FPSLREB Decisions

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        On August 1, 2012, the grievor, Chantal Paquette, filed a grievance against her employer, the National Parole Board, which became the Parole Board of Canada on February 28, 2013 (S.C. 2012, c. 1, s. 160(1)(ii); SI/2013-13; “the employer”). The grievance alleged a violation of article 19 of the collective agreement concluded between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group bargaining unit (expiry date: June 20, 2014; “the collective agreement”). That article stipulates as follows:

ARTICLE 19

NO DISCRIMINATION

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced 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.

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2        On May 21, 2013, the grievor referred her grievance to adjudication under s. 209(1)(a) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2).

3        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 new 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 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

4        At the hearing, the grievor stated that her allegations solely involved her manager harassing her because of her physical disability. As a corrective measure, she asked that the employer stop harassing her.

5        It should be noted that while the grievor initially claimed several monetary allowances in her grievance form, including two payments of $20 000.00 each, no evidence or argument in support of those claims was presented to me at the hearing.

II. Summary of the evidence

6        The grievor testified that she worked for the employer from August 1989 and that at the relevant time, she held a record suspension officer position, classified PM-03, in the Clemency and Record Suspension Division. She has suffered from fibromyalgia for 20 years, a medical condition that has affected her ability to work since 2002.

7        In 2006, following a long sick leave of nearly three years linked to her medical condition, the grievor began a gradual return to work. An ergonomic assessment was conducted at the time, to provide her with the appropriate work tools. After returning, she provided a medical certificate every three months indicating that she could work only four days per week. In March 2011, after receiving a letter from her doctor, the employer wanted her to resume a full-time work schedule of five days per week. She never was able to work more than four days per week (Mondays, Tuesdays, Thursdays, and Fridays).

8        In October 2009, Brian Bender began working for the employer and became the grievor’s manager. He met her for the first time in January 2010. At that time, he learned that she suffered from a medical condition that prevented her from working more than four days per week.

9        Mr. Bender explained that the coming into force of Bill C-23A in June 2010, which brought major changes to the Act governing the division’s work, had resulted in an increased workload for the record suspension officers and in changes to how program-related services were delivered.

10        In October 2010, Mr. Bender met with the grievor as part of a performance assessment and raised the requirement to ask Health Canada to evaluate her fitness to work. He testified that her health issues appeared to undermine her performance. She no longer seemed capable of assuming all the duties and responsibilities required in her position, and consequently, her workload was reduced more than once. And she was regularly unable to respect her four-day-per-week work schedule. She often missed up to two work days per week and frequently neglected to report her absences, which undermined the division’s operational requirements. She did not deny those facts and conceded that he regularly approved her sick leave requests.

11        According to Mr. Bender, it was clear that the 2006 approach had not produced the expected results and that a reassessment of the grievor’s medical condition and fitness to work was imperative, to give her the tools necessary to once again adequately perform her work duties and meet the division’s organizational obligations. In addition to asking for a Health Canada evaluation, he requested that a new ergonomic assessment be conducted since the last one dated back nearly five years.

12        The grievor seemed offended by Mr. Bender’s two requests. In her view, nothing justified them, which is why she refused to report to his office on January 11, 2011, when he called her in to fill out the documents linked to those requests. He explained that his intentions were sincere and that he requested those assessments in an effort to offer her a suitable work environment while meeting the operational obligations of his division. He even referred her to a human resources advisor to confirm to her that his requests and concerns were in good faith and were legitimate. She refused to complete the evaluation request documents. The evaluation could not be completed.

13        On March 15, 2011, Mr. Bender called the grievor into his office to follow up and to give her new documents related to the fitness-to-work evaluation request for her to submit to her family doctor. The evaluation request at issue contained 12 specific questions aimed at providing a better understanding of the required limitations and accommodation measures. According to her claims, her family doctor had told her that such a request was akin to harassment. She added that he had refused to answer Mr. Bender’s more-than-relevant questions and instead had suggested submitting a short letter, once again recommending a part-time work schedule of four days per week, without additional information. I dare hope that the grievor’s testimony on that point was erroneous and that her family doctor did not actually act that way. However, I conclude that Dr. Jimmy Paquet’s letter, dated March 18, 2011 (Exhibit F-6), appears to be his only response to Mr. Bender’s detailed evaluation request. Once again, no fitness-to-work evaluation could be conducted at that time.

14        One year later, the grievor hand-delivered to Mr. Bender a letter from another family doctor, this one dated May 24, 2012. It was even shorter than Dr. Paquet’s letter, and it repeated that she had to continue working a four-day-per-week schedule. Mr. Bender did not recall receiving that letter. I note that the letter in question has no mailing address. In any case, in late May 2012, Mr. Bender saw fit to reiterate his request that Health Canada conduct a fitness-to-work evaluation. Until that date, he had received no relevant information from the grievor’s family doctors, despite earlier requests. Mr. Bender added that he had given the grievor the reasons behind his evaluation requests and that he had told her that the evaluation could be conducted by Health Canada or by her family doctor. He asked her to choose who would perform the fitness-to-work evaluation and to submit to him the appropriate consent form no later than June 8, 2012, which the grievor refused to do. No evaluation was conducted.

15        According to the grievor, she did not report for work after June 12, 2012; she has been on sick leave ever since. She has been receiving disability insurance benefits from Sun Life Financial and plans to take medical retirement soon. It should be noted that the only medical condition linked to the disability insurance benefits is fibromyalgia. She confirmed that she had no medical proof establishing that her medical leave had been caused by the conduct or actions of Mr. Bender or of any other employee of the employer. She also confirmed that she never filed a harassment complaint against Mr. Bender or any other employee of the employer.

III. Summary of the arguments

A. For the grievor

16        The grievor’s arguments were very succinct. Essentially, she argued that the employer, specifically Mr. Bender, had harassed her because of her physical disability. In her view, his conduct was clearly harassment, thus constituting a violation of the collective agreement.

17        She also submitted that Mr. Bender created, repeatedly and persistently, a hostile environment that violated her personal dignity.

18        Finally, the grievor maintained that Mr. Bender had no reasonable grounds to request a fitness-to-work evaluation for her and that such requests should be considered only in exceptional circumstances.

19        The grievor referred me to the following decisions: Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35; Lloyd v. Canada Revenue Agency, 2009 PSLRB 15; Dawson v. Canada Post Corporation, 2008 CHRT 41; LaBranche v. Treasury Board (Department of Foreign Affairs and International Trade), 2010 PSLRB 65; and Grover v. National Research Council of Canada, 2005 PSLRB 150.

B. For the employer

20        The employer submitted that the grievor charged Mr. Bender with malicious intent without just or legitimate cause. It reminded me that for nearly three years, she did not file any harassment complaints against him or even raise the issue in correspondence or meetings involving him.

21        According to the employer, it had been reasonable under the circumstances to request a new fitness-to-work evaluation of the grievor. It reminded me that she had returned from a sick leave of nearly three years in 2006 that she had initiated, that it had proved to be a lengthy and gradual return to work, and that she never did return to a full-time work schedule after returning in 2006. It also reminded me of Mr. Bender’s testimony that she no longer appeared capable of performing all the duties and responsibilities required in her position. It added that she was no longer able to regularly respect her work schedule of four days per week since she often missed up to two work days per week.

22        The employer maintained that it was reasonable to attempt to obtain advice from health professionals to determine whether additional accommodation measures would prove necessary under the circumstances and how management could meet the division’s operational requirements. In its view, it was also reasonable to expect the grievor to be open-minded and cooperative with respect to Mr. Bender’s efforts, which she had not been.

23        In the employer’s opinion, the medical notes that the grievor provided offered no specific information that enabled it to understand why she was unable to resume a full-time work schedule, whether she would be able to resume such a work schedule, and the accommodation measures that could expedite the process.

24        The employer pointed out that under the circumstances, Mr. Bender’s three attempts to obtain a fitness-to-work evaluation of the grievor over a three-year period could not constitute harassment.

25        In support of its arguments, the employer referred me to the following decisions: Brown v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 127; Sioui v. Deputy Head (Correctional Service of Canada), 2009 PSLRB 44; Mutart v. Deputy Head (Department of Public Works and Government Services), 2013 PSLRB 90; Scheuneman v. Canada (Attorney General), 2000 CanLII 16701 (FCA); and Spooner v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 60.

IV. Reasons

26        The grievor alleged that the employer, specifically Mr. Bender, harassed her because of her physical disability and that thus he violated the collective agreement.

27        Clause 19.01 of the collective agreement deals with eliminating workplace harassment and reads as follows:

ARTICLE 19

NO DISCRIMINATION

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced 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.

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[Emphasis added]

28        It remains to be determined if the acts that the employer was accused of carrying out, specifically those of Mr. Bender, were akin to harassment.

29        Contrary to what the grievor argued, the evidence did not demonstrate that Mr. Bender created, repeatedly and persistently or even on a single occasion, a hostile environment that violated the grievor’s personal dignity. Even if tension or animosity does exist in the workplace, which was not demonstrated in this case, it is not sufficient grounds to conclude that a harassment allegation is founded.

30        The evidence can essentially be summed up as these four main events over a period of almost three years: 1) a discussion about the possibility of proceeding with a fitness-to-work evaluation in October 2010, namely, one full year after Mr. Bender arrived; 2) a request for a Health Canada fitness-to-work evaluation, as well as an ergonomic assessment, in January 2011; 3) a follow-up on the fitness-to-work evaluation request, this time by the grievor’s family doctor, in March 2011; and 4) one last follow-up about the fitness-to-work evaluation request by Health Canada or by the grievor’s family doctor in June 2012, namely, more than a year after the last request.

31        Contrary to what the grievor argued, the evidence demonstrated that Mr. Bender had reasonable and legitimate grounds to request a fitness-to-work evaluation of her.

32        In the circumstances, Mr. Bender’s objective was to try to implement accommodation measures for an employee with a legitimate physical disability. Also legitimate were his attempts to obtain additional and specific information about the grievor’s ability to work, to provide her with a secure and suitable work environment, and to ensure compliance with the division’s organizational obligations. An employer has the right to organize its workplace.

33        I find it hard to understand why a family doctor would refuse to complete fitness-to-work evaluation forms to be able to identify his or her patient’s limitations and the necessary accommodation measures and why the doctor would be content with merely providing medical notes containing little useful information. Such an approach only harms the person seeking assistance and support.

34        Nothing in the evidence submitted by the parties led me to believe that Mr. Bender or any other employee of the employer harassed the grievor. No improper or hurtful conduct against her was demonstrated. Similarly, no objectionable comment, act, or display was raised that was meant to humiliate, belittle, or embarrass her. It was incumbent on her to present prima facie evidence of the alleged harassment. She did not meet the burden of proof.

35        My view is that Mr. Bender acted in good faith and that his conduct was far from akin to harassment. The evidence did not allow me to simply establish that he exceeded the authorities conferred on him as a manager or that he targeted the grievor or sought to belittle or humiliate her. In my opinion, they are frivolous allegations that did not merit the attention I gave them.

36        I cannot ignore the fact that the grievor left her work on June 12, 2012, that she has since been on sick leave since then, that she is receiving disability insurance benefits from Sun Life Financial, that she is planning to take medical retirement soon, and that the only medical condition she invoked to receive those disability insurance benefits was fibromyalgia. In light of those facts, it is difficult to negatively judge Mr. Bender, who tried to obtain information about her state of health and her ability to work. His concerns were clearly founded if the sequence of events is considered. A careful assessment of the evidence convinced me that he had serious and legitimate reasons for believing that the grievor’s state of health was such that she could no longer adequately perform the duties of her position or meet her work schedule of four days per week.

37        Given the grievor’s state of health, her absenteeism, her job performance issues, Mr. Bender’s concerns about his division’s organizational requirements, and her extended sick leave before the relevant period (from 2002 to 2006) as well as after it (from 2012 to the present), it is difficult to conclude that Mr. Bender acted unreasonably and even more so that he harassed her.

38        I noted that the decisions the grievor cited do not deal with harassment but instead with the employer’s obligation to accommodate, a question not at issue in this case. She referred me to several passages that are in no way helpful to me in my decision making and to decisions that are not applicable to the facts in this case. For example, in Grover, the employer required an employee, who had always performed his duties satisfactorily, to undergo a medical examination by another doctor other than his own and prohibited him from reporting to work until he had complied with that requirement. It goes without saying that such facts are far from this case.

39        This situation is not one in which the employer neglected its duty to take reasonable accommodation measures to accommodate the grievor’s functional limitations. That is not what the grievance alleged. Quite the contrary — Mr. Bender’s actions appeared rather motivated by the duty to accommodate.

40        As I indicated at the start, no evidence or argument supporting pain and suffering or anything else that the grievor would have endured was presented to me during the hearing.

41        Finally, to be clear, none of my observations in this decision should be interpreted as an attempt to trivialize the grievor’s medical condition. However, on the grounds I stated, I cannot allow the harassment allegations in this grievance since in my opinion they are frivolous and unsubstantiated.

42        For all of the above reasons, the Board makes the following order:

V. Order

43        The grievance is dismissed.

March 22, 2016.