend more than four hours in that post. He was asked whether he thought there would be a significant risk of overload being in the MCCP four hours every day as opposed to rotating to other posts. He stated that like other jobs, he assumed he could get used to it. He acknowledged that in his present job, using the computer became challenging.

85 The post is staffed by two officers, a CX-01 and a CX-02. On the midnight shift, there is only one officer, a CX-02. He stated that these are typically rotating posts, scheduled for four hours. In his view, officers at the posts at the front gate and the MCCP could avoid inmate contact.

86 Dr. Parker was asked whether he had been questioned about the possibility of Mr. Magee working at the front gate signing in visitors, scanning them and searching vehicles. He stated that this would involve determining his functional capacity ability, the risk of physical altercation, whether the position was armed, assessing how safe the position was and if there was a requirement to climb on vehicles, given his shoulder restrictions. Once all the information was obtained and reviewed, and if it was low risk, then the posting would be fine. He stated that he and Mr. Magee were open to a number of possibilities involving minimal risk where he would not have to restrain inmates.

87 Dr. Parker acknowledged that there would be a potential concern if Mr. Magee was assigned to the CX-02 position at the front gate and possibly had to use handcuffs. He did not recall Mr. Magee speaking with him about the front-gate position. Dr. Parker acknowledged that his information with respect to the duties of the correctional officer positions in the MCCP and the front gate was provided solely by Mr. Magee. He agreed that ideally, Mr. Magee should not be assigned to a position in the institution

88 Mr. Urmston testified that there were no correctional officer positions at the Regional Psychiatric Centre that did not require contact with inmates. The fundamental premise of the position is to work with inmates and to assist offenders in becoming law-abiding citizens, by engaging with them and providing encouragement, Correctional officers' main role is to work with and control the offenders within the institutions. They have the most control and power over offenders as they are with them most of the day. They see the offenders in their living units and monitor their activities throughout the institution. The correctional service depends on the CX-02s' observation reports as part of the case management reports and on the CX-01s' observations for security intelligence reports. The CXs make recommendations for temporary absences, for inmates' pay, for cell movement and for inmate purchases and can make recommendations that can affect the offender's parole. The correctional officer is the person the offender goes to in the unit if they are having any difficulties.

89 Mr. Urmston stated that the work description for the CX-02 position was agreed to with the Union of Canadian Correctional Officers. The main difference between the CX-01s and CX-02s is that the former do not do case work, whereas the latter are assigned up to six offenders, which involves maintaining regular contact and communication with inmates, documenting inmate behaviour and preparing case management reports. It is the CX-02 working in the unit who communicates with the inmate, who knows how an inmate is really doing and if they are making progress.

90 The key activities of the CX-02 position are:

Participates as a team member in the development of correctional plans for the reintegration of inmates;

Observes, controls and directs inmates daily activities, including recreational, social, cultural and personal development activities, visits and correspondence, arts and crafts, special events and escorts outside the institution;

Conducts counts and patrols while monitoring inmate movement and other activities within the institution;

Performs security checks and systematically searches living units, physical plant, buildings and vehicles, inmates, other persons and their personal property, as well as any other area where contraband may be found;

Motivates and encourages inmates to develop life skills in their community environment through such outlets as participation in programs;

Advises inmates with regard to policies, procedures and guidelines.

Provides on the job mentoring and coaching of entry-level correctional officers and practicum students;

Performs case management activities for assigned inmates as a member of the case management team. This involves maintaining regular contact and communication with inmates in the assigned caseload and tracking the reintegration process [I. E., Documenting inmate behaviour]. Processes and completes case management reports and inmate requests/reports;

Supervises a group of inmates in the accommodation unit and work areas;

Administers cardio pulmonary resuscitation [CPR] in response to incidents and lends immediate support and assistance, once the area is secure, to injured parties as required. There may also be a requirement to use the self-contained breathing apparatus to effect rescue of individuals in smoke-filled environments.

Monitors the movement and activity of visitors and civilian contractors as well as social activities and events in the institution and on the penitentiary reserve. The incumbent of this position has peace officer status.

91 Mr. Urmston stated that the only key activities of the position that could be performed without inmate contact were in the development of correctional plans for the reintegration of inmates, the mentoring and coaching of entry-level correctional officers, and possibly monitoring the movement and activity of visitors and civilian contractors if working outside of the institution.

92 With respect to the possibility of a CX-2 working exclusively in the Staff College, Mr. Urmston testified that the employee would lose touch with the happenings in the institution over time, which would impair his effectiveness in teaching new employees as his knowledge would be out of date.

93 The CX-1 work description was revised in or about 2009. The main difference between the two positions is that the CX-2 has responsibility for case management.

94 The key activities of the CX-1 position are:

Supervises, controls and monitors inmate movement and activities within and outside the institution; conducts counts and patrols.

Performs security checks and searches of living units, the physical plant, buildings, vehicles, inmates, other persons and their personal property, and other areas for contraband.

Monitors the movement and activity of visitors and civilian contractors as well as social activities and events in the institution and on the penitentiary reserve.

Participates as a member of the unit correctional team and contributes input towards the development and implementation of unit programs.

Provides on the job mentoring and coaching to entry-level correctional officers and practicum students.

Demonstrates professionalism in the performance of security duties to present a positive behavioural example to inmates and facilitate an environment conducive to the development of life skills.

In the course of duties, encourages inmates to take part in reintegration programs.

Records observations of inmate movement and behaviour on specific activity records in order to keep supervisors informed.

Participates in escorts and inmate transfers outside the institution.

Seizes and records unauthorized items and contraband for security purposes.

Administers cardio pulmonary resuscitation [CPR] in response to medical emergencies and lends immediate support and assistance, once the area is secure, to injured parties as required. There are may also be a requirement to use the self-contained breathing apparatus to effect rescue of individuals in smoke-filled environments.

The incumbent of this position has peace officer status.

[Sic throughout]

95 Mr. Urmston stated that the only activities of the CX-02 position that could be performed without inmate contact would be contributing input towards the development and implementation of unit programs, providing on the job mentoring and coaching to entry-level correctional officers and practicum students, and the recording of unauthorized items and contraband. With respect to mentoring function, Mr Urmston pointed out that the ability of someone who has ceased having inmate contact to meaningfully contribute would diminish over time because his or her knowledge would become less relevant in the absence of any additional ongoing experience as a correctional officer who is in contact with inmates.

96 Mr. Urmston referred to the working conditions in which correctional officers must operate as reflected in part in the CX-02 work description, which states that:

There is direct, daily exposure to inmates who may be agitated, unpredictable or uncooperative or who may attempt to intimidate or resort to violence… There is a requirement to intervene in threatening or violent situations to protect the safety of members of the public, staff, inmates and the institution [E. G. Assaults, riots or hostage- takings], when the use of force may be necessary. There is potential for inmates to verbally abuse or physically assault the incumbent, who is authorized to take all necessary measures of self defence [inmate may have deadly intent]. Severe anxiety and potential injury may occur during and following violent incidents, which may result in the temporary or permanent impairment or even the death of the incumbent, members of the public, other staff or inmates. There is no control over the frequency or duration of individual incidents that may take place within the institution or during the course of escorts. The requirement to work rotating shift schedules disrupts routine and personal/family support networks.

[Sic throughout]

97 When one looks at other jobs where non-correctional staff are exposed to inmates, there is a penological factor allowance that is paid on top of the regular pay rate to those staff who must have contact with offenders. It varies by security level based on the level of risk and ranges from a minimum of $1400-$2000. In the event of an incident, those staff members activate a personal protection alarm and withdraw from the situation. It is the correctional officers that respond to the incident.

98 The correctional officer pay rate does not have a penological factor allowance. Their risk is considerably higher than other staff as they are required to respond and take control of incidents by inmates in the institution, and they are trained in how to do that effectively. Their risk is therefore incorporated as a significant component into the basic pay scale. The academic qualification for the CX-02 position is at the Grade 12 level, whereas it is compensated similarly to positions that require a university education. If the inmate contact component were to be removed from the CX work description, the remaining tasks would consist essentially of pushing buttons and opening gates.

99 Mr. Urmston also testified with respect to the possibility of someone like Mr. Magee working at posts at the front gate. Prior to 2005, the principal entrance was staffed with contract personnel from the Corps of Commissionaires, who were compensated at or about minimum wage. It was realized that these resources could not assist in the event of an incident and this resulted in a lack of flexibility for management. A hostage incident could occur that may last 5 to 6 hours, but its impact would extend well beyond that period, during which management would need to have the flexibility to move resources around in the most effective and efficient way, until things return to a "new normal", which would entail staff coming into contact with inmates. In these circumstances, it is necessary to have a correctional officer who is able to have inmate contact.

100With respect to the MCCP post, Mr. Urmston noted that CX positions move throughout the institution. Within the institution, management looks at each and every post in terms of effectiveness and efficiency. Some posts have a full shift. Other posts have four-hour shifts. The MCCP, the main control post, oversees all movements throughout the institution. The CX at this post must monitor 30 screens, control all doors, exits and entrances and respond to all alarms on a continuing basis. Management limits the shift to four hours because if the shift exceeds four hours, there is a loss in effectiveness. The correctional officer rotates out of the MCCP after four hours to different posts. Management must ensure that a person is fulfilling all of the duties of the position in an effective, efficient and economical way.

101A post is a position in the institution that is staffed for any period between 8 to 24 hours Mr. Urmston testified that taking into account the number of days a given employee is not working, be it on weekends, statutory holidays, vacation and other leave, an average of 1.87 persons must be hired for every post that is staffed. No one is employed on a part-time basis at the institution.

102To ensure that each post is properly staffed, a roster is established in consultation with the union that sets out the posts, the length of shifts and the composition or "construction" of the roster. The roster is reviewed by the Warden for efficiency and effectiveness, in compliance with the work descriptions. The Warden certifies the roster and forwards it to headquarters to the Commissioner.

103The employees move around the roster and rotate through all of the positions. One of the core values of the correctional service is the strength of its staff, and part of that is the development of staff. The CX-02 is responsible for the mentoring of CX-01s. Having served in a variety of roles facilitates that mentoring.

104The career path for the CX-02 is to correctional manager and then to parole officer. One cannot develop a career path if left in a single post. It is necessary for them to rotate through the various posts to meet the business needs of the service and to develop staff.

105In relation to the staffing at the MCCP, Mr. Urmston noted that the position at that location has huge responsibilities, and the individual is subject to significant stress. That is why the shift is limited to four hours. It was suggested that Mr. Magee could rotate between the MCCP and the front gate. Mr. Urmston stated that it was not practical although not impossible. It would require establishing two rosters. This would be very disruptive to staff and management's relationship with the union, with which the rosters were put together.

106The MCCP is a 24-hour post. The visitors' entrance is not. In the event of an incident in the institution, one can reduce the staff at the principal entrance and send the person into the institution to deal with the problem. If the person cannot have inmate contact, one cannot do so. The post at the visitors' entrance can be left unstaffed in the evenings. It is the only institution where this can be done as the inmates come from a large geographic area, and there are not a lot of visitors. Other institutions cannot be operationally adjusted.

107Since the maximum time someone could be assigned a post in the MCCP is four hours, Mr. Magee could not serve a full eight hour shift there, and if there is not a need to staff the front gate in the evenings, there would be no work available for Mr. Magee for the balance of the shift. In Mr. Urmston's view, these are not viable options.

108In response to the evidence of Mr. Taylor, the long-term employee who works at the visitors' entrance of the Saskatchewan Penitentiary is a CX and deals with inmates.

109According to Mr. Urmston, having staff working as permanent substitutes with no inmate contact reduces the institution's flexibility to respond to crises. In his view, it would create a huge safety and security concern.

110Mr. Urmston also stated that the CXs man all armed posts, and they are trained on all of the weapons. He described the position as dynamic as opposed to static.

111Mr. Urmston also explained that even if one were to remove the caseload responsibilities from a CX-02 position, the employee would not simply be reverting back to the tasks of a CX-01 position, since the employee would still be responsible to handle weapons, which Mr. Magee could not do on account of his shoulder-related disability.

112Mr. Urmston distinguished between temporary accommodation and a permanent accommodation. An employee being accommodated on a temporary basis remains within the schedule. When a person is being accommodated on a temporary basis, management can generally predict when the person will be available to perform their full duties, such as after a return from parental leave or when a person has fully recovered from a temporary disability. On the other hand, if an employee is permanently disabled, the accommodation will need to be indefinite and may entail increasing the number of staff to be able to satisfy the rotational needs of the institution.

113Returning to the chronology, on January 19, 2010, Ms. Miller wrote to the case manager at the WCB, advising her that Mr. Magee would not be occupying his correctional officer position and that he had been offered an assignment at the substantive rate of pay of an AS-04 inmate affairs analyst position, the duties of which were similar in nature to the work he was performing previously in the AS-05 position. She advised that he would be occupying that position until April 30, 2010.

114Dr. Parker wrote to the WCB on January 25, 2010:

It is my understanding that this employer has lots of employment opportunities where there is no contact with inmates and, in fact, he has been working such a position for the last several months. It is in the interests of his safety that he would not have contact with inmates although I realize there are a lot of contract workers and individuals that may be unable to defend themselves and are situated in a position such that they can be monitored by other employees or work with other employees at the correctional facility. I would encourage you to meet with his employer to discuss all such positions.

115Ms. Miller testified that she had never seen the letters from Dr. Parker to the WCB of December 22, 2009, or January 25, 2010. Dr. Parker testified that he assumes when he writes to the WCB that the board will communicate with the employer.

116After January 10, 2010, Mr. Magee was assigned to an analyst position for executive services at the CX-02 level, dealing with inmate grievances. Mr. Magee stated that he had difficulty writing the reports.

117On February 23, 2010, the regional chief of staffing wrote to Mr. Magee, advising that a position that he had been interested in was not available and in the interim sought his feedback on a victim services officer position.

118On February 26, 2010, Dr. Parker wrote to Ms. Miller with respect to Mr. Magee's works restrictions regarding inmate contact, stating as follows:

Ideally I did not want him to have any contact for safety reasons for himself and his fellow employees and understood that there are jobs in the regional psychiatric Centre where there is no or minimal inmate contact. Mr. Magee was working at a job off-site for the justice system without having any inmate contact. Ideally I would like Mr. Magee to work at a job outside the institution perhaps with previous offenders or monitoring parole compliance. I understand this job would sometimes require Mr. Magee to enter the institution and this we could accept as part of a small risk for any individual that goes into the institution. I hope you are able to accommodate Mr. Magee's above. If it is acceptable to you he would have to have a job demands analysis and functional capacity evaluation but I am suggesting even if this is done because of his injury he will not be able to properly defend himself or help other correctional officers in a physical confrontation.

[Sic throughout]

119Based on this letter and the previous correspondence from Dr. Parker that she had seen, Ms. Miller again concluded that she should be looking at a position outside of the institution. No further consideration was given to finding him a job at the Regional Psychiatric Centre.

120In March 2010, Mr. Magee was referred to a WP-03 victim services officer position. It was arranged for Mr. Magee to go to the victim services unit on assignment from March 2, 2010, for a month to determine whether it was a position that was suitable for him and whether he could perform the duties of the position. Management received a medical clearance on March 1, 2010, indicating that Mr. Magee could be employed in a position outside the institution working with previous offenders or monitoring parole compliance. The rate of pay for WP-03s is lower than that of CX-02s. Mr. Magee explained that during the assignment he was paid at his substantive CX-02 rate of pay, but that was discontinued when he signed the agreement to accept the position in May 2010, the facts of which are recited later in this decision.

121Mr. Magee described the nature of the work of a victim services officer. It involved registering new victims on a computer. It also included making telephone contact with victims and providing information to which they were legally entitled with respect to inmate movement, such as when an offender would be leaving the institution, for example, for a doctor's appointment, and advising victims generally of the area which the offender would be going.

122Mr. Magee indicated that the majority of the work was related to the use of the telephone and computer. It differed from the AS-05 position in that he was sitting at a desk the whole day, whereas in the other position part of the day was spent reviewing use-of-force tapes on a screen, and other parts of the day were spent working at a desk preparing reports as well as consulting with others. He stated that the salary for the position was $66,186, and the only opportunity to earn additional income was at weekend events. There was no formal opportunity to work overtime.

123On March 24, 2010, Mr. Lamb, the regional chief of staffing, noted that the manager of the victim services unit, Laurie Burnouf, was happy with Mr. Magee's performance and felt that he would be a right fit for the position. She was prepared to deploy him to the position. As noted, Mr. Magee had indicated that he was reluctant to accept the position as it was less than the CX-02 rate of pay.

124Human Resources believed that this would constitute a reasonable job offer. It was noted that as the top end of the salary range was slightly lower than Mr. Magee's current rate of pay, he would become a reinstatement priority and would continue to be referred to other positions at a higher level. The WCB had also advised that any offer of employment constituted a reasonable job offer and advised that if Mr. Magee did not accept a reasonable offer of employment, his benefits with WCB would be terminated.

125On May 7, 2010, Mr. Magee accepted a formal offer of deployment to the victim services officer position at the WP-03 group and level along with the related terms and conditions of employment. The agreement provided in part that he would also be granted a reinstatement priority to be considered for positions with the group and level equivalent to the position occupied by him at the time that he was declared a priority for a period of one year effective from the date of his appointment.

126Mr. Magee stated that he was forced to accept this position as the employer stated that this was a reasonable job offer, and if he did not accept it he would again need to rely on WCB benefits. The WCB stated in the meantime that if he did not accept this or any offer, they would end his WCB benefits.

127Mr. Urmston had a discussion with Mr. Magee about whether he should accept the WP-03 position. He said it was a difficult conversation. The WCB had determined that the WP-03 position was a reasonable job offer and that if Mr. Magee did not accept it his WCB benefits would end. If he turned down the position, there was no other position for him. He would go on a priority status list.

128He stated that he could have sent Mr. Magee a letter but that is not the way to deal with people. Sometimes it is necessary to have a difficult discussion. The WP-03 pay range was not far from the pay range for the CX-02 and there was now a new career path for him, and he was doing well in the job.

129In May 2010, Mr. Magee was appointed to a WP-03 position.

130Aside from his allegations that the respondent failed to properly accommodate him in the new position to which he was posted, Mr. Magee also alleges that management failed in its duty to accommodate him by delaying an ergonomic assessment of his WP-03 workstation.

131 The following is a review of the evidence pertaining to this issue. Ms. Burnouf the regional manager of victim services has been Mr. Magee's manager since March 1, 2010, when he commenced employment as a victim service officer. At that time, he did not provide her any medical information suggesting that he required an ergonomic assessment.

132When he joined the unit, he explained to her why he was a priority status and that he had been injured on duty. He advised her that he was feeling sore, that his shoulder was causing pain and that he was uncomfortable. She asked him if he had had an ergonomic assessment. He did not know what an ergonomic assessment was.

133Mr. Magee testified that on April 26, 2010, he met with Ms. Burnouf and others, at which time it was agreed that an ergonomic assessment should be arranged for his workstation. Ms. Burnouf requested it on April 28, 2010.

134Mr. Magee stated that the assessment was delayed. He inquired about it a number of times. He was advised there were some problems with regard to responsibility for providing the assessment.

135Ms. Burnouf was absent on leave from May 19 to June 11, 2010, and the acting regional victim services manager made further requests for an ergonomic assessment.

136On June 8, 2010, Mr. Magee left work, indicating that he was not able to sit at his workstation. On June 28, he advised that he would not be returning to work as he was scheduled for physician's appointments and until such time as there was an ergonomic assessment completed on his workstation. He had been absent 28.25 days since commencing work in the victim services unit on March 1, 2010. Ms. Burnouf wrote to human resources on June 18, stating that it was essential and extremely urgent that the assessment be completed as soon as possible.

137The same day, Ms. Burnouf indicated to Mr. Magee (during a telephone discussion) that she was uncertain where he was and was expecting to hear from him. She indicated to him that he essentially was "missing in action". She asked him to provide her with a doctor's note as he had been absent from work since June 8. He advised her that his doctor had declined to provide a note and indicated that documentation had been completed and forwarded to WCB. Mr. Magee also told her that he was not on sick leave but on WCB compensation.

138Ms. Miller testified that Health Canada was no longer providing ergonomic assessments.

139She therefore undertook to contact the WCB to see whether they would pay for the assessment as Mr. Magee had an active file at the WCB. She contacted the WCB within a couple of days of learning of the situation. The WCB advised that they would hire an ergonomist to examine Mr. Magee's workstation and pay for it.

140Ms. Miller stated in her testimony that when Service Canada provided ergonomic assessments, the employee would first have to provide a doctor's opinion, The person doing the ergonomic assessments would then usually take two to four weeks to arrange the assessment, and then take an additional two to four weeks to provide the report. If equipment was required, the timeframe for implementation would vary, depending on the nature of the equipment involved.

141The assessment of Mr. Magee's workstation began on July 12, 2010, with Mr. Magee present, and was completed on July 20, 2010. The assessment recommended the acquisition of some additional equipment, including a legal-sized document holder, articulating armrests for his chair, a hands-free headset and a smaller keyboard.

142Ms. Burnouf spoke with Mr. Magee and confirmed in writing to him that all of the requirements for his workstation would be in place for Friday, July 23, 2010. He indicated to her that he would not be returning to work until he had seen his physician and spoken with his physiotherapist.

143On July 22, Ms. Burnouf arranged for Mr. Magee to be fitted for a new ergonomic office chair with pivot armrests at the Correctional Service of Canada's expense. The purchase of the new chair exceeded the recommendations of the ergonomic assessment.

144Mr. Magee advised Ms. Burnouf on July 27, 2010 that he would not be returning to work for the month of August 2010, as directed by his physiotherapist. Ms. Burnouf noted that he had been absent from the office from June 8, 2010, to July 22, during which period he was being paid by WCB; however, subsequent to that, his wages were being covered by the unit's budget.

145Mr. Magee returned to work on August 25, 2010. All of the recommended equipment was in place. The WCB recommended a gradual return to work. He worked a few hours per day for a few days. He left the workplace on September 1, 2010 and did not return until May 24, 2011, when he commenced a gradual return to work. He had been on injury on duty leave.

146Dr. Parker testified that the delay in the modifications to his equipment could have possibly been a factor in aggravating his injured shoulder.

147It is also alleged that Ms. Burnouf made discriminatory comments to Mr. Magee. The following is a review of the evidence pertaining to this issue. Mr. Magee stated that Ms. Burnouf told him that she felt he was suffering from stress, and this made him feel as if his injury was his fault. She used the term "sick leave" to describe some of his absences which were due in her opinion to stress. He objected to her using the term "sick leave," stating that it was an injury on duty that was responsible for his being absent from work. He also stated that Ms. Burnouf accused him of not reporting in and being absent without leave (AWOL) even though he had told her that he was seeing his physician and arranging physiotherapy.

148He also stated that Ms. Burnouf advised him that she did not think the victim services position was the job for him because it stressed him out.

149Ms. Burnouf stated that she believed in an open-door policy and had many discussions with Mr. Magee over the previous five years. Most of the discussions were initiated by Mr. Magee. Mr. Magee missed a lot of time from work. When he did return to work full-time, he would call in sick on Fridays. In her view, his absences on Friday were a pattern. She told him he was taking long weekends. Her concern was that when an individual was away, it impacts on the workload of other employees in the unit. As the manager, she had to ensure employees were at work. Mr. Magee was not happy and said that he did not appreciate her raising this.

150In June 2010, Mr. Magee was absent from the workplace, but she did not have a doctor's note to justify the absence. She stated that as the manager, she was responsible to see that staff is accounted for.

151She acknowledged referring to his leave as "sick leave". She explained that she was aware of the distinction between "injury on duty leave" and "sick leave", but generically, this gets referred to as "sick leave". She did not recall him ever objecting to the use of the term "sick leave," and if she had been aware that this upset him, she would have used the appropriate terminology.

152She denied telling him that the victim services job was not appropriate for him. On the contrary, she encouraged him. It was Mr. Magee who said he did not belong in the unit and should be a correctional officer or in security. In her view, he was good with victims of crime, as his background was in counselling and assisting people who were struggling. She told him that his performance was positive and that he had done a good job. His allegations surprised and hurt her, and she took it very personally as they had worked together for over five years and had a good rapport.

F. Damages

153Mr. Magee testified that the top salary for the CX-02 position is $71,000 a year and that the top level of pay for the victim services position was $66,000. He also stated that as a CX-02, there is an opportunity to earn overtime, take different shifts, and earn premium pay on weekends and statutory holidays. Correctional officers have the opportunity to earn these additional premiums based on rotation. He stated that as a CX-02, he was always looking for opportunities to earn overtime. He stated that the total income he earned during the last year he worked as a CX-02 was between $109,000 and $113,000 and suggested that his income for a number of years was in excess of $100,000.

154However, according to Mr. Magee's T4 slips, which his counsel filed at the request of the respondent's counsel after Mr. Magee had testified on this matter, his employment income for 2009 was $71,489.49; for 2008, $65,124.50; for 2007, $78,721.51; and for 2006, $91,632.82

155Mr. Magee owned acreage along with a number of horses. In light of his decrease in pay, he testified that could no longer afford to hire someone to look after his horses and do other chores; nor was he able to do it himself because he did not have the energy. As a consequence, he had to move his family off the acreage and to sell his horses. He stated that he had just finished constructing a building on the acreage and was not able to keep up with the costs. He testified that he sold the property at a big loss and had to move into the city. This caused significant stress within his household, which led to him taking stress leave in 2011.

156 He also stated that he had some health issues, including a non-work-related serious illness; However, he asserted that the majority of the stress resulted from the workplace, including an unsuccessful attempt to mediate his grievance with the employer. His physician gave him a prescription for medication to help him with anxiety and stress.

157Mr. Magee testified that he had purchased the acreage outside of Saskatoon in 2006 for a sum "between $100,000-$200,000". He could not be more specific. It had a home, which he renovated, a 3-car garage and a horse paddock. He sold it in 2009 for $291,000, but maintained that it was a loss because he had invested money into the property. He acknowledged that while on the acreage, he bought, sold and trained horses for extra income, which supplemented his employment income. He stated that he lost more than he made. He surmised that the difference in the base pay rates between his present position and the CX position might have allowed him to stay on the acreage.

158Dr. Parker testified that on April 30, 2010, he observed that Mr. Magee was undergoing stress problems as a result of his work placement, that he was emotionally distraught and that he had to leave work because of shoulder pain. Dr. Parker stated that Mr. Magee had informed him that because he was making less income at work he could not support his horses or his pastime of riding motorcycles. However, Dr. Parker also acknowledged that motorcycle riding would aggravate problems in Mr. Magee's neck and shoulder.

159Dr. Parker prepared a report for the WCB on January 31, 2012, in which he outlines Mr. Magee's history of strengths and depression and observes:

Unfortunately, the employee feels he was wronged by the system. He claims his shoulders were damaged at work and he can't do his previous job and subsequently was put in a position where he was paid less and not being able to maintain the standard of living he had previous.

160 He noted that he had not received any information from his psychologist and that the WCB would have to contact the psychologist directly.

161Dr. Parker testified that in light of Mr. Magee's shoulder injuries and chronic pain, his ability to function in the workplace was difficult, generally. Mr. Magee's concern was there was less opportunity to make money from overtime. He observed that from a medical point of view, working additional hours, given his problems, would aggravate the situation.

III. Summary of the arguments

A. Argument of the bargaining agent

162This case presents a number of distinct issues.

163The main issue is whether or not the employer could have accommodated the grievor without suffering undue hardship while minimizing the impact on his employment income.

164Following surgery in 2008, Mr. Magee returned to work in 2009 as an acting AS-05. He was appointed to that position for four months less a day. He applied to be appointed to the position on an indeterminate basis, but he was not successful. The employer extended the acting appointment until the end of 2009. Mr. Magee testified concerning the positive comments he received concerning his work performance. The employer failed to properly consider whether Mr. Magee could be accommodated in the AS-05 position permanently.

165The employer could also have accommodated Mr. Magee as a CX in the Regional Psychiatric Centre, limiting his duties to the MCCP and the front gate. These positions do not involve inmate contact.

166Despite the fact that Dr. Parker indicated he could accept minimal inmate contact, this was not taken into consideration.

167The other issues presented in this case are more peripheral in nature, including the employer's failure to provide a timely ergonomic assessment, the demeaning comments made by Mr. Suchorab and, in addition, the inappropriate comments of Ms. Burnouf, whether intentional or not.

168Mr. Magee was forthright, candid and upfront in his testimony both in chief and in cross-examination. He testified concerning his work injuries, his surgeries and the fact that he spoke to Mr. Burbach prior to his surgery in 2008 and was assured that there were a number of positions available for him when he returned.

169In McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4, although the primary facts are different because of the presence of a collective agreement, nevertheless, the Supreme Court of Canada stated that "[t]he factors that will support a finding of undue hardship are not entrenched and must be applied with common sense and flexibility" (para 15). At paragraph 22, the Court notes that "[t]he importance of the individualized nature of the accommodation process cannot be minimized…" and the effort to accommodate the employee must be made throughout the employment relationship.

170In Brant (County) v. Ontario Public Service Employees Union, Local 256, 2013 ONSC 1955, the Ontario Divisional Court summarizes the general principles with respect to the duty to accommodate at paragraphs 55, 63, 64 and 65.

171At paragraph 65, the Court outlined the overarching principles that apply to the accommodation of an employee's injury in the workplace. At paragraph 65, subparagraph (8), the Court stated:

Although an employee seeking reasonable accommodation in the workplace has no right to craft his or her own job placement, an important factor in the balance, though not consistently recognized within the relevant jurisprudence, is whether, without undue hardship, that employee can be returned to the job he or she performed prior to being injured in the workplace as observed by the arbitrator in the present case citing Ontario Public Service Employees Union (Kerna) at p. 34:

The jurisprudence has established that employers are required to take a four-step process with respect to accommodation efforts. First, it is to determine whether the disabled employee can perform a job as it exists. If that is not possible then the Employer is to assess whether the employee's existing job can be modified in such a way so as to be suitable. If that is still not achievable the Employer is to then determine whether another job within the workplace is suitable. Finally, if the disabled employee cannot perform the essential duties and responsibilities of a different existing position, can that different job be modified?

172The test is undue hardship. It is not based on speculation and requires hard evidence. At paragraph 65, subparagraph 12, the Court listed nonexclusive factors that have emerged, which influence the undue hardship determination, such as financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of workforce and facilities, and health and safety concerns.

173In Kirby v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 41, the Board summarizes its jurisprudence with respect to undue hardship at paragraph 136.

174In Audet v. Canadian National Railway, 2006 CHRT 25, the Canadian Human Rights Tribunal, at paragraph 42, commented that once a prima facie case of discrimination has been established, the respondent may justify the impugned standard by establishing the following, on the balance of probabilities:

(1) The respondent adopted the standard for a purpose rationally connected to the performance of the job;

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

(3) The standard is reasonably necessary to the accomplishment of that work-related purpose. To show that the standard is reasonably necessary, the respondent must demonstrate that it is impossible to accommodate the complainant without imposing undue hardship on the respondent. It is incumbent on the respondent to show that it considered and reasonably rejected all viable forms of accommodation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 ("Grismer").

175The Canadian Human Rights Tribunal also stated at paragraph 51:

The Supreme Court, in Meiorin at paragraph 64, counsels courts and tribunals to be sensitive to the various ways in which the individual capabilities of employees may be accommodated. An employer should inquire into the possibility that there may be different ways to perform the job while still accomplishing the employer's legitimate work-related purpose. The skills, capabilities and potential contributions of the individual complainant and others like him or her must be respected as much as possible.

176In that case, the Canadian Human Rights Tribunal, at paragraph 59, found that the employer had applied its safety criteria in a mechanical fashion, without any consideration for the individual circumstances of the complainant.

177Turning to the facts of this case, Mr. Magee's acting appointment to the AS-05 project security position removes any doubt that the employer could have accommodated him without salary loss. The job involved reviewing tapes of incidents of planned interventions with inmates to determine what had been done correctly or incorrectly. He began this woCX-k in May 2009 as an acting appointment. He had been absent from work for about one year. Approximately two weeks after he returned to work, he applied for an indeterminate AS-05 position. It was anticipated that four positions would be staffed.

178He was given a multiple-choice exam. The passing grade was 50. He was short by one mark. Ms. Miller testified that as a consequence, he was no longer considered as a candidate in that appointment process.

179In late September 2009, the decision was made to extend Mr. Magee's acting appointment until January 2010. Mr. Carver, his supervisor, requested the extension. Counsel argued that under the PSEA and its regulations, there is no necessity to satisfy the merit criteria if the acting appointment is less than four months. If an appointment is extended beyond four months, there is a need to satisfy the merit criteria based on the recommendation of the employee's manager.

180The evidence indicates that the work of the acting position and the indeterminate position was the same and that Mr. Magee was performing his tasks well. There is no evidence of any concerns. Mr. Carver's assessment was positive. If he was performing the duties of the position satisfactorily and there were no concerns about his ability to perform those duties, he satisfied the merit criteria.

181Despite this evidence, he was not considered for appointment after he failed the test. In the PSST decision, it is noted that Ms. Miller testified that had he met the essential criteria, he would have been appointed to the position.

182As of the end of September 2009, he was registered as priority status, the significance of which was that he could be appointed to a position ahead of someone else. Given his priority status, he could have been appointed to the AS-05 position on an indeterminate basis through a non-advertised process provided Mr. Carver attested in writing that he met the merit criteria. In December 2009, consideration was given by management to appointing Mr. Magee retroactively to the AS-05 position through a non-advertised process. Mr. Urmston rejected the proposal even though there was no obligation to appoint qualified candidates from the appointment process that had been run for the AS-05 position.

183Under the previous iteration of the PSEA, appointments were made based on relative merit. In the current system, it need only be established that the person appointed satisfies all of the essential merit criteria.

184Mr. Urmston gave two reasons why he rejected appointing Mr. Magee retroactively to the AS-05 position. Firstly, Mr. Magee failed the written test in June 2009. It may be that he did not satisfy the merit criteria in June 2009, but what the employer failed to do is assess whether he met the merit criteria in the fall of 2009 in light of the positive assessment of his performance. The employer had an ongoing duty to consider Mr. Magee for appointment to the AS-05 position. The employer did not turn its mind to that obligation. Mr. Magee testified that he had never taken a test like that in his career.

185In Canada (Attorney General) v. Bates (TD), [1997] 3 F.C. 132, the Federal Court Trial Division determined that the merit principle is to be applied while recognizing contextual realities. In that case, the employee had been employed on a term basis for five years and had a successful performance record. The department conducted a selection process to choose from among the employees whose contracts were about to expire; those who would be offered new term appointments. The respondent failed two written knowledge examinations and was found unqualified for reappointment.

186The Court stated at paragraph 40:

… the merit principle must be cognizant of, and where necessary responsive to, the critical reality of the history of the case and the life situation of the individuals involved. There is no question that both the Preto and Rosenbaum decisions reflect strong concern for how there can be such a disparity between practical performance and a written examination. It is obvious that the concern in both was not to grant Ms. Bates a benefit, but to have this discrepancy rectified to ensure that she was treated fairly and equally with all other candidates.

187The decision in Bates means you have to weigh past performance with any disparity on a written test to determine whether a disability might explain the difference. It might lead the employer to ask whether the fact Mr. Magee had been absent for a year had an impact on the test score.

188In Tremblay v. Canada (Attorney General), 2003 FCT 465, the Federal Court Trial Division stated that in order for the merit principle to operate effectively, the primary onus is on the employer to be responsive to the particular needs of individual candidates. See paragraphs 22 to 32.

189The main thrust is that there was an ongoing obligation to accommodate Mr. Magee after September 2009, when he was granted priority status.

190The second explanation that Mr. Urmston gave for not retroactively appointing Mr. Magee to the AS-05 position was that he could not do the entire job. In the PSST decision, at paragraph 11, Ms. Miller is noted as testifying that had he satisfied the essential qualifications of the position, he would have been appointed to the position. In the Job Opportunity Advertisement for the Project Officer, Security position, outlining its essential qualifications, there is no mention of the need to enter institutions. In the return to work plan dated May 29, 2009, it is noted that the job description for the project officer, AS-05, had been shared with both the WCB and the employee, and no concerns were noted.

191Mr. Urmston stated that the Project Officer, Security, would only have to go into the correctional facilities three or four times a year. There is no evidence that any consideration was given to permitting him to do so after September 2009.

192Ms. Miller testified that she had the written note from Dr. Parker indicating he should have no inmate contact. Ms. Miller knew from the WCB clarification what that meant. Dr. Parker acknowledged that if Mr. Magee had to go into an institution that was an acceptable risk. He was not going into the institutions to restrain prisoners. He would be going into the institutions to explain to correctional officers his findings with respect to the handling of scheduled interventions. The employer rejected it out of hand and never told him the reason. It was not at all clear that the employer investigated whether this was a significant portion of the job or whether providing an escort three or four times a year would constitute undue hardship. The employer did not tender any evidence that they attempted to restructure the job.

193In relation to the question about whether the PSST decision resolves the issue and bars the Board from considering the matter further, two issues are raised: one, whether the doctrine of issue estoppel is triggered, and second, even if it is, is there a basis for the Board to hear the issue as a matter of fairness?

194In Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, the Supreme Court of Canada adopted a flexible approach to issue estoppel to provide courts with the discretion to refuse to apply the doctrine if it would cause an injustice, even where the preconditions for its application had been met. See paragraph 8. The Court, at paragraph 31, stated that "[t]he objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case."

195In Murray v. Canada (Immigration and Refugee Board), 2014 FC 139, the Federal Court, following the Supreme Court of Canada decision in Penner, found that it was unreasonable for the Canadian Human Rights Tribunal to conclude that the PSST had decided essentially the same issues as those raised in the human rights complaint by applying the doctrine of issue estoppel. The applicant had filed a human rights complaint alleging systemic discrimination, poisoned work environment, barriers to the advancement of visible minority employees and harassment at a workplace before the Canadian Human Rights Tribunal while also bringing a complaint alleging discrimination in an appointment process before the PSST.

196In Hughes v. Canada (Human Resources and Skills Development), 2014 FC 278, the Federal Court dealt with an application for judicial review based on res judicata and issue estoppel of a decision of the Canadian Human Rights Tribunal that found discrimination in relation to complaints filed by Mr. Hughes related to the employer's failure to accommodate his disability where he had also filed complaints before the former Board surrounding his inability to maintain permanent employment, which complaints had been dismissed.

197The Court dismissed the application for judicial review. In dismissing the application, the Court stated that the question to be determined was whether the issues raised before the Canadian Human Rights Tribunal had indeed been decided by the former Board. If not, the doctrine of res judicata does not apply. If on the other hand the issues were the same before the tribunals, the three requirements of the test for issue estoppel would clearly be met. (See also Ontario (Community Safety and Correctional Services) v. De Lottinville, 2015 ONSC 3085).

198It is the submission of the bargaining agent that issue estoppel is not triggered in this case. The issue that is presented is different from that arising from the decision to appoint individuals in a particular appointment process that was before the PSST. What the Tribunal decided was that there was no abuse of authority in that process because of the failed test. The Tribunal, at paragraph 18, determined that it could not rely on his initial acting appointment as an indication he was qualified, since it was an acting appointment of less than four months. The appointment was therefore excluded from the requirement that it be made on merit.

199The issue of whether the employer should have established a non-advertised process to appoint Mr. Magee to the AS-05 indeterminate position is a different question. That matter is not within the PSST's jurisdiction.

200Even if the doctrine of issue estoppel did apply, the use of the discretion to exercise it in this case is clearly unwarranted. The PSST did not have the authority to order that the complainant be appointed. If there was a finding of abuse of authority, it could order the revocation of an appointment.

201The more pressing concern is that the decision of the PSST does not provide any analysis of the ongoing obligation to accommodate but simply looks at whether or not an employee had demonstrated that he was qualified. There is no prejudice to the employer to have to properly account and show that it considered whether Mr. Magee had satisfied the merit assessment process. There is prejudice to Mr. Magee in not properly having his human rights complaints addressed.

202Turning to the question of whether Mr. Magee could have been accommodated at the Regional Psychiatric Centre, the evidence of Mr. Magee, Mr. Taylor and Dr. Parker is pertinent to this issue. The front gate for processing visitors is located some 100 m from the main institution. To one side of the building is a sally port for vehicle deliveries to the institution. The front gate is staffed by a CX-01, who is located in a secure area protected by bulletproof glass. This position is armed. A CX-02 lets visitors through the door and scans items that they are bringing into the institution. This is an unarmed position although the person carries pepper spray.

203The armed person in the secure area decides whether to allow someone to enter the institution. There are portholes from which that person can supervise persons entering the facility. Mr. Taylor testified that the only incident related to safety that he could recall over his career was that a woman had slapped a correctional officer who had been searching her. This incident did not occur at this institution.

204In the event of an incident, the armed officer in the secure position can radio for backup if there are any concerns about safety. The unarmed person behind the counter could defend himself with pepper spray and could retreat to the secure area immediately adjacent to the counter. The officer in the non-secure area is also required to go out and inspect the vehicles entering the institution. Inmates do not have access to this area.

205The employer said this CX-02 position was not a suitable accommodation because of the medical restriction of "no inmate contact". The employer simply relied upon the handwritten note from Dr. Parker dated September 23, 2009, that stated "this patient can return to work. Advise no inmate contact permanent impairment".

206As of December 22, 2009, Ms. Miller noted that she would like to proceed with the temporary accommodation of Mr. Magee at the Regional Psychiatric Centre MCCP and at the principal entrance but could not because of the doctor's restriction that there not be any inmate contact. She noted that there was a need for Mr. Magee to confirm with his physician that he could work in areas that have a direct contact with inmates but without any requirement to respond to emergencies.

207Dr. Parker wrote on February 26, 2010, to clarify Mr. Magee's work restrictions regarding inmate contact. He stated in part:

… ideally I did not want him to have any contact for safety reasons for himself and his fellow employees and understood that there are jobs in the regional psychiatric Centre where there is no or minimal inmate contact. Mr. Magee was working at a job off-site for the justice system without having any inmate contact. Ideally I would like Mr. Magee to work at a job outside the institution perhaps with previous offenders or monitoring parole compliance. I understand that this job would sometime require Mr. Magee to enter the institution and this we could accept as part of a small risk for any individual that goes into the institution.

208Dr. Parker saw this as a change in the restrictions. Ms. Miller did not look into it. Mr. Magee submits that when faced with an ambiguous situation further information should be sought from the treating physician.

209MCCP is the area where the video feeds are centralized in the institution. Mr. Magee did not think there would be a problem for him accessing and exiting the facility. The main concern the employer raised was the employee's stamina in that position. The bargaining agent was not asking that Mr. Magee be assigned to work full-time in that position but to rotate from that position to the front gate. It is understandable that someone should not spend more than four hours in the MCCP. It is not clear why he could not work a four-hour shift on a regular basis, as is the case, for example, for air traffic controllers. There is no real evidence of the detriment to an employee working four-hour shifts on a regular basis.

210Mr. Urmston talked about the logistical concerns of having two rosters. The employer's position is that it should not have to create a permanent hybrid position if the person is otherwise capable of doing their regular work. The case law says the first place to look is whether the employee can perform his own duties in some way.

211Mr. Urmston said that the role of a CX is to maintain the role and integrity of the institution. That's what the MCCP and the front gate do. It was suggested that someone working in the MCCP without concurrently performing CX work in the field might in some way affect the way in which their duties were carried out. However, the employer did not present any tangible evidence of any deleterious impact. That position was never offered to Mr. Magee, yet Mr. Magee said he would have taken it if offered.

212The CX-02 salary as of June 2010 was $71,183. Mr. Magee's T4 slip for 2006 showed a gross income of $91,632.82. This represents a difference of about $20,000 between the CX-02 base salary and the salary he was earning as a victim services officer. In addition, there is a shift premium that applies to CXs. Even if one accepts the employer's argument that he would not be performing the fundamental duties of a CX-02, had he been appointed to that position, there would have been an opportunity to make additional overtime pay.

213The focus of the bargaining agent's case is on these two positions, namely, the AS-05 and the hybrid MCCP and front gate. Mr. Burbach had suggested a position teaching at the Staff College. The evidence is that a position was not available.

214It is clear that Mr. Magee needed an ergonomic assessment. Dr. Parker wrote to the WCB on June 6, 2009, advising that Mr. Magee may need an ergonomic assessment of his workstation. A period of one month went by with nothing happening. Upgrades were needed in the workplace before Mr. Magee could return to work. Dr. Parker stated that it could have been a factor in aggravating his injury.

215With respect to the discriminatory comments that Mr. Suchorab was alleged to have made to Mr. Magee, this was part of the return to work process arising from the 2008 surgery. After that surgery, he was asked to return to work with inmates. It was alleged that he did not want to return to work. This made him feel responsible for his own injuries. Mr. Suchorab also told Mr. Magee that he would be lucky to get a job as a groundskeeper or a janitor and that he did not deserve better.

216Mr. Suchorab stated that he would never make such statements and that he had no discussions with Mr. Magee in that time period. This gives rise to a credibility issue. Mr. Magee identified specific comments that lend him credibility about the transfer of an individual not involved in the discussion. Mr. Suchorab's response was evasive. There is no reason to suggest that Mr. Magee made up the comments.

217With respect to the comments of Ms. Burnouf, it is not suggested that she was fabricating anything. Mr. Magee made it known that he saw a distinction between sick leave and injury on duty leave. In addition, her comments about him being AWOL fits in with her comments about being missing in action. The notes that Mr. Magee made at the time indicate that he took her remarks concerning sick leave as being critical of him and as making him feel like he was responsible for his workplace injury. In order to be discriminatory, a comment need not be intentional. She may not have intended to hurt Mr. Magee, but that was the impact.

218With respect to remedy, if the Board concludes that Mr. Magee should have been appointed to the AS-05 position through a non-advertised process, damages should be awarded to reflect the difference in salary between the AS-05 position, which as of 2010 was $78,400, and the WP-03 position, which was $67,179. Although he was injured during part of that time, the evidence suggests that the combination of different work, being stuck at one desk doing monotonous tasks as well as the failure to do an ergonomic assessment contributed to his ongoing problems. Mr. Magee was not responsible for these problems, and he ought not to be penalized for it.

219In the alternative, he should be given the first opportunity to do the work of the AS-05 position and either be appointed to the position or be given the opportunity to qualify for it.

220With respect to the hybrid position at the MCCP and the front gate, the CX-02 position as of 2010 was paid $71,183, while the WP-03 position was paid $67,179. He is entitled to the difference for the time in question. In addition, he should be compensated for lost overtime.

221The grievor is also seeking compensation for pain and suffering pursuant to paragraph 53(2)(e) of the Canadian Human Rights Act (R.S.C., 1985, c. H-6), in the maximum amount of $20,000, and special compensation in the amount of $20,000, pursuant to subsection 53(3) of the Act for the employer's having engaged recklessly in the discriminatory conduct.

B. Submissions of the employer

222 Counsel for the employer generally agreed with the overarching principles set out by counsel for the bargaining agent, but noted that the required steps in analyzing grievances raising human rights claims were not followed in the bargaining agent's argument. In particular, it must first be determined if the grievor has established discrimination on a prima facie basis. The test to determine if a prima facie case has been made out should be applied as follows:

1. Is the complainant a member of a protected group?
2. Did the member suffer adverse treatment?
3. Is there a nexus between membership or group and the disadvantaging intention or conduct? See McGill, supra, paragraphs 48 to 50.

223The Ontario Court of Appeal in Ontario (Director, Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, reviewed the test for establishing a prima facie case of discrimination.

224The onus rests on the claimant throughout to establish a prima facie case. Only after the prima facie case has been established does the burden shift to the employer.

225One thing not in dispute is that the WP-03 position is a reasonable accommodation. The bargaining agent says there are better accommodations. The WP-03 position utilizes Mr. Magee's skill and experience. What is in dispute is whether there are preferable accommodations. If one concludes that the other positions in dispute could not be provided, the WP-03 position is not an unreasonable accommodation.

226The bargaining agent alleges that there was a failure to take certain procedural steps. However, there is no separate procedural component to the duty to accommodate.

227In Canada (Attorney General) v. Cruden, 2013 FC 520, aff'd 2014 FCA 131, the Federal Court found it unreasonable for the Canadian Human Rights Tribunal to conclude that a procedural duty of accommodation had been breached, even though accommodating the disabled employee would be impossible without undue hardship.

228At paragraph 69, the Federal Court stated:

… Meiorin simply does not reasonably support the proposition that there exists a separate, procedural duty in the accommodation process which can be breached notwithstanding a substantive finding of undue hardship which would attract remedies on its own.

229The duty to accommodate does not require an employer to accommodate an employee within his own job classification when an employee is unable to perform the basic or core functions of his work.

230This is not to say that the employer does not have an obligation to modify the work or bundle duties, but there is a limit to the extent of the modification required. It is the employer's submission in this case that wherever the threshold may lie, the steps necessary to accommodate Mr. Magee as a correctional officer greatly exceed what is required.

231In Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, the Supreme Court of Canada stated at paragraph 15 that "the purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, that is, the employee's duty to perform work in exchange for remuneration." At paragraph 16, the Court also noted the following:

The test is not whether it was impossible for the employer to accommodate the employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.

232 The Human Rights Tribunal of Ontario makes the same point in the recent decision of Yeates v. Commissionaires Great Lakes, 2010 HRTO 906.

233In Everaz Inc. NA Canada v. Shopmens (International Association of Bridge, Structural Ornamental and Reinforcing Iron Workers, Local Union No. 805), 2010 CanLII 96500 (AB GAA),and in the matter of a grievance of Glenn Dale Curry, ALTA. G.A.A. 2010-009, arbitrator Alan Beattie reviewed the court and arbitral jurisprudence on the duty to accommodate and concluded that a number of standards or tests emerged. At page 17 of the PDF version of the decision, the arbitrator points out that one of the principles is that an employer "does not have to create a new job, or one that is not productive, or one that has core duties removed, or one that changes working conditions in a fundamental way."

234In Pourasadi v. Bentley Leathers Inc., 2015 HRTO 138, the Human Rights Tribunal of Ontario, after reciting the goals and purposes of accommodation as outlined in Hydro-Québec, stated at paragraph 28 that:

As the Tribunal has held in many cases, the duty to accommodate may require arranging an employee's workplace in a way that enables the employee to perform the essential duties of his or her work. However, it does not require permanently changing the essential duties of a position or permanently assigning the essential duties of a position to other employees. The duty to accommodate also does not require exempting employees from performing the essential duties of their position.

235In Gables Lodge Limited v. C.U.P.E., Local 1315 (2009), 187 L.A.C. (4^th) 286, Nova Scotia arbitrator William Kydd reviewed the jurisprudence and concluded at paragraph 54 as follows:

In 2008 in Hydro-Québec, supra, the Supreme Court stated that because of "the individualized nature of the duty to accommodate a variety of circumstances that may arise, rigid rules must be avoided." I would interpret this to preclude the adoption of the rule suggested in Re Better Beef that an employer is not required to take various tasks from existing positions and create a new position. Hydro-Québec to the contrary, indicates that an accommodation should be made if circumstances permitted various tasks to be reassembled and given to a disabled worker, without undue hardship to the employer, which would allow the employee to perform a useful and productive job. On the other hand the affirmation in Hydro-Québec, that the duty to accommodate must be compatible with the rule that "employees must do their work" has to mean that "the threshold of undue hardship is crossed if the employer is required to maintain a handicapped employee in a position that is not of itself a useful and productive job in the context of the employer's operation", as summarized by arbitrator Kennedy in Re Hamilton Civic Hospitals, supra."

236Mr. Urmston's testimony indicated that the essential nature of the CX positions involve inmate contact. The work descriptions for the positions are a joint product of the union and the employer that reflect the joint understanding of the jobs and their working conditions. Eight out of 12 of the duties could not be performed without having inmate contact. Activity number 1 could be performed in a theoretical sense. Activity number 7, training, could be performed for a period of time until the skills atrophied. Activity number 11, monitoring visitors and contractors, could be performed as part of the CX-01 position.

237However, the CX-02 has responsibility for an inmate caseload, which could not be accomplished without having contact with inmates. If you remove the inmate contact from the CX work descriptions, there is nothing left. The bargaining agent referred to an obligation to bundle; however, the essential duties would be stripped out of the position, and what you would be left with would be a new position with new duties and presumably a new classification. Mr. Urmston testified that a new position would not be useful or productive. Employees are assigned to positions, not posts. The CX-01 and CX-02 are positions. The MCCP and the front gate are posts.

238It is necessary to maintain the flexibility of the workforce in the correctional environment, which is unpredictable, and must adapt to any scenario. Flexibility is lost or eliminated when an employee cannot be assigned throughout the institution when needed. That is why management and the union agreed that it was not effective or productive to staff the front gate with commissionaires as they could not be used throughout the institution as required.

239The roster system ensures that all employees rotate through all posts and ensures that all duties are performed. It accounts for planned absences and vacations. All employees who work in the institution work on all the various units, and when they serve as spares they are expected to fill in anywhere in the institution as required. Mr. Magee could not move through the roster; he could only work in a fixed post. A rotation between the MCCP and the front entrance would also present a risk to safety. He would disrupt the balance of rotation. In essence, Mr. Magee would act as a permanent spare, but that would impact on the operations as he could only be a spare at two different posts. If Mr. Magee were a floating spare, he could not relieve other posts as he could not do the other work. It would be as if the employer had to hire an additional employee.

240Mr. Urmston also stated that he had safety concerns regarding the repetitive nature of the performance of the duties in the two posts, which in his view would be "soul destroying." In addition, the proposed modification cannot be said to be of any productive benefit to the employer.

241The safety component is part of undue hardship. Mr. Urmston's views cannot be dismissed as impressionistic, given his extensive background in corrections.

242In Government of The Province of British Columbia v. British Columbia Government and Service Employees' Union, 2013 CanLII 61077 (BC LA) ("Pearson"), arbitrator John Hall considered the employer's duty to accommodate in a situation where a provincial correctional officer who had suffered a serious off-duty back injury had been diagnosed with a permanent disability and was no longer capable of performing a core element of the pre-injury job.

243After undergoing surgery, the employee was placed in the institution's control centre as a temporary assignment or accommodation. Ultimately, he was medically restricted from inmate restraining and sought to remain in the control centre on a permanent basis. The employer disagreed and removed him from the post in the control centre.

244The employee successfully obtained alternate employment in another department; however, he did suffer adverse financial consequences that led to the grievance. The union argued that a reasonable accommodation may well involve accepting the non-performance of a core duty and that the employee should have been maintained in the control posting on a permanent basis.

245The arbitrator dismissed the union's grievance and reasoned as follows at pages 71-73 (PDF version):

… the Supreme Court of Canada in Hydro-Québec directed that the duty to accommodate should be assessed "globally". And, as explained already, there is respectable authority for the propositions that undue hardship must be approached with "common sense", and that the expected duration of an accommodation is a relevant factor.

In terms of the expected duration of any accommodation, it is important to recognize some of the reasons why inmate contact is a core function of the Correctional Officer position. Among other factors, it is an inherent aspect of the direct supervision model, and allows staff to have an "ear to the ground" for potential problems. A Correctional Officer accommodated in Control who does not participate in the two-hour Runner/Control Prowl rotation has no direct contact with inmates whatsoever. As one witness testified: "if you take away contact, you are not a Correctional Officer [and] if you are in Control you become a computer operator… Working in a jail, that is so clear to me". This assessment is supported by the generic position description for Correctional Officer, where only a very small minority of the listed duties do not require inmate contact -- that is the very essence of the job under normal operations.

Moreover, a Correctional Officer with a no inmate contact restriction is obviously precluded from rotating through positions in other areas of the facility. The rotation system is not solely for the benefit of employees (i.e. to take "a break" from certain stressful posts); it is also vital to the Employer's interests of ensuring its staff complement is flexible, and has the necessary depth of familiarity and experience with the entire jail. As the Employer submits, rotation is beneficial both to the individual employee and to the institution as a whole.

…

I earlier rejected the Employer's "bright line" approach, and allowed for situations where an employee with a permanent disability may be accommodated without causing undue hardship. However, the duration of such an accommodation must be measured in months, and not in multiples of years, as would have been necessary to accommodate Mr. Pearson at FRCC. For all of the above reasons -- including, especially, the legitimate purposes served by Correctional Officers having inmate contact, the interference with other employees' rights, and the magnitude of the attendant safety risks -- I find that accommodating Mr. Pearson indefinitely in the Control post would constitute an undue hardship for the Employer. The same conclusion pertains to any other position at FRCC.

I find further that Mr. Pearson's placement in the EAW position through the Article 13 process constituted a reasonable accommodation in the circumstances. I agree with the Union that the process cannot displace the duty to accommodate; however, it cannot be ignored as part of the overall factual matrix.

…

… Nor does the Union argue in the alternative the EAW position was an unreasonable accommodation, despite the attendant financial impact on Mr. Pearson (which I readily acknowledge). There are numerous authorities which confirm that an employee is entitled to a reasonable accommodation, and cannot insist on a more appropriate or perfect solution.

246In this case, the evidence is that the physical environment in the MCCP is gruelling, with 30 screens to watch as well as alarms. If this were a permanent placement without rotation to other positions, there is a serious risk of a person developing an insensitivity to the various stimulae with the attendant risk of failing to respond to problems. This insensitivity would not be manifested until you are in a crisis, in which case it would be too late. These may very well be life-and-death situations. There is no doubt that Mr. Magee, with the best of intentions, thinks he can perform these tasks without risk to the staff, inmates or himself.

247Mr. Urmston's concerns weigh more heavily than that belief. Mr. Urmston also testified that being located in a single post means that you do not get out into the institution and that you do not have your "ear to the ground." You do not know what's going on in the institution. Although there is a morning briefing at the beginning of the shift, that briefing is not a substitute for being in the institution and knowing what's going on. In addition, having an individual who cannot be moved from a post hinders the flexibility of the employer to put staff where they are needed either in response to a crisis or in the aftermath of a crisis.

248The proposed accommodation would interfere with the rights of other employees. The roster, which involves the rotation of other employees, gives them opportunities to develop skills and provides relief from the stress of inmate contact. It may be necessary to accommodate other employees on a temporary basis in the MCCP or the front gate. If these posts are permanently staffed, there is no longer that ability.

249After an accommodation has taken place, the employee concerned is to be compensated in accordance with the work they are performing. In Teamsters Union, Local 419 v. Waste Management of Canada (Catalano Grievance), [2014] O.L.A.A. No. 222 (QL), the employee, a driver for a waste management company, suffered several back injuries. The employer accommodated him as a dispatcher in a non-union position but at the same rate of pay and benefits. When it was apparent that his disability was permanent, the employer left him in the position but reduced his wages and removed his collective agreement benefits. The employee grieved, asserting that the employer had discriminated against him on the grounds of disability. The employer argued that once it was apparent that the employee's restrictions were permanent, his accommodation outside the bargaining unit also became permanent, and the employer was entitled to compensate him at the same level as those employees performing the same work.

250The arbitrator dismissed the grievance and reasoned at paragraph 9 as follows:

It is now well settled since the Court of Appeal decision in Orillia Soldiers Memorial Hospital, that an Employer who accommodates an employee in a new position because of a disability must compensate the employee at the level pertaining to the work that is provided and not at the level of the job that the employee was performing when the disability arose. In that case the collective agreement did not require the employer to continue to pay an employee's benefits while on sick leave after long term disability had been exhausted. The Court of Appeal, in ruling that the collective agreement did not discriminate on the basis of handicap, made it clear that while the duty to accommodate requires an employer to try to facilitate the disabled employee's return to his/her former position, where the employee can only be accommodated to a different position, the employer need only compensate the employee at the rate of the work being performed. Speaking for the Court Rosenberg J. stated: "It is not prohibited discrimination to distinguish for purposes of compensation between employees who are providing services to the employer and those who are not." That approach has since been followed in other cases including Cambridge Hospital and Loblaws in support of the proposition that when employers accommodate disabled in jobs that are different than their pre-injury jobs, the employer need only compensate the employee at the level of compensation received by other employees performing the same job. The employer is not required to maintain the pre-injury level of compensation to an employee who can only be accommodated in a lower paid job.

251Both the CX-01 and CX-02 position work descriptions are predicated on having contact with inmates. The job description sets out not just the duties but the conditions under which the duties are performed. The working conditions are unique, demanding, unpleasant and potentially dangerous as they relate to the interaction with inmates. All of the different components, skills and abilities are related to inmates. Mr. Urmston described the penological factor allowance for positions having occasional contact with inmates that did not involve intervening with or restraining inmates. The pay component of the job relates to the danger of the job. When commissionaires performed the duties at the front gate, they were paid close to minimum wage. The salary for the job is now $70,000 a year, minimum.

252In Sioui v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 44, Vice-Chairperson Pineau decided the case of a grievor who had worked as a correctional officer at a maximum-security institution who had been dismissed under subsection 12(1) of the Financial Administration Act, R.S.C., 1985, c. F-11. He had become permanently unable to hold his position as a correctional officer because he could no longer work with inmates and carry a firearm, and efforts to find him other employment in the public service had been unsuccessful. He filed a grievance contesting his dismissal, and the adjudicator had to determine if the employer had made the necessary accommodation without suffering undue hardship to reinstate Mr. Sioui in the workplace.

253Having reviewed the relevant case law, she examined how it applied to the circumstances of the case before her in part as follows, at paragraphs 89-91:

Evidence was adduced to show that it is impossible for a correctional officer to work in the prison environment, given his duties of supervising inmates, without having contact with inmates and without carrying a firearm. Those occupational requirements cannot be altered. The employer established that other positions at the penitentiary require more or less direct contact with inmates during their comings and goings and that it is impossible to prevent a worker from having such contact without making the work meaningless.

For those reasons, the obligation to have contact with inmates and to carry a firearm constitute, in my opinion, justified and unequivocal occupational requirements that cannot be altered without putting the health and safety of other employees at risk.

As the Supreme Court of Canada concluded in Hydro-Québec, it is my opinion that the employer must also take into consideration the work context, in this case the health and safety of its other workers. In the circumstances of this case, the employer cannot change, in a fundamental manner without undue hardship, the occupational requirements of the position.

254She concluded in the circumstances of that case that the employer had fulfilled its obligation to accommodate with respect to his correctional officer position and its duty to find a reasonable arrangement that would have allowed the grievor to continue to work within the federal public service and dismissed the grievance.

255If it is found that Mr. Magee could have gone back into the institution, it must be noted that Mr. Magee failed to participate in the process. The final medical note of Dr. Parker states that ideally Mr. Magee would like to work at a job outside the institution, as that would be the "best-case scenario" for him. This makes every other option a second-best option. Dr. Parker wrote of working with previous offenders and suggested that he work in the community. If Mr. Magee thought he should be accommodated at the Regional Psychiatric Centre, he steered the conversation in the other direction. No one testified that he ever raised accommodation at the MCCP or the front gate. Mr. Magee agreed he did not. Ms. Miller's understanding that he preferred to be accommodated outside the institution is not challenged. The letter provided by Mr. Magee to Dr. Parker shows his mindset.

256In Central Okanogan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, Sopinka J. of the Supreme Court of Canada outlined the responsibilities of the employer, the union and the employee in exercising the duty to accommodate. The Court noted, at pages 994-5, that there is also a duty on the employee to assist in securing an appropriate accommodation.

257In Ellis v. General Motors of Canada Limited, 2011 HRTO 1453 at para. 29, the Human Rights Tribunal of Ontario pointed out that an employee is not entitled to expect a preferred or perfect accommodation, but rather "is required to accept an accommodation that meets her or his needs."

258In this case, Mr. Magee never proposed that he be accommodated at the front gate or at the MCCP.

259The bargaining agent presented an argument on how the duty to accommodate could apply to an ongoing staffing situation, namely by placing the employee in the AS-05 positon. The employer maintains that this argument cannot succeed. The AS-05 position is a promotion from the CX-02 position. There is no requirement to accommodate an employee in a promotional position. The bargaining agent has attempted to overcome the fact that an appointment to the AS-05 position is a promotion based upon the premise that the employer should attempt to minimize salary loss, relying on all of the compensation that a CX-02 potentially could receive, including premiums and overtime.

260There are several problems with this analysis. The extra income based on premiums and overtime is not guaranteed. Mr. Magee did have one year where his income was $91,000. In other years, however, there was no significant evidence of overtime. There are two kinds of remuneration salary, based on the regular hours worked and premium pay, which is compensation for work over and above the regularly scheduled hours or unfavourable working conditions on weekends or statutory holidays.

261If there are a number of suitable accommodations where overtime is not usually required, the employer is not required to increase the hourly compensation of those positions to incorporate a premium or overtime component.

262The Definition of Promotion Regulations (SOR/2005-376), defines a promotion for the purposes of subsection 51(5) of the PSEA as meaning:

the assignment to an employee of the duties of a position for which the maximum rate of pay is more than the maximum rate applicable to the employee's substantive level immediately before the assignment of the duties, by an amount equal to or greater than

(a) the smallest increment on the pay scale for the new position, if it has more than one rate of pay; or

(b) 4% of the maximum rate of pay for the previous position, if the new position has only one rate of pay.

263The WP-03 position has the highest rate of pay without constituting a promotion. It is higher than the CX-01 position but less than the CX-02 position by approximately $3000. The AS-05 position pay rate is approximately $8000 more than the CX-02 position.

264Section 30(1) of the PSEA establishes that appointments, including those that constitute promotions, are made on the basis of merit.

265The bargaining agent relies on total compensation in its argument that the duty to accommodate includes an obligation to minimize salary loss; however, it was not able to bring any jurisprudence in support of its position. Ellis, supra, where the Human Rights Tribunal of Ontario considered whether the duty to accommodate extends to requiring an employer to promote an individual, states at paragraph 28 as follows:

I will next address the applicant's preferred placement, which was in the Group Leader position. I have found above that the applicant was capable of performing the duties of the Group Leader position within his restrictions, notwithstanding that this position required him on an as-needed basis to perform the duties of the Wet deck Sander position. However, in my view, the duty to accommodate does not extend to require an employer to promote an individual to a higher-level position to which they would not otherwise have been promoted, whether on the basis of seniority or merit. The purpose of the duty to accommodate in an employment context is to ensure that an employee with a disability has the opportunity to continue to perform the essential duties of her or his employment if her or his needs can be accommodated without causing undue hardship to the employer. When approaching the accommodation of an employee, the first consideration is whether the employee can be accommodated in her or his home position without undue hardship. While the law is still developing in this area, it has been recognized that, if this is not possible, the duty to accommodate can extend to consideration of alternate positions. However, the duty to accommodate has not been considered to extend to granting an employee with a disability a promotion to which she or he otherwise would not be entitled. In my view, doing so would extend beyond ensuring equal treatment for an employee with a disability, which is what is protected under s. 5(1) of the Code.

[Emphasis added]

266In Baum v. Calgary (City), 2008 ABQB 791, the Alberta Court of Queen's Bench, in an appeal of a human rights panel's decision finding the applicant had not suffered discrimination on the ground of disability and that the respondent city/employer had accommodated him to the point of undue hardship, commented on whether the duty to accommodate included accommodating an employee into a promotional position in the context of seniority in a unionized environment, at paragraphs 52-53:

With respect to the union issue, there was evidence given to the Panel that the unions with which the City deals are very sensitive to matters such as seniority. The same may be said for promotion. Ms. McDermid testified that the City would consider accommodating an employee into a promotional position, but only as a last resort. She said that, in her view, they simply had not yet reached that point with Mr. Baum before he quit. For an employee to be accommodated into a promotional position potentially would prejudice other candidates for the position, particularly if they had more seniority than the accommodated employee. The evidence led by the City (and in particular the evidence of Wilf Steckler, the manager of labour relations for the City) confirmed that this process had been followed for some time and had been understood and accepted by the 11 unions as appropriate and fair in all of the circumstances given all of the vested interests and legal obligations. Accordingly, Mr. Baum's treatment was not arbitrary but was based on City and union guidelines that all employees had to go through, not just disabled ones. It can hardly be said that Mr. Baum was being arbitrarily dealt with in that regard.

I am bolstered in this regard by a review of some cases dealing with the duty to accommodate issue ….

267What the Court is saying in Baum is that there may be a number of employees seeking promotions. There is an obligation to find work that a disabled employee can do, in accordance with his or her restrictions. There is not an obligation to find a job that is a promotion. If the disabled employee is seeking a promotion, then he or she should follow the same processes as every other person. That is what was done in this case.

268It is argued that because the duty to accommodate is ongoing, when Mr. Magee failed the knowledge examination and was not found qualified for the AS-05 position, it should not have been the end of his being considered for it. In the employer's view, that would run contrary to the decision in Baum as the employee would be given more favourable treatment than other employees seeking the same opportunity. It also raises a practical issue in situations where a disabled employee is seeking accommodation. When do we say the assessment of qualifications has crystallized and you can appoint someone else?

269The bargaining agent argued that the test may not have accurately assessed his qualifications and that Mr. Magee's experience should have been considered in determining whether he had demonstrated merit. In Bates, supra, the applicant raised the discrepancy between experience and the results of the test in the staffing process. Mr. Magee did not do that. In Magee, supra, the PSST decision involving Mr. Magee's staffing complaint regarding the AS-05 position, the Tribunal noted at paragraph 6:

The complainant stated for clarification that he took no issue with the AS-05 assessment process itself or the qualifications of the appointed persons. His concern was limited to the issue of the respondent's failure to accommodate his disability by appointing him to the AS-05 position.

270The Tribunal concluded at paragraph 14:

 The Tribunal finds that the complainant failed to meet the essential qualifications for this position. He has not challenged the knowledge examination or his results and takes no issue with the assessment process that found him not qualified.

271This is a very different situation from what occurred in the jurisprudence cited by counsel for the bargaining agent, where the assessment itself, within the staffing process, was challenged. Nothing precluded Mr. Magee from raising this type of argument before the PSST.

272The doctrine of issue estoppel makes the PSST's findings binding in the present case since the parties are the same and the issue being addressed is the same, namely, whether Mr. Magee was qualified for the AS-05 position.

273In addition, it is argued that after the appointment process was completed, there was a continuing obligation to assess Mr. Magee's qualifications for the AS-05 position. It is suggested that because Mr. Magee carried on in the AS-05 role after September 2009, performing some of the duties of the job, that the employer must have therefore felt that he was qualified for the position. There are two problems with the submission. The bargaining agent is asking this Board to determine that he was qualified for the position. There is a real question concerning the jurisdiction of this Board in exercising its mandate under the PSLRA, to determine that issue. In addition, the submission ignores the evidence of Mr. Urmston that in his view Mr. Magee was not qualified for the position. He permitted him to carry on in the position because if he did not assign him some work, he would have had to have sent him home. Mr. Urmston was less concerned about the "niceties" of the Public Service Employment Act and preferred to keep him engaged.

274With respect to the argument that the employer failed in its duty to accommodate Mr. Magee because of the delay in his ergonomic assessment, this Board does not have jurisdiction to consider that matter. Any issues concerning the ergonomic assessment, including anything arising from a human resources perspective, are matters that fall under the Government Employees Compensation Act (R.S.C., 1985, c. G-5) ("GECA")

275Assuming, without acknowledging, that the Board has jurisdiction to consider this issue, the employer is not disputing that the delay in performing the ergonomic assessment should not have happened. That does not mean, however, that the delay caused the injury or delayed his return to work. The time that elapsed from when the matter was first raised until all of the equipment was in place, save for the chair, was 44 days. In Ontario Public Service Employees Union (Alviani) v. Ontario (Revenue), 2011 CanLII 10252, a decision of the Ontario Grievance Settlement Board, at paragraphs 44 and 49, a request for an ergonomic assessment was unattended to and ignored for a month. The board in that case did not find a violation of the duty to accommodate as an employer is not required to be "perfect" in its accommodation efforts.

276Dr. Parker said the ergonomic assessment may or may not have helped Mr. Magee. It cannot be concluded that it caused injury, and it is a fact that he had at least two prior surgeries. Dr. Parker had suggested in June 2009, that an ergonomic assessment be made; however, neither Dr. Parker nor Mr. Magee provided that information to the employer. When Mr. Magee did return to the workplace, the equipment was in place.

277With respect to the inappropriate comments of Mr. Suchorab, they are not captured by the grievance, which was filed in October 2009. The first set of comments was allegedly made in 2008 and is out of time. The other alleged comments were said to have been made in 2009 although Mr. Magee could not say in what month. It is not appropriate to consider them given the timeframe of the grievance. He has not met the burden of proof. Mr. Magee said he made the comments. Mr. Suchorab denied it. Mr. Suchorab said he would not talk that way to a staff member, that it did not reflect his character and that he would have been supportive of an employee trying to return to work. No reason was advanced why he would have made such comments.

278Mr. Magee did not report the comments to his supervisor or to the union. He did not file a grievance or complain under the harassment policy. He did continue to initiate discussions with Mr. Suchorab. On a balance of probabilities, Mr. Suchorab's version is likely to be accurate.

279With respect to the alleged inappropriate comments of Ms. Burnouf, she had a strong recollection of the events. She was concerned about the pattern of Mr. Magee's usage of sick leave. She was acting in her management capacity. Her comments about him being AWOL or in her words "missing in action" were at the most indelicate but do not constitute harassment on the basis of disability. Her use of the term "sick leave" as opposed to "injury on duty leave" is a more colloquial term. Its use does not amount to discrimination or harassment.

280The contention that she told Mr. Magee that he wasn't suited for the job and should be on stress leave is contradicted by her views that she thought he was doing well in the job and as such it is unlikely that she told him he should go elsewhere. Her reaction to Mr. Magee's allegations clearly upset her as she had made considerable efforts over the years to build a personal relationship with him.

281With respect to remedy, no compensation order should go back more than 25 days prior to the date of the grievance. See Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (QL) (F.C.A.). Any remedy should take into account the times that Mr. Magee was off work and was on injury on duty leave. The Board cannot order Mr. Magee to be appointed to the AS-05 position; nor can the Board appoint Mr. Magee to the correctional officer position.

C. Reply argument of the bargaining agent

282In the Supreme Court of Canada decision in McGill, supra, Justice Abella, in her dissent at paragraphs 48 and 49, stated that there is a difference between discrimination and a distinction and that not every distinction is discriminatory. She does not go into an analysis as the majority does about how long a person has to be on leave without pay before undue hardship is reached.

283In Tranchemontagne, supra, the context is that of a specific workplace accommodation. The case is about whether denying disability benefits to an alcoholic is discriminatory. The accommodation cases arising from the workplace are better guides.

284What is clear is that on account of his disability, Mr. Magee has suffered a significant financial loss.

285While the main duties for the CX positions involve inmate contact, the CX-01s' duties are also to maintain security and safety at the facility. You could still be providing that service at the front gate and the MCCP whether you are dealing with inmates or not.

286In terms of the rotation, an accommodation at the front gate or the MCCP does not prohibit flexibility; it merely impedes flexibility. This is where the analysis of what is undue hardship comes in.

287One must be careful when applying the principles from the cases involving prison workplaces. The context is different, and the evidence is different. Sioui, supra, deals with the Québec region. At paragraph 86-87, the adjudicator noted that there were in fact unarmed positions at the CSC, which did not require contact with inmates, but those positions were not at Donnaconna; they were in Laval or in the Montréal region. The employer was prepared to support reinstating the grievor in such positions, but the grievor did not cooperate with the process.

288The suggestion that Mr. Magee made comments about avoiding inmate contact has to be looked at in context, where Mr. Suchorab was pushing him to return to work without restrictions. The positions at the MCCP and the front gate were never offered to him. It is unfair for the grievor to suggest that he would have avoided them.

289One must look at a promotion within the context of accommodation. In the present case, there was no monetary advantage to him in the AS-05 position over what he earned as a CX-02. The fact that the AS-05 is considered a promotion is simply arbitrary because the Treasury Board has defined it in terms of a mathematical calculation. Assuming there was no WP-03 position available, the only position available was one that was deemed to be a promotion, and then Mr. Magee would be out of a job.

290Even if no one else had applied for the AS-05 position, he would still not have been appointed. This contradicts Ms. Miller's evidence before the PSST that if Mr. Magee had met the essential qualifications when assessed for the AS-05 position, he would have been appointed to the position as a priority. The application to this case of these Treasury Board directives about what constitutes a promotion is not consistent with the employer's human rights obligations.

291With respect to the ergonomic assessment, Dr. Parker had been providing his concerns to the WCB throughout the entire period.

292If Mr. Suchorab's evidence that he would never say the words attributed to him by Mr. Magee because it was not part of his character was a viable defence, it would defeat every harassment complaint. The fact that Mr. Magee did not file a grievance or a harassment complaint is not surprising, given Mr. Suchorab's role in assisting employees to return to work and find a position.

293With respect to remedy, at the very least Mr. Magee is entitled to the difference in salary between the WP-03 and the AS-05 positions.

IV. Reasons for decision

294The bargaining agent contends that the main issue presented in this case is whether or not the employer could have accommodated the grievor without suffering undue hardship while minimizing the impact on his employment income. This could have been accomplished by appointing Mr. Magee to the AS-05 position on an indeterminate basis. The employer could also have accommodated Mr. Magee as a CX in the Regional Psychiatric Centre, limiting his duties to the Main Communications and Control Post and the front gate, as these positions do not involve inmate contact.

295The other issues the bargaining agent states are more peripheral and include the failure to make a timely ergonomic assessment, the alleged demeaning comments of Mr. Suchorab and the alleged inappropriate comments of Ms. Burnouf.

296The main issue is to determine whether the employer discriminated against Mr. Magee on the basis of disability and, if so, whether accommodating his disability by appointing him to the AS-05 position or as a CX in the Regional Psychiatric Centre in a hybrid job working at the front gate, alternating with the control centre of the institution, would impose undue hardship on the employer.

297Mr. Magee specifically alleges that because of his disability the employer has discriminated against him and in doing so has contravened section 19 of his collective agreement and the Canadian Human Rights Act.

298Article 19.01 of the Program and Administrative Services collective agreement, expiring June 10, 2010 states as follows:

There shall be no discrimination, interference, restriction, coercion, harassment and intimidation or any disciplinary action exercised or practised with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the alliance, marital status or a conviction for which a pardon has been granted.

299In addition, section 226(2)(a) of the PSLRA provides that an adjudicator or the Board may, in relation to any matter referred to adjudication, interpret and apply the Canadian Human Rights Act.

300To demonstrate prima facie discrimination, Mr. Magee must show that he had a characteristic protected from discrimination under the collective agreement or the Canadian Human Rights Act; that he experienced an adverse impact with respect to his employment; and, that the protected characteristic was a factor in that adverse impact (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33). One of the prohibited grounds listed in the collective agreement is physical disability. Section 3 of the Canadian Human Rights Act states that disability is a prohibited ground of discrimination. Section 25 of the Act defines disability as meaning "any previous or existing mental or physical disability…" The evidence is clear that Mr. Magee suffered from a physical disability. There is no question that his disability was a factor in his experiencing an adverse impact with respect to his employment as he was no longer able to perform his regular duties as a correctional officer.

301Given a finding of prima facie discrimination the burden shifts to the employer to justify the conduct within the available framework of the exemptions available under human rights law.

302Section 15 of the Canadian Human Rights Act states that a limitation in relation to employment is not a discriminatory practice if it is based on a bona fide occupational requirement. Whether the defence is available is determined by looking at whether accommodating the needs of the individual would impose undue hardship to the employer.

303It is clear that Mr. Magee cannot perform the CX-02 job as it exists given his disability as he could not return to a position that would place him in a situation where he would have to restrain an inmate and/or defend himself given the impaired range of motion and strength in his right (dominant) shoulder as determined by the Saskatchewan Worker's Compensation Board in February 2009 and the medical reports of Dr. Parker dated September 22, 2009.

304Given that it is not possible for Mr. Magee to perform his regular CX-02 job, can it be modified in such a way as to accommodate him without causing undue hardship for the employer?

Hybrid position at the front gate and MCCP

305 The bargaining agent maintains that the CX job can be modified and that the duties at the front gate and the MCCP should be bundled to create a hybrid position as these posts do not require inmate contact.

306In Hydro-Québec, supra, the Supreme Court of Canada confirmed that the duty to accommodate does not completely alter the essence of the contract of employment; that is, the employee's duty to perform work in exchange for remuneration. The test is not whether it was impossible for an employer to accommodate an employee's characteristics. The employer does not have a duty to change working conditions in a fundamental way but does have a duty, if it can do so without undue hardship, to arrange the employee's workplace or duties to enable the employee to do his or her work.

307The Human Rights Tribunal of Ontario, in Yeates, supra, defines accommodation in the workplace as meaning adapting the work to the needs of the employee so that she/he can perform the essential duties of the position.

308Arbitrator Alan Beattie in Everaz, supra, surveying the jurisprudence, concluded that an employer does not have to create a new job or one that is not productive or one that has the core duties removed or one that changes working conditions in a fundamental way.

309To the same effect, the Human Rights Tribunal of Ontario, in Pourasadi, supra, concluded that the duty to accommodate may require arranging an employee's workplace in a way that enables the employee to perform the essential duties of his or her work. It does not require permanently changing the essential duties of the position or permanently assigning the essential duties of the position to other employees, and it does not require exempting employees from performing the essential duties of their position. .

310I accept Mr. Urmston's evidence that the essential nature of the CX positions require inmate contact. This is reflected in the joint Union-Management work descriptions. The main difference between the CX 01's and the CX 02's is that the CX 01's do not do case work whereas the CX 02's are assigned up to six offenders which requires the officer to work on the unit maintaining regular contact and communication with the inmates, documenting their behaviour and preparing case management reports. Persons employed in both positions are required to observe, control and direct inmate daily activities, both within and outside the institution. Both positions require the performance of security checks and the searching of living units, physical plant, buildings and vehicles and inmates and their personal property. For both positions, employees are required to motivate and encourage inmates to develop life skills and to take part in reintegration programs. They must monitor the movement and activity of visitors and civilian contractors as well as social activities and events in the institution and on the penitentiary reserve.

311 The only activities that could be performed without inmate contact would be contributing input towards the development and implementation of unit programs, providing on the job mentoring to entry-level correctional officers and practicum students and the recording of unauthorized items and contraband.

312 The evidence is clear that Mr. Magee cannot perform the core duties recited in both job descriptions, which according to the evidence are the essential duties of the positions, because they require inmate contact. I accept the evidence of Mr. Urmston that the hybrid position as proposed by the bargaining agent would be one with the essential duties stripped out and that the position would not be useful or productive.

313I conclude on the facts that this would require removing the essential duties from these positions. The jurisprudence does not go so far as to require an employer, as part of the duty to accommodate, to permanently change the essential or core duties of a position or to permanently assign those essential duties to other employees, which would be the result if Mr. Magee were to be assigned indeterminately to a bundled position involving these two posts.

314I also accept Mr. Urmston's evidence that an employee being a permanent substitute in a CX position with a physical restriction of no inmate contact reduces the flexibility of the institution to respond to crises, which would create a significant safety and security concern.

315The position in the MCCP has significant responsibility, and the individual assigned to the post is subject to a great number of stressors, with in excess of 30 screens to watch, alarms sounding, and opening and closing gates. This is why the shifts are limited to four hours and employees rotate through them. If this was a permanent placement, there is a significant risk that Mr. Magee or any person for that matter could fail to respond to problems that could very well be of a life and death nature. This risk is compounded by Mr. Magee's challenges in dealing with stress both in the workplace and in his personal life, as described by Dr. Parker.

316Furthermore, the CX-02 position at the front gate is a responder position, and if Mr. Magee were to occupy that post on a permanent basis, the institution would lose that flexibility. In addition, such an accommodation clearly would interfere with the rights of other employees, interfering with their ability to rotate temporarily away from inmate contact. Significantly, in my view such an assignment would interfere with the correctional service's duty to accommodate other employees. I refer here to the evidence of Mr. Urmston that the CX 02 position at the front gate is a post that is used to accommodate pregnant correctional officers and correctional officers with fractured limbs. If Mr. Magee was assigned to that position on an indeterminate basis that accommodation would not be available.

317It is not without significance that Mr. Magee never proposed that he be accommodated at the front gate or at the MCCP.

318I find instructive the comments of Arbitrator Hall in Pearson, supra, and of Vice Chairperson Pineau in Sioui, supra, both of which dealt with correctional officers who had suffered permanent disabilities and could no longer have inmate contact.

319The following comments of Arbitrator Hall seem particularly apt, at pages 71-72 (PDF version):

… [I]t is important to recognize some of the reasons why inmate contact is a core function of the Correctional Officer position…. [I]t is an inherent aspect of the direct supervision model, and allows staff to have "an ear to the ground" for potential problems. A Correctional Officer accommodated in Control who does not participate in the two-hour Runner/Control Prowl rotation has no direct contact with inmates whatsoever. As one witness testified: "If you take away contact, you are not a Correctional Officer [and] if you are in Control you become a computer operator… Working in a jail, that is so clear to me" This assessment is supported by the generic position description for Correctional Officer, where only a very small minority of the listed duties do not require inmate contact -- that is the very essence of the job under normal operations.

Moreover, a Correctional Officer with a no inmate contact restriction is obviously precluded from rotating through positions in other areas of the facility. The rotation system is not solely for the benefit of employees (i.e., to take "a break" from certain stressful posts); it is also vital to the Employer's interest of ensuring its staff complement is flexible, and has the necessary depth of familiarity and experience with the entire jail. As the employer submits, rotation is beneficial both to the individual employee and to the institution as a whole.

…

… For all of the above reasons -- including, especially, the legitimate purposes served by Correctional Officers having inmate contact, the interference with other employees' rights, and the magnitude of the attendant safety risks -- I find that accommodating Mr. Pearson indefinitely in the Control post would constitute an undue hardship for the Employer.

320Vice-chairperson Pineau, in Sioui, supra, concluded that it was impossible for a correctional officer to work in the prison environment given his or her duties of supervising inmates without having contact with inmates and, in that case, without carrying a firearm and that these occupational requirements could not be altered without putting the health and safety of other employees at risk.

321I conclude on the facts that modifying Mr. Magee's CX job by creating a hybrid position at the front gate and the main control centre would constitute an undue hardship on the employer.

322If an employer is not able to modify the employee's existing job without undergoing undue hardship the employer is to then determine whether another job within the workplace is suitable.

323 It was not argued that the position of Victim Services Officer at the WP-03 group and level was an unreasonable accommodation. The evidence of Ms. Burnouf supports the conclusion that it utilizes Mr. Magee's background in counselling and assisting people and that his performance in the position has been positive. This conclusion is also supported by the evidence of Mr. Urmston that the WP-03 pay range was not far from the pay range for the CX-02 and that there was now a career path for Mr. Magee to follow which would not have been the case had Mr. Magee been appointed to a CX hybrid position given his disability. I conclude on the facts that the WP-03 position was a reasonable accommodation.

A. The AS-05 position

The bargaining agent argues that the employer failed to properly consider whether Mr. Magee could be accommodated in the AS-O5 position on an indeterminate basis.

324The Human Rights Tribunal of Ontario, in Ellis, supra, concluded that the duty to accommodate does not extend so far as to require an employer to promote an individual to a higher-level position, whether on the basis of seniority or merit. The Alberta Court of Queen's Bench in Baum, supra, observed that if an employee was to be accommodated into a promotional position, it had the potential to prejudice other candidates for the position. This appears to me to be a reasonable and justifiable limit on the employer's duty to accommodate and I adopt the ratio in these decisions.

325The bargaining agent submits that in fact appointing Mr. Magee to an AS-05 position is not a promotion, on the grounds that the employer should attempt to minimize salary loss relying upon the total compensation that he could receive as a CX-02, including premiums and overtime. Mr. Magee suggested in his evidence that his income as a CX-02 when he was working in that position was well in excess of $100,000 for a number of years. There was in fact one year, 2006 where his income was $91,632.86; however, in the other years for which he provided his T4 returns the evidence did not support the conclusion that he worked significant overtime or earned other premiums. His employment income for 2009 was $71,489.49; for 2008, $65,124.50, for 2007 $78,721.51. In sum, the evidence does not establish that Mr. Magee was certain to earn a significant amount of overtime or other premiums in any given year.

326As of 2010, the evidence indicates that the top salary for the WP3 position was $67,179, for the CX02 position $71,183 and for the AS05 position $78,400.

327It was not disputed that according to the Definition of Promotion Regulations, the WP-03 position had the highest rate of pay without constituting a promotion. It was higher than the CX-01 position but less than the CX-02 position by approximately $4000. The AS-05 position pay rate was approximately $8000 more than the CX-02 position and would constitute a promotion in accordance with the regulations.

328The bargaining agent argues however that one must look at a promotion within the context of accommodation. In the present case there was no monetary advantage to him in the AS05 position over what he earned as a CX-02 if you take into account his gross compensation including overtime and premium pay. The fact that the AS-05 is considered a promotion is simply arbitrary because the Treasury board has defined it in terms of a mathematical calculation.

329The bargaining agent was unable to provide any authority for its proposition that appointing Mr. Magee to an AS-05 position was not a promotion if one took into account his gross compensation. Arbitrators frequently focus on the relative rates of pay of two positions as the decisive criterion in determining whether an appointment to a new position can be characterized as a promotion. See Brown and Beatty, Canadian Labour Arbitration, 4^th ed. at paragraph 6:2100. Moreover, income in excess of the regular rate of pay for a position based on the availability of overtime as well as weekend and shift differential premiums is not guaranteed. In any event, on the facts it has not been established that Mr. Magee consistently earned gross income equivalent to the salary for the AS-05 position. An employer is not required to maintain the pre-injury level of compensation to an employee who can only be accommodated in a lower paid job.

330I conclude that appointing Mr. Magee to the AS-05 position on the facts of this case would have constituted a promotion. The duty to accommodate does not require the employer to promote an individual to a higher-level position. Despite this conclusion, I will consider the other arguments advanced by the bargaining agent with respect to the AS-05 position.

331The bargaining agent argues that the written test in the AS-05 appointment process may not have accurately assessed his qualifications and that the staffing officer should have considered his experience in the position and his positive evaluation in determining whether he qualified, relying on the jurisprudence recited.

332The difficulty with this argument is unlike the fact situations referred to in Bates and Tremblay, Mr. Magee did not raise this issue either during the appointment process or before the PSST when it dealt with his staffing complaint. There was no argument advanced that the assessment board should have relied on his experience in determining whether he had qualified in that process. In my view, that argument should have been advanced in informal discussions after he was assessed and advised that he had not qualified, at which time the assessment board would have had an opportunity to consider the argument, or before the PSST, which clearly had the jurisdiction to consider it, as opposed to in final argument on a hearing into his grievance, being held some five years after the events.

B. Ergonomic assessment

333Section 208(2) of the PSLRA states that an employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament other than the Canadian Human Rights Act. Accordingly, the employer argues that this Board does not have jurisdiction to consider any issue concerning the ergonomic assessment, including anything arising from a human rights perspective, as those matters fall under the GECA. There is another administrative procedure for redress to deal with compensation for a work related injury under the GECA, and an adjudicator does not have jurisdiction over such a claim.

334However, the GECA does not address questions of whether an employer has properly accommodated a disabled employee including whether an employer should have provided an ergonomic assessment where the employee alleges discriminatory treatment.

335Assuming, therefore, that I have jurisdiction to consider this issue, I conclude that while there was some delay in arranging for the ergonomic assessment, it was mostly attributable to the fact that Health Canada no longer pays for that assessment. It was necessary for Ms. Miller to approach the WCB and seek their support in paying for the assessment. Once the assessment was completed, the new equipment, save for the new chair purchased out of the budget of the unit and not required as part of the assessment, were in place almost immediately. The evidence is equivocal as to whether the delay contributed to Mr. Magee's ongoing disability. I am not persuaded on the facts that the grievor's accommodation was delayed or prevented.

C. Alleged inappropriate comments of Mr. Suchorab

336The first comments were allegedly made sometime in 2008 and are not captured in the grievance filed in October 2009. Mr. Magee should have grieved at the time. Accordingly, I do not have jurisdiction to consider this allegation as part of the grievance.

337The second comments attributable to Mr. Suchorab related to the AS-05 position to the effect that Mr. Magee did not deserve a promotion, which allegedly were accompanied by a derogatory remark. There is no mention of this incident in the grievance. In any event, assuming I have jurisdiction to deal with this matter, Mr. Suchorab does not recall any conversations of that nature, with Mr. Suchorab asserting that they go against his character. At issue is the reliability of the testimony of these witnesses. In making reliability assessments, the statement of Mr. Justice O'Halloran in Rex v. Pressley, [1948] B.C.J. No. 63 (QL) (B.C.C.A.), at paragraph 12, is helpful:

The judge is not given a divine insight into the hearts and minds of the witnesses appearing before him. Justice does not descend automatically upon the best actor in the witness-box. The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case.

It is Mr. Magee that bears the onus of establishing on a balance of probabilities that Mr. Suchorab more likely than not made the comments that Mr. Magee attributes to him. Mr. Magee did not file a harassment complaint; nor does he recall going to the union about this incident.

338Given that there was no timely complaint, no notification to the union and no certainty as to when the comments were allegedly made, and given that Mr. Magee was found to have embellished his testimony, when stating that his income as a CX-02 was over $100,000 for a number of years while the documentary evidence indicated otherwise, I conclude that Mr. Magee has not met his onus of establishing on a balance of probabilities that Mr. Suchorab made the comments attributed to him.

D. Alleged inappropriate comments of Ms. Burnouf

339Mr. Magee complains that he objected to Ms. Burnouf using the term "sick leave" when it was an injury on duty that was responsible for his being absent from work. He also complained that Ms. Burnouf accused him of not reporting to work and being AWOL even though he had told her that he was seeing his physician and arranging physiotherapy. He also asserts that Ms. Burnouf advised him that she did not think the victim services job was appropriate for him because it stressed him out. Again there is no mention of any of these incidents in the grievance.

340Ms. Burnouf testified that in June 2010, Mr. Magee was absent from the workplace, but she did not have a doctor's note to justify the absence, and it was in this context that she used the term "AWOL" or "missing in action" as she phrased it. She stated that as the manager, she was responsible to see that staff is accounted for. She acknowledged referring to his leave as sick leave and stated that she was aware of the distinction between injury on duty leave and sick leave but used the term generically. She testified that Mr. Magee never objected to her using the term. She denied telling him that the victim services job was not appropriate for him; on the contrary, she stated that in her view, given his background in counselling and assisting people, he had performed well in the job.

341When an employee is scheduled to work and is absent in circumstances where the employee is required to certify the absence, such as by a doctor's note, the appropriate terminology is that the employee is absent without leave.

342 I have difficulty in understanding how the use of this term in the circumstances is discriminatory or constitutes harassment. Management has a responsibility to manage the workforce. Ms. Burnouf acknowledges using the term "sick leave" in a generic sense. I accept her evidence that Mr. Magee never objected to her using that term as I have no doubt that had it been raised as she testified and had she been aware that this upset him she would have used the appropriate terminology. In any event, in my view, the use of the term does not amount to discrimination or harassment.

343I accept Ms. Burnouf's evidence that she did not tell Mr. Magee that the victim services job was not for him. Her considerable efforts over the years to encourage Mr. Magee in his career, her assessment that he was performing well in his position, her efforts to build a positive personal relationship with him and her evident distress with Mr. Magee's assertions strike me as sincere.

344For all of the above reasons, I make the following order:

V.Order

345The grievance is dismissed.

January 6, 2016.

David Olsen,
adjudicator