FPSLREB Decisions

Heard at Winnipeg, Manitoba,
March 13 and 15, 2014.

REASONS FOR DECISION

I. Individual grievance referred to adjudication - Overview

1        Tammy Dorn (“the grievor”) worked as a labour market information analyst in the Brandon, Manitoba, office of Employment and Social Development Canada (formerly Human Resources and Skills Development Canada). She was covered by the Economics and Social Science Services group collective agreement between the Canadian Association of Professional Employees and the employer that expired on June 21, 2011 (the collective agreement).

2        The grievor had a longstanding telework agreement with the employer that allowed her to work from home in the mornings and in the office in the afternoons. She had requested that arrangement due to transportation issues with respect to her daughter.

3        According to the grievor, several reorganizations had resulted in fewer employees being at the office. She no longer had any on-site responsibilities, and all her work could be performed from home. At some point, and without seeking permission, she simply stopped going to the office. In fact, she acknowledged that she had essentially worked full-time from home since 1997.

4        When new guidelines were issued requiring telework arrangements to be based only on accommodation needs, the employer notified the grievor that her telework arrangement would be terminated. She disputed the employer’s right to terminate it. She also asked that it be continued on an accommodation basis and that it be amended from part-time to full-time.

5        The Canadian Human Rights Commission was notified, and it declined the opportunity to make submissions in this matter.

6        I find that the employer was within its rights to terminate the grievor’s telework agreement on two weeks’ notice. I find that the grievor failed to make out a prima facie case that she had a disability which required accommodation. I further find that although it nevertheless considered the grievor’s request for accommodation, the employer was unable to obtain sufficient medical information to find an appropriate accommodation, if indeed one was required.

7        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 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) as that Act read immediately before that day.

II. Summary of the evidence

8        In November 2009, the grievor’s telework agreement had been put in writing, and it specified an end date of February 2016. Article 2 of the agreement reads in part as follows:

The arrangement may be terminated by either party upon a notice period mutually agreed to of two weeks. Should there be a serious breach of this arrangement, then termination would be immediate.

9        In October 2010, the employer introduced a revised policy for all telework agreements. It reads, in part, as follows:

…

To ensure a consistent approach, a new telework agreement within W-T may be established only after gaining the approval of regional management through a successful submission to the W-T Vacancy Management Committee (VMC). Any existing telework agreements which are coming to an end or have lapsed and require a new start and end date to be agreed to by the employee and management are subject to this regional approval process.

10        On March 8, 2011, the employer invoked the termination of the grievor’s telework agreement by giving her more than the required two weeks’ notice via a telephone call from Pat Johnstone, director, Labour Market Program, and via a follow-up email. The arrangement was to end on March 31, 2011.

11        The employer explained that the grievor’s telework arrangement did not meet the current Treasury Board guidelines or the “Western Canada & Territories (W-T) Region Telework Guidelines”. Telework arrangements could now be considered only in duty-to-accommodate situations. The grievor was very upset by this turn of events.

12        On March 9, 2011, the grievor obtained a medical note from a walk-in medical clinic which the employer received on March 11, 2011. It reads as follows: “Pt [sic] wishes to continue working out of home because office is too stressful.”

13        On March 11, 2011, the grievor responded to Ms. Johnstone, stating that the new guidelines did not apply to her telework agreement because it was not a new agreement and was not about to lapse; its end date was February 2016. She asked on what grounds the employer was terminating the agreement and asked to change the existing telework agreement to a full-time one under which she would come into the office only weekly, to pick up the mail.

14        As the March 9, 2011, doctor’s note was insufficient, Ms. Johnstone wrote to the grievor on March 29, 2011, asking her to engage the fitness-to-work evaluation (FTWE) process through Health Canada so that her functional limitations and an appropriate accommodation could be identified.

15        Ms. Johnstone explained that although the grievor’s telework agreement was longstanding and had been renewed in 2009, it did not meet the current guidelines, which restricted telework agreements to accommodation situations. She advised the grievor that although the agreement had an end date of February 2016, it contained a clause allowing either party to cancel it with two weeks’ notice.

16        The grievor testified that she discussed the proposed FTWE with Ms. Johnstone. As the Health Canada process could take six to eight months to complete, they agreed that the grievor could take the Health Canada assessment letter to her own doctor instead.

17        On April 25, 2011, Dr. Liesel Moller wrote a letter indicating that the grievor had hypertension and anxiety issues. The doctor said that the grievor’s blood pressure had risen since her telework agreement had been revoked and that it could be better managed at home. The doctor further opined that if the grievor were forced to work in the office, her anxiety would become of such a nature that she would be unable to work. This was not sufficient medical information for the employer.

18        On May 6, 2011, Ms. Johnstone wrote to the grievor and asked her to have certain questions about her functional limitations answered by her treating physician so that the employer could determine an appropriate accommodation. This letter went unanswered for some months.

19        On June 28, 2011, Ms. Johnstone sent copies of the previous doctor’s notes to Robert Mattioli, as he was to replace her as the acting director while she was on leave. Ms. Johnstone advised Mr. Mattioli that the grievor would see her doctor on July 7 and suggested that he call her on July 9 to ask when the employer would receive the doctor’s response to the questions in the letter. Ms. Johnstone stated that she was concerned that the grievor appeared to be “stretching out the process”, and she wanted to be sure that Mr. Mattioli followed up. He indicated that he would.

20        On July 13, 2011, as the acting director in Ms. Johnstone’s absence, Mr. Mattioli called the grievor to ask what was happening with the May 6, 2011, letter, which was still unanswered. The grievor explained that she had not seen her doctor yet. He discussed the need for medical information with respect to functional limitations and asked that it be provided after the grievor next saw her doctor, which was scheduled for August 19, 2011. He also told her that she was violating her agreement by working at home and that she needed to be in the office in the afternoons. Mr. Mattioli followed up the phone call with an email reiterating the conversation.

21        On July 14, 2011, the grievor responded that she would not be working at home or in the office until August 21, that after their phone conversation her blood pressure had skyrocketed, that she did not sleep that night, and that she was on certified sick leave until August 19, 2011. Subsequently, the employer received a medical certificate from Dr. Moller for July 14 to August 19, 2011. On August 19, 2011, the grievor saw Dr. Moller again and obtained another medical certificate, for August 19 to 28, 2011.

22        On August 28, 2011, Dr. Moller responded to the employer’s May 6 request for information.

23        The doctor reiterated that the grievor’s blood pressure and anxiety could be better managed at home. The doctor also mentioned that the grievor felt that the office was windowless and fairly airless and that when she had last worked there in the 1990s, she had suffered recurrent upper respiratory tract infections, sinus congestion, and headaches.

24        On August 29, 2011, which was to be the grievor’s first day back at work from sick leave, Mr. Mattioli called her at home at 10:00 a.m. to tell her to be at work in the office at 1:00 p.m. He followed up that telephone call with an email at 10:24 a.m. that stated the following: “As discussed on the phone today, this is to confirm that you will be in the Brandon office from 1:00 PM to 4:30 PM as specified in your current telework arrangement.”

25        On September 9, 2011, the grievor emailed Ms. Johnstone, who had returned to work, and explained what had happened during her absence and how it had affected the grievor’s health. She indicated that she had felt harassed by Mr. Mattioli, asked if the employer wanted her to have a stroke in the office, and referred to a decision of the former Board awarding an employee $18,000 because the employer had failed its duty to accommodate. She provided a link to that decision and reiterated that she wanted the current telework agreement changed from part-time to full-time.

26        Ms. Johnstone called the grievor and indicated that the information provided by Dr. Moller was not sufficient and that the employer would send another letter asking the doctor to explain why the grievor’s health problems could not be accommodated in the office. Ms. Johnstone further stated that she understood that the grievor was working at home full-time, without permission, which should not have been happening.

27        The grievor testified that she felt she had been “thrown under the bus”. In her view, it was not true that Ms. Johnstone was unaware that she was working at home full-time. The employer had changed the rules about working at home and had not conveyed them to her in a way that she could understand. She felt that the employer was calling her a liar.

28        On September 12, 2011, the grievor emailed Ms. Johnstone to say that the employer had implicitly accepted that the grievor was working at home full-time until the matter was resolved because Ms. Johnstone had not previously told her explicitly that she could not do so.

29        The grievor then made a formal request to amend the existing telework agreement from part-time to full-time effective April 1, 2011. Ms. Johnstone responded by email as follows:

Again, your doctor needs to explain the nature of the disability and help us to reach an appropriate accommodation. As I mentioned when we talked this morning I shall be sending her another letter later in the week. In the meantime the existing telework agreement remains in force. It was never changed.

30        The grievor obtained another medical certificate, for September 16 to 30, 2011.

31        On September 21, Ms. Johnstone advised the grievor that her doctor’s August 28 response to Ms. Johnstone’s May 6 letter was insufficient to determine appropriate options for a suitable workplace accommodation. Ms. Johnstone asked that the grievor take an attached letter to Dr. Moller and ask her to provide written responses to the employer’s questions. This letter sought more specific information about the grievor’s functional limitations.

32        Ms. Johnstone explained to Dr. Moller that to provide an appropriate accommodation, the employer had to understand what about the workplace was causing the grievor anxiety. She questioned Dr. Moller’s previous references to poor air quality and advised that the office air quality was tested on a regular basis and that it met acceptable standards.

33        On October 17, 2011, the grievor advised Ms. Johnstone that she had forwarded the September 21 medical questionnaire to her doctor. She also indicated that she had provided more medical information than was required (a diagnosis) and asked that all information that went beyond what was required be returned to her and all copies destroyed. She said that she would resubmit an amended report when her originals were returned to her.

34        The grievor also indicated that being forced to work at the office was not the best situation for her health and that she depended on Ms. Johnstone’s leadership, sensitivity, compassion, and support when considering her request for full-time telework from home.

35        The next day, October 18, 2011, the grievor emailed Ms. Johnstone and asked to work full-time at home until a medical note was obtained, by October 24 at the latest. She expressed that the purpose of this request was as a preventative measure, to not aggravate her health condition. On October 19, 2011, Ms. Johnstone responded that she preferred that the grievor work at home in the mornings and in the office in the afternoons until advice was received from the doctor.

36        On October 24, 2011, Dr. Moller responded to Ms. Johnstone with further explanations about the grievor’s medical issues. Dr. Moller indicated that the grievor suffered from adjustment disorder with anxious mood. She felt that the grievor would be able to work full-time if she could do so at home, where she had the tools available to help alleviate her anxiety and stress. The doctor pointed out that the grievor had been able to work normal hours at home but that she did not work and function optimally when in the office; she had tried to and had failed. Since that limitation had persisted for more than six months, the doctor’s view was that it appeared permanent.

37        The doctor opined that while the office air quality might be of an acceptable standard, this did not diminish the fact that the grievor experienced it as airless and constricting. It was exacerbating the anxiety that she experienced when at work. In addition, when she experienced stress at home, the grievor had access to a treadmill that she could use for a 10-minute walk or she could take her dog for a 5 or 10 minute walk, which helped relieve her anxiety. Those options were not available to her at the office.

38        On November 14, 2011, Ms. Dorn presented a grievance claiming that the employer had discriminated against her on the basis of medical disability and that it had failed its duty to accommodate her, contrary to article 16 of the collective agreement and the Canadian Human Rights Act (R.S.C., 1985, c. H-6).

39        In response to the direct order of Ms. Johnstone, the grievor began working as directed (at home in the morning and at the office in the afternoon). Her doctor advised her to go to work and to take sick leave and go home if she got a headache.  She continued to take a significant amount of both certified and uncertified sick leave. Medical certificates were provided for November 18 to 30 and November 29 to December 21, 2011.

40        Ms. Dorn’s grievance was denied at the first level on November 28, 2011.

41        In February 2012, the employer agreed to allow the grievor to work at home full-time on an interim basis until the matter was resolved. She began working at home again, full-time, on March 1, 2012.

42        On March 12, 2012, the grievance was denied at the second level, and in May 2012, the parties agreed to a mediation process.

43        However, in June 2012, the grievor was advised that she was an affected employee due to downsizing and that she would be presented with a number of options as outlined in the employer’s “Workforce Adjustment Measures”.

44        In August 2012, mediation began. However, in September, the grievor received a lay-off notice and was advised that she had a four-month opting period. The employer did not wish to continue to meet in mediation during the opting period, which ended on January 10, 2013.

45        On January 16, 2013, in response to the bargaining agent’s request to resume mediation, the employer advised that, as a result of the grievor’s decision to retire from the public service, there was no longer a need to mediate.

46        The grievor retired on February 27, 2013. At that point, she had been working at home full-time for a year, since March 1, 2012.

47        On April 26, 2013, her grievance was denied at the final level.

III. Reasons

48        In 1997, the grievor obtained the employer’s agreement to a part-time telework arrangement under which she would work at home in the morning and in the office in the afternoon. There was no question of it being a medical accommodation; it was simply a request to allow her to deal with her daughter’s transportation issues.

49        The grievor soon began to work at home on some afternoons as well, when the weather was bad or for other reasons. She testified that, for the most part, she did not work according to the arrangement and that she “pretty much” worked at home full-time for 13 years.

50        When the new guidelines came into effect in 2010 and it was clear that the grievor’s arrangement did not meet them, the employer terminated the arrangement. The grievor is correct that her arrangement was neither new nor about to lapse; however, the employer was fully within its right to terminate the arrangement at any time, with two weeks’ notice. The fact that the arrangement did not meet the new guidelines was a good reason to terminate it.

51        I also note that the grievor’s telework arrangement states that “[s]hould there be a serious breach of this arrangement, then termination would be immediate.”

52        The grievor seriously breached the arrangement for 13 years by working at home full-time during most of this period. In my view, the employer could have terminated the arrangement at any time, without notice.

53        However, when the employer did finally act to terminate the arrangement, it was not because of this ongoing breach. It was simply to ensure that the arrangement, as written, met the new guidelines, which required that any telework arrangement be based on a need to accommodate.

A. No prima facie case

54        The grievor, in response, indicated for the first time, that she had medical issues requiring an amendment to her telework agreement from part-time to full-time.  However, the medical information provided by the grievor’s doctor was insufficient and did not provide the employer with the information it needed to understand why an accommodation was needed, or what an appropriate accommodation would be.

55        The grievor’s doctor indicated that the grievor reported that the office was stressful but there was no indication as to why that was. The grievor had previously noted to the employer that the number of people in the office had been greatly reduced. This would suggest, if anything, a quiet and less stressful place to work.

56        The doctor indicated that the grievor suffered from hypertension and anxiety, both of which could be better managed at home due to the availability of stress reducers such as using a treadmill or taking her dog for a walk.

57        When pressed, the doctor added that the grievor said that she had had respiratory issues and sinus headaches when she had worked in the office in the 1990s. This had never been previously mentioned to the employer. The doctor said that the grievor reported the office to be windowless and fairly airless. When advised by the employer that the office air was regularly tested and met acceptable standards, the doctor indicated that that did not change how the grievor experienced the office – as airless and constricting.

58        To establish a prima facie case of discrimination, a grievor has the burden of demonstrating that he or she has a disability, that he or she has experienced an adverse impact with respect to his or her employment, and that his or her disability was a factor in that adverse impact.

59        In my view, the grievor failed to make out a prima facie case of discrimination on the basis of disability. The evidence was not persuasive to show that the grievor had a disability which required accommodation.

B. Duty to Accommodate

60        If the grievor had made out a prima facie case, then the onus would be on the employer to show that it had met its duty to accommodate her to the point of undue hardship.

61        The duty to accommodate is a multi-party endeavour implicating the employer, the bargaining agent, and the employee. Exhibit 33 is the “Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service”. At page 5, it sets out that employees seeking accommodation must “… collaborate with the department or its representatives in finding the most appropriate means to accommodate their employment-related needs …”.

62        This the grievor did not do. After working at home virtually full-time for 13 years without seeking or obtaining permission, she sought to have her telework arrangement amended to full-time as an accommodation only when the employer advised that it was to be terminated. She continued to work at home full-time, without permission, throughout most of the period that the matter was under discussion.

63        When she received a direct order from the employer to report to the office, she did so, but she also began to take a series of sick leaves, some certified, some not. Finally, she obtained permission to work at home full-time until the matter was resolved. In the end, as far as I can gather from the evidence, the grievor managed to work at home full-time, except for perhaps a few weeks, right up to her retirement.

64        The grievor’s doctor never provided any medical information of substance beyond the grievor self-reporting that her anxiety and her high blood pressure were better managed from home. The employer was never advised of any specific functional limitations other than that the grievor did better at home than in the office. No other accommodation besides continuing to work at home full-time was proposed or considered. Indeed, the parties never got to that step as they never had enough medical information to be able to consider different accommodation options.

IV. Decision

65        In my view, these facts reveal no violation of either article 16 of the collective agreement or the Canadian Human Rights Act.

66        The grievor failed to make out a prima facie case of discrimination on the basis of disability, which would have required the employer to accommodate her to the point of undue hardship. See Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536.

67        If I am wrong with respect to the prima facie case, I also find that if there was a duty to accommodate in these circumstances, the employer met it by doing everything it could to obtain appropriate medical information.

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

V. Order

68        The grievance is dismissed.

June 6, 2017.