FPSLREB Decisions

File: 166-2-28276 & 28277 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN R. LORNE WALTON Grievor and TREASURY BOARD (Correctional Service of Canada)

Employer

Before: Ken Norman, Board Member For the Grievor: Edith Bramwell, Public Service Alliance of Canada For the Employer: Robert Lindey, Counsel Heard at Saskatoon, Saskatchewan, June 22, 1998

Lorne Walton grieves the termination of his employment from the Correctional Service alleging that this action amounts to discrimination on the ground of physical disability. Mr. Walton took up employment with the Correctional Service in 1976. As of June 23, 1990 he was on Leave Without Pay for Illness and began to draw disability payments (SunLife LDI). His medical situation has deteriorated in the time since. Seven years later, his employment was terminated by letter of June 6, 1997 from W. Peet, Warden, Riverbend Institution. This letter sets out its rationale as follows: Employees who are on Leave Without Pay for Illness, and who will not be able to return to duty within the reasonably foreseeable future, should not remain on Leave Without Pay indefinitely. Treasury Board recommends that this type of leave not exceed two years, at which time the Leave Without Pay should be terminated, either through return to duty, resignation, or alternately, retirement on medical grounds, or release for reasons other than breaches of discipline or misconduct.

Our communications with you have been in an attempt to determine whether or not you will be in a position to return to work in the foreseeable future. Your latest correspondence from your Physician, indicates that you are not able to return to work in any capacity at the present time, and the possibility of you returning to work in the future is unknown.

In hindsight I can well see how consideration of the first Treasury Board Policy option of returning to work was taken by Lorne Walton and his physician to be offensive. Return to work in any capacity was never a likelihood for Lorne Walton. Furthermore, at the very time when Deputy

2 Warden Doug Stewart was requesting a prognosis, it happened that Mr. Walton was anxiously awaiting surgery for one of three arterial blocks. It is unfortunate that the matter was put to Mr. Walton in the way that it was. After seven years of silence from the employer, in the circumstance of his medical fragility, for the grievor suddenly to find himself part of a conference call conducted by Mr. Stewart with a view to finding out whether some sort of a return to work was possible was less than the most gentle way of being introduced to the Treasury Board policy. However, this falls short of making out a case of harassment. Mr. Stewart had no personal knowledge of Mr. Walton's medical situation. He was doing what he felt that he had to do - following the letter of the Treasury Board policy.

Arguments For the Employer The employer argued that the course of action taken pursuant to the Treasury Board Policy of September 23, 1996 fell well within the authority granted by section 11 (2) (g) of the Financial Administration Act. In effect, this clause gives statutory form to the common law proposition that chronic disability frustrates the contract of employment. Then Deputy Chairperson Yvon Tarte determined in McCormick (Board File 166-2-26274) (September

3 18, 1995) that, against a standard of reasonableness, all that the employer needed to demonstrate under this clause was that, at the time of the termination of his employment, the employee was unfit for work and would not be in a position to return to work in the foreseeable future. The employer also relied on the subsequent similar decision of Board Member Rosemary Simpson in Begley (Board file 166-2-26311) (June 26, 1997). The additional factor in Begley is that it paralled McCormick even though the Public Service Alliance of Canada had made an adverse effect discrimination / duty of accommodation argument. Isfeld (Board file 166-2-27680) (J. Barry Turner) (June 26, 1997) explicitly followed McCormick, again in light of a similar argument from the Alliance that the duty to accommodate ought to mean that the disabled grievor be kept on strength up to the point of undue hardship.

For the Grievor The starting position for the grievor is that the Financial Administration Act must be read as being restricted by the anti-discrimination provisions of the Canadian Human Rights Act. This was accepted in Dekoning (Board Files 166-2-22971 & 149-2-129) (Albert S. Burke) (March 2, 1993). On this footing, the Treasury Board policy amounts to adverse effect discrimination concerning a work-related benefit on the ground of

4 physical disability. In effect, the policy has the employer saying, "By the fact of your disability, you will not be collecting a full pension come your normal retirement date." The employer must not be allowed to say this in a mechanical or automatic way. A number of cases condemning automatic dismissal policies for lengthy absences due to disability which deprived grievors of the right to go to arbitration under the just cause provisions of their collective agreements were cited: City of Stratford and CUPE (1990), 13 L.A.C. (4th) 1 (Marszewski), affirmed by Ont. Divisional Court, (April 19, 1991) unreported (See, Re ONA and Etobicoke General Hospital et al 14 O.R. (3d) 40 (Ont. Div. Ct.) at p. 42); Re Toronto Hospital and ONA (1992), 31 L.A.C. (4th) 44 (P.C. Picher); Re Ontario Human Rights Commission and Gaines Pet Foods Corporation (1993), 16 O.R. (3d) 290 (Ont. Div. Ct.). Nor may the employer shelter behind the notion that the grievor's disability frustrated the contract of employment for all purposes. The Corporation of the City of Gloucester and Gloucester Professional Fire Fighters' Association (Kates) ( February 17, 1996) (unreported). The bottom line is that the employer owes the grievor the duty of accommodation, which means that it must keep him on strength unless it can demonstrate undue hardship.

5 Employer's Reply This case bears no relationship to the "automatic termination for long term absence" cases relied upon by the grievor. What was going on in those cases was that the grievors were being deprived of a fair hearing before an arbitrator due to the automatic termination clauses. Here, there is no such denial of procedural entitlement. The grievor has his right to be heard and has exercised it before me. Nor is the City of Gloucester applicable. That case did not see the grievor reinstated into employment; it involved only a continuing status to grieve under the collective agreement an entitlement to disability insurance. Finally, the Treasury Board Policy does not amount to adverse effect discrimination. If it is to be viewed as discrimination on the ground of physical disability it is "direct", not "adverse effect" discrimination. Thus, the duty to accommodate does not arise. MacNeill v. Canada , (1994) 169 N.R. 368 (Fed. Ct. of Appeal).

Reasons I begin by agreeing with the grievor's starting position. In Dekoning, Board Member Albert Burke has the following to say, at p. 44: I have come to the conclusion that the similarity between both subsection 3(1) of the Canadian Human Rights Act and Article M-16 of the Master Agreement is more by design than

6 by accident; therefore they have the same goals in mind. Both exist to ensure that people who are covered by their intent, in this case disability, are not discriminated against. Also the decisions of various arbitrators such as Arbitrator Ken Norman in the Canadian Union of Postal Workers and Canada Post Corporation (Wytrykush grievance) have stated that the employer has a duty to accommodate when dealing with employees covered under such language as the Canadian Human Rights Act and that is particularly true when the employer suffers no undue hardship.

It follows from this that I am not persuaded that there is the gulf of difference between "adverse effect" and "direct" discrimination which is drawn in MacNeill v. Canada. As I read the Supreme Court of Canada's discussions of workplace discrimination and the duty to accommodate, it is not at all clear to me that the line can be so neatly drawn as to say that the duty to accommodate applies only to a case of adverse effect discrimination. Indeed, I am persuaded that the drawing of such a line has more to do with the eye of the beholder than any objective measurement. See, Shelagh Day & Gwen Brodsky, "The Legal Duty to Accommodate: Who Benefits?", (1996) 75 Canadian Bar Review 433). However, I part company with the grievor's case when it comes to the allegation that the Treasury Board Policy is discriminatory and the stretch which the argument then makes from workplace accommodation to "work-related" accommodation. In Etobicoke General Hospital the Ontario

7 Divisional Court ruled that an automatic termination for extended absences from the workplace due to disability was discriminatory because it ruled out a just cause for dismissal grievance hearing. This is important, not only in distinguishing that decision from the case before me, as the employer's argument has done, but also because the Divisional Court speaks to the standard to be applied to such a grievor, once the discriminatory barrier to a fair hearing is removed, on the merits. That is, as analyzed in the Lancaster Labour Law Reports, Charter Cases/Human Rights Reporter (January, 1994), Vol. 10, No.1: According to this decision, collective agreement provisions which provide for automatic termination of employment in the event of extended absences due to disability are discriminatory, and termination of employment will not be upheld unless it is established that the employee is incapable of performing the essential duties of the job, after taking into account the duty to accommodate. [Emphasis added]

The issue in this hearing, so far as the termination is concerned, presents no question of discrimination akin to the automatic termination cases. The grievor has been afforded a full hearing. (It might be noted that, even if discrimination on the ground of physical disability was established, Deputy Warden Stewart addressed the question of workplace accommodation. He told the grievor that he was open to a transfer to other duties, even to the

8 Pacific Region where the grievor now resided, and he made arrangements to have this looked into: Exhibits E-1, E-4 & E-5. As it came to be understood by Deputy Warden Stewart, in light of the grievor's perilous medical state, these options were quite out of the question: Exhibit E-6.) Discrimination may occur in work-related as well as workplace settings, such as the disability insurance issue in City of Gloucester. However, it must be demonstrated that the grievor enjoys a right which the employer has denied in a discriminatory manner. In City of Gloucester it was a right to disability insurance. In the automatic termination cases, it was the procedural right to grieve and be fairly heard under the just cause dismissal provisions of collective agreements. On the facts before me, there are no such rights or any other articulated right. Put another way, it has not been shown that the grievor was denied anything in a discriminatory manner. He asserts that it is discrimination to deny him the credits and dollars that would bring him to full pension entitlement in four years. I disagree. A full pension, at normal retirement age, is a benefit earned by working. Absent a finding of discrimination, the standard to be applied is that stated in the above-emphasized analysis in the Lancaster Labour Law Reporter. This standard, brought home to the statutory authority upon which

9 the employer's termination decision must stand, is set down by Deputy Chairperson Yvon Tarte in McCormick at p. 24: In order to terminate an employee for incapacity pursuant to paragraph 11(2)(g) of the Financial Administration Act, the employer must show that, at the time of termination, the employee was unfit to work and would not be in a position to return to work in the foreseeable future.

By all accounts, that standard has been long since met in this case. Lorne Walton had been in this position for seven years prior to the point of the termination of his employment. This is far in excess of the time frame identified in the challenged Treasury Board Policy. The medical evidence established that the grievor's health was not improving: Exhibit E-6. Keeping him on strength, at some annual contribution cost from the employer, to enable him to draw a full pension in four years is not required of the employer by the Canadian Human Rights Act.

For the reasons which I have given, these grievances are denied. No case of harassment or disability discrimination has been made out. The employer has met the test under section 11(2)(g) of the Financial Administration Act.

SASKATOON, August 31, 1998 _______________________

10 Board Member