FPSLREB Decisions
Decision Information
Jurisdiction - Termination (non-disciplinary) - Medical incapacity - Duty to accommodate - Remedy - grievor, who suffered from chronic fatigue and immune dysfunction syndrome, had been on sick leave without pay for approximately eight years when the employer terminated his employment - grievor sought accommodation of his disability through reinstatement of the status quo which existed at the time of termination - employer referred to a complaint submitted by the grievor to the Canadian Human Rights Commission (CHRC) which alleged that the employer's policy of terminating the employment of disabled employees violated section 10 of the Canadian Human Rights Act (CHRA) - employer submitted that in light of subsection 91(1) of the Public Service Staff Relations Act (PSSRA) the adjudicator had no jurisdiction to entertain any arguments raised by the grievor relating to alleged violations of the CHRA or the Canadian Charter of Rights and Freedoms (Charter) - in addition, employer objected to grievor's attempt to alter at adjudication the remedy which he was seeking - referring to subsection 92(1) of the PSSRA, the adjudicator ruled that he clearly had jurisdiction to entertain an employee's grievance against the termination of his employment for medical incapacity - relying on the decision of the Supreme Court of Canada in Weber v. Ontario Hydro [ 1995] 2 S.C.R. 967, the adjudicator held that in determining such a grievance he had the authority to consider any evidence and argument relating to violations of the CHRA and the Charter which might be relevant to the outcome of the grievance - in any case, the adjudicator found on the evidence that the employer had not violated either the CHRA or the Charter when it terminated the grievor's employment - adjudicator determined that employer had been justified in terminating the grievor's employment because the evidence supported its conclusion that he was unfit to work at the time of termination and he would not be in a position to return to work in the foreseeable future - furthermore, relying on the decision of the Federal Court of Appeal in Burchill v. Attorney General of Canada [ 1981] 1 F.C. 109, the adjudicator ruled that it was not open to an employee to alter the remedy he was seeking at adjudication. Grievance denied. Cases cited: Campbell (166-2-25616); Begley (166-2-26311); McCormick (166-2-26274); Weber v. Ontario Hydro [ 1995] 2 S.C.R. 967; Burchill v. Attorney General of Canada [ 1981] 1 F.C. 109.
Decision Content
File: 166-2-27847 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN ERIC SCHEUNEMAN Grievor and TREASURY BOARD (Natural Resources Canada)
Employer Before: J. Barry Turner, Board Member For the Grievor: Himself For the Employer: Stéphane Arcelin, Counsel Heard at Ottawa, Ontario, September 15, 18 and 21, 1998.
Decision Page 1 DECISION Mr. Eric Scheuneman, the former Head, Technology and Industry Development, Energy Technology Branch, Natural Resources Canada, Ottawa, Ontario, is grieving the termination of his employment for cause. His grievance dated January 17, 1997 reads: I am aggrieved as a result of my termination for cause as explained in M. Cleland’s letter received on December 16, 1996 and dated November 29, 1996.
The employer’s letter of termination dated November 29, 1996 by Michael Cleland, Assistant Deputy Minister, Energy Sector, Ottawa, reads: This is to inform you that in accordance with Section 11(2)(g) of the Financial Administration Act and by virtue of the authority delegated to me, your employment with the Public Service of Canada is being terminated for cause at the close of business on December 13, 1996.
The reason for your termination is related to your incapacity to perform your duties. You have been absent from the workplace for medical reasons since September 6, 1988. The last medical certificate submitted by you was dated December 14, 1994 and confirmed that you would be unable to return to work for many years. As result, you were encouraged to apply for a medical retirement but you chose not to pursue this option.
Since that time, you have not provided the Department with any medical certification that you will be capable of returning to work in the foreseeable future. In addition, you did not attend a medical appointment scheduled for you at Health Canada to determine an expected date of return to work.
As a result of the length of time you have been absent from work and the lack of medical documentation to certify that you are capable of returning to work in the foreseeable future, I have no alternative than to terminate your employment.
In accordance with Section 91 of the Public Service Staff Relations Act, you have 25 days to grieve this decision.
The grievor is requesting the following corrective action: 1. My termination be rescinded, my status be returned to Leave Without Pay retroactive to December 12, 1996, and all benefits be restored.
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Decision Page 2 2. Natural Resources Canada reimburse me or my estate for all health and dental expenses that are eligible for the Public Service Health and Dental Care Plans.
3. Natural Resources Canada pays to me or my estate all other benefits due, including Life Insurance benefits, as if my termination had not occurred.
4. NRCan reimburse me or my estate for all expenses related to this grievance including travel, telephone, and legal costs.
5. NRCan pay to me or my estate general damages for the mental and physical damage and anguish that this termination has caused.
6. NRCan reimburse me all interest owing on any of the above.
Mr. Scheuneman suffers from myalgic encephalomyelitis or chronic fatigue and immune dysfunction syndrome. Because of this, the hearing was extended over three half-day sessions in order to accommodate the grievor due to his illness. Also, the proposed hearing dates had been postponed on two occasions at his request.
I am being asked to decide if the employer’s decision to terminate Mr. Scheuneman was justified. Three witnesses testified and thirty-nine exhibits were submitted into evidence.
Summary of Evidence 1. Mark Riley, the current Chief, Buildings Group, first dealt with the grievor in 1986 when Mr. Scheuneman was assigned to close down the Building Energy Technology Transfer (BETT) program. Mr. Riley testified the grievor was working part-time from his home in Maberly, Ontario, at the time; Maberly is a small town more than a one hour’s drive west of Ottawa; the grievor had been working from his home before Mr. Riley became his supervisor.
Mr. Riley testified he wrote a blunt memorandum on June 29, 1988 (Exhibit E-1) to the grievor ordering him to report to the O’Connor Street office in Ottawa on July 11, 1988. Exhibit E-1 reads:
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Decision Page 3 This is to confirm our agreement of June 6, 1988 to revise your working arrangements to reflect the change in the operational situation within the Branch.
Commencing July 11, 1988 you will commence working full-time, from 460 O’Connor Street, Ottawa. Room 1223 has been assigned to you.
Mr. Riley added that it was becoming more and more important for the grievor to interact with the office staff since the department was going through a downsizing exercise. The witness indicated that the grievor responded with Exhibit E-2, a memorandum dated July 11, 1988 proposing that his working conditions remain the same as his doctor’s recommendation attached to Exhibit E-2 indicated.
Mr. Scheuneman objected to the admissibility of Exhibit E-2 since he said this was not a document that had been provided to him under his request pursuant to the Access to Information Act for material he needed to prepare for this hearing. Counsel for the employer explained that he tried to exchange this information with the grievor just before the hearing began. Counsel noted that Exhibit E-2 is in fact a memorandum written by the grievor. I subsequently allowed the entry of Exhibit E-2 as it is clearly relevant.
Mr. Riley identified another memorandum to the grievor dated September 1, 1988 (Exhibit E-3) that indicated he expected Mr. Scheuneman to be in the office on August 29, 1988 after the grievor returned from holidays. Mr. Riley added after September 1, 1988 he no longer dealt directly with the grievor since the Director, Human Resources had taken over the situation. Mr. Riley discussed with the Director finding a place at the office where Mr. Scheuneman could rest, but also added, Mr. Riley needed all the staff help he could muster at the time.
Just before cross-examination I advised the grievor that I would allow him more leeway than normal during the hearing since he was representing himself.
During cross-examination, Mr. Riley testified that most of the employer’s efforts dealing with the grievor’s work arrangements were done verbally with Mr. Scheuneman’s previous manager, Stan Zaborowski. Mr. Riley did not know how long the grievor had worked at home. Mr. Scheuneman volunteered it had been since June, 1984. Public Service Staff Relations Board
Decision Page 4 Mr. Riley said he discussed the grievor’s memorandum (Exhibit E-2) with Ann MacKenzie but then went on a training course. He could not recall asking the grievor for additional medical information in 1988.
2. Patti Bordeleau, Director, Staff Relations and Compensation, Natural Resources Canada (NRCan), first became involved in Mr. Scheuneman’s personnel file in 1994/95 when she was a senior advisor at NRCan. She identified a physician’s certificate of disability for duty dated December 9, 1985 (Exhibit E-4) that indicated as “indefinite” for an estimated date of the grievor’s return to duty.
Mr. Scheuneman objected to the admissibility of Exhibit E-4 since the witness was not in the department at the time in 1985 and therefore had no direct personal knowledge of Exhibit E-4. Mr. Arcelin agreed, but argued the witness was only identifying the existence of Exhibit E-4 as something she found and recognized in the grievor’s personnel file.
Mr. Arcelin added that Ms. Bordeleau was not testifying to all the contents of Exhibit E-4, and some subsequent exhibits up until her involvement became personal, but since she was a part of the final decision to terminate the grievor in 1996, she had to have reviewed all of his personnel file leading up to his termination.
Mr. Scheuneman did not deny the contents of Exhibit E-4, nor did he deny obtaining Exhibit E-4.
I allowed the entry of Exhibit E-4 as it is relevant. A similar argument was made by Mr. Scheuneman, and rebutted in the same fashion by Mr. Arcelin, regarding the following exhibits that were also identified by witness Bordeleau: Exhibit E-5, a letter from Mr. Scheuneman to Mr. D. Cioccio, Director, Energy Efficiency Division, NRCan, February 27, 1990 with an attached letter from the grievor’s doctor, John Coombs dated February 27, 1990; Exhibit E-6, a letter from Dr. Coombs to D.L. Strange, Director General EAETB, at NRCan, October 5, 1992; Exhibit E-7, a letter from D.L. Strange to the grievor, February 21, 1994, referring to a letter from Sun Life Assurance Company of Canada asking if the grievor had applied for early retirement due his to disability; Exhibit E-8,
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Decision Page 5 another letter from Dr. Coombs to Mr. Strange dated December 12, 1994; Exhibit E-9, a response to Mr. Strange’s letter (Exhibit E-7) from Mr. Scheuneman dated February 24, 1994 that says he has “no intention to apply for early retirement”; Exhibit E-10, a letter from Mr. Strange dated September 15, 1994 to the grievor asking for a current statement from Dr. Coombs and a date the grievor will be able to return to work, and also expressing Mr. Strange’s intention to schedule an appointment for the grievor at Health Canada if necessary in order to get a prognosis regarding a possible date to return to work; Exhibit E-11, Mr. Scheuneman’s September 29, 1994 list of questions in response to Exhibit E-10; Exhibit E-12, dated November 17, 1994, Mr. Strange’s response to the grievor’s questions in Exhibit E-11, that also makes first mention of possible release for cause pursuant to paragraph 11(2)(g) of the Financial Administration Act; Exhibit E-13, a December 13, 1994 response from Mr. Scheuneman with a December 12, 1994 assessment by his doctor indicating that the grievor was still “unfit for any meaningful employment, even on a part-time basis” and that it was “difficult to predict with any precision a date of return to work” but that Dr. Coombs fully expected that the grievor would remain disabled for many more years; Exhibit E-13, Dr. Coombs’ December 12, 1994 letter reads: Mr. Scheuneman still suffers from Myalgic Encephalomyelitis, a chronic retrovirus-linked illness, which causes profound fatigue, impaired mental concentration, myalgia and arthralgia, headache, and recurrent respiratory infections. Though he had some initial improvement from 1989 to 1991 as a result of medical treatment, his overall state has not changed since that time. His level of fatigue is still profound. I still consider him unfit for any meaningful employment, even on a part-time basis.
It is difficult to predict with any precision a date of return to work. Recovery measured in terms of years is typical of the more severe cases of this illness, and Mr. Scheuneman is no exception. In general, the more severe and the more prolonged the illness, the more likely the condition is to remain chronic. I therefore do not anticipate Mr. Scheuneman being ready for part-time work at any occupation in the near future, and I full expect that he will remain so disabled for an indefinite number of years (many) in the future.
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Decision Page 6 Myalgic Encephalomyelitis is an unpredictable illness, and there are occasional reports of persons severely affected experiencing reversal of their disease even after a prolonged course. Therefore, though I have given you my best opinion regarding the future course of his illness, it is possible that Mr. Scheuneman could eventually return to the work force within the next few years, likely with some restrictions on his working conditions. He may eventually be in a position to take on a work situation with reduced hours, and working from his home via telecommunications.
I trust that this is the information that you require. Exhibit E-14, a letter also from the grievor’s file sent to him by B. Cook, acting Director General, Energy Technology Branch, dated July 19, 1995, outlining options for him if he sought a medical retirement; Exhibit E-15, dated August 14, 1995 is Mr. Scheuneman’s response to Exhibit E-14; Exhibit E-16, a letter dated November 22, 1995 from Mr. Cook to the grievor advising him of the need to resolve his employment status, and according to witness Bordeleau, advising the grievor to take medical retirement; Exhibit E-17, the grievor’s response, dated December 7, 1995, to Exhibit E-16 saying he needs additional time to seek advice concerning his full range of options; Exhibit E-18, a March 15, 1996 letter from Mr. Cook to the grievor advising him what to do should he choose to retire on medical grounds, with attachments for an occupational health assessment report; Exhibit E-19, Ms. Bordeleau identified the grievor’s April 14, 1996 response to Exhibit E-18 in which he said he did not feel it was appropriate to apply for a medical release; Exhibit E-20, a letter from Mr. Cook dated September 11, 1996 advising Mr. Scheuneman that a date for him to have a medical assessment by Health Canada would be arranged; Exhibit E-21, a letter from Mr. Cook dated September 24, 1996 to the grievor setting October 1, 1996 as the date for his medical assessment; Exhibit E-22, a letter dated September 26, 1996 from Mr. Scheuneman to Mr. Cook asking to see his personnel file and other documents before discussing the issue of medical assessments; Exhibit E-23, Mr. Cook’s response to Exhibit E-22, dated September 30, 1996, advising the grievor he did not need to see all the information he requested in Exhibit E-22 before going to the medical assessment scheduled for October 1, 1996; Exhibit E-24, a September 30, 1996 letter from Mr. Scheuneman in response to Exhibit E-23 saying he would be prepared to deal with Mr. Cook’s
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Decision Page 7 request for a medical assessment after he reviewed all the information he asked for; Exhibit E-25, an October 22, 1996 letter from Patti Bordeleau to the grievor asking him to call her to arrange to review his personnel files; Exhibit E-26, a November 12, 1996 letter from Patti Bordeleau to the grievor confirming an appointment with her for November 15, 1996 and a second reference to the fact that management is considering his termination for cause. Again, I admitted these documents as, in my opinion, they are relevant.
Ms. Bordeleau testified that Mr. Scheuneman did not attend the scheduled Health Canada assessment for October 1, 1996.
The witness identified Mr. Scheuneman’s response (Exhibit E-27) to her November 12, 1996 letter (Exhibit E-26) in which he says the potential termination of his employment for cause would “be punitive, unreasonable and unjust”. She identified the termination letter (Exhibit E-28) dated November 29, 1996 signed by Mr. Cleland, and the Treasury Board authority to do this in Exhibit E-29, dated 12-09-94. She also identified the Treasury Board leave without pay policy dated November 1, 1991 (Exhibit E-30), in particular Appendix A, “Standards for Leave Without Pay Situations”, that speaks of the need to review leave without pay after two years have passed.
Ms. Bordeleau identified a letter dated March 20, 1997 (Exhibit E-31) that the grievor presented to her and Mr. Cleland during the final level grievance meeting that his bargaining agent also attended.
When asked why the grievor’s employment was terminated, Ms. Bordeleau said he had been on sick leave without pay since September 1988, that numerous attempts had been made to get him back to work or to take medical re tirement, all of which failed; therefore his employment was terminated. She added that as late as at the final level grievance meeting with Mr. Cleland on March 21, 1997, Mr. Scheuneman was asked to produce medical information that may have allowed him to be reintegrated into the workplace. He did not produce any but merely wanted reinstatement of the status quo which existed before the termination of his employment.
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Decision Page 8 When asked if the employer followed the “principles of fairness” referred to in Exhibit E-29, page 2 , in terminating the grievor, Ms. Bordeleau said the employer tried in good faith over several years to get an expected date of return to work or to allow him to take medical retirement. She went on to say Mr. Scheuneman had always been fully informed and that, since he had been away since September 1988, he would have been given every opportunity to make adjustments back in the workplace. She added that alternative solutions were possible, but difficult, since he had been away for several years and was probably not going to be back in the foreseeable future.
Just before he began cross-examination, Mr. Scheuneman said he would give his evidence later. I advised him to do his best to address relevant questions now to Ms. Bordeleau.
Mr. Scheuneman asked the witness to clarify what she meant by a two-year guideline to review persons on leave in his situation. She referred him to Exhibit E-30, Treasury Board Manual (1991), Appendix A, “Standards for Leave Without Pay Situations”, that reads, in part: ... Management must decide upon the termination date for such leave without pay within two years of the leave’s commencement, although it can, in some circumstances, be extended to accommodate exceptional cases.
Mr. Scheuneman referred to Exhibit E-7, dated February 21, 1994, paragraph 4, that reads: The department has now received a letter from Sun Life Assurance Company of Canada, dated December 7th, 1993 in which they ask to be advised if you have applied for early retirement due to disability and in the affirmative to let them know of the effective date of retirement.
He then asked Ms. Bordeleau what the relevance of this paragraph was. Mr. Arcelin objected since she was not the author of the exhibit. I allowed the question.
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Decision Page 9 Ms. Bordeleau explained that Sun Life is the insurer for persons on disability, and that as a business practice, when someone has been on disability for two years, the company writes as a follow-up to obtain the status of the disabled person’s health.
Ms. Bordeleau indicated that she had direct personal involvement in Exhibits E-20, E-21, E-23, E-25, E-26 and E-28.
When asked why it was necessary to establish a potential date of return to work referred to in Exhibit E-21, dated September 24, 1996, Ms. Bordeleau responded it was necessary to respect the Treasury Board policy referred to in Exhibit E-30 to review Mr. Scheuneman’s employment status, to see if the grievor was able to return to work in the foreseeable future. She added that, even though Mr. Scheuneman had been on leave without pay since 1988, NRCan had corresponded extensively with him over these years. She recalled his status being questioned in 1992.
With reference to the grievor not being able to see his personnel file before going to a Health Canada medical as referred to in Exhibit E-23, dated September 30, 1996, Ms. Bordeleau responded: ”Your appointment [for October 1, 1996] was to determine an expected date of return for you. Your personnel file had nothing to do with attending a medical assessment”. She added that on September 30, 1996, the grievor had the majority of his personnel documents and that what was given to Health Canada at the time, was also given to the grievor.
On the morning of the second day of the hearing, Mr. Scheuneman had someone assisting him. I asked who it was. Mr. Scheuneman refused to tell me but only said: “He is assisting my physical needs, not for the hearing”. His assistant took notes throughout the morning and never identified himself, even as a courtesy.
Mr. Scheuneman asked the witness if she had taken notes at the final level grievance meeting on March 21, 1997, to which she responded: “Yes, I took notes. Mr. Cleland did not”. When asked if her position was that management had no
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Decision Page 10 option but to terminate his employment, Ms. Bordeleau responded: “Yes”. She added the decision was “taken in good faith and was not arbitrary, and management wanted to resolve your situation”. She expressed the opinion that the employer had no choice but to terminate the grievor’s employment.
Mr. Scheuneman entered a copy of an E-mail message sent by Ms. Bordeleau, dated September 3, 1996, to Sylvie Charron (Exhibit G-2). The last paragraph of Exhibit G-2 reads: Sylvie - sorry I did not get back to you sooner on my return from holidays. I can prepare the letter to Health Canada re this employee if management is still wishing to proceed. I also think a meeting between you, me and Bryan Cook would be appropriate so I can explain to him what the process for a termination for cause would be if it comes to that. Please let me know. Thanks.
Ms. Bordeleau said she wrote Exhibit G-2. When asked if management had decided to terminate the grievor six and one -half months prior to Exhibit G-2, Ms. Bordeleau responded: “No, that is not true”.
Mr. Scheuneman entered Exhibit G-3, dated April 14, 1996, (similar to Exhibit E-19) but with a handwritten note on the bottom identified by Ms. Bordeleau as being Mr. Bryan Cook’s handwriting, and dated April 23, that reads: Sandra Scheuneman has no further questions. I suggest we now proceed with a formal release procedure & face the music.
Bryan The grievor asked if on November 8 and 12, 1996 (as in Exhibit E-26), Ms. Bordeleau had already written his termination letter. Ms. Bordeleau responded: “I can’t recall but I don’t think so”. She then identified Exhibit G-4, a memorandum she wrote to Mr. Cleland, dated November 8, 1996, that recommends Mr. Scheuneman’s employment be terminated for cause with an attached undated copy of his termination letter similar to Exhibit E-28, dated November 29, 1996.
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Decision Page 11 Mr. Scheuneman then entered the following statement that I asked him to read: The Department has, inadvertently or deliberately, withheld and/or tampered with and/or destroyed at least four pieces of evidence directly relevant to my case, as follows:
- my memo of 88.07.11, - my Doctor’s letter of 88.07.05, - notes made by Patti Bordeleau at Grievance Meeting of 97.03.21, - notes made by Michael Cleland at a Grievance Meeting of 97.03.21.
This indicates that there records/documents that have deliberately, withheld and/or tampered with and/or destroyed so that I have not been able to access them directly or through my access rights under the Privacy Act.
These actions demonstrate bad faith and have seriously compromised my ability to prepare, present, and prove my grievance. I request that my grievance be upheld.
Mr. Arcelin asked for clarification as to whether or not the grievor had a copy of his own memorandum dated 88.07.11 referred to in the above statement. Mr. Scheuneman said he did. Mr. Arcelin asked if the grievor had a copy of the doctor’s letter of 88.07.05 referred to also in the above statement. Mr. Scheuneman said he did. The grievor never received any notes taken at the grievance meeting on March 21, 1997. Mr. Arcelin said that as far as he knew the written notes by Ms. Bordeleau from the grievance meeting were not in the grievor’s file. Mr. Arcelin noted that the grievor’s bargaining agent representative from the Professional Institute of the Public Service of Canada (PIPSC) also attended the grievance meeting and should have some notes. He also noted the termination of the grievor’s employment obviously took place before the final level grievance meeting.
Mr. Scheuneman claimed there were many documents that he requested and never received, and that this has prejudiced his case.
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are other files and been, inadvertently or
Decision Page 12 I clarified for Mr. Scheuneman that what I am being asked to decide at the end of the hearing is whether or not the termination of his employment for cause should be upheld. He said he understood this but was not sure what it really meant.
Mr. Scheuneman asked me if I would enter his statement as an exhibit. Mr. Arcelin objected. I agreed and did not assign an exhibit number. Mr. Scheuneman asked me if I would accept it as a motion. I said no, but I would consider it.
Mr. Scheuneman then requested an adjournment by submitting the following statement: I request or move an adjournment until a complete investigation has been carried out by the Privacy Commissioner, so that I will have access to all relevant documents and time to examine and use such, before I continue with my case.
(dated September 18, 1998) Mr. Arcelin argued the motion should be denied since this hearing is not the proper place to conduct an inquiry. He reminded me Mr. Scheuneman has merely made allegations against the employer without any evidence before me.
I denied the grievor’s motion. Mr. Scheuneman advised me that he was now continuing the hearing under protest. I politely asked him three times to proceed with the case.
3. I affirmed Mr. Scheuneman, who then handed me 349 pages of documentation as being his case.
Mr. Arcelin had some difficulty accepting all of it at face value. The grievor said: “It is all relevant because it is an integrated package”.
I reminded Mr. Scheuneman of the wording of his grievance and that he must do all that is relevant to refute Mr. Cleland’s termination letter. I added that all 349 pages are not immediately digestible by the employer. After further
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Decision Page 13 discussion, the employer agreed that it would review the documentation and be in a position to proceed on the next scheduled hearing date.
I advised Mr. Scheuneman on Friday, September 18, 1998, that if the employer accepted most or all of his documents, he should be prepared to present his summary argument at the next sitting of the hearing on Monday, September 21, 1998.
He responded that because of his physical condition he would not be able to do this and would probably be requesting a postponement.
At the start of day three of the hearing on Monday September 21, Mr. Arcelin gave the employer’s response to the 349 pages of documents submitted by the grievor the Friday before. He said the employer recognized, as I had already done, that the grievor was not represented by his bargaining agent and should therefore be given a lot of latitude to present his case. However, Mr. Arcelin added some of the documents are conclusions, some are irrelevant, some are dated after the date of termination, and some are not acceptable regarding proof of contents. He recognized that Mr. Scheuneman objected earlier in the hearing on a similar ground regarding the content of some of the employer’s exhibits as being part of the grievor’s file that Ms. Bordeleau identified.
In a spirit of co-operation, all this being said, I assigned the label Exhibit G-7, Part A, Chronological Summary, Part B, Chronological Analysis, 1988 to 1998, Part C, Charter of Rights Violations/Infringements, Part D, a series of questions and Appendices A, B and C of Exhibit G-7 to Mr. Scheuneman’s 349 pages.
In order to expedite the hearing, Mr. Arcelin accepted all 151 pages of Appendix A of Exhibit G-7 as being part of the grievor’s file, but did not accept all of the contents as being true or accurate. He made similar comments for Appendix B of Exhibit G-7 and asked me to weigh both appendices accordingly.
With respect to Appendix C of Exhibit G-7, Mr. Arcelin rejected most of it as not really evidence at all, in particular pages C-43 and C-44. He asked me to weigh the rest accordingly.
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Decision Page 14 Mr. Arcelin accepted Part A of Exhibit G-7 as a summary by the grievor to facilitate his submission at the hearing. Regarding Part B of Exhibit G-7, Mr. Arcelin characterized this as an analysis of Mr. Scheuneman’s evidence, and argued that this should not be considered as valid evidence, but could only be used to assist me. Regarding Part C of Exhibit G-7, Mr. Arcelin said it was an “interesting analysis” but should not be considered as valid evidence, but should have been given as part of the grievor’s oral argument. For Part D of Exhibit G-7, a series of questions on two sheets, Mr. Arcelin agreed it was not valid evidence per se, and hence he could not accept it, but he was willing to allow its entry to facilitate matters.
Mr. Arcelin concluded at this point by agreeing to accept written argument from Mr. Scheuneman if he insisted.
I asked Mr. Scheuneman if he had any comments to add. He entered Exhibit G-5, one page entitled “Question of Evidence”.
Mr. Arcelin asked me to also weigh Exhibit G-5 accordingly. The grievor then entered Exhibit G-6, a “Summary of Backlogged Work Items”, dated June 9, 1998.
Mr. Arcelin added Exhibit G-6 was not valid evidence but accepted it. Again, I asked the grievor twice if he had any further evidence, testimony or witnesses. He responded: “Fine, no further evidence”.
Argument for the Employer Mr. Arcelin presented me with a copy of a Canadian Human Rights Commission (CHRC) complaint form completed by the grievor, dated March 5, 1998, that complains about a Treasury Board policy that terminates disabled employees as being a breach of section 10 of the Canadian Human Rights Act.
Mr. Scheuneman objected to this potential exhibit as being prejudicial, improper, and a breach of confidence. Mr. Arcelin argued that Part C of Exhibit G-7, entitled “Charter of Rights Violations/Infringements”, is directly related to the
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Decision Page 15 grievor’s arguments and the CHRC complaint form is most relevant. He reminded me that Mr. Scheuneman signed the complaint form and did not dispute its veracity.
I entered the complaint form as Exhibit E-32 and indicated I would weigh it accordingly.
Mr. Arcelin argued with respect to Part C of Exhibit G-7 by saying that I have no jurisdiction under section 91 of the Public Service Staff Relations Act (PSSRA) to entertain any section of a Charter of Rights violation, especially in light of the decision of the Federal Court, Trial Division in Chopra v. Canada (Treasury Board) [1995] 3 F.C., 445, and Mohammed v. Canada (Treasury Board), Court file T-1328-97. He said the CHRC is the competent forum for a remedy to a Charter challenge by the grievor and not the Public Service Staff Relations Board. Section 91 of the PSSRA reads: 91. (1) Where any employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
Mr. Arcelin added that there is no proof or evidence of discrimination before me; there is no evidence of a conspiracy and there is no evidence before me from Mr. Scheuneman that addresses the issue of the termination of his
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Decision Page 16 employment for cause. Mr. Arcelin concluded the grievor’s evidence is all hearsay and I should weigh it accordingly.
Mr. Arcelin also argued that the last page of Part C of Exhibit G-7, entitled “Remedy”, seeks to significantly change the nature of the original remedy attached to the grievance.
I agreed and decided to address this later. Now, regarding the grievance itself, Mr. Arcelin argued there are only two questions that I must consider: one, was the grievor able to return to work in the foreseeable future, and two, was he accommodated properly. He argued the employer fully respected both criteria.
Mr. Arcelin argued the employer’s evidence was never contradicted; in fact, he added the grievor admitted in Exhibit G-1 dated March 20, 1997 and in Exhibit E-31 he had no "foreseeable return to work date" at the time of the termination of his employment. Counsel referred me to the decision in McCormick (Board file 166-2-26274).
Counsel argued Mr. Scheuneman’s decision not to attend the employer scheduled medical assessment at Health Canada on October 1, 1996 was taken “at his own peril”. He referred to the Campbell decision (Board file 166-2-25616).
Mr. Arcelin also argued that the need to provide accommodation is a multi-party responsibility and that, even though the employer sympathized with Mr. Scheuneman, it could not leave him on leave without pay for medical reasons forever as Mr. Scheuneman stated in Part C of Exhibit G-7, page 19: ... The only accommodation required was to leave me without changing my status as a DI/LWOP employee!.
Counsel referred me in this matter to the Begley decision (Board file 166-2-26311).
Regarding an allegation of discrimination, Mr. Arcelin argued the recent Walton decision (Board files 166-2-28276 and 28277) is on all fours with the matter
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Decision Page 17 before me, as is the decision of the Federal Court of Appeal in MacNeil v. Attorney General of Canada, [1994] 3 F.C. 261.
Mr. Arcelin concluded Mr. Scheuneman was not able to return to work in the foreseeable future, that he was accommodated, and that the employer followed Treasury Board policy, particularly as outlined in Exhibit E-29.
He asked me therefore to deny the grievance. Mr. Scheuneman asked for a brief recess to collect his thoughts after I explained that Mr. Arcelin would have the final word after the grievor made his argument. I granted his request, and reminded him that I also explained the process to him on the last hearing day, Friday, September 18, 1998.
Argument for the Grievor Mr. Scheuneman argued that he was carrying on at the hearing under protest. He objected again to the CHRC complaint form (Exhibit E-32) since it did not deal with the termination per se, and is therefore not relevant in his opinion.
Mr. Scheuneman argued that Mr. Arcelin’s contention that section 91 of the PSSRA excludes any matter that is a Charter violation from being considered is false. He believes that I can and should entertain such matters, as he described in Part C of Exhibit G-7.
As far as the employer’s argument regarding his evidence being hearsay, Mr. Scheuneman reminded me most of the employer’s evidence was introduced through Ms. Bordeleau who did not have firsthand knowledge of his situation until 1994-95.
Mr. Scheuneman reminded me that he had suggested earlier in the hearing that witnesses going back to 1988 should have been called to testify.
Mr. Arcelin said the grievor was free to call anyone he wanted to testify but chose not to.
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Decision Page 18 Mr. Scheuneman argued that even though the last page of Part C of Exhibit G-7, “Remedy”, is different form the original remedy in the grievance, he said the Charter is still applicable to administrative tribunals.
I reminded Mr. Scheuneman I can only accept the originally submitted requested remedy at the time of his grievance, even though Mr. Scheuneman wrote the Board on April 12, 1998 to advise that he would be bringing up a Charter challenge at the hearing.
Mr. Scheuneman argued that he only cancelled one appointment with Health Canada for October 1, 1996 until he had received all the information he was requesting at the time. He added: “I did not refuse to go and I dispute the importance of one cancelled Health Canada appointment”.
Regarding accommodation, he argued the only accommodation he received was to be coerced into taking voluntary medical retirement and that this was offered only to get rid of him, not to accommodate him. Mr. Scheuneman added: “All they had to do was to leave me be or do nothing as the simplest or easiest form of accommodation.”
Mr. Scheuneman handed me and Mr. Arcelin a written argument entitled “Reasonable Accommodation and Undue Hardship”, since he said his voice was getting tired. I said I would consider all of it. He then gave me and Mr. Arcelin a definition of conspiracy and maintained there was a conspiracy against him by the employer. Mr. Scheuneman handed out another document, “Remedy of Damages”, that, among other requests, asks for NRCan to pay him or his estate “general damages of $2,000,000 for their actions or conspired actions to violate my constitutional (Charter) rights”. He also seeks $10,000,000 in punitive damages.
I reminded him again that this is a major change from his originally requested remedy.
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Decision Page 19 The grievor also presented in written form his analysis of Patti Bordeleau’s and Mark Riley’s testimony. He also argued that his Part B of Exhibit G-7 shows the employer did not act according to the Treasury Board policy in Exhibit E-29, and that Part B of Exhibit E-7 also proves Charter violations.
Mr. Scheuneman concluded that he had demonstrated to me “an abundance of lack of good faith by the employer”.
Rebuttal Argument for the Employer Mr. Arcelin reminded me: that the grievor cannot now change his requested remedy; that there is no evidence of a Charter violation before me; that the grievor never played his part in the two-way accommodation process; that there is no proof of a conspiracy, or bad faith, or that the Treasury Board policy in Exhibit E-29 was not followed in Mr. Scheuneman’s case.
Decision Termination of employment for cause is now a determination that is adjudicated under subsection 92(1) of the PSSRA. Subsection 92(1) reads: 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
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Decision Page 20 and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
Paragraph 11(2)(g) and subsection 11(4) of the Financial Administration Act read: (2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
... (g) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed in the public service, and establishing the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;
(4) Disciplinary action against, and termination of employment or demotion of, any person pursuant to paragraph 2(f) or (g) shall be for cause.
Mr. Scheuneman’s employment was terminated under paragraph 11(2)(g) of the Financial Administration Act.
This was an unfortunate decision due to his persistent illness, but after reviewing all the evidence, I should not, and will not, interfere with the employer’s decision.
Although some of the evidence adduced by both parties was clearly hearsay, I do not believe that there was any real dispute as to the essential facts of the case. The grievor had been on sick leave without pay from September 6, 1988 until the date of the termination of his employment on November 29, 1996, a period of more than eight years. Furthermore at the time the employer terminated the
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Decision Page 21 grievor’s employment, there was no likelihood that he would be able to return to work in the reasonably foreseeable future. As regrettable as the employer’s decision may have been, I believe the employer tried to accommodate him, acted in good faith, followed its own principles of fairness outlined in Exhibit E-29 and its policy for leave without pay outlined in Exhibit E-30, was more than patient with his situation, and had extensive correspondence with him during his period of leave without pay.
In June 1984, by his own admission, Mr. Scheuneman received special working arrangements to work at home. As early as 1985 (Exhibit E-4), the estimated date of return to duty was “indefinite”. According to the grievor’s own evidence, Appendix B of Exhibit G-7, page B-44 (undated), it was determined “that Mr. Scheuneman’s duties were required on a full-time basis, and that he must work from the employer’s premises at 460 O’Connor Street.”
On June 29, 1988 (Exhibit E-1), Mr. Riley attempted to get Mr. Scheuneman to return to the office work site to work. This did not work out and the grievor went on leave without pay in September 1988. Mr. Riley attempted to accommodate the grievor in 1988 by trying to find a place at work where Mr. Scheuneman could rest, but Mr. Scheuneman never returned to work.
Regarding accommodation, the employer’s insurer, Sun Life, inquired about the grievor’s status in 1993, five years after his being on leave without pay, whereas the normal review period should have been after two years. The grievor was in fact accommodated until November 1996. In July 1995, the employer advised him to apply for medical retirement (Exhibit E-14), but as Mr. Scheuneman wrote in Part C of Exhibit G-7, page 19, “... The only accommodation required was to leave me without changing my status as a DI/LWOP employee”.
This was simply no longer acceptable to the employer. Mr. Scheuneman claimed he was being coerced into taking voluntary medical retirement. If he had done so voluntarily, then how could he have been coerced? The employer offered this as an accommodation to assist him. He simply refused.
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Decision Page 22 By the grievor’s own admission in Exhibit E-31 dated March 20, 1997, he wrote he had “... not provided NRCan with medical certification” before the termination of his employment that he would be returning to work in the foreseeable future.
Mr. Scheuneman did not attend the employer’s scheduled medical assessment for him on October 1, 1996 but he said during the hearing he “did not refuse to go”. He claimed he did not go because he wanted to see his personnel file beforehand. I believe this was merely an excuse to delay the inevitable and an attempt to frustrate his employer. As in Campbell (supra), Mr. Scheuneman did this at his own peril. He had a duty to cooperate as in Begley (supra). He did not respect that duty.
Mr. Scheuneman was first advised that he may be considered for termination as early as November 17, 1994 (Exhibit E-12) and again on November 17, 1996 (Exhibit E-26). Mr. Cook’s handwritten note on Exhibit G-3 about proceeding with a formal release procedure on April 14, 1996 was done as a suggestion and was not a final decision.
Relying on the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 967 I disagree with the employer’s submission that I have no jurisdiction to entertain the grievor’s arguments relating to alleged violations of the Canadian Human Rights Act (CHRA) and the Canadian Charter of Rights and Freedoms (the Charter). In light of subsection 92(1) of the PSSRA, an adjudicator clearly has jurisdiction to entertain a grievance against the termination of an employee’s employment for medical incapacity. In determining such a grievance, the adjudicator has the authority to consider any evidence and arguments relating to violations of the CHRA and the Charter which may be relevant to the outcome of the grievance. However, the grievor has failed to satisfy me on the evidence that in terminating his employment the employer engaged in any violation of either the CHRA or the Charter.
As in McCormick (supra), the employer decided that Mr. Scheuneman was unfit to work at the time it terminated him and that he would not be in a position
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Decision Page 23 to return to work in the foreseeable future. This conclusion is supported by the evidence.
Although I am denying this grievance, I wish to add with respect to the requested remedies, it has been made clear with the Burchill v. Attorney General of Canada [1981] 1 F.C. 109 decision that the nature of a grievance can not and should not be changed at adjudication. The Burchill decision reads in part: In our view, it was not open to the applicant, after losing at the final level of the grievance procedure the only grievance presented, either to refer a new or different grievance to adjudication or to turn the grievance so presented into a grievance complaining of disciplinary action leading to discharge within the meaning of subsection 91(1). Under that provision it is only a grievance that has been presented and dealt with under section 90 and that falls within the limits of paragraph 91(1)(a) or (b) that may be referred to adjudication. In our view the applicant having failed to set out in his grievance the complaint upon which he sought to rely before the Adjudicator, namely, that his being laid off was really a camouflaged disciplinary action, the foundation for clothing the Adjudicator with jurisdiction under subsection 91(1) was not laid. Consequently, he had no such jurisdiction.
Mr. Scheuneman’s original requested remedy has been stated at the beginning of the decision. During the hearing, I was given a copy of the original requested remedy in Appendix A of Exhibit G-7, page A-97 and page A-115, another remedy in Part B of Exhibit G-7, pages 41 and 42, and a third remedy in Part C of Exhibit G-7, page 20, that asks for, among other things, punitive damages of $10,000,000. This is not only a contradiction, but is a ridiculous abuse of the grievance process. Needless to say, my decision is based on the original requested remedy in light of the Burchill decision (supra).
In conclusion, since Mr. Scheuneman had been absent from work since September 1988, and had not provided any medical evidence to warrant a conclusion that he would be capable of returning to work in the foreseeable future, the employer's decision to terminate his employment in November, 1996 was a reasonable one. Mr. Scheuneman was encouraged to apply for medical retirement, but chose not to.
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Decision Page 24 For all these reasons, this grievance is denied.
J. Barry Turner, Board Member. OTTAWA, October 20, 1998.
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