FPSLREB Decisions

File: 166-2-27680 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN J. GARY ISFELD Grievor and TREASURY BOARD (National Defence)

Employer

Before: J. Barry Turner, Board Member For the Grievor: Derek Dagger, Public Service Alliance of Canada For the Employer: Roger Lafrenière, Counsel Heard at Winnipeg, Manitoba, May 28, 1997.

Decision Page 1 DECISION Gary Isfeld, a former Tool Crib Attendant (Storesman), GS-STS-03 classification level, Wing 17, Canadian Forces Base (CFB), Department of National Defence, Winnipeg, Manitoba, is grieving his termination in March 1996.

His grievance reads: I GRIEVE MY LETTER OF TERMINATION DATED 15 MARCH 1996, FILE # 6007-14-1(A/COMD), WHICH I RECEIVED 29 MARCH 1996.

The termination letter signed by B.C. Horseman, Major-General, Acting Commander, on March 15, 1996 reads: As you are aware, the Commanding Officer 17 Wing Winnipeg has recommended the termination of your employment.

The Wing Commander’s recommendation is based on your substantial and continuing absence from work, and medical assessments which indicate a physical incapacity that precludes a return to your position at 17 Wing. Indeed it is my understanding that you have confirmed your own view that you do not believe you will be able to return to resume your former employment.

Based on my review of these circumstances, and having been satisfied that reasonable effort has been extended to identify alternative employment which might accommodate your limitations, it is my decision to support the Wing Commander’s recommendation.

By the authority delegated to me by the Deputy Minister of the Department of National Defence under sections 11 (2) (g) of the Financial Administration Act, you are hereby notified that your employment in the Public Service will be terminated effective 29 March 1996.

You are further advised that you have the right to grieve this termination within 25 days from the date of receipt of this letter.

Mr. Isfeld is requesting the following corrective action:  REINSTATEMENT IN A POSITION WHICH CORRESPONDS WITH MY MEDICAL RESTRICTIONS; OR

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Decision Page 2 ‚ A LETTER OF SURPLUS AND A REASONABLE JOB OFFER OF A POSITION WHICH CORRESPONDS WITH MY MEDICAL RESTRICTIONS; OR

ƒ TO BE OFFERED A CHOICE OF EXISTING FINANCIAL PACKAGES AT TIME OF TERMINATION (CRP/EDI)

I am being asked to decide if the employer’s decision was justified. The hearing lasted one day with four witnesses testifying and twenty-three exhibits submitted into evidence.

Summary of Evidence 1. Major Allen Augustson has served with the Canadian Armed Forces for 31 years in many locations across Canada. He knew the grievor during the period 1982 to 1985 when he worked at the base in Winnipeg, but had no reporting relationship to the grievor at that time. He became the grievor’s manager in 1992 when Mr. Isfeld was a Tool Crib Attendant (or Storesman) who would provide tools to the technicians on the maintenance floor and replenish consumables to the mechanics from the stores. There were 60 to 70 persons at the time in the workshop who needed the grievor’s assistance. Major Augustson testified that in 1992, the only concern he had regarding the grievor’s performance was his attendance problem. He had to implement sanctions to make sure any absences that the grievor had were accompanied by a doctor’s certificate, and all his leave requests had to be approved. The witness testified that this situation worsened and came to a head in the summer of 1993 when the grievor’s attendance went from poor to non-existent. Major Augustson approved an extended leave of absence with pay initially and then without pay. The grievor was advised of these concerns and told that Major Augustson would be taking some kind of administrative action. Major Augustson worked with Ms. Jane Field, Civilian Personnel Officer at the time (C.P.O.). They prepared a package of information concerning the grievor’s use of sick leave and discretionary leave as Exhibit E-1, Appendix 1 that included eight performance reviews, and Appendix 2, a letter of counselling sent to the grievor in August of 1991. The witness also identified a series of appendices up to Appendix 17 attached to Exhibit E-1. He referred in particular to Appendix 10 of Exhibit E-1, a breakdown that showed an analysis of the use of discretionary leave; that is leave according to Major Augustson that was not normally

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Decision Page 3 planned. In the case of Mr. Isfeld, the vast majority of his leave requests were linked to weekends or holidays. Major Augustson said that Appendix 11 explains some changes in responsibilities that they were implementing on the base. Major Augustson took full responsibility for the changes that saw the grievor work during the summer of 1993 not at the tool crib but on the shop floor as a Tradeshelper. He testified that the continuing absences by the grievor hurt the work being done on the shop floor. Major Augustson indicated that in June 1993, he met with the grievor and his union representative, Mr. B. Monteith, to explain what changes they were going to initiate regarding the grievor’s responsibilities on the shop floor. The witness testified that the grievor spoke to him regarding his family problems and his medical health. Mr. Isfeld told him that both of these were more important to him than his employment in the workshop. Major Augustson testified he was aware of some of the health difficulties that Mr. Isfeld was trying to contend with; for example, walking up and down stairs, low back problems that would not allow him to pick up anything that was very heavy, and he could not bend very well. Major Augustson said it was decided to move Mr. Isfeld from his position in the Tool Crib to a Tradeshelper position with a designation ECE-3. Major Augustson said: “We built the position to suit him as a condition of his working behaviour.” Major Augustson added that part of the new duties would be to clean up the shop floor and that the grievor could get help to do heavy work since he had mechanical tools to lift heavy objects whereas in the tool crib he was working alone. This was all explained to Mr. Isfeld.

Mr. Lafrenière entered Appendices 12, 13, 14 and 15 not for the truth of their content but merely to show that documentation was provided by various people explaining the shortcomings of the grievor. Mr. Dagger objected to these appendices as hearsay evidence. Mr. Lafrenière agreed that they were in fact hearsay. I indicated I would weigh them accordingly in my decision.

Major Augustson added that Appendices 12 through 15 were written after the June 29, 1993 counselling meeting with the grievor (Appendix 17) that counselled the grievor that the C.P.O. was going to be processing a recommendation for termination because of absenteeism. Mr. Isfeld was therefore put on alert that his job was in jeopardy because of his lack of attendance. Major Augustson made it clear that at the June 29, 1993 meeting, the grievor was not being terminated but was being advised Public Service Staff Relations Board

Decision Page 4 that the process was going to be put in motion. He added that if the grievor resigned at the time, his resignation would have been accepted. Major Augustson identified Appendix 16, a request for sick leave without pay from the grievor dated August 30, 1993 with attached letters from two medical doctors. Major Augustson approved his request when he signed it on August 31, 1993. With reference to Appendix 17, the summary of the June 29, 1993 meeting with the grievor and Mr. Monteith, Major Augustson testified that the initial recommendation for termination was not accepted by the employer but a further medical evaluation was determined to be necessary.

Major Augustson identified Exhibit E-3 a January 31, 1994 letter from Dr. Lappi, Health Canada, indicating that in February 1994 the grievor would be starting a new treatment that should have had a positive effect on his health. Major Augustson identified a second summary of the grievor’s history as Exhibit E-2 dated March 1, 1994, that had attached to it Dr. Lappi’s first letter concerning the grievor. Major Augustson said Exhibit E-2 was a strong recommendation that Mr. Isfeld’s employment be terminated forthwith. To the best of his knowledge, this second recommendation was not accepted in the form that it was produced. Major Augustson identified as Exhibit E-4, a memorandum he sent to the C.P.O. dated September 23, 1993 requesting a re-evaluation of Mr. Isfeld’s medical situation. This was written in response to Appendix 16, the request of 30 August 1993 for leave without pay. Subsequently Mark Johnson, C.P.O. in Winnipeg wrote to Dr. Lappi requesting additional medical assessment of the grievor in October 1993 (Exhibit E-5). The witness identified another letter dated October 1993 (Exhibit E-6) sent to Mr. Isfeld by Dr. Lappi explaining that the employer wished to re-evaluate his medical situation.

Major Augustson identified a memorandum from Colonel J.R.B. Proulx, Wing Commander, dated March 10, 1994 (Exhibit E-8) that was a recommendation for termination of Mr. Isfeld. Exhibit E-8 reads: In accordance with the documentation provided at reference, it is recommended that Termination be initiated for Mr J.G. Isfeld. Mr Isfeld has been on LWOP since September 1993 and there is no indication that he has any intentions of returning to work nor any indication that, if he did return,

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Decision his performance would unsatisfactory.

Major Augustson testified that the grievor was still not back at work. The witness identified another letter from Dr. Lappi (Exhibit E-9) dated March 25, 1994, that indicated the grievor had been unable to start his new treatment program. Major Augustson said in July 1994 he was relocated to Air Command Headquarters in Winnipeg but that C.P.O. Johnson and Major Hall assumed responsibilities for the grievor’s file. He said up to July 1994, Mr. Isfeld never attempted to return to work. The witness was not aware in March 1994 that the grievor had applied for disability insurance.

During cross-examination, counsel for the grievor referred to Appendix 9, a summary of various leave legends that the grievor had taken over a couple of years. When asked what he meant by discretionary leave, Major Augustson said that it is normally referred to as Code 210, on Appendix 9, that is Uncertified Sick Leave, but in some instances Code 220 Certified Sick Leave could be deemed to be discretionary as would be Code 410, Family Related Leave. He said that Code 990, Other Leave Without Pay, would not include discretionary leave. Major Augustson agreed with Mr. Dagger that if an employee was off for a full month on sick leave then one hundred percent of the day before or the day after a weekend would in fact be linked to a weekend. When asked if he had seen Exhibit G-1, a letter dated 22 September 1993 sent to Mr. Isfeld by C.P.O. Jane Field, Major Augustson said yes, he had seen this memo that reads in paragraph 1: 1. The above referenced memo requests retraining that would enable you to change to a desk job, which in your opinion would improve your condition and allow you to continue working. At this point in time, this office sees no possibility for retraining. Your unenviable attendance record is unacceptable and as a result the department is not prepared to invest in preparing you for another position with the Public Service. As you have not been able to establish or maintain a reasonable attendance record, you are not a valued employee of Wg EME and due to the lack of commitment shown to your present position, we have no reason to expect improved dedication to different duties.

Major Augustson agreed at the time he saw Exhibit G-1 he had medical records for the grievor’s ailments. When asked if people who were in such a medical condition

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Page 5 be anything other than

Decision Page 6 became a non-valued employee, he responded: “No, not at all.” Major Augustson did not agree with Ms. Field’s assessment of the grievor in paragraph 1 stated above because in terms of the workshop, he felt that Mr. Isfeld was indeed a valued employee.

Major Augustson testified that as far as he could recall, the STS-03 position the grievor held as his substantive position was never eliminated, even though in the summer of 1993 they built a new position for the grievor previously referred to as an ELE-3. Major Augustson identified Exhibit G-2 dated 10 June 1993, a memorandum to Mr. Isfeld that in effect downgraded his position from his STS-03 position in the Tool Crib to a Tradeshelper on the shop floor at the ELE-2 or 3 level. This was done as part of the downsizing of the military and civilian workforces, and was the beginning of an amalgamation for the supply section. He believed however that the grievor kept his STS-03 status. When asked by Mr. Dagger if this new position was not going to exacerbate the grievor’s physical problems, because it required him to move oil drums, to pick up things, and to move around a lot, witness Augustson testified: “Not at all. In the crib he was alone, he had to bend, he had to sweep and he had to clean up. He would not have to go up and down stairs as a result of his new position.” He added that his previous function in the tool crib required that he stand or sit mostly behind a counter. Witness Augustson felt in the long run this new position would have been better for the grievor. He could not recall the grievor telling him that he preferred to work in the tool crib. He added that the tool crib job was now a hybrid one because of the downsizing. When asked if the grievor wrote to him asking for a job where he could sit down, witness Augustson responded that the grievor had written a memo to this effect. Major Augustson and his colleagues were not able to find another job outside of Wing 17 for the grievor, since he did not have enough C.P.O. knowledge but he tried to accommodate Mr. Isfeld in his squadron and Wing 17, even though there were more National Defence jobs in Manitoba.

Witness Augustson did not recall meeting with Mr. Isfeld before the grievor submitted Appendix 16, that is the August 30, 1993 request for sick leave without pay. With respect to the summary of the grievor’s absences in Exhibit E-1 that the witness co-authored with Jane Field, Major Augustson acknowledged that some of the absences referred to in Exhibit E-1 were due to the grievor being struck by a vehicle on a picket line in 1991 and as a result of a sport injury. Major Augustson was not aware Public Service Staff Relations Board

Decision Page 7 as a result of the 1991 accident the grievor spent some time on disability insurance. Regarding Appendix 17, Major Augustson indicated that the main purpose of the June 29, 1993 meeting was to advise the grievor of his options at the time. It was not to harrass him out of the workplace. No one attempted to do that. He added that at that time, he felt all of their options had been exhausted for the grievor, since in 1993 there were no other jobs available for the grievor in his civilian organization that he could have gone to. Major Augustson identified a job description for Tradeshelper (Exhibit G-3) that he felt was a proper reflection of what the grievor was expected to do. Part of these duties included washing vehicles with a high pressure hose to remove snow and mud so that mechanics could work on them. Major Augustson added there was no more bending to do this work than the grievor had previously done in the tool crib. He also had to wash small passenger cars and transport trucks, and on a comparative basis, the witness felt that he was doing an easier job, even moving barrels as he had done previously in the tool crib since he had a forklift and a dolly to use for that purpose. Major Augustson added it was easier for the grievor to get help on the shop floor to do various tasks than it was for him to get help when he was working in the tool crib.

During re-examination, the witness was referred to Exhibit E-1, Appendix 16, the attached letter from Dr. Chlysta, that indicated certain restrictions the grievor was confined to. When asked if there was a civilian position that could accommodate these restrictions, he responded that there was none. When asked regarding Dr. Chlysta’s restriction that the grievor should not sit for prolonged periods of time, Major Augustson indicated that even when he worked in the Tool Crib a large percentage of his time would have been spent sitting.

With respect to Exhibit G-2 the witness’ memorandum to Mr. Isfeld indicating that his position was going to be downgraded, when asked if Mr. Isfeld opposed this downgrading, Major Augustson responded: “To the best of my recollection, no.” Major Augustson added with reference to Ms. Field’s comment in Exhibit G-1 that there was no possibility for retraining the grievor, Major Augustson said in his shop there was no position that the grievor could have been retrained for, in fact, they were doing downsizing at the time.

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Decision Page 8 2. Major Arthur Hall has worked with the Defence Department for eighteen years and took up the grievor’s file when he moved to Winnipeg in July 1994. Major Hall testified that he was briefed regarding the status of the grievor’s situation, and that Air Wing Headquarters was waiting for another medical evaluation of the grievor. Major Hall first met Mr. Isfeld early in August 1994 with his shop steward when he gave him a sick leave chit with no pay for the period September to November 1994. He said Mr. Isfeld briefed him on what had happened to him over the last few years and what his medical limitations were, and said he was undergoing new therapy and hoped it would be helpful to allow him to bend, to sit, to do more basic tasks. Major Hall said they discussed whether or not the grievor could return to the tool crib or work on the shop floor and that he told Mr. Isfeld he would make every effort to accommodate him, even in the tool crib. Witness Hall said that the grievor told him his medical condition at the time prevented him from returning to work. Major Hall identified Exhibit E-10, a letter dated August 4, 1994 that the grievor sent to the Director of Appeals and Controls Program for Canada Pension Plan (CPP) disability. The last sentence on page 2 of Exhibit E-10 reads: Therefore, due to the condition of my back, I don’t see myself able to perform gainful employment in the foreseeable future.

When asked if this is what Mr. Isfeld told him in August 1994, Major Hall said: “Yes, this is what he explained to me as well.” Witness Hall said the grievor told him in August that he was going to be on disability until the end of November 1995. Major Hall asked at the time if he thought the grievor could work in the control office to do clerical work to which he said Mr. Isfeld told him he could not sit for long periods of time. Mr. Monteith also attended the August 1994 meeting. When asked by Mr. Lafrenière if there was anything that the grievor could have done in the workshop at the time, Major Hall responded: “No, not with his limitations as he told me.” At the time, Major Hall thought the grievor was going to be returning to work near the end of August 1994. Major Hall identified Exhibit E-11, a letter sent by the C.P.O., Mark Johnson, dated 13 September 1994 requesting an updated medical opinion concerning the grievor’s status. Dr. Lappi did not respond to Exhibit E-11. Major Hall said that the grievor came to see him again with a request for leave extension without pay for the period December through to February 1995.

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Decision Page 9 Major Hall identified another recommendation for termination of the grievor dated 14 February 1995, Exhibit E-12, with a number of appendices attached, correspondence and medical evaluations, that led local management to be convinced that Mr. Isfeld was never going to be fit to return to work. Major Hall identified Appendix 4 of Exhibit E-12 dated 12 August 1994, as a summary of the meeting he had with the grievor and Mr. Monteith where the grievor indicated he would be willing to entertain a transfer to a more sedentary job but was not sure whether he could cope. The witness identified Appendix 5 dated November 21, 1994 of Exhibit E-12 where he requested an updated medical assessment of the grievor. He stated in Appendix 5: “It is quite clear to me that Mr. Isfeld has no intention of returning to work at WG EME.” Major Hall identifed Appendix 10 of Exhibit E--12 dated December 5, 1994, as an updated medical situation regarding the grievor from Dr. Lappi. Major Hall said he was disappointed with the items listed by Dr. Lappi because he did not indicate what the grievor could do that would allow Major Hall to help accommodate him in the workshop. He added Appendix 10 contradicts what the grievor told him personally in August 1994. Regarding Appendix 11, Exhibit E-12, dated 22 December 1994, Major Hall indicated that he was not happy with Dr. Lappi’s assessment since he felt management had tried to accommodate the grievor’s deteriorated medical condition as much as possible. Major Hall testified he believed the move from the tool crib position to the shop floor was a move that would be a little more difficult. Major Hall identified Appendix 12, Exhibit E-12, dated 8 February 1995 as a letter from C.P.O. Mark Johnson to Dr. Lappi requesting clarification regarding what the grievor was capable of doing. The witness added that the storeman position or the tool crib position was available to the grievor to return to. Mr. Isfeld said he could not do such work any longer. Appendix 13, Exhibit E-12, dated 14 February 1995, sent to the grievor was an acknowledgement by C.P.O. Johnson that management was going to proceed with the original recommendation to terminate the grievor’s employment. As far as Major Hall is concerned, he is not aware of any disagreement from Dr. Lappi regarding their decision to terminate the grievor.

Appendix 10, Exhibit E-12, dated December 5, 1994 sets out Dr. Lappi’s five main points regarding what the grievor could not do. This letter reads as follows:

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Decision Page 10 I had the opportunity of seeing Mr. Isfeld on December 2, 1994 as requested. Following a discussion of his current health problems, we explored a number of potential solutions which would be acceptable to him. These potential solutions are: