FPSLREB Decisions

Heard at Toronto, Ontario,< br />March 21 to 23, 2016.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Norman Wercberger, alleged that his employer, the Canada Revenue Agency (“the employer” or CRA), failed to accommodate him to the point of undue hardship as a result of its involvement with his long-term disability insurance carrier, Sun Life Assurance Company of Canada (Sun Life). He further alleged that the employer constructively dismissed him when it forced him to take medical retirement. He sought payment in lieu of notice and damages pursuant to the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA) on the basis that the employer’s actions were reckless and wilful and that it discriminated against him on the basis of his disability.

2        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 (S.C. 2003, c. 22, s. 2; “the Act”) before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

3        The grievor was employed by the CRA, starting in 1988, most recently as an auditor (classified AU-02). His work involved a considerable amount of time working at a desk, keyboarding, and using a mouse and a laptop. In 2012, he developed carpal tunnel syndrome and other upper-body-related pain. He applied for and was granted workers’ compensation. He was off work receiving workers’ compensation and Sun Life benefits from July 2012 until November 20, 2013.

4        In November 2013, the workers’ compensation hand specialist contracted to treat the grievor, Dr. Zvi Margaliot, advised that the grievor was fit to return to work as long as he did not do computer or office work on a permanent basis and he had ergonomic modifications done to his workstation. Despite this, the grievor did not return to work. He applied for and received Sun Life benefits instead.

5        The grievor attended a return-to-work (RTW) meeting with the employer and his Sun Life case manager in October 2013 at which options for returning him to work within his restrictions were discussed. At that time, he had seen Dr. Margaliot twice: in December 2012 and in February 2013. He saw him again in November 2013.

6        Despite all that, the grievor could not return to work, according to his general practitioner, Dr. Jeffrey Bernholtz. The grievor remained on long-term disability benefits until he was advised in February 2014 that Sun Life had determined he was fit to attempt a gradual RTW based on Dr. Margaliot’s report of December 19, 2012. According to the grievor, the RTW plan developed by Sun Life was inconsistent with Dr. Margaliot’s latest report (date stamp received December 14, 2013: Exhibit 2, tab 7). The grievor was not willing to participate in an RTW that ignored his limitations. The CRA would not proceed with an RTW unless and until it had confirmation of the grievor’s limitations and certification that he was fit to return to work.

7        The grievor then waited for the CRA to find him a position that met his limitations either within the CRA or elsewhere in the public service. None was forthcoming, and Sun Life notified him that his benefits would cease on May 31, 2014. He contacted his team lead, Jackson Tom, to determine his options for a continued income. The grievor asked that they be put in writing, which Mr. Tom did in a letter sent to the grievor on February 14, 2014 (Exhibit 1, tab 3).

8        In the meantime, the grievor filed a grievance against the employer under articles 24 and 42 of the collective agreement between the Canada Revenue Agency and the Professional Institute of the Public Service of Canada (“the bargaining agent”) for the Audit, Financial, and Scientific Group (all employees); expiry date, December 21, 2014 (“the collective agreement”). He also filed a human rights complaint with the Canadian Human Rights Commission (CHRC).

9        The parties proceeded to mediation on March 20, 2014, at which the grievor was represented by a bargaining agent employee-relations officer who was also a lawyer. After a discussion, the grievor indicated to those assembled that he intended to pursue an application for medical retirement.

10        As a result, the parties entered into a settlement agreement in which the CRA agreed to grant the grievor sufficient sick leave credits to bridge him from the expiry of his long-term disability benefits until a decision was rendered on his application for medical retirement (Exhibit 1, tab 5). Immediately following this agreement, the bargaining agent withdrew the grievance, and the human rights complaint was also withdrawn.

11        Despite entering into the agreement with the CRA, on his own and without the support of his bargaining agent, the grievor filed the grievance that is the subject of this adjudication. He argued that the agreement did not release any of his ongoing rights to be accommodated and that that was the subject of the grievance, despite the fact that it clearly referred to dates and events within the time scope of the earlier grievance. The employer’s failure to accommodate him amounted to constructive dismissal, for which he was entitled to be compensated pursuant to the language of the Canada Labour Code (R.S.C. 1985, c. L-2). The release he signed as part of the March 20, 2014, agreement referred specifically to the grievance filed with the bargaining agent’s support.

12        In the meantime, he also applied for and was granted medical retirement on April 22, 2014, on the basis that he had been permanently incapable of regularly pursuing any substantially gainful occupation since July 18, 2012. The grievor and CRA then had a series of exchanges in which he outlined how he wished to use his sick leave granted pursuant to the settlement agreement and his other accumulated leave. Based on those calculations, he determined that his retirement would be effective September 18, 2014. He and the CRA filled out all necessary paperwork, and the grievor did in fact retire for medical reasons on that date.

13        Deborah Danis, director of the Toronto North-Barrie Tax Services Office, where the grievor had been employed, testified that at the outset of the mediation sessions, she made it clear to the employer that a return to work was a possibility and would be in the grievor’s position if possible, with ergonomic modifications, or to a position at an equivalent level that met his restrictions or if that was not possible, to one at a lower level. All the options in Mr. Tom’s February 14, 2014, letter were still available to the grievor. If he chose to return to the workplace, the CRA required confirmation from his physician that he was fit to return to work that identified his restrictions and how they could be accommodated.

14        The grievor took a break from the sessions and after consulting with his bargaining agent representative, he advised the employer that he intended to exercise his option to seek medical retirement. The settlement agreement was then constructed with this in mind. If he had not been successful in being approved for medical retirement, the other options would still have been available to the grievor. The door was always open to him to return to work and to be accommodated until Health Canada recommended that he be approved for medical retirement.

15        Despite the settlement agreement, the grievor emailed Mr. Tom on March 24, 2014, stating that he was forced to choose medical retirement. This surprised Ms. Danis as at the mediation, the grievor had told the employer that he wished to pursue medical retirement, and the settlement agreement was negotiated on that basis. The employer had not raised that option for discussion. From his actions, it is evident that the grievor intended to pursue medical retirement.

16        According to Ms. Danis, the CRA had no role in the grievor’s application for Sun Life benefits or in whether Sun Life approved or continued his claim. The CRA will support an employee and complete application forms, if necessary. The CRA has no influence over or role with Health Canada decisions or Sun Life benefit entitlements. Sun Life has a separate appeal process available to any employee who is dissatisfied with one of its decisions, as do workers’ compensation agencies.

17        Mr. Tom was the grievor’s team lead during the period in question. He testified that in January 2014, the grievor contacted him to discuss his options, as despite Sun Life’s opinion, he was not fit to return to work, according to Dr. Bernholtz. They discussed the options available in a phone conversation, which Mr. Tom later confirmed in writing, on February 14, 2014 (see the letter in Exhibit 1, tab 3), at the grievor’s request. He told Mr. Tom that he had been in contact with Sun Life, that an RTW was imminent, and that the CRA should be prepared.

18        In preparation for an earlier anticipated RTW, the CRA had scheduled an ergonomic assessment for the grievor, which he had been unable to attend. At some point during the period of his absence due to disability, the grievor was offered an AU-02 position in the Enforcement Branch, which better suited his restrictions than his income tax auditor position. The grievor never responded to this offer.

19        After he went on workers’ compensation benefits, the grievor never returned to the workplace. When he was deemed fit to return to work by the workers’ compensation agency, his doctors did not agree, and the grievor applied for and received Sun Life long-term disability benefits, which continued until June 2014. The CRA was not involved in Sun Life’s decision to terminate the grievor’s benefits, but faced with his imminent return in December 2013, the CRA requested an occupational fitness assessment be completed by a physician of the grievor’s choice. Dr. Bernholtz completed it on his behalf and indicated that the grievor was unfit to perform his job duties. He also indicated that an RTW would be irrelevant as there was really no gainful work the grievor could do, given his restrictions (see the completed form in Exhibit 4). Consequently, no RTW program was developed for the grievor, even though Sun Life developed an RTW plan (Exhibit 1, tab 4).

20        According to Mr. Tom, the grievor always had the option of providing updated medical information indicating that he was fit to return to work, but he did not. Rather, he chose the medical retirement option instead of an RTW program.

21        The grievor contended that at all times, he was willing to return to work but that he was waiting for the CRA to find him something. Until that happened, the CRA was obligated to ensure that he received appropriate compensation. It did not, and without Sun Life benefits, he had no alternative but to apply for a medical retirement, to guarantee an income. The employer’s failure to meet its obligations was constructive dismissal under the Canada Labour Code.

22        The grievor also contended that he fully participated in the accommodation process and pointed to an RTW meeting in October 2013 at which his return was discussed. However, he acknowledged that at no point after did he ever provide the employer with notice that he intended to return to work. Furthermore, at no time did he provide the CRA with medical confirmation that he was fit to return to work. The grievor speculated that the workers’ compensation agency might have, following Dr. Margaliot’s last report.

23        The grievor stated that Sun Life said he was fit to return to work and that the CRA refused to accept him returning to the workplace. The CRA did nothing to find him suitable income, and his only way of ensuring that he had an income once his Sun Life benefits ceased was to retire. He was not going to participate in the RTW designed by Sun Life; he was not going to reinjure himself or put his health at risk. He did everything necessary to be accommodated; he attended one RTW meeting and expected that the CRA would then find him something. When it did not, he could not do anything; he could not force it to find him work. He acknowledged that he took no steps to communicate with the CRA concerning RTW options.

24        Even at the mediation, when he indicated to the employer that he intended to pursue a medical retirement, the grievor still hoped to return to work. According to the grievor, even after the mediation, while pursuing medical retirement, he hoped to return to work, although he acknowledged that he did not take any steps to communicate this to the employer. No one was listening to his doctors or his physiotherapists, so the grievor gave up pursuing an RTW as an option. Dr. Bernholtz indicated that the grievor was permanently incapable of pursuing gainful employment, and Dr. Jerry Cooper, the grievor’s psychiatrist, said that he was unable to be gainfully employed in any kind of competitive capacity and that he was incapable of vocational rehabilitation. His best hope, according to Dr. Cooper, was self-employment (see the letter in Exhibit 7), which the grievor did not actively pursue.

25        The grievor contended that he was willing to make the effort to return to work despite the conflicting medical opinions. He demonstrated this effort by attending an RTW meeting in October 2013, and he made sure that Mr. Tom had a copy of Dr. Margaliot’s report. He expected that Mr. Tom would then make him an offer of an alternate position.

26        Dr. Margaliot testified on behalf of the grievor; however, he had no personal memory of any interactions with the grievor. His testimony was limited to the contents of his reports. Dr. Margaliot specializes in hand and upper-body ailments. When he saw the grievor in February 2013, he determined that the grievor suffered from postural problems causing upper-body pain that related to using a laptop computer. He determined that the pain was not caused by carpal tunnel syndrome, as was previously suspected.

27        The primary treatment for the grievor’s pain was physiotherapy. He also required a modified workstation, and it was determined that he should not do fieldwork as it required using a laptop. He had a permanent disability, which prevented him from doing work that required using a laptop and a mouse and keyboarding. There was no other work he would have been able to do if it involved desk work or computers. In his opinion, Dr. Margaliot would have expected the grievor to return to work in November 2013. It was not Dr. Margaliot’s job to suggest alternative work, but in his opinion, the grievor was able to work within the specified restrictions.

28        Dr. Margaliot was asked to comment on the opinions of Dr. Cooper (Exhibit 7) and Dr. Bernholtz (Exhibit 1, tab 9), both of whom stated that in their opinions, the grievor was unfit to return to work. While he was unable to comment on their opinions, as they were not in his area of specialty, he stated that if the grievor’s issues were strictly related to his upper extremities, he was able to return to work. If other physical and/or mental issues were involved, he would have had to defer to the opinions of the other treating physicians.

29        David Cheung was the grievor’s physiotherapist between 2013 and mid-2015. He assessed the grievor at the request of the Workplace Safety and Insurance Board of Ontario in October and November 2013. He was consulted by the grievor concerning Sun Life’s proposed RTW (Exhibit 2, tab 3). It was his opinion that the grievor had to limit computer work or any sustained static position to less than 15 minutes at a time, following which he was to do exercises. Therefore, Mr. Cheung disagreed with the Sun Life RTW proposal. No one followed up with him on his letter stating that Sun Life’s proposed RTW had the potential to re-aggravate the grievor’s condition.

30        Mr. Cheung was referred to the definition section of the grievor’s application for medical retirement (Exhibit 1, tab 9). Based on the definition, Mr. Cheung stated that he was in complete agreement with Dr. Bernholtz’s statement that the grievor was permanently incapable of regularly pursuing any substantially gainful occupation.

III. Summary of the arguments

A. For the employer

31        This grievance focuses on Sun Life’s decision to terminate the grievor’s disability insurance benefits and dovetails with an inference that that employer violated its obligation to ensure he had an income under the collective agreement. According to the grievor, the employer’s failure to ensure his income amounted to constructive dismissal.

32        The grievor also alleged that the employer discriminated against him, with respect to employment, on the basis of disability. He referred the matter to the Board under ss. 209(1)(b) and (d) of the Act. For s. 209(1)(d) to apply in this case, the employer must have been designated under s. 209(3). At the time of the grievance, the CRA was not so designated and was not until June 17, 2015, pursuant to SOR/2015-118, which amended the Act. For those reasons alone, the new Board is without jurisdiction to hear this matter.

33        This Board is without jurisdiction with respect to the allegation that the employer failed to live up to its obligations under the collective agreement. The grievance is not supported by the bargaining agent, the support of which is required for a grievance under the collective agreement (see Cavanagh v. Canada Revenue Agency, 2014 PSLRB 21 at paras. 19 and 22 to 26).

34        The Board is also without jurisdiction with respect to the discrimination allegation of a violation of the “no discrimination” article of the collective agreement even though the grievor referred it to adjudication under s. 209(1) of the Act, as there is no freestanding authority to adjudicate human rights issues under the CHRA (see Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 115 at paras. 121 and 122). The only jurisdiction the Board may have in this case is in the event that the grievor was terminated for disciplinary reasons. Therefore, the grievor had the burden of establishing that disciplinary action was taken that resulted in the termination of his employment. However, all that occurred was that the grievor chose to seek medical retirement.

35        The grievor had the burden of establishing that a disciplinary termination took place (see Burke v. Deputy Head (Department of National Defence), 2014 PSLRB 79 at paras. 81, 90, 91, and 93). To establish this, the grievor suggested that he was constructively dismissed, which is a concept that has not been accepted in the jurisprudence of this Board, given the unique nature of the employment relationship in the public service and the vast number of recourse mechanisms available to employees to challenge elements of the employment relationship with which they have issues. The former Board questioned the application of the private-law concept of constructive dismissal to the public sector in Hassard v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 32 at paras. 173 to 178. The doctrine of constructive dismissal has no application to the federal public service as employees in the public sector must be terminated for cause.

36        The grievor suggested that because the employer failed to accommodate him, he had no choice other than to accept medical retirement as he would have been without an income when his Sun Life disability benefits ceased. However, Sun Life’s decision to end his disability insurance payments was independent of the employer and is subject to its own appeal process.

37        Could the employer’s actions in the RTW process be seen as disciplinary, resulting in termination? The leading public service case on disguised discipline is Canada (Attorney General) v. Frazee, 2007 FC 1176. The Federal Court cited the statement in Brown & Beatty, Canadian Labour Arbitration, 4th edition, at para. 7:4210, which states that the essential characteristic of disciplinary action is an intention to correct bad behaviour on an employee’s part by punishing the employee in some way. When an employee’s behaviour is not culpable and/or the purpose is not to punish the employee, the employer’s actions are not disciplinary.

38        Not every action taken by an employer that has an adverse effect on an employee is disciplinary. One of the primary factors when determining whether an employee has been disciplined concerns the employer’s intentions. Did it intend to impose discipline, and is the impugned decision likely to be relied upon when future discipline is imposed?

39        In this case, the employer took no action that could be characterized as disciplinary in nature, and therefore, there is no jurisdiction under s. 209(1)(b) of the Act to adjudicate the matter. All that occurred was that the grievor sought and received medical retirement.

40        A notice of retirement is a de facto voluntary termination of employment (see Mutart v. Deputy Head (Department of Public Works and Government Services), 2013 PSLRB 90 at para. 87, and Stevenson v. Treasury Board (Department of Employment and Social Development Canada), 2016 PSLREB 17 at para. 118). The grievor demonstrated both subjective and objective intentions to retire. He voluntarily severed his employment with the employer. Furthermore, his suggestion that he was forced to retire as a result of the employer’s failure to accommodate him is not adjudicable as the Board has no freestanding jurisdiction to adjudicate human rights matters pursuant to s. 209 of the Act.

41        The parties resolved the accommodation issue in mediation and signed a memorandum of settlement that was intended to bridge the grievor until he received the disability pension he selected from the options put to him in Mr. Tom’s letter of February 14, 2014. It is inaccurate to suggest that the employer was not willing to accommodate the grievor. Ms. Danis’ testimony was uncontradicted that she made it clear to the grievor that the employer was at all times willing to accommodate him but that it required medical confirmation of his fitness and restrictions. Instead of pursuing this, the grievor elected to pursue a medical retirement, which was his idea, not the employer’s. The employer lived up to its obligations under the agreement. In exchange for 465 hours of sick leave to bridge the grievor to medical retirement, he withdrew his grievance and human rights complaint.

42        He also executed a full and final release that while it might have been broad, it was not vague. The grievor agreed to exonerate Her Majesty the Queen, her servants, and her representatives from all complaints, grievances, requests, or other recourse arising from this dispute. Based on the decisions in Amos v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 61, and Godbout v. Treasury Board (Office of the Co-ordinator, Status of Women), 2016 PSLREB 5, allegations of failure to accommodate were resolved in mediation, and therefore, it is not open to the grievor to relitigate them.

43        It is clear that the evidence that the CRA had in its possession confirmed that the grievor was permanently incapable of regularly pursuing any substantially gainful employment starting on July 18, 2012. This was confirmed by the grievor’s witness, Mr. Cheung, the occupational fitness assessment form completed by Dr. Bernholtz (Exhibit 4), and Dr. Cooper’s letter (Exhibit 7). Following the execution of the minutes of settlement, the grievor at no time indicated to the employer a desire to return to work. In fact, all communication with the employer after March 20, 2014, with the exception of this grievance, was squarely focused on his medical retirement and on establishing a date on which it would begin (see the emails at Exhibit 1, tabs 10 to 17).

B. For the grievor

44        The employer treated the grievor in bad faith, and its actions were a sham. When the CRA saw that in its letter of February 25, 2014, Sun Life was relying on an outdated report by Dr. Margaliot, it should have notified Sun Life that a more recent report was available. Accommodating to the point of undue hardship includes paying attention to the correspondence. The grievor cooperated with the accommodation process by attending the RTW meeting in October 2013. He had every desire to return to work. He waited for the CRA to find him a suitable position, but the only job he was offered was not suitable.

45        The CRA knew that Sun Life was terminating the grievor’s disability insurance benefits and that he had no option but to retire to ensure he had an income. The CRA set up this sham to force him to retire. When someone works for the public service, he or she receives income either from working or from long-term disability insurance benefits. The grievor was put in the position in which he had no disability benefits, and the employer refused to take him back at work. As to disciplinary action against the grievor, the employer disciplined him by not taking him back unless his doctor agreed.

46        The employer discriminated against the grievor, in violation of s. 7 of the CHRA. This Board has jurisdiction to interpret the CHRA and s. 226 of the Act (see Nicol v. Treasury Board (Service Canada), 2014 PSLREB 3 at para. 149). The CRA did something that indirectly stopped the grievor from being accommodated and that resulted in his dismissal. The employer should have taken steps to accommodate him; by failing to, it perpetrated a sham on him and acted in bad faith.

C. Employer’s rebuttal

47        The grievance in Nicol was supported by the bargaining agent and the no-discrimination article of the collective agreement. As stated in Chamberlain, an adjudicator must be properly seized under s. 209 of the Act to exercise the authority under s. 226.

IV. Reasons

48        Counsel for the employer was correct in his arguments that I am without jurisdiction in this matter.

49        The grievor referred this grievance to adjudication under section 209(1)(a) and (b) of the Act. These provisions read respectively as follows:

209(1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

...

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

...

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

50        At the time of the grievance and the reference to adjudication, the employer was not designated under s. 209(3) of the Act, so s. 209(1)(d) was not available to the grievor to use as a basis for a referral to adjudication.

51        Thus, the only question for me to determine is whether the grievance is related to a disciplinary action on the part of the employer that resulted in termination, demotion, suspension or financial penalty. If the answer to this question is no, then I have no jurisdiction to dispose of the grievance. In the case before me, my jurisdiction starts and ends with s. 209(1)(b) of the Act.

52        The burden lies with the grievor to establish that the employer’s actions in the circumstances of this case were indeed of a disciplinary nature.

53        Did the employer’s actions result in either termination, demotion, suspension, or financial penalty? There is no evidence before me that the grievor incurred a suspension. Similarly, the grievor was neither demoted nor terminated by the employer; he opted for medical retirement.

54        The employer did not dismiss the grievor. He voluntarily sought medical retirement. He demonstrated both objective and subjective animusto sever his employment with the CRA. He was the one who raised it in the course of settlement discussions related to a different yet similar grievance.

55        Unlike the situations in Mutart and Stevenson, the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13) did not apply to the grievor; however, the fact situation and the principles expressed in those cases apply. As stated in Mutart, at para. 97, the employer did not terminate the grievor, but rather the grievor voluntary severed his employment relationship through medical retirement. Similarly, the grievor in the case before me voluntarily severed his employment relationship through medical retirement. Like Ms. Stevenson and Mr. Mutart, the grievor had options available to him other than retirement. Like Ms. Stevenson and Mr. Mutart, he selected the option that best suited him. The employer cannot be held responsible for his choices.

56        In his original grievance, the grievor alleged that “CRA has effectively constructively dismissed me.” He argued that the employer was legally obligated to either permit him to work so that he could receive remuneration, or to ensure that Sun Life continued his LTD benefits. The grievor claimed that the employer’s actions discriminated against him on the basis of disability.

57        Constructive dismissal is a concept that has not been applied by the Board. The concept was discussed at length by the adjudicator in Hassard, at paras. 173 to 178, and I agree with him. Recent Canada Industrial Relations Board jurisprudence under the Canada Labour Code does not assist the grievor in establishing the existence of the concept of constructive dismissal in the federal public service. The Act and the Canada Labour Code are completely different, and I have no jurisdiction under any part of the Canada Labour Code other than those sections related to occupational health and safety contained in its Part II. In any event, even if the doctrine were to have application, the grievor has failed to prove, on a balance of probabilities, that the employer unilaterally changed his duties and responsibilities so as to be considered a fundamental breach of his employment contract.

58        Much of the hearing focused on the question of whether the employer failed to accommodate him. All the medical evidence presented, including that of the grievor’s witness, Mr. Cheung, established that the grievor was unable to return to his work as an auditor. Dr. Margaliot did not go so far as to say that the grievor was unable to work but did testify that the nature of the audit work and how it was performed was contraindicated, given the grievor’s compensable injury.

59        The employer was entitled to rely on the medical certificates provided by the grievor as proof of his inability to work. Allowing him to return to work in light of the medical evidence before the employer would have been irresponsible and would have put the grievor at risk since it was clear from the medical information used to support the application for medical retirement that he could not work. While he might have liked to continue to work, it was reasonable for the employer to rely on the medical information provided by his treating physicians (see Stevenson, at para. 104).

60        Did the employer impose a financial penalty on the grievor? In his grievance, the grievor alleged that CRA had a “legal obligation that I receive remuneration whether by working or receiving ltd benefits.” While the decision of Sun Life to end the grievor’s disability benefits certainly had a financial impact on him, there is no evidence before me that the employer imposed a financial penalty on the grievor. Even if I were to accept that the financial impact on the grievor constituted a financial penalty imposed by the employer, which I do not, the grievor still had to establish, on a balance of probabilities, that CRA’s actions were taken to discipline him.

61        The grievor made no effort to demonstrate that he had been disciplined by the employer. However, he did raise in his closing arguments that the employer perpetrated a sham or a camouflage in its dealings with him that amounted to discipline. Nothing in the employer’s dealings in this matter rose to such a level. It was clear from its evidence that there had been no reason or intention to discipline the grievor or to remove him from the workplace. Had he been able to return, and had he expressed such an interest, the employer would have exhausted its abilities to accommodate him, according to its witnesses. Furthermore, he was not demoted or transferred. At all times material to this grievance, the grievor was on approved leave and was receiving benefits from an insurance carrier. He was not suspended; nor did he suffer a financial penalty imposed by the employer.

62        Accordingly, I conclude that I have no jurisdiction to dispose of the grievance under s. 209(1)(b) of the Act.

63        As discussed earlier, in his grievance, the grievor alleged that the employer discriminated against him due to his disability. The bargaining agent did not support this grievance as is evidenced by the grievance form and reference-to-adjudication form. Unless and until those provisions of the Act that grant an employee a right to proceed with a complaint under the CHRA untethered to the collective agreement are proclaimed, there is no stand-alone right to adjudicate such a complaint. As was clearly stated as follows in Chamberlain, at para. 122:

...

Where an employee files a grievance that included [sic] human rights allegations, but arises in a factual context that does not fall within s. 209(1), the PSLRA does not give the adjudicator jurisdiction to hear the grievance. However, this does not leave the employee without access to independent adjudication. In such circumstances, the employee may file a human rights complaint with the Commission, to be processed under the CHRA.

64        Given my conclusion concerning s. 209(1)(b) of the Act, to be successful before this Board, the grievor had to have filed his discrimination grievance under article 42 of the collective agreement (i.e., under s. 209(1)(a) of the Act), which he did not do. To proceed under that article, the grievor required the support of his bargaining agent, which he did not have. Therefore, there is no adjudicable violation of that article before me, and any complaint under the CHRA is not currently within my jurisdiction to hear.

65        For those reasons, I have no jurisdiction to hear this matter under s. 209(1)(b) of the Act, which states as follows: “... disciplinary action resulting in termination, demotion, suspension or financial penalty ...”.

66        The grievor requested that his medical records submitted as exhibits be sealed. Given the personal nature of this information, I agree.

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

V. Order

68        I am without jurisdiction to deal with this matter.

69        The file is closed.

70        Exhibit 2, tabs 3, 5, 6, and 7 are to be sealed.

71        Exhibit 4 is to be sealed.

72        Exhibit 7 is to be sealed.

May 6, 2016.