Date:  20190628

Files:  566-02-12667 and 12668

 Citation:  2019 FPSLREB 62

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

Angela Edwards and Deborah Park

Grievors

and

TREASURY BOARD

(Canada Border Services Agency)

Employer

Indexed as

Edwards v. Treasury Board (Canada Border Services Agency)

In the matter of individual grievances referred to adjudication

Before:  Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Aaron Lemkow, Public Service Alliance of Canada

For the Employer:   Kétia Calix, counsel, and Marie-France Boyer, student-at-law

Heard at Ottawa, Ontario,

February 25 and 26, 2019.

REASONS FOR DECISION

I. Introduction

[1]  The grievors, Angela Edwards and Deborah Park, had both been on sick leave without pay for two years when they received letters from their employer, the Canada Border Services Agency. The letters gave them three options: they could return to work, they could take medical retirement, or they could resign. Rather than choosing any of those options, they each requested leave without pay for personal needs for one year.

[2]  Their requests were denied because they had been on sick leave without pay for two years. The employer said that their sick leave without pay status had to be resolved first, by choosing one of the options set out in the letters. Only then would their requests be considered.

[3]  The issues to be determined in these two grievances are:

• Did the employer discriminate against the grievors contrary to clause 19.01 of their collective agreement (no discrimination) and s.7 of the Canadian Human Rights Act (R.S.C., 1985, c. H-6)?
• Did the employer breach the grievors’ contractual right to leave without pay for personal needs under clause 44.01 of the collective agreement?

[4]  Both grievors were in the bargaining unit covered by the collective agreement between Treasury Board and the Public Service Alliance of Canada for the Border Services group which expired on June 20, 2014.

[5]   I find that the employer discriminated against the grievors on the basis of disability when it denied their requests for personal-needs leave because they were on sick leave without pay. In doing so the employer breached clause 19.01 of the collective agreement and s. 7 of the Canadian Human Rights Act.

[6]  I further find that the employer breached the grievors’ contractual right to personal-needs leave. Clause 44.01 of the collective agreement provides for personal-needs leave subject to three restrictions. Being on sick leave without pay is not one of them.

II. Summary of the evidence

A. Angela Edwards

[7]  Ms. Edwards was a junior programs officer with the CBSA classified at the FB‑02 group and level. On October 26, 2012, she went on sick leave without pay and soon after provided a medical note stating that she would be off work indefinitely.

[8]  In May 2013, her doctor noted some improvement but said that a return to work before October 2014 was unlikely. In December, 2013, the Sun Life Assurance Company of Canada (“Sun Life”), which administers the employer’s long term disability plan, advised that Ms. Edwards had recently been approved for Canada Pension Plan disability benefits.

[9]  By October, 2014, Ms. Edwards had been on sick leave for two years. Following the guidance provided in the Treasury Board’s Directive on Leave and Special Working Arrangements (“the directive”), the employer asked whether she would return to work and if so, what accommodations might be needed. The employer also told Ms. Edwards that if she could not be accommodated at work, and if she would not be able to return in the foreseeable future, she might have to consider medical retirement or resignation. Ms. Edwards’ doctor advised that she could not return to work at that time but that a possible return might be considered in April, 2015.

[10]  The employer followed up in May asking Ms. Edwards to review her options in accordance with the directive, which states that sick leave without pay situations should be resolved within two years. The employer re-stated the three options, set June 15, 2015 as the deadline to choose one, and advised Ms. Edwards that if no choice was made, a non-disciplinary termination would be considered.

[11]  In June, another doctor’s note stated that Ms. Edwards still could not return to work and that it was impossible to predict when she might be able to return. The employer advised Ms. Edwards that she needed to make a firm choice of one of the options by July 10, failing which it would have no choice but to move towards a non-disciplinary termination. Ms. Edwards asked for an extension of time to respond, which was granted until August 10, 2015.

[12]  On June 30, 2015, Ms. Edwards told the employer that, on the advice of her union president, she was now requesting personal-needs leave for up to one year, pursuant to clause 44.01 of the collective agreement. The employer responded that Ms. Edwards had been on sick leave without pay for more than two years and that it needed to address that situation first before it could review her request for personal-needs leave. Again, it asked her to choose one of the options by August 10, 2015.

[13]  Charles Khoury, President, Customs and Immigration Union (CIU), asked the employer to specifically approve or deny Ms. Edwards’ request and, if it denied the leave, to provide a rationale for the denial. The employer responded that it denied the request “at this time” and reiterated that the sick leave without pay situation had to be resolved first. The deadline of August 10 to choose an option remained in effect and passed without Ms. Edwards making a choice. On August 11 she grieved the denial of her leave request.

[14]  On September 4, the employer reiterated the three options and told Ms. Edwards that in the absence of a response by September 25, it would terminate her employment for non-disciplinary reasons. Ms. Edwards sent another doctor’s note which said that she was working towards a gradual return to work on January 1, 2016.

[15]  At the end of December, 2015, the employer denied the grievance, but said that upon a successful return to work on January 1, 2016, as per her latest medical certificate, Ms. Edwards’ sick leave without pay situation would be resolved. The employer would then consider her leave request. However, on January 14, 2016, Ms. Edwards’ doctor told the employer that she would be very surprised if Ms. Edwards could return to work within the next few months.

[16]  In April, 2016, Ms. Edwards’ grievance was denied at the final level. Once again, the employer said that one type of leave must end before a different type begins, that Ms. Edwards had still not chosen an option to end the sick leave, and that, therefore, the employer was not in a position to grant her request for a different type of leave.

[17]  On January 19, 2017, another doctor’s note advised that Ms. Edwards would not be able to return to work for the next six months. She took medical retirement effective July 8, 2017.

B. Deborah Park

[18]  Ms. Park was a senior programs officer with the CBSA, classified at the FB-04 group and level. She went on sick leave without pay in January, 2013 and, two years later, in January, 2015, she received a similar letter from the Agency giving her the same three options. She asked for time to consider her options until May 15, 2015, which was granted. However, when she did not respond by that time, her manager, André Laframboise, followed up. Ms. Park responded by requesting “… leave under Article 44.01 — 1 year leave of absence for personal reasons.”

[19]  Mr. Laframboise denied the request and said that sick leave without pay could not be granted indefinitely and that her sick leave status had to be resolved. Ms. Park was given until mid-August to choose one of the three options, failing which the employer would move towards a non-disciplinary termination.

[20]  Ms. Park grieved the denial of her leave request and then sent a doctor’s note which said that she would be available for a graduated return to work starting February 1, 2016. Mr. Laframboise suggested that they touch base in early January to discuss any requirements or accommodations that might be needed for a smooth transition back to work.

[21]   Later, the employer was advised by Sun Life that Ms. Park met the definition of total disability, that her claim for disability benefits had been approved, and that she should apply for a Canada Pension Plan disability pension. Mr. Laframboise questioned this information given that Ms. Park had told the employer that she would be returning to work on February 1, 2016. However, Sun Life responded that ongoing disability benefits had been approved and that it was not anticipated that Ms. Park would be able to return to work, in any capacity, for the foreseeable future.

[22]  At the end of December, 2015, Mr. Laframboise denied Ms. Park’s grievance and asked her to provide an updated medical certificate on her fitness to return to work, setting out any limitations that might require accommodation. He said that based on Ms. Park’s most recent medical certificate, a gradual return to work was planned for February 1, 2016. Upon her successful return, the sick leave without pay would be deemed resolved, and her request for leave without pay for personal needs would be considered.

[23]  Ms. Park responded that she was gathering the requested information for her return to work on February 1, 2016. Then she made a second request for one year of personal-needs leave to start on February 3, 2016.

[24]  Mr. Laframboise reiterated the information needed to return to work, advised that a medical certificate would be required to extend sick leave if she did not return, and denied her second request for personal-needs leave, giving the same rationale for the denial.

[25]  On April 7, 2016, the employer issued its final-level response denying Ms. Park’s grievance, for the same reason:

… typically, a period of one type of leave must end before a different type of leave begins. As stated in a letter from your manager dated January 14, 2015 you were given several options to bring your current period of leave to a conclusion. As management had not received your decision in that regard, management was not in a position to grant your request for a different type of leave.

[26]  In September, 2016, Sun Life advised that Ms. Park’s Canada Pension Plan disability benefits claim had been approved.

[27]  Ms. Park was still a CBSA employee on sick leave without pay at the time of the hearing.

III. Did the Employer Discriminate Against the Grievors?

[28]  Clause 19.01 of the collective agreement states that: “There shall be no discrimination … exercised or practiced with respect to an employee by reason of … mental or physical disability ….”

[29]  Section 209(1)(a) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA) provides that an individual grievance about the interpretation or application in respect of an employee of a collective agreement provision, may be referred to adjudication. These grievances were referred to adjudication on June 16, 2017. For any matter referred to adjudication, the Board may interpret and apply the Canadian Human Rights Act (CHRA) (other than its equal pay provisions) (s. 226(2)(a) FPSLRA).

[30]  Section 7 of the CHRA states that differentiating adversely in relation to an employee on the basis of a prohibited ground of discrimination is a discriminatory practice. Section 3 lists disability as a prohibited ground.

[31]  Section 15 of the CHRA states that an otherwise discriminatory refusal can be defended on the basis that it is a bona fide occupational requirement. However, for this defence the employer must show that accommodating the needs of those adversely affected would impose undue hardship on it, considering health, safety, and cost (see s. 15(2)).

[32]  To make out a discrimination claim, grievors must first show what is known as a prima facie case or a case at first view. This means they must provide evidence that, if believed, would be sufficient to result in a finding in their favour, absent an answer from the employer (see Ont. Human Rights Comm. v. Simpsons-Sears 2 SCR 536 at 588 and 589). Specifically, they must show that they have a characteristic protected by clause 19.01 of the collective agreement or by s. 7 of the CHRA, that their employer treated them differently and adversely, and that their protected characteristic was a factor in this adverse treatment.

[33]  These grievors made out a prima facie case. They have a protected characteristic — disability. They were treated differently and adversely when their employer denied them personal-needs leave that was available to other employees. And their disability was a factor in the denial. They were on sick leave because of their disability and their leave requests were denied because they were on sick leave.

[34]  To respond to a prima facie case, an employer can provide evidence to show that its actions were not discriminatory, or it can provide evidence justifying the discriminatory practice as a bona fide occupational requirement.

[35]  The employer argued that its decision to deny the grievors’ leave requests was not discriminatory — it was not based on the grievors’ disability but rather on the fact that they were already on one form of leave, which had to be resolved. Sick leave without pay is an accommodation to maintain the employment relationship, but it cannot go on indefinitely. Both grievors had been on sick leave for more than two years and it was in that context that the employer was trying to resolve the sick leave status before considering another form of leave.

[36]  Clearly, the employer had no intent to discriminate and was simply trying to deal with the sick leave situation in the way it thought best. However, intent does not determine whether a discriminatory practice has occurred — its effect does. The grievors do not have to prove that the employer intended to discriminate against them to establish discrimination (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Centre), 2015 SCC 39 at para. 40).

[37]  And, while the employer’s desire to manage distinct kinds of leaves in this way is understandable, there is nothing in the collective agreement that makes the grievors ineligible for personal-needs leave. Therefore, to deny their leave requests simply because of their sick leave status is discrimination on the basis of disability.

[38]  The employer also submitted that if the adverse differentiation was discriminatory, it was justified as a bona fide occupational requirement. Ultimately, an employee must be able to do the work and if that isn’t possible, an employer can end the employment relationship. An employer’s duty to accommodate ends when an employee is incapable of work and will remain so for the foreseeable future. (see Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, Maher v. Deputy Head (Correctional service of Canada) 2018 FPSLREB 93, Gauthier v. Treasury Board (Canadian Forces Grievance Board) and Deputy Head (Canadian Forces Grievance Board), 2012 PSLRB 102, and English-Baker v. Treasury Board (Department of Citizenship and immigration) 2008 PSLRB 24).

[39]  The employer argued that the grievors were unable to work for the foreseeable future, and that the point of undue hardship had been reached. However, the employer also noted that even so, it continued to accommodate them by maintaining their sick leave without pay. It is hard to see how one year of personal-needs leave could amount to undue hardship, when the employer voluntarily kept both grievors on sick leave without pay for a much longer period.

[40]  If the point of undue hardship had been reached, the employer could have terminated the grievors’ employment. Having chosen to maintain the employment relationship, however, it could not discriminate by denying the grievors a right to which they were entitled under the collective agreement, simply because of their sick leave status.

IV. Did the employer breach the grievors’ contractual right to personal-needs leave?

A. Overview of collective agreement language

[41]  Article 33 of the collective agreement sets out the general types of leave that the parties have agreed cannot be combined. Clause 33.05 states, “An employee shall not be granted two (2) different types of leave with pay … in respect of the same period of time.” Clause 33.07 sets out that: “An employee is not entitled to leave with pay during periods he or she is on leave without pay or under suspension.”

[42]  Clause 44.01 reads as follows:

Leave without pay will be granted for personal needs in the following manner:

(a) subject to operational requirements, leave without pay for a period of up to three (3) months will be granted to an employee for personal needs;

(b) subject to operational requirements, leave without pay for more than three (3) months but not exceeding one (1) year will be granted to an employee for personal needs;

(c) an employee is entitled to leave without pay for personal needs only once under each of paragraphs (a) and (b) during the employee’s total period of employment in the public service. Leave without pay granted under this clause may not be used in combination with maternity or parental leave without the consent of the Employer.

[Emphasis added]

[43]  There is no dispute that the parties’ true intent must be found by considering the whole of the collective agreement. The employer points out that Part IV of the collective agreement is structured to provide for many different types of leave, all for different purposes. When an employee cannot work and his or her sick leave credits run out, the appropriate form of leave is sick leave without pay. Personal-needs leave is not appropriate to address such a situation. Each type of leave has its specific purpose and must only be used for that purpose.

[44]  The employer’s view of how the leave provisions interact, while sensible in theory, is not supported by the language of the collective agreement.

[45]  Article 33 makes it clear that the parties turned their minds to the possibility that employees might wish to combine different kinds of leave. They specifically agreed to prohibit combining two types of paid leave, and a paid and an unpaid leave. If they meant to also prohibit combining two unpaid leaves, they did not say so.

[46]  An employee is not required to use personal-needs leave for any particular purpose or even to tell the employer why she wants it. An employee can request this leave at any time, for any reason or for no reason.

[47]  Clause 44.01 is mandatory. As long as its requirements are met, the employer must grant the leave. Other leave provisions use the word “may” and are clearly discretionary, for example, clause 49.01 (education leave), clause 50.02 (career development leave), clause 51.01 (examination leave), and clause 52.01 (leave for other reasons). The word “will” is used in clause 44.01 to convey that the employer cannot deny the leave for reasons other than those listed.

B. Clause 44.01 places three restrictions on granting personal-needs leave

1. Operational requirements

[48]  Personal-needs leave is granted subject to operational requirements. The employer would have been entirely within its rights to deny the requested leave on that basis; however, it did not. None of the correspondence to the grievors raised operational requirements. The employer’s stated rationale was consistent throughout — the leave requests were denied because the grievors were on sick leave.

[49]  Mr. Laframboise raised some operational concerns in his testimony. He testified that Ms. Park had been replaced by a junior (FB-02) officer who did not have, and was not expected to have, the skills of an FB-04. He mentioned preparing for a major multi-location ready-response exercise at the same time he was corresponding with Ms. Park about a return to work. He would have liked to have had all hands on deck for this major exercise. However, Mr. Laframboise acknowledged in cross-examination that even if she had returned to work at that time, he would have had no assurance that Ms. Park could perform at full capacity, given the length of time she had been out of the workplace.

[50]  Mr. Laframboise’s main concern was that granting the leave would amount to “punting the ball down the road for a year.” He noted that it is always better when managers have certainty and that his job was to ensure that the work got done with the resources available. He was also concerned that at the end of such a leave, Ms. Park might be eligible for another two years of sick leave before the employer could again seek to resolve the sick leave issue, putting the total leave period at five years or more. There was no evidence to suggest that this was a real possibility; nor did Mr. Laframboise seek advice with respect to it. It was a vague concern, but it influenced his decision-making on the leave request.

[51]  These issues were raised for the first time at the hearing and were simply presented as considerations that Mr. Laframboise had in mind when he denied Ms. Park’s request. The employer did not argue that her request had been denied due to operational requirements. It maintained the same position at the hearing as it took in correspondence with the grievors — that their leave requests could not be considered as long as they remained on sick leave because one type of leave had to be resolved before another could begin.

[52]  The only argument the employer raised about operational requirements was that having that language in the clause implied that personal-needs leave was meant only for employees who are in the workplace. The underlying assumption is that the requesting employee is at work, is capable of working, and will continue to do the work if the leave is denied. It is not intended for an employee who has already been out of the workplace for two years on sick leave without pay.

[53]  However, clause 44.01(c) states that with consent, this leave can be combined with maternity or parental leave. And it does not state that consent cannot be granted to an employee who is already on maternity or parental leave and seeks to extend that leave. The language does not support the assumption that operational requirements are relevant only with respect to an employee who is in the workplace and seeking leave. There are times when an employer must also be able to consider operational requirements when an employee is already on leave, to assess the operation’s ability to absorb a longer leave than was originally anticipated.

2. Once in a career

[54]  The second restriction in clause 44.01 is that an employee can take this leave only once, under each of paragraphs (a) and (b), during the employee’s entire public service career. That restriction was not an impediment as neither grievor had ever taken this leave.

3. Employer consent needed to combine with maternity or parental leave

[55]  The third restriction is that employer consent is required to combine personal‑needs leave with maternity or parental leave. That restriction also did not apply. Neither of the grievors sought to combine this leave with maternity or parental leave.

C. The expression of one thing implies the exclusion of another 

[56]  The language used in clause 44.01 shows that the parties turned their minds not only to which general types of leave can be combined, as set out in Article 33, but also to which specific leaves can be combined with personal-needs leave. And, having turned their minds to this question, they restricted only maternity and parental leave. Expressly stating that personal-needs leave “may not be used in combination with maternity or parental leave without the consent of the Employer” must mean that other kinds of leave can be so combined and do not require consent.

[57]  In Regional Authority of Greater North Central Francophone Education, Region No. 2 v. C.E.P., Local 777, 2011 CarswellAlta 1468, the union gave verbal notice of its intent to refer a grievance to arbitration within the specified time limits but confirmed it in writing outside of the time lines. The employer argued that the union was out of time. The arbitrator noted that the collective agreement provision did not specify the need for a written notification, whereas other notices were expressly required to be in writing. He held that had the parties intended that notice of intent to refer to arbitration also had to be in writing, they would have said so.

[58]  This principle of interpretation was also applied in First Truck Centre Edmonton Inc. v. C.L.A.C., Local 56 (2012), 217 L.A.C. (4th) 363 where the collective agreement required employees to reimburse their employer for certain apprentice fees. When the employer deducted other training costs, the union grieved as nothing in the collective agreement allowed that additional deduction. The arbitrator concluded that “… having chosen to be specific about the one form of recoverable training expense, the parties are to be presumed to not have intended some broader right to recover.…”

[59]  In St. Michael’s Hospital v. Ontario Nurses’ Association (2013), 235 L.A.C. (4th) 389, the employer posted three temporary positions. The union argued that they did not fall within the specific circumstances described in the collective agreement when temporary vacancies were deemed to exist. The arbitrator concluded: 

38 … it can be inferred that by expressly mentioning those circumstances that give rise to a temporary vacancy, the parties have intentionally excluded other circumstances not so identified. (The expressio unius exclusio alterius rule of interpretation.)….

[60]  In this case, Article 33 expressly prohibits combining two kinds of paid leave or a paid and an unpaid leave. However, there is no prohibition against combining two kinds of unpaid leave. Sick leave without pay and personal-needs leave are both unpaid leaves.

[61]  Clause 44.01 expressly prohibits combining maternity/parental leave with personal-needs leave, except with consent. However, there is no prohibition against combining any other kind of leave (such as sick leave) with personal-needs leave.

[62]  Clearly, the parties turned their minds to the issue of combining leaves. If other prohibitions were intended, they would have, or should have, specifically expressed them.

D. Directive on Leave and Special Working Arrangements

[63]  Appendix B of the directive is entitled “Leave Without Pay.” With respect to sick leave without pay, the directive states that: “… such leave without pay situations are to be resolved within two years of the leave commencement date, although each case must be evaluated on the basis of its particular circumstances.” The directive has not been incorporated into the collective agreement.

[64]  The employer argued that it had properly followed the guidelines set out in the directive because sick leave without pay does not exist in the collective agreement. Once sick leave credits are exhausted and sick leave with pay ends, a transition to sick leave without pay takes place, which occurs outside of the collective agreement. At this point, the directive applies.

[65]  It is true that the employer is entitled to follow the directive with respect to sick leave without pay. However, the directive is simply a Treasury Board document that provides guidance to government departments — it does not and cannot override the parties’ collective agreement. Section 3.2 of the directive itself makes this clear:

3.2 Persons appointed to the core public administration may be granted leave in accordance with the provisions of the relevant collective agreement or terms and conditions of employment. Where there is conflict or incompatibility between a provision of the collective agreement and the Treasury Board terms and conditions of employment policy instruments, the provisions of the collective agreement apply.

[66]  As there is no provision for sick leave without pay in the collective agreement, the employer can apply the directive and resolve any sick leave without pay situations at the two-year mark. However, the employer cannot rely on the directive to deny a benefit to which an employee is otherwise entitled under the collective agreement. The collective agreement is silent with respect to sick leave without pay, but it is not silent with respect to leave without pay for personal needs.

E. The Board’s jurisprudence on personal-needs leave

[67]  The Board and its predecessors have dealt with grievances about leave without pay for personal needs.

[68]  In Ferguson v. Treasury Board (Statistics Canada), 2009 PSLRB 21, the grievor requested personal-needs leave under clause 17.10 of a collective agreement between the Professional Institute of the Public Service of Canada (PIPSC) and the Treasury Board. That clause was identical to clause 44.01 of the collective agreement in this case. In that case the grievor requested leave after receiving notice that she had been designated surplus for the purpose of a workforce adjustment (WFA). She was three years away from an unreduced pension and was candid about her hope that by taking several forms of leave consecutively, she could cover those three years. Her grievance was dismissed because granting her leave request would have frustrated the entire WFA scheme.

[69]  Clause 17.10 was already in the PIPSC agreement when the very detailed WFA process was explicitly incorporated into it. Interpreting that clause by looking at that whole collective agreement, and applying the interpretative principles that the specific trumps the general and that a latter provision trumps an earlier one, the adjudicator concluded that where there was conflict, the WFA overrode clause 17.10:

…

[42] In this case, the parties to the collective agreement, namely the Treasury Board and the PIPSC, have expressly made the WFA Appendix part of the collective agreement. That Appendix contains 46 pages of detailed provisions ….

…

[43] As the WFA Appendix is expressly stated to be part of the collective agreement and the collective agreement must be interpreted as a whole, the issue is whether the provisions of Article 17.10 and WFA Appendix can be reasonably interpreted to avoid a conflict in application.…

…

[60] … I have concluded that the employer’s interpretation and application of Article 17.10 in the context of the whole collective agreement is the correct interpretation and that the employer did not violate the collective agreement when it denied the grievor’s leave request … without justifying its refusal on the basis of its operational requirements.

[61] The WFA Appendix of the collective agreement contains a detailed scheme with very specific provisions for implementing the WFA agreement. If there is a conflict in applying the specific, later provisions of WFA Appendix and the earlier, more general provisions of Article 17.10, the WFA Appendix provisions prevail to the extent of the conflict.

…

[70]  The Ferguson decision dealt with a similar issue to this case, but with a crucial difference. The WFA was expressly incorporated into that collective agreement. Reading the collective agreement as a whole, therefore, revealed a conflict between the two provisions that had to be resolved. Unlike the WFA scheme, the directive does not have the same force as the collective agreement provision. It is expressly stated to be subordinate to it.

[71]  The Board also considered a similar issue in Mazerolle v. Deputy Head (Department of Citizenship and Immigration), 2012 PSLRB 6. In that case, the grievor contested the termination of his employment for unsatisfactory work performance as well as a denial of leave without pay for the care of immediate family and to relocate a spouse. When the grievor was advised of his termination, he applied for leave in an attempt to postpone it. The adjudicator held that the employer was not obliged to consider the grievor’s leave requests and that, in any event, such requests would not preclude a termination. Indeed, even had the leave requests been granted, they would have been moot:

…

[161] Furthermore, I do not believe that the employer is obligated to consider a request for leave without pay made in the shadow of a termination of employment, for the purpose of avoiding termination. Nor would being on leave without pay have prevented or precluded the employer from terminating the grievor’s employment for unsatisfactory performance … even if a formal leave request had been made and denied, the grievances against the denial of leave without pay would be moot, since I have dismissed the grievance against the termination of employment.

…

[72]  The same reasoning applies in this case. Had the employer terminated the grievors’ employment, before or after they asked for leave, it would not have been obliged to consider their leave requests, which would have been rendered moot by the terminations. However, the grievors’ employment was not terminated. Therefore, unlike the grievor’s requests in Mazerolle, their personal-needs leave requests were not rendered moot and had to be duly considered under the terms of the collective agreement.

V. Remedies

[73]  The union asked for the following remedies:

1. a declaration that the employer cannot deny a request for personal‑needs leave because an employee is on sick leave without pay,
2. that Ms. Park’s leave request be granted, and
3. damages for pain and suffering for both grievors.

A. Damages

[74]  Neither grievor testified. Therefore, there was no evidence before me about the impact of the employer’s denials on either of them.

[75]  The grievor’s representative noted that Mr. Laframboise, who was the only witness, agreed in cross-examination that receiving the “options” letter would probably have been a shock to the grievors and that he would not want to receive such a letter. Mr. Laframboise further agreed that if an employee was on leave under clause 44.01, that he would likely not ask that employee for medical information at intervals, as he would do with an employee on sick leave. The implication of these questions was that granting the grievors’ personal-needs leave could have alleviated the assumed stress of receiving further “options” letters and requests for medical updates, for one year. This evidence was entirely speculative, and I give it no weight.

[76]  I was referred to a decision of the Ontario Divisional Court on appeal from a Board of Inquiry decision under the Human Rights Code, 1981 for the proposition that damages are warranted for the inherent harm in a breach of human rights. York Condominium was an age-discrimination case concerning an adults-only building in which the court held that the complainants were not entitled to monetary compensation for mental anguish or stress, but that they were entitled to some award for “loss arising out of the infringement” of their respective rights. (York Condominium Corp. No. 216 v. Dudnik (1991), 79 DLR (4th) 161.)

[77]  The grievors’ representative also referred me to an arbitration decision that applied York Condominium in a labour law context. In Waterloo Furniture Components v. United Steelworkers of America, Local 7155, [1999] O.L.A.A. No. 962 (QL) the arbitrator said this:

84 It is well established that section 41(1)(b) authorizes monetary compensation, not just for financial losses, but for the breach of the Human Rights Code itself. The right to freedom from discrimination has intrinsic value and an infringement of the Human Rights Code and the subsequent loss of that right justifies a monetary award of compensation. This compensation is separate and distinct from an award for mental anguish. This form of compensation was specifically upheld by the Ontario Divisional Court in York Condominium Corp. No. 216 v. Dudnik (1991), 79 DLR (4th) 161 at 177.

[78]  The grievors’ representative suggested that this would be an appropriate case in which to follow this Ontario jurisprudence because if the grievances are upheld, the result is of little benefit to the grievors, especially Ms. Edwards, who took medical retirement and can no longer benefit from the granting of a leave request.

[79]  The Court in York Condominium and the arbitrator in Waterloo Furniture Components awarded damages pursuant to then s.41(1)(b), of the Ontario Human Rights Code, 1981. This section provided that a Board of Inquiry, upon finding an infringement of a right, could “…direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in willfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.” [Emphasis added]

[80]   The language I have jurisdiction to apply is s. 53(2)(e) of the Canadian Human Rights Act which allows an award of damages to be made for “… any pain and suffering that the victim experienced as a result of the discriminatory practice.”

[81]  As neither grievor testified, the only information available is that they both stayed on sick leave much longer than the maximum one year personal-needs leave. And, had they been granted personal-needs leave, their severance pay, vacation leave, and eligibility for pay increments would have been negatively impacted by operation of clause 33.02 of the collective agreement. This provision states that periods of leave without pay in excess of three months for reasons other than illness are deducted from “continuous employment” for the purposes of calculating severance pay, from “service” for the purpose of calculating vacation leave, and from the calculation of pay increments.

[82]  The only evidence that we have suggests that remaining on sick leave was ultimately of more benefit to the grievors than the granting of personal-needs leave would have been. Accordingly, in the absence of testimony from the grievors, or indeed, any evidence to the contrary, I decline to make an award of damages.

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

(The Order appears on the next page)

VI. Order

[84]  I declare that denying a request for personal-needs leave because an employee is on sick leave without pay is discriminatory on the basis of disability and that doing so violates clause 19.01 of the collective agreement and s. 7 of the Canadian Human Rights Act.

[85]  I declare that denying a request for personal-needs leave because an employee is on sick leave without pay violates clause 44.01 of the collective agreement.

[86]  I order the employer to consider Ms. Park’s request for personal-needs leave if she is still an employee when this decision is issued and if she wishes her request to be considered at that time.

June 28, 2019.

Nancy Rosenberg,

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