FPSLREB Decisions

File: 166-2-26311 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN PETER BEGLEY Grievor and TREASURY BOARD (Public Works and Government Services Canada)

Employer

Before: Rosemary Vondette Simpson, Board Member For the Grievor: Himself For the Employer: Roger Lafrenière, Counsel

Heard at Ottawa, Ontario, December 19 and 20, 1995 and January 23 to 26, 1996.

Decision Page 1 DECISION By letter of May 16, 1994, signed by the Deputy Minister, R.A. Quail, the grievor, Mr. Peter Begley, was terminated for cause effective May 18, 1994 pursuant to section 11(2)(g) of the Financial Administration Act.

The letter of termination (Exhibit E-1, Tab 2) sets out the employer’s reasons for termination as follows: ... Since the appointment to your current position in 1989, you have worked the equivalent of fifteen days. Medical assessments have concluded that you suffered from stress and are unable to work in a computerized or deadline- sensitive production environment. No position at the CR-4, or equivalent, level has been identified given the highly automated work environment of the department. Prior to recommending your termination, management explored alternative solutions and identified a number of lower-level positions which you have refused.

In view of these facts and your failure to cooperate with our efforts to obtain an accurate health assessment, your employment is being terminated effective May 18, 1994...

Mr. Begley grieved the termination as follows: On May 18, 1994 I received a letter dated May 16, 1994 in which I was advised that my services were to be terminated on May 18, 1994. I grieve that this is unjust.

Corrective Action Requested: That this letter terminating my services be rescinded and all documents including the letter related to this matter be removed from my personal file and destroyed.

Two witnesses, Karen Munro and John Bremner, were called by the employer to give evidence. As well as giving evidence as to the sequence of events in the dealings by the Department with Mr. Begley, they submitted, identified and explained the 89 documents contained in Exhibit E-1.

The witnesses made the following identification of documents of Exhibit E-1: Public Service Staff Relations Board

Decision Page 2 Tab 1 Background information Tab 2 Termination letter May 16, 1994 Tab 3 Recommendation letters for release Tab 4 Letter from Peter Begley to Yvon Gravel May 3, 1994 responding to Mr. Gravel’s request for medical certificates

Tab 5 Letter from P. Begley to Karen Munro April 25, 1994 advising her he forwarded a medical certificate to SunLife and will not be returning to work

Tab 6 Bernie Bartley’s recommendation to April 19, 1994 G.J. Matthieu to terminate employment

Tab 7 Benefit calculations should employee April 18, 1994 be released

Tab 8 Letter from Y. Gravel to P. Begley March 18, 1994 requesting medical certificates

Tab 9 Letter from SunLife advising P. Begley February 4, 1994 requested information relating to a rehabilitation program

Tab 10 Letter from K. Munro to P. Begley January 24, 1994 requesting medical certificates

Tab 11 Letter from P. Begley to Y. Gravel January 17, 1994 advising his studies will terminate soon

Tab 12 Medical certificate January 26, 1994 Tab 13 Letter from P. Begley to K. Munro January 11, 1994 informing her he has changed his phone number and will not give it to anyone

Tab 14 Letter from K. Munro to P. Begley January 7, 1994 requesting medical certificates

Tab 15 Letter from K. Munro to P. Begley December 23, 1993 requesting medical certificates

Tab 16 Letter from Dr. Mohanna to K. Munro December 17, 1993 advising P. Begley did not keep his appointment

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Decision Page 3 Tab 17 Letter from P. Begley to K. Munro December 10, 1993 advising he would not be able to attend his appointment

Tab 18 Confirmation P. Begley received letter December 3, 1993 Tab 19 Memorandum from K. Munro to December 1, 1993 Y. Gravel advising invoice due

Tab 20 Letter from Dr. Lloyd-Jones to K. Munro November 25, 1993 advising an appointment has been scheduled for P. Begley

Tab 21 Letter from K. Munro advising November 24, 1993 P. Begley missed his appointment

Tab 22 Invoice for missed appointment November 10, 1993 Tab 23 Letter from Dr. Mohanna to Ann Condon November 4, 1993 advising P. Begley did not attend his scheduled appointment

Tab 24 Letter from Dr. Lloyd-Jones to October 8, 1993 P. Begley advising him of his scheduled appointment

Tab 25 Letter from Dr. Lloyd-Jones to October 8, 1993 A. Condon advising P. Begley has been scheduled for an assessment

Tab 26 Letter from Dr. Mohanna to A. Condon September 21, 1993 advising P. Begley did not keep his appointment

Tab 27 Letter from K. Munro to P. Begley August 20, 1993 requesting medical certificates

Tab 28 Letter from Dr. Mohanna to A. Condon August 12, 1993 advising P. Begley has been scheduled for a medical assessment

Tab 29 Letter from K. Munro to P. Begley August 11, 1993 confirming his appointment

Tab 30 Letter from P. Begley to Bernie McLean July 13, 1993 requesting to participate in a career planning service

Tab 31 Letter from A. Condon to Dr. Lloyd-Jones June 23, 1993 requesting a follow-up assessment of P. Begley

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Decision Page 4 Tab 32 Letter from A. Condon to P. Begley June 4, 1993 advising him the Department does not have a copy of the policy for Career Development Leave with Pay, rather the Department applies Section M-23.05 of the Master Collective Agreement (Career Development Leave With Pay)

Tab 33 Letter from P. Begley to A. Condon May 25, 1993 requesting a copy of the departmental leave policy and 4th level reply from Ruth Hubbard

Tab 34 E-mail from John Bremner to A. Condon May 14, 1993 requesting an up-date concerning attempts to find a position with an equal rate of pay for P. Begley

Tab 35 E-mail from J. Bremner to A. Condon May 13, 1993 advising P. Begley will be able to return to full duties at the end of six months

Tab 36 Letter from P. Begley to Y. Gravel May 12, 1993 requesting a copy of the Departmental Policy on Education Leave Without Pay and Career Development Leave With Pay

Tab 37 Letter from Dr. Lloyd-Jones to J. Bremner May 11, 1993 advising P. Begley is “unfit for work”

Tab 38 Benefit calculations should employee May 4, 1993 be released

Tab 39 Letter from Chuck McMullen to March 31, 1993 K. Kudo of SunLife advising on the leave status of P. Begley

Tab 40 Letter from Y. Gravel to P. Begley March 29, 1993 advising him of his scheduled appointment with Health and Welfare

Tab 41 Letter from Dr. Mohana to Y. Gravel March 23, 1993 advising an appointment for P. Begley has been scheduled

Tab 42 Memorandum from M. Josée Posen to March 3, 1993 Ruth Hubbard advising her a final level grievance has been scheduled

Tab 43 Letter from Y. Gravel to Dr. Quevillon February 26, 1993 Public Service Staff Relations Board

Decision Page 5 requesting a medical assessment of P. Begley

Tab 44 Letter from B. McLean advising February 25, 1993 P. Begley a medical assessment will be requested

Tab 45 Benefit calculations should February 5, 1993 employee be released

Tab 46 Letter from K. Kudo from SunLife January 25, 1993 requesting a note that P. Begley could not return to the office July 6, 1992

Tab 47 Letter from Jill Stern to P. Begley January 19, 1993 grievance denied

Tab 48 Briefing notes from third level hearing January 18, 1993 Tab 49 Letter from Y. Gravel to P. Begley January 6, 1993 ordering him to return to work

Tab 50 Letter from P. Begley to Y. Gravel December 30, 1992 requesting a meeting to discuss the possibility of D.I.

Tab 51 Letter from Y. Gravel to P. Begley December 21, 1992 advising him he is on unauthorized leave and requesting the required leave forms

Tab 52 Memorandum from C. McMullen to December 17, 1992 P. Begley confirming employment status

Tab 53 Letter from P. Begley enclosing December 11, 1992 an updated resume

(Tab 54 Moved to Tab 33) Tab 55 Letter from Richard Lefebvre to December 9, 1992 A. Condon advising he agrees to the time of the third level grievance hearing

Tab 56 Letter from Y. Gravel to P. Begley November 13, 1992 advising grievance denied at second level

Tab 57 Briefing notes from second level hearing November 10, 1992 Public Service Staff Relations Board

Decision Page 6 Tab 58 Letter from Y. Gravel to P. Begley November 9, 1992 requesting leave forms

Tab 59 Grievance form October 22, 1992 Tab 60 Memorandum from A. Condon to October 20, 1992 Personnel Managers seeking a term position for P. Begley

Tab 61 Letter from P. Begley to Y. Gravel October 9, 1992 advising he will not consider a voluntary demotion

Tab 62 Letter from Y. Gravel to P. Begley October 7, 1992 requesting leave forms

Tab 63 Letter of offer to P. Begley (refused) October 7, 1992 Tab 64 Letter from P. Begley to C. McMullen October 2, 1992 requesting 13 files be sent to him according to the Privacy Act

Tab 65 Letter from P. Begley to Louise Hubert September 18, 1992 advising he does not know when he will return to work

Tab 66 Letter from L. Hubert advising him as September 8, 1992 he did not report for work September 1 it could be construed as abandonment

Tab 67 Memorandum from A. Condon to September 2, 1992 Personnel seeking a position for P. Begley

Tab 68 Letter from P. Begley to Marcel Bujold August 24, 1992 advising he will accept volunteer demotion but will appeal

Tab 69 Note from C. McMullen to P. Begley August 18, 1992 advising he has been entered into the departmental transfer inventory

Tab 70 Letter of offer accepted by P. Begley August 7, 1992 and advising he will report to work September 1, 1992

Tab 71 Letter from Dr. Carre to Y. Gravel July 28, 1992 advising P. Begley is fit for work

Tab 72 Letter from Y. Gravel to Dr. Lloyd- July 6, 1992 Jones requesting a medical assessment

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Decision Page 7 of P. Begley Tab 73 Letter from Y. Gravel to P. Begley July 6, 1992 advising the work available is “systems work”

Tab 74 Letter from P. Begley to C. McMullen June 17, 1992 advising the CR-3 position offered to him is not acceptable

Tab 75 Letter from Dr. Carrière to Claude May 22, 1992 Riberdy advising P. Begley is not fit for work

Tab 76 Letter of offer to P. Begley April 28, 1992 Tab 77 Letter from C. Riberdy to Dr. Lloyd- April 16, 1992 Jones requesting assessment results

Tab 78 Letter from C. Riberdy outlining his February 27, 1992 conditions of employment

Tab 79 Letter from C. Riberdy to P. Begley February 6, 1992 outlining his conditions of employment

Tab 80 Letter from Dr. Lloyd-Jones to C. Riberdy January 21, 1992 advising P. Begley he could return to work on a part-time basis

Tab 81 Letter from Marlene Gaudet of SunLife January 10, 1992 Tab 82 Letter from Dr. Mohanna to C. Riberdy January 8, 1992 advising P. Begley is scheduled for a medical assessment

Tab 83 Letter from C. Riberdy to Health and December 27, 1991 Welfare requesting a medical assessment of P. Begley

Tab 84 Letter from C. Riberdy to P. Begley December 2, 1991 advising Peter of his appointment

Tab 85 Letter from P. Begley to Larry Osborne August 8, 1991 Tab 86 Letter of offer May 3, 1989 Tab 87 Letter from G.M. Lafrenière to P. Begley March 23, 1989 advising him his request for sick leave without pay from April 3, 1989 to April 7,1989 is granted

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Decision Page 8 Tab 88 Leave records from 1984 to 1990 Tab 89 Confirmation Taken on Strength January 4, 1983 FACTS These facts were submitted in the employer’s case. They were not disputed by Mr. Begley. Mr. Begley also stated that it was his decision not to call any evidence.

At the end of the employer’s case, counsel for the employer submitted that I should rely on the summary of evidence (excluding any opinions expressed) contained in a letter from Mr. Don Pease, Research Officer, Public Service Alliance of Canada (Exhibit E-3). This was an accurate summary of the evidence as presented by the employer’s witnesses and their exhibits. It was also certified as correct by Mr. Begley.

Mr. Pease’s letter provides the following convenient summary which was accepted as factual by both parties: ...prior to his termination on May 18, 1994, the grievor had been away from his CR-04 substantive position for about 4 1/2 years. During at least a good portion of the time since his initial absence in 1989, Mr. Begley has received Disability Insurance payments for some portion of his income. He appears to have been fully covered by DI since at least April of 1993 and I understand that he continues to receive DI. Sun Life also covered a 45-week training course which was scheduled to run from October 1993 to November 1994 (apparently not completed due to illness).

Following his initial period of sick leave, the Health & Welfare doctor to whom Mr. Begley was referred for re-assessment wrote to the employer on July 28, 1992 declaring him fit to return to work with the proviso that:

“In order to prevent recurrence of the factors leading to his past disability, it is mandatory that work load related to Computer work and deadline, be kept to a maximum of 10 to 15 percent.”

Prior to this medical assessment, Mr. Begley had, in April 1992, been offered a CR-3 position in the Cheque Enquiry Unit which he refused.

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Decision Page 9 Subsequent to this assessment, the employer stated that, given the automated and deadline-oriented nature of its work, it was unable to locate a CR-4 position with such limitations.

However, on August 7, 1992, the employer offered Mr. Begley a CR-2 Mail Clerk position with the warning that if he did not either accept the CR-2 position or return to his substantive CR-4 position, he might be released for incapacity. Mr. Begley declined return to his substantive CR-4 position as it would involve too much stress, but accepted the CR-2 offer under protest, stating in a letter of August 24, 1992 that he did so solely because of the possibility of release for incapacity.

This job was to start on September 1, 1992, but the grievor did not show up for work nor did he call to explain his absence. On October 7, 1992, the employer reiterated its offer of the CR-2 position and requested a clear-cut reply. Mr. Begley declined this offer and on October 21, 1992 filed a grievance against the employer’s failure to provide him with “an equivalent rate of pay job with SSC” and requesting the same as redress.

On January 6, 1993, the employer wrote Mr. Begley stating that he was considered to have been on unauthorized leave since June 30, 1992 and ordering him to report for work on January 13, 1993 in one of four jobs:

- his substantive CR-4 position; - the previously offered CR-3 Cheque Inquiry Unit position;

- the previously offered CR-2 Mail Clerk position; or - a new offered GS-ST-3 General Services clerk position. The employer stated that failure to answer this letter would result in termination due to abandonment.

The grievor declined to accept any of the four positions offered (i.e. three alternatives to his clearly too stressful substantive position), but arrangements were subsequently made for retroactive granting of leave of various types (personal needs, special & so-called sick leave w/o pay) for the period March 26, 1992 until such time as a new NHW medical was completed.

On May 11, 1993, NHW informed the employer that its new assessment found the grievor unfit for work, but anticipated

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Decision Page 10 that treatment would allow him to return to work. A follow- up medical assessment was said to be scheduled for six months later.

.... The matters which finally brought about the termination at issue here are documented in correspondence from September 1993 through May 1994.

Much of this correspondence concerns a series of NHW medical appointments which were missed by the grievor during this period (written records of employer telephone calls to SSU of September 22 and October 5, 1993 and employer letters to the grievor of December 23, 1993 and January 7, 1994). Reference is also made in this correspondence to a medical certificate estimating Mr. Begley’s return to duty on December 22, 1993 (this was not provided to the employer until February 18, 1994). In addition, Mr. Begley informed the employer in a letter dated January 17, 1994 that his DI-paid course (which began October 13, 1993) would not end until November 1994 and that:

“if between now and then the department is not able to obtain for me a position at an equivalent level, I assure you that I will let you know the exact date of my return with reasonable notice.” (our translation)

From this communication it is clear that even though he had apparently obtained medical approval for return to work on December 22, 1993, Mr. Begley was refusing to do so unless the department provided him with a position equivalent to his substantive CR-4 position.

The employer’s letters of January 7, 1994 and March 18, 1994 contain warnings that a continued failure to cooperate in attending medical assessments and providing other medical information would result in termination of employment. The employer’s letter of March 18, 1994 sets a deadline of April 8, 1994 for provision of the three items of medical information requested therein.

Despite this deadline, Mr. Begley did not reply until May 3, 1994, nearly a month after the deadline. His response provided only one of the three items of medical information requested. He then explained that he had suffered a recurrence of his incapacity (our translation):

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Decision Page 11 “I was not able to continue my course because my health does not permit me to continue and I will be submitting to Sun Life a new medical certificate as soon as possible.”

The employer’s letter of termination dated May 16, 1994 followed. ....

Mr. Begley argued that his termination was unjustified. The employer had no knowledge that he might not be well enough someday to return to his job. In addition, the employer did not adequately accommodate his illness.

Counsel for the employer argued that despite reasonable efforts to accommodate the grievor, Mr. Begley was uncooperative in assisting in his rehabilitation and ultimate reintegration.

REASONS FOR DECISION The employer made reasonable efforts to accommodate the grievor’s illness. The statement of facts set out in the body of my decision and acknowledged as accurate by both parties amply indicates this.

Mr. Begley himself was less than cooperative in assisting his employer to assess his medical condition on a number of occasions throughout the period of his illness. He did little to keep his employer fully informed of his condition or even to facilitate the medical appointments which the employer had arranged. Although the employer may be said to have a duty to accommodate the employee in cases such as the present one, the employee also bears a duty.

As Justice Sopinka stated in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, beginning at p. 994:. The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. ... To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in

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Decision Page 12 determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

Mr. Begley is correct in stating that the employer had no knowledge that he might not be well enough someday to return to his job. Nevertheless, the employer need not be certain of an employee’s state in such circumstances. It is well established in arbitral jurisprudence that all that is required is that the information on hand lead to the conclusion that the employee will not be able to report to work in the foreseeable future: see for example City of Sudbury and C.U.P.E., Local 207 (1981), 2 L.A.C. (3d) 161 and Canada Post Corporation and C.U.P.W. (Potosky), (1982),.6 L.A.C. (3d) 385.

While I sympathize with the position Mr. Begley finds himself in, I can find no grounds for interfering in the employer’s decision to terminate Mr. Begley’s employment.

The grievance is denied.

Rosemary Vondette Simpson, Board Member

OTTAWA, May 22, 1996.

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