FPSLREB Decisions

Heard at Regina, Saskatchewan,
April 25 and 26 and September 26 to 28, 2017.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1                  The grievor, Korina Guraluk, was employed at the time of this grievance as a citizen services officer (classified PM-01) with the employer, Human Resources and Skills Development Canada (as it then was named). She filed her grievance on January 30, 2012. In it (Exhibit 2, tab 1), she alleged that the employer discriminated against her on the basis of her disability by failing to accommodate her in the workplace, by forcing her to submit medical certificates to support her absences from the workplace, by forcing her to take unpaid leave as a result of its failure to accommodate her, by failing to reinstate leave she used while waiting to be accommodated, and by forcing her to reduce her hours to part-time, in violation of article 19 of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services group with the expiry date of June 20, 2014 (“the collective agreement”; Exhibit 1).

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 (PSLREB) to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 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 s. 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; PSLRA) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

3                  On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the Public Service Labour Relations and Employment Board Act andthe PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

II. Summary of the evidence

4                  The grievor began working full-time at the employer’s Regina, Saskatchewan, call centre in 2008. Within eight months, she began experiencing medical problems related to her mental health, which included both physical and psychological symptoms. She was diagnosed in 2010 as having significant health issues related to a diagnosis of anxiety and was forced to take extended sick leaves. She returned to work twice in 2010 on a gradual basis. In January 2011, when her long-term disability benefits ceased, she again returned to work and managed to work her way back to   full-time hours by March 2011.

5                  She continued to work full-time for approximately three months, until she relapsed. According to her evidence, the relapse was directly related to the nature of her work. Her physician identified restrictions on her job functions related to client interaction, which the employer did not respect. It was aware of and did not deny the existence of her disability and its link to her work. The employer modified her work hours and her start time but did not address the client-interaction issue. According to the grievor, the employer was also aware that her attendance issue was connected to her disability.

6                  Also according to the grievor, her team lead and her manager knew of her condition and knew that it was directly related to her duties. By failing to consider accommodating her disability, the employer failed in its duty to accommodate. It was aware that she was seeking alternate employment, and it made no effort to help her find alternate accommodated employment. It should have considered accommodating her elsewhere, given her attendance record. Only when her union intervened in November 2011, did it start to consider the possibility of accommodating her.

7                  On the other hand, the employer stated that early in her call centre career, the grievor identified her desire to find employment elsewhere. This was not unusual since that PM-01 position is at the entry level; it is an opportunity for people from outside the federal government to secure a job within the public service. That job has a high turnover rate, as its incumbents move on to other public service jobs. The grievor made it no secret that she was actively pursuing other positions. The employer acknowledged that in 2010, she was absent from work on sick leave, sick leave without pay, and long-term disability.

8                  By December 2010, the employer was notified that the grievor had been cleared to return to her substantive position in January 2011. Consistent with the employer’s practices, the grievor’s physician was asked to outline the grievor’s restrictions and to identify what if any accommodations she required. Her physician identified only a gradual return to work, with no restrictions on her job duties. The employer complied, and she successfully completed her gradual return to work between January and April 2011.

9                  According to the employer, by June or July 2011, the grievor’s team lead began to notice that she was again developing attendance problems. In July, the grievor took vacation. Between June and August, she also used up her family related leave and her one-time allotment of special leave. When the team lead asked her if a medical condition impeded her attending work as scheduled, the grievor denied it. She was given several reminders that she needed to provide a medical note for her absences, and months went by before she provided a doctor’s note identifying her restrictions.

10        The employer immediately implemented the note and began looking for a job for the grievor elsewhere. In December 2011, a secondment opportunity was identified, which involved deploying her to the Department of Indian and Northern Affairs (INAC) for one year. The employer asserted that she was accommodated fully once she provided the required medical information.

11        According to the grievor’s evidence, when she was at work, she dealt with inbound calls and general inquiries from employment insurance clients. She assisted them with filing their claims, helped them clear their reports, and referring them to other programs for assistance. According to her, the work environment was extremely fast paced and involved interacting with stressed, distraught, and often angry callers. As part of her training, she learned how to deal with clients who threatened to commit suicide.

12        The grievor testified that during her time working in the call centre, it was often short-staffed, which increased her stress. The front-line workers, such as the grievor, bore the brunt of the callers’ frustration. On one occasion, a caller threatened to bring a gun into the call centre. The grievor described her work performance as extremely good; the feedback she received from her team leads was always positive. (The employer’s witnesses agreed.) She never received any feedback on how to improve her performance with calls. She did everything accurately. Her performance was not monitored very often because the call centre management knew that she did a good job.

13        The grievor reported primarily to team leads Tricia Williams and Jackie Burkowsky. Their manager was Marlene Bennett. From when she started her employment at the call centre, the grievor frequently took medical leave and was absent on long-term disability in her words “a couple of times”, following which she returned via a gradual return-to-work plan (Exhibit 2, tab 10). She testified that both team leads knew why she frequently used sick leave and why she had been absent on long-term disability and then made that gradual return, which required only modifying her work hours. According to her testimony, she did not feel obligated to tell them why she was off work, but she believed that she did tell them that it was due to anxiety.

14        The reason for her absences was ongoing severe anxiety and depression. Some days, she was so overwhelmed, she could not get out of bed. At the same time, things were happening in her personal life that coupled with the fast pace of her work made it so that she was afraid to go into work. She testified that she was afraid of receiving a hostile call and of not knowing what the next call would bring. She testified that the anticipation that the next one might be a suicide call or involve a threat of violence and the fear that she would not handle it properly were overwhelming.

15        In 2010 and 2011, the grievor saw a number of family doctors. She also consulted a psychiatrist, a psychologist, and an Employee Assistance Program counsellor to help her deal with her anxiety. The psychiatrist diagnosed her with severe anxiety and depression and prescribed medication. The grievor underwent treatment “for a couple of years”, according to her evidence. Her psychiatrist told her to avoid high-stress situations if possible. She was taught how to recognize the symptoms and triggers of an anxiety attack and how to deal with the triggers. Her psychiatrist suggested coping methods such as yoga, reading, and meditation. In addition, he prescribed medication, which he monitored and adjusted as required.

16        When the grievor commenced her gradual return to work in January 2011, the goal was to work her way up to full-time hours. Her team lead at the time, Ms. Williams, had been there when the grievor had the breakdown that resulted in her absence on long-term disability. According to the grievor’s testimony, they spoke on January 3, 2011, upon her return, about her concerns of being able to reach full-time hours and of the stress that the job caused her. She remembered asking Ms. Williams what would happen if she were unable to “do the phones”; would she be out of a job? She also remembered Ms. Williams responding affirmatively that since her only job function was to answer inbound calls, if she could not do that, she would be without a job, which scared the grievor. She did not confirm this conversation in writing or email; nor did she check the veracity of what she was told with her union representative at that point.

17        The gradual return to work commenced in January 2011 went fairly well, according to the grievor. She reached full-time hours by approximately March or April. She testified that she felt good about herself and her life. No adjustments were required to the initial gradual plan. By May or June 2011, she started to falter; she experienced stress and felt overwhelmed, she feared going to work, and she otherwise experienced anxiety symptoms.

18        Some days she could not get out of bed for anything; she was completely immobilized. She would call in sick and use either paid or unpaid sick leave. Other times, she would report to work but would leave early because of her symptoms. Once she had exhausted her paid sick leave, the employer required her to produce a doctor’s note for each request for sick leave without pay, which she did. The notes she produced merely said that she had been absent due to illness or injury, nothing more. No one talked to her about her use of sick leave without pay or her attendance in general.

19        In August 2011, the grievor emailed the employer’s disability management coordinator, Heather Reynolds, who worked in the Compensation and Benefits section of Human Resources (Exhibit 2, tab 13). The grievor said that she sent the email because she knew that she was again about to go on disability. She sent it after she spoke to Wendy Bot, who replaced Ms. Burkowsky while she was on leave in July 2011, and received no response to her questions.

20        According to the grievor, she had asked Ms. Bot to arrange for her to speak to Ms. Bennett to discuss accommodation options. Ms. Bot never did, according to the grievor. She knew that Ms. Bennett was away on annual leave at the time but never followed up with either Ms. Bot or Ms. Bennett to confirm that a meeting had been arranged. The grievor also did not follow up on the directions Ms. Reynolds had given her in response to her enquiries about a priority list and accommodations.

21        When Ms. Burkowsky returned, the grievor spoke to her about being put on a priority list for medical reasons as she had qualified in several pools but had not been offered a job. Ms. Burkowsky advised her that there was no such priority list except in layoff or spousal relocation cases.

22        Ms. Reynolds replied to the grievor’s email, advising her to speak to her team leads (which she had already done) and her manager (which she had tried to do) and to advise them that she needed to be accommodated. She was also advised that to be accommodated, she would require a medical certificate identifying her restrictions. The grievor testified that she was afraid that if she brought in such a note, she would lose her job, so she never did bring one in. She did not follow up with Ms. Reynolds and never did speak to Ms. Burkowsky about being accommodated.

23        Over time, the grievor’s attendance became progressively worse, and according to her, the more she missed, the more upset she became, and the more upset she became, the more she missed. She was actively looking for another job because she knew that she needed to get away from the phones in the call centre. She applied for jobs within the call centre (but not on the phones), at Health Canada, and at INAC. She was successful in pools at both departments.

24        The grievor testified that she did not speak to Ms. Bennett until after she had contacted her union representative, Kelly Drennar, as a last resort for assistance (see the email in Exhibit 2, tab 14). In October 2011, her father suggested that she needed to involve her union, for help. Once she spoke to Ms. Drennar, the grievor knew that she needed a detailed medical note outlining what was required to accommodate her medical condition, which she provided in November 2011.

25        Ms. Drennar contacted Ms. Bennett and asked for a meeting. The meeting occurred shortly after that, and things began moving. At the meeting, Ms. Drennar did all the talking. According to the grievor, Ms. Bennett was open to accommodating the grievor and contacted INAC to see about seconding her to a position there. Until the secondment could occur, Ms. Bennett gave the grievor a project to work on that meant that she did not have to work on the phones. The grievor testified that after the meeting with Ms. Bennett, she felt uncomfortable around Ms. Burkowsky and Ms. Bot. She was afraid that they thought she was a troublemaker.

26        While working on the project and during the secondment, the grievor did not miss any time. If she took extra breaks through the day, she made up the time at the end of the day.

27        The grievor filed this grievance in January 2012 because when she reached out to the employer for help, she was given the wrong information. She believed that it was trying to keep her in a position that was harmful to her health even though it knew that it was detrimentally affecting her. Ms. Bennett never once questioned her use of sick leave and was fully aware of her attendance record. She believed that had she been helped in January 2011 when she first asked for it, she would have avoided the health, family, and financial problems that ensued. What happened to her could have been avoided.

28        The grievor testified that she returned to her substantive position in approximately May 2016 and that she was on medical leave until May 2018.

29        The grievor’s family physician, Dr. Tomi Mitchell, testified on her behalf. Much of the doctor’s evidence related to the specifics of the grievor’s medical condition and the course of treatment she pursued. It would serve no purpose other than to breach the grievor’s privacy were I to record in minute detail what the doctor revealed, so I will note only the salient information. Dr. Mitchell reported that the grievor was diagnosed in 2011 with generalized anxiety disorder, low mood, and a personality disorder for which she was being treated by a psychiatrist. She had been suffering from stress both at home and at the workplace.

30        During visits with the grievor in 2011, Dr. Mitchell would discuss her work and the type of work she did. The grievor reported to the doctor that pressure was increasing on her about her work performance and that she had received poor performance reviews, which had increased her anxiety. In addition, she reported that there were increased pressures at home. The doctor described her as being in a constant state of anxiety and high stress. In the doctor’s opinion, the grievor was not functioning at work or at home at the time and was isolating herself.

31        The grievor’s condition worsened in 2011, according to Dr. Mitchell. On August 25, she reported chest pains, which was anxiety manifesting itself as a heart episode. Dr. Mitchell testified that she encouraged the grievor to find a different position. She also suggested a modified shift, all in hope of trying to find a solution that would meet the grievor’s limitations. On October 21, 2011, a friend of the grievor’s daughter committed suicide, which triggered the grievor’s symptoms; her condition worsened significantly.

32        During October and November 2011, working on the phones aggravated the grievor’s condition. The calls added stress because the interactions were not predictable, and she felt that she did not have the resources to support the callers. It was evident that call centre work was not conducive to her health. Someone who suffers from anxiety disorder has difficulty reacting to uncertainty.

33        On November 17, 2011, Dr. Mitchell advised the grievor and her employer that she was to avoid extended and continuous client contact and that a flexible work schedule was required. Had these conditions been met, the grievor could have worked full-time, according to the doctor’s evidence. She later advised the employer that the call centre environment was not suited to the grievor and that she should be employed elsewhere.

34        Ms. Bot, one of the grievor’s team leads, testified that her role was to ensure the performance of agents employed at the call centre, including ensuring their attendance. Team leads are assigned groups of employees and are expected to cover for each other when a team lead is absent. In the summer of 2011, she covered for Ms. Burkowsky, who was the grievor’s team lead. Ms. Burkowsky did not provide her with any specific information about the grievor. Both Ms. Bot and Ms. Burkowsky reported to Ms. Bennett.

35        Ms. Bot testified that she did not recall any conversation occurring with the grievor about her health when she covered for Ms. Burkowsky in the summer of 2011. The grievor and Ms. Bot communicated primarily by email (Exhibits 7 and 8). Ms. Bot did not recall any conversations with the grievor concerning the need to be accommodated.

36        According to Ms. Bot, the grievor was required to account for every minute of her time as the call centres were funded on a cost-per-call basis. That is why even a 10-minute absence required a leave certificate. By policy, all absences had to be recorded (Exhibit 8, page 1218). The purpose of Ms. Bot’s conversations with the grievor was to ensure that all her absences were recorded.

37        Ms. Bot did not recall speaking to the grievor on August 19, 2011, about her need for an accommodation; nor did she recall the grievor asking to speak to Ms. Bennett. Leave requests were approved if the grievor had banked leaved, based on the nature of the requests, which were taken at face value. Any sick leave notes filed in support of the leave requests were also taken at face value by Ms. Bot. She did not question them, have any conversations with the grievor about her sick leave usage, or discuss whether she had a disability or other issues for that matter that prevented her from coming to work.

38        Ms. Bot testified that she did not recall assisting the grievor with any difficult or violent calls. If any had occurred, she would have been notified by the call system, and a security incident report would have been completed and a debriefing held after that. If an abusive caller hangs up, that call still has to be documented.

39        Ms. Bennett was the call centre manager from April 2006 until her retirement in October 2012. As part of her role, she assisted her team leads with the process when an employee required accommodation in the workplace. The grievor had been accommodated twice during Ms. Bennett’s time as the manager in the form of a gradual return to work. The second one started on January 3, 2011, and continued until March 1, 2011, when the grievor reached full-time hours. No issues were identified to Ms. Bennett during the course of that gradual return to work, so once the grievor reached full-time hours, she considered it a successful return.

40        Ms. Bennett had as a resource in the return-to-work process Ms. Reynolds, the region’s disability management advisor, who supported her in dealing with employees who were on disability or who required workplace accommodation. Ms. Reynolds was also a source of information for employees, who went to her for advice and guidance on this subject. If the grievor consulted Ms. Reynolds, Ms. Bennett was not aware of it. Ms. Reynolds did not share this information with Ms. Bennett.

41        Ms. Reynolds might have advised the grievor to speak to her team lead and manager (see the email at Exhibit 3, page 2), to let them know what she needed as an accommodation. But Ms. Reynolds never told Ms. Bennett that the grievor was in need of an accommodation; nor was Ms. Bennett aware of the email in question.

42        By August 2011, Ms. Bennett had had no discussions about the grievor’s ability to continue to work on the phones. It was a surprise to her when she found out that the grievor was no longer able to perform this work. Ms. Bennett was aware that like many of her colleagues, the grievor was seeking opportunities elsewhere. The client-service position on the phones was at the entry level. People from outside the federal government were hired into it who were looking for a way into the public service. They then began searching for positions elsewhere.

43        The first Ms. Bennett heard of the grievor’s need for an accommodation was at the end of October 2011, when the union became involved. Ms. Drennar, the national representative for the Canada Employment Insurance Union component of the bargaining agent, the Public Service Alliance of Canada, met with the grievor. Ms. Bennett volunteered to meet with them but was advised that her presence was not required.

44        On November 4, 2011, Ms. Drennar emailed Ms. Bennett (Exhibit 10), seeking a meeting to discuss the grievor’s accommodation requirements. The doctor’s note of November 17, 2011 (Exhibit 3, page 14), had been the first time Ms. Bennett had seen a clear statement of the grievor’s limitation. An earlier note dated October 21, 2011 (Exhibit 3, page 7), did not list any specific limitations, only that a change to the schedule was required. Adjusting the hours working on the phone and the schedules is a form of accommodation that team leads are allowed to undertake without Ms. Bennett’s involvement.

45        On November 22, 2011, Ms. Bennett had an unscheduled discussion with the grievor about her accommodation needs (Exhibit 3, page 15). She was looking for the certificate from the grievor’s doctor so that she could start to work on the accommodation process. The grievor did not provide it but did tell Ms. Bennett that she needed to limit her client contact to three to four hours per day, which was implemented, although Ms. Bennett could not remember when that happened. The grievor also told Ms. Bennett that she had qualified for approximately five competition pools. Once Ms. Bennett was provided with the identifying numbers of the pools, she began immediately searching for positions at the same levels elsewhere (see the email at Exhibit 3, page 21).

46        Ms. Bennett forwarded the grievor’s resumé to her contacts for consideration in staffing both inside and outside the call centre. Her focus was on finding the grievor a position that did not have direct client contact, even though at that point, she still had not received the doctor’s note and was relying only on her informal discussion with the grievor.

47        On November 22, 2011, after her informal meeting with Ms. Bennett, the grievor emailed her, requesting a meeting to discuss accommodation possibilities as soon as possible, even though Ms. Drennar was not available until December 7 (Exhibit 3, page 16).

48        Ms. Bennett met with the grievor on November 25 (see the notes, Exhibit 3, pages 18 and 19). They reviewed the November 17 doctor’s note, which stated at the outset: “I strongly recommend that Ms. Guraluk not continue to work in a call centre environment as it is not conducive to her medical condition.”  They discussed possible positions, including Tier II customer service officer positions, which still required client contact, but of a different nature. It was noted that the doctor had identified the call centre environment as a problem, so they focused on finding options outside of this workplace. No work was available in the call centre that did not involve telephone contact with clients, so Ms. Bennett agreed that the grievor’s hours on the phone would be limited to three to four and that the rest of her workday would be attributed to sick leave for one month, consistent with the doctor’s note. In the meantime, Ms. Bennett would continue to look for options elsewhere.

49        Since the grievor had used up her allotted sick leave credits, she was required to use sick leave without pay for much of this period. The call centre work is very specific, and accommodation at-level involved client contact on the phones in that environment. All the other positions were at a higher classification, so if the grievor was not on the phones, there was no work for her in the call centre; if there was no work and she had no leave credits to use, there was no pay. Ms. Bennett did eventually find a project for her for two weeks in December.

50        The grievor raised the question of undergoing a fitness-to work evaluation after she received the summary of the November 25 meeting from Ms. Bennett (Exhibit 3, pages 35 to 37). Ms. Bennett testified that she had no intention of pursuing one at that point. The grievor also raised the possibility of reducing her hours to    part-time or working a flexible schedule. Ms. Bennett agreed to implement the flexible schedule.

51        According to Ms. Bennett, at this point, the grievor was no longer required to submit doctor’s notes for each absence since the employer was in the process of accommodating her. Ms. Bennett suggested to the grievor that she reinstate her disability insurance file with Sun Life as a means of supplementing her income during those periods when she was on sick leave without pay.

52        On December 19, 2011, the grievor was to start the INAC position (Exhibit 3, pages 38 and 39) to which she had been seconded through Ms. Bennett’s efforts for, initially, one year. It was a fit office environment, with little or no client contact. The grievor remained in it until December 2014. Between December 2012 and December 2014, she was acting in a PM-03 position. It was a sunset position; that is, there was no possibility that it would become permanent. The grievor was aware of this when she accepted it.

53        Before the grievor could start the INAC position, Ms. Drennar asked to meet with Ms. Bennett. Ms. Drenner was not in favour of the grievor accepting this position. She was concerned that the grievor was not being accommodated within the call centre. Ms. Bennett explained to Ms. Drennar that it was not possible to because there were no positions at-level there that did not involve telephone contact with clients and that did not involve exposure to the call centre environment. Ms. Drennar demanded that the call centre’s management be trained on the accommodation process, which Ms. Bennett agreed would be done. Ms. Drennar also wanted reviewed the period between June and November 2011, during which the grievor took sick leave without pay, which Ms. Bennett also agreed to do (see the meeting minutes at Exhibit 3, page 43). When Ms. Bennett reviewed the grievor’s leave records, only the leave in November caused her any concern. The grievor had used 91.75 hours of sick leave without pay because all her other paid leave had been exhausted during her return to work. This amount was reversed, and paid leave was substituted (Exhibit 3, page 48).

54        After the grievor went to INAC, Ms. Bennett had no further contact with her. She had been advised to contact the employer if she had difficulties, and she never did. No further clarification was required from the doctor; the grievor was fit and able to work full-time.

III. Summary of the arguments

A. For the grievor

55        The crux of this grievance is the reasonableness and timeliness of the accommodation in the workplace of the grievor’s disability. The question is: Did the employer discharge its duty to accommodate? For analysis purposes, it can be broken down as follows:

1. Did the grievor suffer from a disability that restricted her ability to perform her duties?
2. Did the employer provide and implement an accommodation plan, as expected of an employer, in consultation with the union?
3. Was that plan appropriate, reasonable, and timely?
4. Did the employer discharge its duty to inquire?
5. Did the employer discriminate against the grievor, contrary to article 19 of the collective agreement and ss. 3, 7, and 15 of the Canadian Human Rights Act (R.S.C. 1985, c. H-6; CHRA)?

56        Very shortly after the grievor started to work at the call centre in 2008, she developed attendance problems related to her disability. They recurred in 2011 after she had successfully completed her gradual return to work. She suffered from generalized anxiety, which manifested itself in mental and physical symptoms. She went on extended sick leave twice since 2010; the second resulted in the gradual return to work that began in January 2011. By March 2011, the grievor had successfully returned to work and was at that point working full-time hours. Within two to three months, she suffered a recurrence, which caused her to be frequently absent from the workplace.

57        The grievor did suffer from a disability that impaired her ability to attend work. She had the burden of proof to establish on a prima facie basis that she suffers from a disability that was a factor in the adverse impact she suffered. The nexus between her attendance issues and her disability was proven by Dr. Mitchell’s evidence. The grievor’s previous physician diagnosed her as suffering from anxiety and depression (Exhibit 2, tab 6), which her psychiatrist confirmed (Exhibit 2, tab 7). Given her fragile state, she had a hard time coping with stressors and suffered from generalized depression.

58        When the grievor was at work, she was in a constant state of anxiety and high stress. She isolated herself. Dr. Mitchell testified that in August 2011, she told the grievor to find alternate employment or to make changes to her job. She told her that the call centre environment was not suited to her condition; not knowing what the next call would bring caused her increased anxiety. Despite her disability, the grievor was a high-performing employee when she was at work; her disability impaired only her ability to attend work, and it manifested itself by her avoiding work.

59        The employer was aware that the grievor had previously been on disability insurance leave in 2011. The doctor’s note dated November 17, 2011 (Exhibit 2, tab 8), is proof of her disability, and the prima facie case of disability has been established. It is clear that the employer was aware that the grievor suffered from a disability; the question is when it was aware.

60        The adverse impact the grievor suffered took the form of her heavy reliance on paid and unpaid leave. She suffered a significant loss of income while she worked in a job that was unsuited to her limitations. Whether the job was unsuited to her or she was unsuited to it is the same thing for these purposes. She was able to do the job so long as it was not full-time. She could have done other things to supplement the hours she worked on the phone. Had the employer found other ways to keep the grievor busy when she was working on the phone, she would not have been absent from work.

61        The employer did eventually make earnest efforts to accommodate the grievor, but in the circumstances, the timeliness of its efforts and its exercise of its duty to inquire were not reasonable. The employer has an ongoing duty to accommodate an employee, including in procedural aspects, such as inquiring how the employee can be accommodated. Employees should not lose income because they are unable to participate at work due to their disabilities. The grievor’s significant attendance problems should have caused the employer to speculate, in light of her previous illnesses. When the employer is aware that an employee has a history of sick leave use and has been on long-term disability insurance, it has a duty to closely monitor his or her attendance and to follow up with the employee. Since the grievor’s disability must have been in the employer’s recent memory, it had that duty.

62        The employer’s oversights were not out of malice. The team leads and Ms. Bennett were not intentionally discriminatory. The Board must consider what the employer knew about the grievor’s disability and what it did to assist her. What was done shows a lack of initiative given what the employer knew or ought to have known about the grievor. It is clear that the team leads were aware that she was having difficulty working on the phones (see the workplace accommodation plan at Exhibit 2, tab 10). It is also clear that the employer was aware that she had an attendance problem.

63        Accommodating an employee in the workplace has both procedural and substantive aspects, which require an employer to seriously consider how it can accommodate that employee (see Panacci v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 2 at para. 85). First, it must obtain all relevant information about the employee’s disability and then work with that person to determine how he or she can be accommodated. Failing to give any thought or consideration to accommodation is failing to satisfy the duty to accommodate (see Panacci,at para. 86; and Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35 at paras. 46 and 71). The employer’s actions in this case amounted to a delay, turning a blind eye, and providing erroneous and misleading information to the grievor.

64        Ms. Bennett testified that the grievor never asked to be accommodated. The grievor was not obligated to ask for an accommodation. She asked how her job could be adjusted to meet her limitations. The employer representatives should have asked her if she needed to be accommodated.

65        In Mackenzie v. Jace Holdings Ltd., 2012 BCHRT 376, the British Columbia Human Rights Tribunal held that it is a generally accepted principle that an employer’s failure to inquire into the health of an employee before taking steps that adversely affect that employee’s employment situation, if the employer has reason to suspect that a medical condition may be impacting the employee’s ability to work, breaches the employer’s duty to accommodate. Even though in that case the employee did not discuss the nature of her disability or request an accommodation, the tribunal found that the employer had information sufficient to inquire about accommodations. In that tribunal’s opinion, failing to inquire constituted discrimination.

66        When the employer in this case approved more than 91 hours of sick leave without pay for the grievor, the team leads and Ms. Bennett should have inquired about whether she had a disability. As early as June 2011, the grievor and her team lead had conversations in which the grievor identified that she could not spend any more time on the phone. She was told that there was no priority list and that if she wanted a different job, she would have to keep applying for one. She was never asked whether she was seeking to be moved to a different position because of her previous illness. The employer is obligated to be attentive to its employees and to connect the dots between their absences and their continuing work-related problems.

67        What the employer did could have been sufficient for someone with an attendance problem but without a disability. However, in this case, the employer was aware that that the grievor suffered from a disability. The information she received from the team leads chilled her desire to pursue an accommodation. When she did eventually contact the disability coordinator, she was told that she had to talk to her manager about her needs. She did everything to advocate for herself and received unsatisfactory and dissuasive answers.

68        Throughout the summer of 2011, the grievor provided doctor’s notes to account for her absences. The Doctor flagged the disability and the need for accommodation. The grievor did not pursue her rights to be accommodated because of the answers she received from the employer’s representatives. The employer missed its opportunity to inquire when she contacted the disability coordinator.

69        The duty to inquire does not allow the employer to pry into an employee’s personal life. The employer was obligated to question the grievor’s absences and identify her rights. In June, Ms. Burkowsky suspected something was off with her. In August, Ms. Burkowsky reviewed the grievor’s consolidated leave report and wondered if the family related leave she had used had actually been disguised sick leave. The conversation should have been held then as both types of leave raise accommodation issues.

70        This is consistent with the Canadian Human Rights Tribunal’s findings in Mellon v. Human Resources Development Canada, 2006 CHRT 3. At paragraphs 97 to 100, the tribunal held that the respondent, an employer who had been dealing with an employee who had been experiencing anxiety attacks in the workplace, knew or ought to have known that the cause was work-related stress. The fact that the employee did not tell her employer in so many words of the source of her anxiety did not disentitle her from the CHRA’s protection. The tribunal held that is was not enough for the employer to say that it had not been advised or that it was unaware of her condition. Knowing what it did, it was up to the employer to determine whether her health was affecting her performance.

71        Public policy demands that the employer was obligated to inquire whether the grievor needed accommodation. Based on the evidence before the Board, it is logical to conclude that she did; the employer adjusted her schedule in accordance with her previous gradual return-to-work plan.

72        It is not clear what degree of knowledge triggers the duty to accommodate. Both Ms. Burkowsky and Ms. Bennett testified that the grievor’s sick leave usage was not particularly high when compared to others in the call centre environment, particularly for someone returning from an extended leave. She was allowed to work flexible hours, and her shifts were adjusted. Her time on the phones was reduced beginning in early November, which was consistent with her doctor’s notes and the discussions with her team leads (Exhibit 2, tab 17).

73        Despite all that, the grievor did not feel supported by management in her job search efforts. The fact that when asked to provide a reference, Ms. Burkowsky told the grievor that she could not speak to her reliability is evidence that she had turned her mind to the grievor’s attendance. The grievor’s testimony was consistent and was supported by emails and summaries. She was not like other employees trying to get out of the call centre; she has a disability and had a record of numerous absences and medical notes. The employer was aware of the connection between the absences and her disability to some degree but did not inquire about the connection between it.

74        The employer provided no explanation for why the grievor was told there was no priority list for people with disabilities. And no explanation was provided for why she was unsuited for positions or why training for the Tier II customer services officer position in the call centre was not provided. The employer’s actions were insufficient and untimely. The grievor suffered an adverse impact in the form of economic losses. The employer clearly discriminated against her within the context of the test set out in Lloyd v. Canada Revenue Agency, 2009 PSLRB 15 at paras. 43 to 49.

75        The grievor seeks a declaration that the employer discriminated against her by failing to meet its duty to accommodate her disability. She seeks compensation for the sick leave without pay she took during October and November 2011. She seeks $10 000 in damages for pain and suffering as a result of the psychological and physical damage imposed by the employer. She seeks an additional $10 000 in damages for the reckless and wilful disregard with which the employer treated her. She seeks an order that the employer train all the team leads in its call centres in the duty to accommodate. Finally, she demands that she be accommodated in a manner consistent with her disability and limitations and on an ongoing basis.

B. For the employer

76        In her grievance, the grievor alleged that the employer failed in its responsibility to accommodate her in a number of ways, one of which was by forcing her to submit unnecessary medical certificates for her absences, for which she alleged that the employer had full knowledge of the cause. She made no argument on this allegation and did not adduce evidence to support it.

77        Another allegation is that the grievor was forced to take unpaid leave as a result of the employer’s failure to provide or address her disability-related accommodation needs. The evidence showed that based on the November 25, 2011, medical certificate given to the employer, the grievor was limited to a maximum of four hours per day working on the phones. The evidence is also that on December 8, 2011, she began working on a project elsewhere in the call centre and that after that, she left for the INAC job. The employer’s witness testified that the grievor was reimbursed all sick leave without pay taken during this period. Proof of this is in her leave records (Exhibit 2, tab 4).

78        The grievor alleged that she was forced to reduce her hours to part-time, which was not the accommodation she required. The rest of her time was covered by sick leave, either paid or unpaid. It is not discrimination to require an employee to revert to part-time hours for a brief period. This was done when sick leave was used to supplement the grievor’s income and replace her missing hours.

79        As for the allegation that the grievor’s manager personally acknowledged that the employer was aware of her accommodation needs and did nothing to initiate discussions or take corrective action to meet them, the question to be answered is whether the employer failed to accommodate her from August 2011 to December 19, 2011. Before this can be answered, it must be determined whether she was disabled at that time. The employer disagreed that she suffered from a disability during the period covered by the grievance. Even if she did, she was de facto accommodated. The employer did not fail or breach its duty to accommodate.

80        In August 2011, the backup team lead, Ms. Bot, was covering for Ms. Burkowsky while she was on annual leave. Ms. Bot dealt with the grievor’s absences from the workplace during this time. The grievor reached out on August 18, 2011, to the employer’s disability management advisor and posed specific questions, to which she received very clear responses, guidance, and direction (Exhibit 3, pages 1 and 2). She was told to speak to her team lead if she needed an accommodation. There was nothing ambiguous, vague, or unclear about what she needed to do.

81        During the same period, the grievor spoke to her physician (Exhibit 2, tab 9, page 3). She reported that her throat was bothering her and that she had thought of switching jobs on August 5 and August 18, 2011 (the same day she contacted the disability management advisor). On August 25, she complained to her physician of chest pain, but the records indicate no discussion concerning the need to change jobs. Doctor Mitchell testified that she does not put people off work; she finds something that works for them and keeps them in the workplace. Despite all this, nothing was sent to the employer about relief from the phones because of either throat problems or anxiety issues.

82        In August 2011, the medical information was that the grievor was prevented from doing her job because of throat problems, not generalized anxiety. Even if the employer was aware that she had suffered from anxiety in the past, which had required her to be absent from the workplace, this general knowledge did not trigger the duty to inquire. The grievor argues that this general knowledge of her health situation plus her pattern of leave in August 2011 was sufficient to trigger the duty to inquire. However, the employer’s witnesses testified that her leave pattern was not excessive or unusual. She took 2.56 leave days in August via a combination of personnel selection leave, family related leave, annual leave, compensatory leave, sick leave, and medical appointment leave. Just because she had been on disability previously, it did not impose a duty to inquire on the employer every time she took leave. Clearly, at that point, there was no duty to inquire.

83        In September 2011, the grievor took 1.25 days of leave using the same variety of it to cover the time. The employer is entitled to trust that employees state true reasons when requesting leave. It cannot assume that leave not related to illness was taken for purposes other than what was stated. Not until November 2011, when the grievor began requesting sick leave without pay, was a red flag raised. In October 2011, the Doctor recommended a change to the grievor’s hours, which the employer accommodated; that month, she took only 12.6 hours of sick leave without pay, which again was not unusual in the call centre environment.

84        Not until late November 2011 was the employer aware of the grievor’s full accommodation needs as set out in the medical note of November 25, 2011 (the contents of which Ms. Bennett was aware of on November 21, 2011). Based on what the grievor told her on November 21, Ms. Bennett took immediate action and undertook all steps to accommodate the grievor.

85        There was no reason to assume in August 2011 that the grievor needed to be employed outside the call centre. Even in October 2011, when the employer received the first doctor’s note, no restrictions were specified about working on the phones.

86        Even if the Board accepts the grievor’s evidence that Ms. Williams told her in January 2011 that if she did not work on the phones, she would have no job, the grievor’s actions were not consistent with her activities of seeking employment elsewhere, as many others did.

87        The employer had accommodated the grievor in the past, so there was no reason for her to fear that if she requested further accommodation, she would be without a job. There was no reason for her not to tell the employer in August that she could not work on the phones because doing so affected her throat, yet she did not do it.

88        Ms. Burkowsky was not asked to arrange a meeting with Ms. Bennett in August as the grievor testified; her replacement was. The role of the backup team lead was not to become involved in accommodation requests for members of another team but rather to provide oversight while the assigned team lead, Ms. Bot, was on annual leave.

89        In all the email correspondence between Ms. Drennar and the grievor in August 2011 (Exhibit 8), there is no mention of a meeting with Ms. Bennett. The only meeting mentioned was with respect to inputting leave, which did not take place in the end. If the request had been made, either the grievor or the team lead would have documented it.

90        Again, on September 15 and 29, 2011, the grievor consulted her doctor, yet she provided no note identifying any restrictions. The doctor’s note dated October 21, 2011 (Exhibit 3, page 7), merely recommends that she work from 8:30 a.m. to 4:30 p.m. There is no mention of not working on the phones or in the call centre. The grievor wanted a later shift and was accommodated accordingly.

91        On October 31, 2011, the doctor noted in the grievor’s file that she had discussed accommodation in the workplace with her union (Exhibit 2, tab 9). That was two months after the disability management coordinator told her what to do to seek a workplace accommodation. On November 7, 2011, she visited her doctor and requested a plan to present to the employer.

92        Not until November 8, 2011, was it mentioned that the grievor could not work on the phones in her email to Ms. Burkowsky requesting relief and permission to leave early (Exhibit 3, pages 8 to 11). Even in that email, nothing indicates that the problem was anything more than a single occurrence.

93        On November 17, 2011, Dr. Mitchell presented the grievor with a letter in which she stated that the call centre work environment was not conducive to the grievor’s medical condition and that an alternate position was required. In the meantime, the grievor was to work a maximum of three to four hours on the phones for no longer than one month (Exhibit 3, page 14). Once the employer received this information, things moved fast, and the recommended accommodation was implemented quickly.

94        The grievor filed this grievance because her bargaining agent did not feel that she should have been moved to INAC as a means of accommodating her. It believed that she should have been accommodated within the call centre by bundling duties to create a position for her or by promoting her to the Tier II level. Even had either of those been possible, it was clear from the doctor’s note that she was not to be in the call centre; given that, the bargaining agent’s options would not have been suitable.

95        The employer made no mistakes in accommodating the grievor. It acted immediately once the restrictions were known. Before the INAC project was proposed, all options were explored, including reactivating her previous disability insurance claim. There is no duty to create an instant or a perfect accommodation, only a reasonable one (see Zaytoun v. Canadian Food Inspection Agency, 2010 PSLRB 35).

96        In summary, it is not clear that in August, the grievor had a disability. She had an issue with her throat, but whether that constituted a disability is unclear. Even if it did, the employer complied with all the doctor’s recommendations. If she had a disability, there is no evidence that it prevented her from attending work. The evidence of the employer’s witnesses is that her attendance records were in line with others in the call centre. Consequently, there was no adverse impact.

97        Asking for information from the disability management coordinator in August did not trigger a requirement to implement an accommodation plan when the grievor was given directions on how to pursue an accommodation if one was required, and she had to provide medical information to support it. She provided the required information to the employer only on November 21, 2011, and from that point, things proceeded quickly. Other requests such as later shifts were accommodated when she submitted her medical certificates. The actions taken were appropriate, reasonable, and timely. They met the identified restrictions and the requirements identified by the treating physician. The duty to inquire, if triggered at all, which the employer argues it was not, was met when it requested medical information.

98        There has been no discrimination in this case. Regular attendance at work is a bona fide occupational requirement. The grievor had to establish that attendance at work was not such a requirement, and she made no such argument. Therefore, any actions by the employer in which it insisted that to be paid, the grievor had to attend and perform work, were not discriminatory.

99        The grievor’s argument that the employer used the gradual return-to-work plan in August to adjust her schedule assumes that Ms. Burkowsky knew why the grievor had been absent in 2010. Ms. Burkowsky’s evidence was that she did not meet the grievor until June 2011. While she might have speculated as to the grievor’s issues, it would not have informed the employer of the grievor’s condition as of August 2011. Any conversation the grievor had when she began her gradual return to work in January 2011 about what would happen if she could not do the work would have been speculative. The evidence of all the witnesses was that she successfully returned to full-time work.

100        The grievor’s representative claimed punitive damages in her closing argument, yet in her evidence, the grievor testified that the employer did not act in bad faith. How then can that claim be justified? There is no evidence of pain and suffering. Illness is unpleasant and stressful, but that does not mean the employer is at fault. Its actions did not cause the grievor’s illness. It would have been involved earlier in October, but the union told Ms. Bennett that her participation was not required. When the union was willing to meet with Ms. Bennett, the meeting happened; by then, the accommodation was in place.

101        As for the request to repay the sick leave used from June to November 2011, it should be ordered only if there has been a breach. It was not discrimination to compensate the grievor on the same basis as other employees or to provide her the benefits to which she was entitled based on the number of hours she worked. The difference in her status, either part-time or full-time, was not a distinction that arose from her disability but rather from the number of hours she worked (see Crossroads Regional Health Authority v. Alberta Union of Provincial Employees (2002), 105 L.A.C. (4^th) 78 at para. 62).

102        There was no discrimination in paying the grievor according to her collective agreement and no failure of the duty to accommodate by not providing her enhanced benefits in the form of paid sick leave when she had run out of those credits (see Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, 2004 SKQB 102 at para. 24 and 26; Ontario Public Service Employees Union v. Ontario (Liquor Control Board of Ontario) (2009), 182 L.A.C. (4^th) 116; SaskPower v. UniFor, Local 649, [2015] S.L.A.A. No. 21 (QL); and Nadeau v. Canada Revenue Agency, 2017 FPSLREB 27).

103        An overt request for accommodation is not always necessary, particularly when it is or ought to be apparent to an employer that some form of accommodation is necessary to enable an employee to perform his or her duties (see Timmons v. Treasury Board (Department of Citizenship and Immigration), 2015 PSLREB 50). The obligation is normally on the employee to communicate the nature of the disability to the employer (see Mackenzie, at para. 31).

104        For the duty to inquire to be triggered, the employer must have known or reasonably ought to have known that the employee suffered from a disability requiring accommodation. The onus was on the grievor to communicate the need for accommodation. She communicated her need to the employer only in November. By the time her sick leave without pay usage was highlighted that month, there was no need to inquire, since the employer was then aware of her accommodation needs. This distinguishes this case from the fact situation in Mellon.

105        According to the decision in Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 at para. 132, the employer has the right to know precisely what an employee’s restrictions are. It is an unreasonable responsibility to place the onus on the employer to unilaterally determine the nature of an employee’s disability and then to unilaterally determine the nature of the accommodation required without input from the employee (see Gibson v. Treasury Board (Department of Health), 2008 PSLRB 68 at para. 36).

106        The employer is required to take reasonable steps, short of undue hardship, in accommodating an employee. The search for an accommodation is a multi-party inquiry. To facilitate the accommodation process, the employee must do his or her part, including searching for a reasonable accommodation. The employee’s conduct must be considered when determining whether the employer has discharged its duty to accommodate (see Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970).

107        The grievor’s representative argued that the employer failed in its duty to accommodate the grievor when it did not find her alternate employment within the call centre. The medical information she provided was clear that she had to be accommodated outside the call centre environment. Other options were considered, but none met the restrictions her physician identified. The employer did not make a mistake in accommodating the grievor; nor did it delay doing so.

108        The scope of a search for a proper accommodation may require exploring outside the home department (see Singh v. Treasury Board (Public Works and Government Services Canada), 2000 PSSRB 39; and Zhang v. Treasury Board (Privy Council Office), 2005 PSLRB 173). The employer acted immediately once the grievor’s restrictions were identified and found her employment that met her restrictions. A delay of two weeks in finding her a new position was not unreasonable (see Zaytoun).

IV. Reasons

109        The grievor alleged that the employer discriminated against her in relation to her disability, in violation of the CHRA and article 19 of the collective agreement. That article provides that no discrimination shall be exercised or practised with respect to an employee by reason of mental or physical disability, among other grounds.

110        According to s. 226(2)(a) of the Act, an adjudicator or the Board may, in relation to any matter referred to adjudication, interpret and apply the CHRA (other than its provisions relating to equal pay for work of equal value), whether or not there is a conflict between the CHRA and the collective agreement, if any.

111        Section 7 of the CHRA provides that it is a discriminatory practice, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Disability is a prohibited ground of discrimination (s. 3(1)). Section 25 defines “disability” as any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.

112        To establish that an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination, which covers the allegations, and if the allegations are believed, it would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the respondent (see Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 28 (O’Malley)). The Board cannot consider the employer’s answer before determining whether a prima facie case of discrimination has been established (see Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22).

113        An employer faced with a prima facie case can avoid an adverse finding by calling evidence to provide a reasonable explanation that shows that its actions were in fact not discriminatory or by establishing a statutory defence that justifies the discrimination (see A.B. v. Eazy Express Inc., 2014 CHRT 35 at para. 13). If a reasonable explanation is given, it is up to the grievor to demonstrate that the explanation is merely a pretext for discrimination.

114        It is not necessary that discriminatory considerations be the sole reason for the actions at issue for the discrimination claim to be substantiated. The grievor need only show that discrimination was one of the factors in the employer’s decision (see Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12 (F.C.A.) at para. 7). The standard of proof in discrimination cases is the civil standard of the balance of probabilities (see Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 FC 789).

115        There is no dispute that the grievor has a disability or that her disability required accommodation in the workplace. In dispute is at what point her accommodation needs were communicated to the employer, and whether the actions taken by the employer met its duty to accommodate the grievor.

116        Accommodation is not a unilateral process driven by the employer; the employee plays an important role in it. As the Supreme Court of Canada determined in Renaud, the search for accommodation is a “multi-party inquiry,” and there is a duty on the grievor “to assist in securing an appropriate accommodation” (at paras. 43 and 44). The grievor’s actions had a direct bearing on when the employer became aware of the need for her disability to be accommodated.

117        The grievor commenced a gradual return to work in January 2011 after a stint on long-term disability. At an initial meeting with her team lead, Ms. Williams, she asked what would happen if she could not do the phone job. Her representative asked that I pinpoint this as the first time she alerted the employer of her need for an accommodation. Respectfully, I disagree. Having listened at length to her evidence, which was very honest and open if not always accurate as to dates and events, at that point, she was not seeking any further accommodation. As it turned out, the return to work was initially successful, and that question did not need to be answered until sometime later.

118        She continued to work full-time for approximately three months until she began experiencing symptoms, including throat and chest pains. The employer allowed her to modify her work hours by changing her start and end times.

119        During this period, she actively sought alternate employment and was granted the requested time off for selection processes.

120        By June or July 2011, her team lead began to notice that the grievor was developing attendance problems again, even though the evidence of the employer’s witnesses was that her attendance was no worse than many others in the call centre. Not all attendance problems are proof of a disability or of a need for accommodation.

121        In July, the grievor took a month of vacation. Between June and August, she also used up her family related leave and her one-time allotment of special leave. When the team lead asked her if some medical issue was impeding her attending work as scheduled, the grievor denied it. She was given several reminders that she needed to provide a medical note for absences for which she sought sick leave without pay.

122        On August 19, 2011, the grievor contacted the employer’s disability management advisor. In my view, that August 19, 2011, email communication is the most compelling evidence confirming that the grievor had not sought accommodation from her return to work in January 2011, up to, and including, that point. The grievor stated to Ms. Reynolds as follows: “... I started a gradual return to work in January 2011. I’m glad to say that I have been able to successfully work back up to my full time hours and have not needed any significant time off since.” Given this confirmation from the grievor, it is difficult for me to accept her representative’s position that she had sought accommodation other than modification of hours and time off to participate in appointment processes prior to this point, both of which the employer allowed. 

123         In this same email correspondence, the grievor then posed specific questions, to which she received very clear responses, guidance, and direction on what to do if she needed to be accommodated, which she did not follow. Instead, she reported to her doctor that her throat was bothering her and that she had thought of switching jobs on August 5 and 18, 2011. The medical information that she provided to her employer was that she was being prevented from doing her job because of throat problems and that she needed to spend less time on the phones, not that she was suffering from generalized anxiety. Again, this request for accommodation was granted.

124        In September 2011, the grievor took 1.25 days of leave, using a variety of leave to cover the time. On September 15 and 29, 2011, she consulted her doctor, yet she provided no note identifying any restrictions. The doctor’s note dated October 21, 2011 (Exhibit 3, page 7), merely recommended that she work from 8:30 a.m. to 4:30 p.m. There was no mention of not working on the phones or in the call centre.

125        The grievor wanted a later shift and was accommodated accordingly. On October 31, 2011, her doctor noted in the grievor’s file that the grievor had discussed accommodation in the workplace with her union (Exhibit 2, tab 9). That was two months after the disability management coordinator told her what to do to seek an accommodation in the workplace. On November 7, 2011, the grievor saw her doctor and requested an accommodation plan to present to the employer.

126        Not until November 8, 2011, is mention made that the grievor could not work at all on the phones. This was done in an email to Ms. Burkowsky in which she requested relief and permission to leave early (Exhibit 3, pages 8 to 11). However, even in the email, nothing indicated that it was anything other than a single occurrence.

127        On November 17, 2011, Dr. Mitchell gave the grievor a letter in which she stated that the call centre work environment was not conducive to the grievor’s medical condition and that an alternate position outside the call centre was required. In the meantime, the grievor was to work a maximum of three to four hours on the phones, for no longer than one month.

128        The grievor’s condition worsened in 2011, according to Dr. Mitchell. On August 25, she reported chest pains, which was anxiety manifesting itself as a heart episode. Dr. Mitchell testified that she encouraged the grievor to find a different position. She also suggested a modified shift, all in hope of trying to find a solution that would meet the grievor’s limitations. As noted, the employer accommodated the requested modified shift.

129        On October 21, 2011, a friend of the grievor’s daughter committed suicide, which triggered the grievor’s symptoms; her condition worsened significantly. Despite this, months went by before she provided a doctor’s note identifying restrictions because her doctor’s philosophy was to treat the patient in the workplace.

130        During October and November 2011, working on the phones aggravated the grievor’s condition. The calls added stress because the interactions were not predictable, and the grievor felt that she did not have the resources to support the callers. On November 17, 2011, Dr. Mitchell advised her and her employer that she was to avoid extended and continuous client contact and that a flexible work schedule was required. Had these conditions been met, she could have worked full-time, according to the doctor’s testimony.

131        The doctor’s note received on November 25, 2011, stated that the call centre environment was not conducive to the grievor’s good health and that she should look for employment elsewhere. She could remain in the call centre for one month in the meantime as long as she spent no more than four hours on the phone. With this note, Ms. Bennett took immediate action and found the grievor the position at INAC.

132        Based on the summary of the events and the evidence presented, it is clear to me that the employer met the grievor’s needs as it understood them through the summer of 2011. She was allowed to adjust her schedule and to pursue career opportunities outside the call centre, all without the benefit of any medical information from her identifying her limitations and how they were to be accommodated. Why the employer did this has not been explained, but it is clear that when it was allowed, the grievor was using not only sick leave but also vacation and family related leave to explain her absences.

133        As the employer’s representative argued, the employer is entitled to trust that employees state true reasons when requesting leave. The employer cannot assume that leave that is not related to illness is being taken for purposes other than what was stated. Given the grievor’s denials that she needed help and the lack of medical information to support the need for accommodation, the employer was justified in accepting the reasons stated for the leave and in not inquiring further as to whether there was an underlying reason of which it was not aware.

134        The grievor made no overt request for accommodation before November 25, 2011, although one is not always necessary when it is or ought to be apparent to an employer that some form of accommodation is necessary to enable an employee to perform his or her duties (see Timmons, at para. 74). The obligation is normally on the employee to communicate the nature of the disability to the employer (see Mackenzie,at para. 30). For a duty to inquire to be triggered in this case, the employer must have known or reasonably ought to have known that the employee required further accommodation than she had, up to that point, sought and been provided with. The grievor’s representative relies on Mackenzie for the proposition that the employer’s failure to inquire into the health of the grievor breached the employer’s duty to accommodate. In Mackenzie, the tribunal member emphasized that a failure to inquire “has been found to be discriminatory in certain instances” (at para. 31). The majority of the decisions referenced in Mackenzie, including Mackenzie itself, involved cases of termination. This was certainly not the situation before me. In any event, even if the circumstances of this case triggered a duty to inquire, I am not satisfied that the employer failed to inquire. The onus was on the grievor to communicate the need for accommodation. As I noted earlier, the August 19, 2011, email from the grievor to Ms. Reynolds is compelling evidence from the grievor herself as to her need for accommodation prior to this date. She communicated her need to the employer only in November, despite the disability management coordinator advising her to do so almost two months earlier.

135        The evidence of the grievor’s physician indicated that her condition was aggravated by factors outside the workplace, such as the suicide of a friend of her daughter. The doctor’s evidence was also that she preferred to keep her patients in the workplace. Knowing this, she did not suggest anything that would have required the employer to look to accommodating the grievor outside the call centre before November 25, 2011.

136        The grievor did use a considerable amount of leave, but it was not inconsistent with what others in the call centre used, and it did not concern the employer until the fall of 2011, when the grievor began to submit medical notes that indicated that she required a workplace accommodation. The employer acted on them quickly.

137        Applying the O’Malley test, I find that the grievor’s evidence, if believed, would be complete and sufficient to justify a finding of discrimination in her favour in the absence of an answer from the employer. Her evidence shows that she is disabled and that within the environment that the employer provided her, her disability was an obstacle to performing her work. Accordingly, the grievor has established on a prima facie basis that she was adversely differentiated in her employment on the basis of her disability.

138        Subsection 15(2) of the CHRA sets out a statutory defence to what would otherwise be a discriminatory practice. The applicable portions of s. 15 of the CHRA read as follows:

Exceptions

15. (1) It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement; (...)

Accommodation of needs

15. (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement...it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.

139        For the reasons outlined below, I have concluded that the employer has made out its statutory BFOR defence to the prima facie discrimination. Courts and tribunals have repeatedly stated that the duty to accommodate requires an employer to offer reasonable accommodation; it does not require perfect accommodation or what the grievor seeks as a preferred accommodation.

140        Based on the evidence before me, I have found that the employer met its duty to accommodate in the circumstances. Despite the grievor failing to provide any medical supporting documentation setting out her restrictions or limitations, the employer accommodated her needs after her return to work in January 2011 as requested until her physician advised it that she could no longer work in the call centre environment, following which the employer found an alternate assignment for her at INAC, with her consent. It was not until the grievor’s August 19, 2011, correspondence with Ms. Reynolds that she indicated that she may need accommodation since she “may not be able to do as much phone work.” Once Ms. Bennett received the November 17, 2011, letter from the grievor’s doctor, it is clear to me, based on Ms. Bennett’s testimony and supporting documentary evidence, that she immediately undertook a series of actions, which culminated in the INAC offer. Any delay that might have occurred in implementing the accommodation is attributable to the grievor, including the delay providing medical information to the employer (see Emond).

141        As for the grievor’s argument that the INAC position was not a suitable accommodation and that the employer should have promoted her to a Tier II level or bundled tasks and created a position for her at the call centre, in my opinion, it is without merit. First and foremost, these suggestions would not have met the primary restriction identified by the grievor’s physician, which was that she could not work in the call centre environment. Second, the employer is required to accommodate an employee to the point of undue hardship but is not required to promote an employee or to create a position when other options that meet the employee’s restrictions are available. There is no duty of instant or perfect accommodation, only reasonable accommodation (Zaytoun). I am satisfied that, in the circumstances, the employer’s facilitation of the INAC opportunity for the grievor constituted a reasonable accommodation.

142        To conclude, the INAC position was a reasonable accommodation in all the circumstances; the employer’s duty to accommodate her was discharged. Accordingly, since the employer accommodated the grievor’s disability, it did not discriminate against her.

143        I note that as part of her requested relief, the grievor sought compensation for the sick leave without pay she took during October and November 2011. This was resolved through the grievance process once it was established that the grievor required accommodation. Any other sick leave usage is beyond the scope of this grievance since I have found that the employer did not fail in its duty to accommodate the grievor at any time before she presented her doctor’s recommendations and communicated her limitations and known needs to it in late November 2011. 

144        While I have determined that the employer has met its obligations to accommodate the grievor, the grievor’s representative’s comments concerning the apparent lack of training that call centre managers are provided in this area have merit. I feel that it is entirely appropriate to draw the employer’s attention to a need to provide training to team leads and managers on the duty to accommodate. This is particularly pertinent since the grievor was anticipated to be on sick leave until May 2018 and what her needs are or will be upon her return are yet to be known.  The duty to accommodate is an ongoing duty.  The fact the the grievor was accommodated in 2011 does not relieve the employer of its duties should the grievor now be fit to return to the workplace.

145        Given the sensitive medical information in the exhibits, it is in the best interests of the grievor’s privacy that the medical reports be sealed. However, given that many of them are contained in bound volumes of exhibits and are referred to in other documents in those volumes as well as in loose exhibits filed separately, in my opinion, it is best to err on the side of caution and seal the entire file of exhibits, with the exception of Exhibit 1.

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

V. Order

147        The grievance is dismissed.

148        Exhibits 2 to 11, inclusive, are ordered sealed.

May 15, 2018.