Date:  20190705

File:  566-02-10939

Citation:  2019 FPSLREB 66

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

BETWEEN

Marie-Christine Emard

Grievor

and

TREASURY BOARD

(Correctional Service of Canada)

Employer

Indexed as

Emard v. Treasury Board (Correctional Service of Canada)

In the matter of an individual grievance referred to adjudication

Before:  Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Olivier Rousseau, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN

For the Employer:  Cristina St-Amant-Roy, counsel

Heard at Montreal, Quebec,

September 25 to 28, 2018, and February 20 to 22, 2019.

(FPSLREB Translation)

Reasons for decision (fpslreb translation)

I. Individual grievance referred to adjudication

[1]  Marie-Christine Emard (“the grievor”) referred a grievance to adjudication relating to discrimination of which she was the alleged victim due to her employer’s failure to facilitate her return to work within a reasonable time. The grievance was referred to adjudication on March 13, 2015, to the Public Service Labour Relations and Employment Board, which since June 19, 2017, has been named the Federal Public Sector Labour Relations and Employment Board (“the Board”).

[2]  The grievor is a correctional officer (at the CX-02 group and level) with the Correctional Service of Canada (CSC). Her legal employer is the Treasury Board, with whom her bargaining agent, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (UCCO-SACC-CSN), entered into a collective agreement that expired on May 31, 2014. In this decision, the term “employer” refers to the CSC, where the grievor works.

[3]  The grievor’s grievance, filed on October 1, 2014, reads in part as follows:

[Translation]

…

I contest my employer’s decision not to take the necessary steps to accommodate me due to my physical disability, to create an unreasonable delay in granting me an indeterminate position, and to not provide me with my work uniforms, contrary to article 37 of the collective agreement and the Canadian Human Rights Act.

On May 30, 2014, the union representative Luc Tessier (who is also a member of the institution’s RWP [return to work program] committee) provided the employer, via email on my behalf, information on my limitations and the June 2 date of my return on the RWP. The medical note confirmed that I was fit to return to work with some accommodations, including the need to work somewhere other than at Drummond Institution, and a gradual return.

The employer did not take the necessary steps to accommodate me. It began to pay my salary only on July 28, 2014, without granting me a position. Moreover, on August 27, 2014, the employer confirmed its intention (telephone Olivier Rousseau/Renée-Claude Côté) not to pay me retroactively for the period from June 2 to July 27, 2014.

The employer also received a medical note from my doctor in April 2014 to prepare my return to work on the RWP.

…

[4]  The grievor concludes her grievance by requesting a declaration that the employer acted discriminatorily by not providing her with an accommodation as of June 2, 2014, and by claiming salary and benefits from June 2 to July 27, 2014, as well as compensation in the amount of $5000 for pain and suffering, all with interest at the legal rate.

[5]  For the following reasons, the grievance is allowed.

II. Summary of the evidence

[6]  The grievor testified and called the following to testify: Éric Thibault, Regional President (Quebec Region) of the UCCO-SACC-CSN (from 2013 to 2016); Suzanne Robitaille, Labour Relations Manager at the CSC; Renée-Claude Côté, CSC Regional Advisor for the return-to-work program (RWP); and Luc Tessier, union coordinator for the occupational health and safety program and for the RWP. The employer called the following to testify: Suzanne Legault, Assistant Warden and then Acting Warden of Drummond Institution (from 2010 to 2016); Annie Fontaine, Correctional Manager at Drummond Institution; Pierre-Luc Lauzon, Acting Assistant Warden at Drummond Institution (2014); Francis Anctil, Acting Assistant Warden at Drummond Institution (2014); François Luneau, Assistant Warden, Operations (AWO), at the Federal Training Centre (FTC) (2014); and Édith Brouillard, Assistant Warden, Management Services, at Drummond Institution (2014).

[7]  The grievor was a correctional officer (in a position classified at the CX-02 group and level) at Drummond Institution in Drummondville, Quebec. She suffered a workplace injury and was absent from work beginning in May 2011. In August 2011, she was the victim of a serious crime. From June to August 2011, she received benefits from the Commission de la santé et de la sécurité au travail du Québec (CSST), now named the Commission des normes, de l’équité, de la santé et de la sécurité du travail du Québec (CNESST). Her salary was paid by the Indemnisation des victimes d’actes criminels du Québec (IVAC) system beginning in August 2011.

[8]  In fall 2013, the grievor began to contemplate a return to work. She discussed it with her manager, Ms. Fontaine, who supported her. Because of trauma from the crime, the grievor could no longer live in Drummondville. Those helping her (a psychoeducator and a psychiatrist) advised her to move. She also had the support of Mr. Tessier, Regional Coordinator for the UCCO‑SACC‑CSN, who was very familiar with the employer’s RWP. The grievor had no access to the employer’s system, as she was on leave, but she asked her colleagues to prepare a transfer application for her as of October 30, 2013. At the end of December 2013, she purchased a house north of Montreal, in hopes of working at Archambault Institution in Sainte-Anne-des‑Plaines, a minimum-security institution, or at the FTC in Laval. That would have suited her better, given the trauma she experienced.

[9]  On February 27, 2014, the operations manager at Archambault Institution asked her to confirm whether she was still interested in being transferred there. On March 2, 2014, she confirmed her interest in the transfer. However, it could not be effected before her attending physician cleared her to return to work.

[10]  On March 25, 2014, her treating psychiatrist signed a note that included the following:

[Translation]

… Anticipating a gradual RTW [return to work] in an institutional environment in 1 to 2 months. Recommend a transfer to avoid a return to Drummondville (too many associated memories) - gradual RTW probably over 6 months with no inmate contact to begin with - scheduled reassessment based on psychiatric opinion to occur in April.

[11]  On May 29, 2014, her doctor pronounced her fit to return to work, with the following restrictions:

[Translation]

• No return to Drummondville

• Three non-consecutive days per week (Monday, Wednesday, Friday)

• No evening or night work for now (to be reassessed in 1 month);

• No interventions with inmates and no carrying of a weapon (to be reassessed in 1 month).

[12]  The note ended with the following sentence: “[translation] We expect a full return to her usual duties within six months at the latest, if all goes well.”

[13]  In a letter dated May 23, 2014, the IVAC informed the grievor that the payment of her benefits would end on May 29, 2014, since she was able to work from then on. The IVAC had already communicated with her in early May to provide her that information. She communicated with her manager and Mr. Tessier, the union’s return-to-work coordinator.

[14]  Despite the grievor’s contact with her manager at the beginning of May to advise that she would return to work at the end of May, the employer did not follow-up.

[15]  Mr. Thibault, the regional union representative, testified that he had been in contact in June and July with the CSC’s regional level, to try to restore the grievor’s salary. The problem seemed to be that her substantive position would remain at Drummond Institution, pending a transfer. It was clear from the medical certificate that she could not return to Drummond Institution.

[16]  From the beginning of June 2014, Mr. Tessier asked Drummond Institution’s management to pay the grievor while she awaited her transfer, which involved a medical condition. He spoke about the possibility of employment at Archambault Institution. In an email dated June 2, 2014, Ms. Brouillard wrote that it would be difficult to prepare an RWP “[translation] since she cannot work at Drummond Institution”.

[17]  On July 7, 2014, Mr. Tessier reiterated his demands on the grievor’s behalf, addressing them to Ms. Brouillard.

[18]  Ms. Côté worked for the CSC as an RWP regional advisor. She became responsible for the grievor’s file as of June 2, 2014, the date on which the grievor was fit to work, according to her doctor. She had seen a note from a few months earlier (the March 25, 2014, note), which had announced an imminent return. She took steps to find a position in a minimum-security institution, specifically at Archambault Institution and the FTC.

[19]  Ms. Côté testified that she had verified whether any positions were available as of May 31, 2014, but that the CSC had asked for a July 2014 transfer. Meanwhile, she went on vacation. She had a discussion with Archambault Institution’s AWO, in which some hesitation was expressed about receiving the grievor because of the accommodations. Ms. Côté explained that she proceeded with one institution at a time about a transfer and that as a result, she did not speak with the FTC authorities until around July 17.

[20]  She also explained that paying the grievor did not depend on her but on the grievor’s home institution, which was still Drummond Institution. She certainly would have advised management to restore the grievor’s salary, but it was not her decision.

[21]  Ms. Côté stated that nevertheless, it is difficult to organize a return to work for an employee who cannot return to his or her substantive position. Some preparation time was required to offer a reasonable accommodation.

[22]  Ms. Brouillard was the employer representative on the RWP committee. Mr. Tessier testified that communicating with her was difficult.

[23]  On July 7, 2014, Ms. Brouillard communicated with Manon Houle, the CSC’s senior labour relations advisor for the Quebec Region, to find out where things stood with the grievor’s file. In her email, Ms. Brouillard stated that she did not think it was possible to act locally for the grievor.

[24]  Ms. Brouillard testified at the hearing. In 2014, she was Assistant Warden, Management Services, at Drummond Institution. She was part of the RWP, but in the grievor’s case, her role was to liaise with the regional office, since the May 29 medical certificate stated that the grievor could not return to Drummond Institution. She contacted Ms. Côté, then waited for a reply.

[25]  Ms. Brouillard was questioned about an email that an IVAC rehabilitation counsellor had sent. Dated April 30, 2014, it was addressed to Mr. Tessier, Ms. Fontaine, and Ms. Brouillard. It was entitled, “[translation] Return-to-work file”, and it read as follows:

[Translation]

Good day,

I am the rehabilitation counsellor handling Ms. Marie‑Christine Emard’s file. I would like to discuss different return-to-work options for Ms. Emard, in accordance with the IVAC’s mandate. We have received an expert opinion declaring that she is fit to return to work. On April 7, I faxed a medical report signed by her attending physician, but I believe that you did not receive it.

I am available to discuss this situation over the telephone and to eventually meet with you.

…

[26]  In her testimony, Ms. Brouillard stated that she did not think the email was addressed to her but instead to Ms. Fontaine, the grievor’s immediate superior, and to Mr. Tessier, who was handling her file for the union. According to Ms. Brouillard, she was not involved.

[27]  The employer adduced into evidence a chart showing leave taken of more than 30 days as part of the RWP, for which Ms. Brouillard was responsible, for April 1 to June 30, 2014. In the “[translated] comments” section, a passage related to the grievor reads as follows:

[Translation]

The manager made several attempts to contact the employee, but to no avail. She never returned our calls, and we have had no medical certificate since August 2013. The employee was declared fit to work as of June 2 with limitations such that she cannot work at Drummond Institution and that there are to be no interventions with inmates for six months. Steps have been taken with RHQ to transfer her to another institution at her request.

[28]  It was not clear from Ms. Brouillard’s testimony as to who was “the manager” in question. Ms. Fontaine, the grievor’s immediate supervisor, testified that she had had no difficulties communicating with the grievor, as attested to by their numerous email exchanges that were adduced into evidence. Ms. Fontaine understood that the return should be carried out in consultation with the regional level, since the grievor could not return to Drummond Institution.

[29]  On July 7, Ms. Brouillard contacted Ms. Houle to inform her that she had received no response from Ms. Côté about Ms. Emard’s file.

[30]  Ms. Houle replied on July 8 that she was waiting for news from Archambault Institution. Since at least April 2014, Ms. Côté had been aware of the grievor’s transfer request.

[31]  According as follows to an email from Ms. Brouillard on July 15, 2014, Drummond Institution’s management did not agree with paying the grievor for work that she had not performed:

[Translation]

…

Following a discussion with the Warden this morning, we do not agree with paying the employee for work that she has not performed. As soon as you have feedback on whether the employee can be trained at the College, given the medical restriction of not working at Drummond Institution, she could then be paid for the three days/week once she is at the College. We know that she lives near Laval ….

[32]  In a letter dated July 15, 2014, Mr. Anctil, Drummond Institution’s acting assistant warden, asked the attending physician to specify the grievor’s functional limitations with respect to the May 29, 2014, medical certificate. The letter reads as follows:

[Translation]

…

This is in response to the medical certificate that you issued on May 29, 2014, about your above-mentioned patient. For the employer to consider all possible options as part of the return to work, while also taking the current needs and organizational context into account, would it be possible to obtain clarification on the following points:

The medical note states: “I certify that Marie‑Christine is fit to return to work in an institutional environment as of June 2, 2014, with the following restrictions: No return to Drummondville; Three non-consecutive days per week (Monday, Wednesday, Friday); No evening or night work for now (to be reassessed in 1 month); No interventions with inmates and no carrying of a weapon (to be reassessed in 1 month).” We would like clarification on the following:

• Does Ms. Emard have functional limitations with respect to the place of work, since the medical note identifies Drummondville?

• If this is about Drummond Institution, what are the functional limitations, considering that you are not excluding other penitentiaries in the Quebec Region?

• Are the functional limitations temporary or permanent?

• If the limitations are temporary, how long will they be in effect, or on what date will they be reassessed?

• With respect to the three-days-per-week schedule, is it a fixed schedule for the next six months?

Ms. Emard has been absent from work since April 25, 2012, and clarifying the functional limitations is necessary to assess the employee’s ability to carry out all the duties of her position as a correctional officer II. Please find attached a copy of the job description. To speed up the transmission of information and thus facilitate a timely return to work, could you please fax your response to us at the number indicated below.

…

[33]  At the hearing, Mr. Anctil explained that the prohibition of a return to Drummond Institution in the May 29, 2014, medical certificate was not clear. The employer needed to understand the obstacles at Drummond Institution, on one hand to ensure a successful return to work even in another institution, and on the other hand, to verify whether it would be possible to make changes that would allow a return to Drummond Institution. He did not know why it took until July 15, 2014, for the clarification request to be made given that the employer had received the medical certificate on June 2 at the latest.

[34]  Mr. Anctil recalled speaking with the FTC’s assistant director about the grievor’s transfer, beginning with a secondment and then proceeding to a transfer. The discussions took place at the end of July, and the doctor’s clarification was sent to the FTC on August 22. The secondment was then arranged.

[35]  During this period, Ms. Legault was Drummond Institution’s acting warden. She testified that since the beginning of June 2014, she had been aware that the grievor was fit to return to work but that she could not return to Drummond Institution. She was the warden in the July 25, 2014, email that Ms. Brouillard had addressed to Ms. Robitaille and Ms. Côté, which confirmed that Drummond Institution’s management did not want to pay the grievor if she did not work.

[36]  Despite that email, on July 25, 2014, Ms. Legault signed a note addressed to Pay stating that the grievor’s return to work would occur on July 28, 2014, with an RWP. In her examination in chief and cross-examination, it became clear that the grievor did not begin working at Drummond Institution on July 28 but that her salary had been paid. At the hearing, Ms. Legault could not explain why payment began on July 28 instead of June 2. Nor could she explain the need to request clarification from the doctor. That request did not come into play for her, since she had decided to restore the grievor’s pay on July 25, well before the response from the doctor was received on August 22. The salary began to be paid on July 28, 2014, but according to the grievor’s testimony, she did not begin to receive it until the end of August.

[37]  Ms. Legault signed a secondment agreement with the FTC, and the secondment began on August 27, 2014. The agreement provided that the substantive institution, Drummond Institution, would continue to pay the grievor’s salary.

[38]  On another note, Ms. Legault testified that she had not really been involved in the grievor’s file but had simply stayed informed, for example, about the clarification steps taken by Mr. Anctil and the steps taken to place the grievor in another institution. Since the grievor could not return to Drummond Institution, the steps had to be taken at the regional level.

[39]  On August 22, 2014, the grievor’s attending physician responded as follows to the July 15, 2014, clarification request:

[Translation]

…

Further to your July 15 letter, here are my recommendations with respect to Ms. Emard:

She should not return to work at the Drummondville penitentiary, given the events that took place there. Therefore, she should be relocated to another penitentiary if possible.

The functional limitations set out in my medical certificate dated May 29, 2014, apply to other penitentiaries. I cannot add functional limitations for Drummondville, as she should not return there at all.

The limitations are temporary, and the return to work begins with three days/week, with a gradual increase over the next six months until a full-time return to all usual duties without restrictions within approximately six months.

…

[40]  Around August 24 or 25, 2014, Marie-Renée Côté, a manager at Montée Saint‑François Institution (which includes the FTC), called the grievor and asked her whether she was still interested in a secondment. The grievor replied in the affirmative, and she returned to work on August 27, 2014, through a secondment agreement. Her substantive position was still at Drummond Institution, but she was seconded to the FTC pending a permanent position. She was definitively transferred on October 6, 2014, but received confirmation of the transfer by letter only on November 26, 2014. The letter included the following paragraph:

[Translation]

The Correctional Service of Canada agrees to provide you with relocation assistance up to a maximum of $5000, in accordance with section 12.1.2.b and the provisions of the National Joint Council Relocation Directive, which you can consult at the following Internet link ….

[41]  However, in the secondment agreement that preceded the transfer letter, the employer’s reasoning was that the grievor would not be entitled to compensation for moving costs or meals. The secondment agreement includes the following:

[Translation]

As part of an RWP, the employee is authorized to return to the workplace but not to the location of her substantive position. To respect her temporary functional limitations, the employee will be assigned administrative duties until she obtains a medical note confirming that she is fit to carry out her CX duties.

Drummond Institution will continue to pay the employee’s salary during her assignment. Given that that this is an accommodation at the employee’s request and that she will be closer to her home while working at the FTC, no travel costs or meals will be reimbursed.

[42]  The same reason applied to the relocation costs, since ultimately the employer concluded that the grievor was not entitled to them as she had already moved for personal reasons. The FTC position came after her move to the neighbouring region, and not the other way around.

[43]  Mr. Luneau, who in 2014 was the AWO at the FTC, was unable to explain the contradiction between the transfer letter and the secondment agreement. In his opinion, the employer had followed the relocation directive. He knew nothing more.

[44]  In summary, the grievor found her return to work very difficult and stressful. Between June and July 2014, she was without both salary and duties. At the end of July 2014, Ms. Legault decided to pay her a salary, but she still had no position. She returned to work only at the end of August. Some people helped her a great deal, particularly Mr. Tessier, as the regional union coordinator of the RWP, and Ms. Fontaine, her immediate manager at Drummond Institution. However, the decision makers were slower to act.

[45]  The permanent transfer to the FTC was made on October 6, 2014, following a medical certificate dated September 16, 2014, in which the grievor’s family doctor stated that she could return to work full-time as of September 22. Contact with inmates was then permitted, as was wearing a uniform and working evenings, although not at night. However, the letter confirming the permanent transfer was dated November 26, 2014. The grievor was already in the position, but the transfer confirmation was significantly delayed.

[46]  According to the doctor’s note, the grievor could once again wear a uniform as of September 16, 2014. She ordered new uniforms and received them in November.

III. Summary of the arguments

A. For the grievor

[47]  In its grievance responses and its opening statement, the employer stated that it considered the grievance untimely. It was filed on October 1, 2014. According to the employer, it is untimely because it contests the lack of pay as of June 2. Nevertheless, the grievor maintains that the employer’s final response on the subject of her lack of pay was dated August 27, 2014, when it confirmed to the union that it would not pay the salary from June 2 to July 28. The grievance is based on the employer’s refusal and is therefore within the time limits.

[48]  According to the grievor, prima facie discrimination has been established in this file, and the employer did not provide reasonable accommodation.

[49]  The three necessary elements for a finding of prima facie discrimination are present. The grievor is part of a group protected by the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA), specifically, persons with disabilities; she suffered differential treatment in the form of a delayed reinstatement; the connection between the two was the requirement for a position other than her substantive position, which delayed the return-to-work process but was for a medical reason connected to her disability.

[50]  According to the employer, the slow pace of the grievor’s reinstatement was justified by the need for more specific information about functional limitations to reinstate her successfully. Yet, she ended up being paid before clarification was obtained from the doctor. There seemed to be some uncertainty on the part of the employer as to who exactly was responsible for the grievor’s return to work.

[51]  The employer stated that it had to find a position; however, transfer offers were made before the grievor obtained her fitness-to-work certificate. Ms. Côté talked about reluctance, yet offers were made.

[52]  Mr. Anctil talked about training, yet Mr. Luneau saw no obstacles to integrating the grievor before she completed her training. Some of the employer’s witnesses stated that the grievor had been difficult to reach, yet Ms. Fontaine and Mr. Tessier had regular ongoing contact with her.

[53]  The July 15 clarification request from the doctor seemed to be an obstacle. The transfer moved forward, and in the end, Drummond Institution management did not wait for the clarification before paying the grievor; the clarification basically repeated the contents of the May 29 certificate, and nothing more.

[54]  The grievor’s absence from work began in 2011. In 2013, she contacted her manager, Ms. Fontaine, because she wanted to return to work. Steps were taken so that she could be transferred, as she knew she could not remain at Drummondville.

[55]  She had been prepared to return from the moment she received her fitness‑to‑work certificate on May 29. That was followed by a long period of anxiety for her and a fierce struggle for Mr. Tessier. Finally, the employer acknowledged her entitlement to pay starting on July 28, and the transfer was made, first by secondment, then by a transfer confirmed in a letter on November 26, 2014.

[56]  The grievor asks for her full pay from May 29 to July 27, 2014. According to her, she should be entitled to a $5000 reimbursement for moving costs. The CSC committed to reimbursing it to her in the transfer letter, as is done in cases of voluntary transfer, in accordance with the Directive. The move happened before she returned to work, but she had requested a transfer in October 2013, before her move.

[57]  According to the grievor, she should also receive compensation for wearing civilian clothing while she waited for her new uniform, in accordance with clause 43.03 of the collective agreement.

[58]  The grievor also claims $5000 for pain and suffering (s. 53(2)(e) of the CHRA) for the financial and moral uncertainty she experienced until her reinstatement. In addition, she claims $2500 to censure the employer’s recklessness of trying not to accommodate her (s. 53(3) of the CHRA). She was ready to work at the beginning of June 2014, but no steps were taken. When the authorities at the regional level began to act in July 2014, Drummond Institution requested clarification from the doctor. Pretexts were used in invoking the need for training, when things could have been done differently. It is clear that the matter was marked by the inaction of several participants. The ball was passed back and forth between Drummond institution and the region.

[59]  In April 2014, the IVAC counsellor proposed a meeting to facilitate the grievor’s return. But the employer did not respond.

[60]  With the May 29, 2014, certificate, it was clear from the start that not returning to Drummond Institution was a medical issue, which the doctor confirmed in August 2014. At the end of May, Mr. Tessier proposed that the grievor be paid. The refusal is attributable to Drummond Institution and ultimately, to the employer.

[61]  The grievor maintains that there are clear parallels with the decision in Duval v. Treasury Board (Correctional Service of Canada), 2018 FPSLREB 52. I will return to it in the analysis.

B. For the employer

[62]  The employer believes that the grievance is untimely. The grievor knew as of July 26 that her salary would begin on July 28 but that it would not cover June 2 to July 27. It also raised the issue of respecting the time limits at the first two levels of the grievance process (the grievance was referred to adjudication before the third-level response was made).

[63]  The employer satisfied its obligations with respect to the grievor, since she was placed at the FTC per her request. It took the necessary steps to make that happen. Unlike the situation in Duval, the employer had always considered the file from the accommodation perspective. The objective was to find a suitable accommodation for the grievor, which explains the employer’s actions. It would be unreasonable to think that the employer could provide an accommodation from one day to the next, which the grievor asked for in her grievance.

[64]  The employer argues that the grievor did not establish prima facie evidence of discrimination on the basis of disability, as it was unaware of the circumstances leading to the IVAC compensation. In addition, in her grievance, she speaks of physical disability, yet there was no evidence of it.

[65]  In addition, the employer did not deny the grievor’s right to accommodation so that she could perform her duties, and it accepted the functional limitations imposed by the treating physician. It was reasonable for the employer to seek clarification to understand the issues and thus to facilitate a successful return to work.

[66]  In summary, the employer acted as quickly as possible to reinstate the grievor and began paying her a salary as of July 28, within two months of her fitness-to-work certificate.

[67]  The employer actively tried to place the grievor, contemplated training, and had some difficulty communicating with her. The duty to provide reasonable accommodation does not mean the right to immediate accommodation.

IV. Analysis

[68]  I will first address the employer’s objection that the grievance is untimely. According to the employer, as of July 26, 2014, the grievor knew that she would not be paid from June 2 to July 27, 2014. The grievance was presented to the employer on October 1, 2014.

[69]  Section 95 of the Federal Public Sector Labour Relations Regulations (SOR/2005‑79; “the Regulations”) provides as follows:

95 (1) A party may, no later than 30 days after being provided with a copy of the notice of the reference to adjudication,

(a) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met; or

(b) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the reference to adjudication has not been met.

(2) The objection referred to in paragraph (1)(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.

(3) If the party raises an objection referred to in subsection (1), it must provide a statement in writing giving details regarding its objection to the Board.

[70]  On March 26, 2015, the employer received notice of the grievance’s referral. No objection was received within 30 days of that date. The objection was raised orally at the beginning of the hearing on September 25, 2018. The employer did in fact respond at the first and second levels by pointing out the delay in filing the grievance. Nevertheless, those responses were very late and contrary to s. 72(1) of the Regulations, which reads as follows:

72 (1) Unless the individual grievance relates to classification, the person whose decision constitutes the appropriate level of the individual grievance process shall provide the decision to the grievor or the grievor’s representative, if any, no later than 20 days after the day on which the individual grievance was received by the grievor’s immediate supervisor or the grievor’s local officer-in-charge identified under subsection 65(1).

[71]  The grievance was presented at the first level on October 1, 2014. The employer’s first-level response was dated December 22, 2014.

[72]  The grievance was presented at the second level on October 20, 2014 (there was still no response). The employer’s second-level response was dated February 10, 2015.

[73]  The grievance was presented at the third level on December 22, 2014. The employer had provided no response either before or after the reference to adjudication.

[74]  The employer failed to comply with ss. 95 and 72 of the Regulations. Therefore, it was deemed to have abandoned its objection. For that reason, I cannot allow it.

[75]  On another note, I consider that this grievance, dated October 1, 2014, was filed within the required time limit. Only at the end of August 2014 did the grievor receive confirmation that her salary would not be paid from June 2 to July 27. Given the nature of the grievance, which is based on human rights principles, I deem that it goes beyond the strict context of working conditions and that even though it exceeds the 25 days provided in the collective agreement by a few days, it is still adjudicable. The Board has the authority to extend time limits in the interest of fairness under s. 61(b) of the Regulations.

[76]  In response to another objection by the employer, I would add that I consider the use of the expression “physical disability” in the text of the grievance to designate the grievor’s real disability a simple nomenclature error. Section 241(1) of the Act provides as follows: “No proceeding under this Act [related to grievances] is invalid by reason only of a defect in form or a technical irregularity.” The grievor’s disability before her return to work was not contested. My discrimination analysis is not affected by a vocabulary error.

[77]  This grievance and Duval have a number of parallels. That decision is currently before the Federal Court of Appeal pending judicial review. It is useful to briefly summarize it.

[78]  Mr. Duval was also a correctional officer who had to be absent from work because of psychological trauma. His doctor provided him with a medical certificate on January 30, 2012, authorizing an immediate return to work. The employer reported his fitness to work in its documents on February 1. Yet he was not reinstated until mid-June.

[79]  Mr. Duval’s only return-to-work condition was that he not return to his home institution because of the risk of reviving his psychological syndrome. The home institution refused to pay his salary, and the case was treated as a transfer matter instead of an accommodation matter. The Board ruled that the failure to accommodate was discriminatory and that Mr. Duval was entitled to his salary from the moment he was fit to work, precisely as an accommodation.

[80]  The grievance at hand is based on discrimination within the meaning of the collective agreement (the no-discrimination clause) and the CHRA. On one hand, the employer challenged the prima facie evidence of discrimination, but on the other hand, it confirmed its duty to accommodate, which it claims to have conscientiously met.

[81]  As in Duval, the employer’s duty to accommodate arises directly from the grievor’s psychological disability. The prima facie evidence of discrimination is the same: she suffered from a psychological disability, and she was unable to return to her job in a timely manner, which caused her a great deal of anxiety and financial concern, and the non-return was connected to her disability, since the conditions of the return were linked to her functional limitations and because her employer made it an obstacle to her return to work.

[82]  As the prima facie evidence of discrimination was established, it was up to the employer to show that it had offered the necessary accommodation to allow the return to work. I am not convinced that it adequately fulfilled its duty.

[83]  The grievor began the transfer process in the fall of 2013, and her manager was aware of it. The bargaining agent informed Drummond Institution of her return at the beginning of June. The RWP document showed that the grievor was fit to work as of June 2. However, the employer’s actions were inexplicably delayed. It claimed to have had difficulty communicating with the grievor, but her manager and the union representative for the RWP were in contact with her.

[84]  Drummond Institution was not prepared to pay the grievor’s salary, since she would not return there. The responsibility was referred to the regional level, which appeared paralyzed in June and July. Mr. Anctil’s clarification request, dated July 17, 2014, appears to me to have been a pretext, and the August 22 response, which was deemed sufficient, simply repeats what was in the May 29, 2014, certificate.

[85]  At first, Drummond Institution management decided not to pay the grievor. Ms. Legault changed that decision on July 25. She did not really explain that change at the hearing. I understand that management ended by yielding to union demands about the grievor’s entitlement to her pay, since she was fit to work.

[86]  I agree with the bargaining agent that ultimately, it is up to the employer (rather than the home institution) to assume its duty to accommodate. The disabled employee who returns to work with functional limitations has the right to be accommodated, which includes an entitlement to salary. If the employee is not able to return to his or her substantive position for medical reasons, it is part of the accommodation. Salary is also part of the accommodation.

[87]  Therefore, I deem that the grievor is entitled to her salary from June 2 to July 27, 2014, at the rate of three days per week, which was the schedule prescribed by the doctor, with the associated benefits.

[88]  I consider that the grievor is entitled to compensation under paragraph 53(2)(e) of the CHRA for the accommodation delays. In Duval, I reviewed a number of decisions to try to determine a fair amount, and I concluded that Mr. Duval was entitled to compensation in the amount of $5000 for the four months of anxiety and the lack of salary that he experienced. In this situation, I recognize the difficulties that the situation caused the grievor, but the wait was not as long; I would grant compensation in the amount of $3000.

[89]  The employer acknowledged its duty to accommodate, even if there was some lack of follow-up. I have already decided to order it to pay the grievor’s salary as of the date she was declared fit to work. I see no reason to impose an additional penalty under s. 53(3) of the CHRA.

[90]  The grievor also claimed moving costs. I cannot grant them. A grievance has been put before me, and my jurisdiction is limited to it. As the grievance does not mention moving costs, I fail to see how I could add them.

[91]  The grievor also claims reimbursement for the period in which she did not yet have her uniform. The applicable collective agreement provision in force in 2014 reads as follows:

…

43.03 Clothing Allowance

Those Correctional Officers I (CX-1) and Correctional Officers II (CX-2) employees, including those who are pregnant, who are not required to wear a uniform routinely during the course of their Correctional Officer duties shall receive an annual clothing allowance of six hundred dollars ($600.00). This allowance will be payable once per fiscal year and by March 31. The maximum allowance payable per fiscal year is six hundred dollars ($600.00).

The provision applies to those CX-1 and CX-2 employees assigned to such duties for periods of time not less than six (6) cumulative months per fiscal year, or six (6) continuous months.

…

[92]  Even by setting the return to work to June 2, 2014, the grievor’s evidence shows that she received her new uniform sometime in November 2014, which thus was within six months of her return to work. As a result, she is not entitled to a clothing allowance. At the hearing, she argued the idea of a pro rata calculation. The minimum period of six months provided in clause 43.03 of the collective agreement seems to me to rule out the pro rata idea.

[93]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[94]  The objection to the delay in filing the grievance is dismissed.

[95]  The grievance is allowed.

[96]  I order the employer to pay the grievor her salary and the associated benefits from June 2 to July 27, 2014, at the rate of three days per week.

[97]  I order the employer to pay the grievor compensation in the amount of $3000 under s. 53(2)(e) of the Canadian Human Rights Act.

July 5, 2019.

FPSLREB Translation

Marie-Claire Perrault,

a panel of the Federal Public Sector

Labour Relations and Employment Board