Date:  20190705

Files:  566-02-11224 and 11833

Citation:  2019 FPSLREB 67

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

Catharine Holmes

Grievor

and

DEPUTY HEAD

(Office of the Director of Public Prosecutions)

Respondent

Indexed as

Holmes v. Deputy Head (Office of the Director of Public Prosecutions)

In the matter of individual grievances referred to adjudication

Before:  John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor:  Herself

For the Respondent:  Karl Chemsi, counsel

Heard at Ottawa , Ontario ,

October 24 to 28, 2016, and April 11 and 12, 2017.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1]  Catharine Holmes (“the grievor”) is employed by the Treasury Board (TB or “the employer”). At the time of the grievances, she was employed as a human resources (HR) advisor in the Personnel Administration (PE) Group, classified at the PE-04 group and level, at the Human Resources Directorate (HRD) of the Public Prosecution Service of Canada (PPSC) in Ottawa, Ontario.

[2]  On March 10, 2015, the grievor filed a grievance (file 566-02-11224), which stated as follows:

Grievance details: . . .

I grieve that the PPSC, took a number of actions to frustrate my request and/or delay my return to work with accommodation and the PPSC (via written communication by Jason Fox on March 9 2015) refused to accommodate my medical restrictions (as certified by my physician) resulting from a workplace injury, such that it (a) violated Section 2 of the CHRA (duty to accommodate) and (b) is attempting to make my working conditions so intolerable that I would feel compelled to resign. As such, I allege that the PPSC’s actions and inactions constitute constructive dismissal.

Date on which each act, omission or other matter giving rise to the grievance occurred . . .

March 9 2015

Corrective action requested . . .

- The PPSC shall return to [sic] me to work immediately with accommodation as per my medical restrictions and

- The PPSC shall treat my leave beginning from the date I was certified by my physician to be fit to return to work with accommodation (add date here), up to the date I am returned to work with accommodation, be treated as LEAVE WITH PAY-OTHER and

- That I be made whole.

[3]  The employer denied the grievance at all levels of the grievance process. The grievor referred it to adjudication on June 1, 2015, under s. 209(1)(c)(i) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA).

[4]  On November 4, 2015, the grievor filed another grievance (file 566-02-11833) with the employer, which stated as follows:

Grievance details:

I grieve that the PPSC 3^rd level step officer failed to adequately and accurately respond to the basic allegations raised before him in grievances 675-3-1143 and 675-3-1144 (failure to re-instate my pay as of March 30 2015 and to correct management’s action to place me on “Sick leave without”, pay effective March 30 2015) in his grievance response. Not only did the response reference incorrect information, but the PPSC appears to have arbitrarily chosen to ignore relevant and pertinent information which supports my allegations that I should have never been placed on sick leave without pay, as the department has been well advised from evidence from Health Canada’s Fitness to Work evaluation findings report, dated July 2, 2015, that I was deemed to have been fit to return to full time work with accommodation. This supports my own physician’s medical certificate dated March 17 2015 declaring that effective March 18 2015, I was certified fit to return to full time work with accommodation (removal from harassment environment).

I thus must conclude that the department has sought to further harass and harm me, and apply a disciplinary and punitive action against me despite no misconduct on my part. Not only do I content that my grievance was handled in bad faith, I grieve that the fact that the department prolongs this matter despite my right to be treated equally to other employees who have presented medical certificates is contrary to the Canadian Human Rights Act (discrimination on the basis of disability) as I continue to incur loss of pay, benefits, pensionable service and am further humiliated for having to compel the organization to do the just thing. The ill spirit in which my grievance was handled constitutes, in my opinion, a continuance of constructive dismissal.

Date on which each act, omission or other matter giving rise to the grievance occurred . . .

October 29, 2015 - DATE OF GRIEVANCE RESPONSE

Corrective action requested . . .

. . .

- Re-instate my pay effective March 30 2015 to October 12, 2015

- Re-instate my leave credits that are owed as of April 1 2015 (new fiscal year)

- Correct my leave status to reflect the period of March 30, 2015 to October 12 2015 to reflected as leave-other (with pay)

- To re-instate my federal public servant pensionable service between March 30 2015 to October 12 2015

[Sic throughout]

[5]  The employer denied the second grievance at all levels of the grievance process. The grievor referred it to adjudication on December 18, 2015, under ss. 209(1)(b) of the PSLRA.

[6]  On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board (PSLREB) and the titles of the Public Service Labour Relations and Employment Board Act, the PSLRA, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the Act”), and the Federal Public Sector Labour Relations Regulations (“the Regulations”).

II. Summary of the evidence

A. Documents and hearing process issues

[7]  After the parties made opening statements, the grievor testified first. She provided a brief history of her career and presented me with six large cerlox-bound (spiral bound with multiple small plastic rings) briefs of documents that she intended to use. The documents were not separated by tabs but were numbered. As the employer was not prepared to agree to enter them on consent, I indicated that they would be made exhibits when the documents contained in them were proved in the normal course.

[8]  When the grievor began her testimony, rather than tell her story in a succinct and chronological manner, she started to go through the first cerloxed brief, identifying documents. I was able to deduce from this process that in 2012-2013, it appears that a dispute arose over her work description, in that she felt it was not being handled in an appropriate manner. It appeared to have its genesis in an organizational review and change process that had been taking place in the HRD at that time that was known as the “Common Human Resources Business Process” (“the HRD review process”).

[9]  Part of the grievor’s evidence and document identification disclosed discussions she had with a colleague, Ruth Cameron, who was also a PE-04 in the HRD; she also had issues with respect to the HRD review process. Ms. Cameron filed grievances that arose out of the process, which the PSLREB dealt with in Cameron v. Deputy Head (Office of the Director of Public Prosecutions), 2015 PSLREB 98.

[10]  It became clear that in 2012-1013, the grievor was upset with the way she felt the management cadre was handling concerns she had raised with respect to her work description and the HRD review process. That led to her filing three harassment complaints, two against Denis Desharnais, and one against Susan Kelly.

[11]  At the time the complaints were filed, Mr. Desharnais was the HRD’s director general, and Ms. Kelly was a subordinate and the manager, organizational design and classification and labour relations.

[12]  The first two complaints were made on December 9, 2013. They listed incidents involving Mr. Desharnais and Ms. Kelly that took place between September of 2012 and April of 2013. The third complaint was made on February 20, 2014, which was against only Mr. Desharnais and alleged incidents that occurred between November of 2013 and February 12, 2014.

[13]  Margaret Michaels of Human Resources Consulting investigated the harassment complaints and issued two final reports, both dated October 2014. One was for the complaints made against Mr. Desharnais (“the Desharnais harassment complaint report”), and the other was with respect to those made against Ms. Kelly.

[14]  The executive summary of the Desharnais harassment complaint report stated that the second complaint against Mr. Desharnais described the nature of the harassing conduct in a manner identical to what was provided in the December 9, 2013, complaint.

[15]  For the purposes of these grievances and this decision, I need not get into the specifics of each allegation that the grievor made against Mr. Desharnais and Ms. Kelly. The executive summary of the Desharnais harassment complaint report sets out the general nature of the complaints as follows:

. . .

The complainant asserts that throughout her tenure with the organization, she has never had an accurate work description. Although the work description she was given upon joining the organization in 2009 was not accurate, this was not of significant concern to her, given that the organization was newly stood up. She first formally raised the issue with her manager in February 2012. The complainant perceives that the co-ordinated actions or lack thereof by the two named respondents, vis-à-vis her request for an accurate work description have constituted harassment. In essence the complainant alleges that Mr Desharnais has systematically employed tactics against her that were “abusive, offensive and demeaning. His actions targeted me specifically. In doing so, he sought to impede, prevent, control, frustrate and withhold my attempts to gain a valid and correct work description in a timely manner. Specifically he demonstrated an abuse of authority by using his position to improperly interfere in my right to obtain a valid and accurate work description”.

The respondent denies the validity of any of the allegations against him. He is of the opinion that the complainant filed her complaint to further her agenda of achieving a PE-05 level position. The complainant and other PE-04 and PE-05 employees have lodged several grievances and/or complaints against managers in the HR directorate. The respondent perceives that these issues arose out of a classification review within the HR directorate that took place during the time period covered in the subject complaint.

. . .

[16]  The alleged harassment incidents took place between March of 2012 and February of 2014. The complaints against Mr. Desharnais listed 13 incidents of harassment, of which 3 were disallowed, 8 resulted in findings that no harassment had occurred, and 2 resulted in findings that harassment had occurred. The complaint against Ms. Kelly listed 21 incidents of harassment, of which 6 were disallowed, 14 resulted in findings that no harassment had occurred, and 1 resulted in a finding that harassment had occurred.

[17]  The one finding of harassment against Ms. Kelly arose out of the same incident as had one of the two findings of harassment against Mr. Desharnais. In essence, the finding was that Mr. Desharnais and Ms. Kelly had kept the grievor and her manager in the dark with respect to the status of her work description review. In short, they had ignored her. The harassment investigator found that Mr. Desharnais and Ms. Kelly ought to have known that that not providing information would detrimentally impact the grievor.

[18]  The other founded harassment allegation against Mr. Desharnais involved the grievor’s belief that she was being bypassed with respect to work she had done in previous years, her files had been stalled, and he had ceased to engage in friendly banter with her. In essence, the finding was that Mr. Desharnais had again failed to communicate with her in a timely manner and that he ought reasonably to have known that not communicating with her would make the situation worse.

[19]  The grievor confirmed in cross-examination that she had not been satisfied with the harassment investigation’s findings, even those that confirmed harassment. However, she did not have them judicially reviewed. She did state that she filed a grievance. However, when she was asked if she had referred it to the Board for adjudication, she stated that it was not adjudicable. She also said that she did not have the decision on that grievance judicially reviewed. I was not provided with a copy of it or any response from the employer at any level of the grievance process.

[20]  As the grievor continued to testify and go through the documents on the first day of the hearing, it became clear that much of what she was relating had to do with the actions involved in the HRD review process, her harassment complaints against Mr. Desharnais and Ms. Kelly, and her general unhappiness with respect to the situation within her work unit relating to those issues. She spent a significant portion of the first day of the hearing just identifying documents contained in her document briefs, of which

• many seemed to have no bearing whatsoever to the grievances before me;
• many had been obtained through access to information (ATIP) requests;
• some had been completely redacted; and
• many had not been privy to her except for her receipt of them through the ATIP process.

[21]  At the end of the first day, the hearing process and the grievor’s briefs of documents were discussed. Before the second day began, she had removed a number of documents from her materials. Her testimony on that day again largely involved identifying documents, often with little comment on them except to identify them.

[22]  After the morning break on the second day, the employer indicated that it would not object to certain documents being introduced, as they had been released as part of the ATIP process, but that it might object to aspects of evidence relating to them, given that the grievor had not been a party to them and that they involved other people and their actions with respect to her situation.

[23]  When the grievor identified certain documents, of which she was neither the author nor the recipient, she made comments about what she believed the authors and recipients had been thinking. This continued throughout her identification of the documents and her evidence-in-chief. The process of identifying the documents in her materials continued until 3:00 p.m., when we adjourned for the day at her request, to allow her extra time to review and cull more documents from her materials.

[24]  The third day of the hearing proceeded similarly to the first two with the grievor largely going through her materials and identifying documents. At times, she provided detailed testimony about what had happened, although again, largely, she merely identified documents.

[25]  The grievor’s evidence-in-chief was interrupted to allow the evidence of her other witness, identified in this decision as “Ms. A”, a colleague who also had worked in the HRD. The grievor called her to establish that her treatment by the employer with respect to a medical issue differed from that of the grievor.

[26]  Ms. A’s testimony was completed before the end of the third day. The grievor’s evidence-in-chief continued as it had left off, in that she identified the documents in her briefs. After approximately 20 more minutes of that, she completed her evidence‑in-chief, and the hearing adjourned for the day.

B. File 566-02-11224

[27]  The grievor started her federal public service career as a casual employee with Industry Canada in 2001 and was made indeterminate in 2006. In 2008, she moved into HR planning as a PE-03. In 2006, the PPSC was created out of what had been a part of the Department of Justice. On April 21, 2009, she was offered an indeterminate appointment with the PPSC as a PE-04, which she accepted on May 11, 2009.

[28]  At the time of the hearing and since February of 2013, Jason Fox was the director of human capital strategies in the HRD at the PPSC. In 2015, and since June of 2014, the grievor reported directly to him, and he reported to Mr. Desharnais. His group was responsible for HR planning, which included advice with respect to learning programs and performance management plans for employees (including executives and lawyers).

[29]  As of the hearing, Kathleen Roussel was the PPSC’s acting director, and at the time relevant to the grievances, she was a deputy director of the PPSC. In July of 2015, the HRD came within her area of responsibility, and Mr. Desharnais reported to her.

[30]  In early 2015, and as of the time of the grievances, Amy Campbell was an HR advisor with the PPSC. Although she did not testify, many of the documents entered into evidence were emails in which she was a party or referred to.

[31]  Mr. Fox described the grievor’s position as being responsible for providing strategic advice to the organization, designing programs and policies, conducting research on policy issues, and providing strategic advice to managers to help them with programs. He said that the position required a strong knowledge of the HR framework in the federal public service, including HR policies, design, and principles. On June 23, 2014, the grievor signed her work description, confirming that she had been given the opportunity to read and comment on its content, the relevant portions of which are as follows:

. . .

Client Service Results ...

Development of human resources (HR) policies or programs and the delivery of centralized client services for the department or agency within a centre of expertise (COE) for one HR discipline. Advice and guidance to departmental or agency management and HR practitioners.

Key Activities ...

Plans and organizes the delivery of departmental or agency HR operational services and advice, and the development of policies or programs and related tools and instruments; delivers client services; and investigates and resolves recurring trends and complex files for recourse actions.

Conducts research and analysis on trends, practices and strategic directions; interprets and analyzes legislative and policy frameworks, practices and issues; monitors and evaluates policy or program implementation; proposes policy or program improvements; develops business and operational strategies; and plans the implementation or delivery of HR initiatives and services to meet client and departmental or agency objectives.

Provides strategic advice to departmental or agency management and advises on the selection, implementation and management of HR strategies; consults with colleagues in other disciplines within the department or agency, with HR practitioners in central agencies, other government departments or the private sector (e.g. consultants); and participates in interdepartmental committees.

Leads ad hoc project teams, components of project teams and working groups planning and coordinating the implementation of departmental or agency or central agency-led initiatives.

Develops comprehensive analyses, briefings, discussion papers, communications materials, plans, report and business cases.

Develops or oversees the development of learning strategies, and designs, adapts, delivers or coordinates the implementation of departmental or agency training and information sessions.

. . .

[32]  The grievor testified that on Tuesday, January 27, 2015, she emailed Mr. Fox, advising him that she was unable to come to work as she was sick. A copy of it was not produced into evidence. She said that on January 28, 2015, she saw her family doctor, Dr. Wai-Sun Chan, who, on that date, wrote the following note (“the January 28 Chan note”):

To whom it concerns

I am writing to express my concerns for my patient Catharine. She has been experiencing significant work related stress. She has been having problems with her work environment and issues with personal harassment and bullying. She informs me that she has informed management regarding this but shockingly nothing has been done. This stress has been having a profound affect on her mental health and I’m concerned about further deterioration if she stays within her current work environment. I feel she is not fit to work and should be placed on stress leave immediately.

There is no doubt that she would benefit from a change in work environment and I also recommend that she be moved away from her work directorate immediately and that she be placed in a position in another directorate within the organisation.

. . .

[Sic throughout]

[33]  Also entered into evidence was an “Off Work/School Note” dated January 30, 2015, which appeared to be signed by Dr. Chan. It stated as follows:

. . .

This is to certify that the above patient was unable to attend work (attend school) due to illness/injury.

From: 27^th Jan. 2015

To:  30^th Jan. 2015

Comments: Work related stress.

[34]  It is unclear if the grievor saw Dr. Chan on January 30, 2015, in addition to her January 28, 2015, visit.

[35]  Both the grievor and Mr. Fox testified that, and the documents disclosed, after the grievor left the workplace on January 26, 2015, all her communications with Mr. Fox were, at her request, by email.

[36]  There is no evidence that the grievor returned to the workplace after January 26, 2015, and before she presented her grievance on March 10, 2015, which was done by email at 7:05 a.m. on that day.

[37]  The following are the email exchanges between the grievor and Mr. Fox from February 2, 2015, up to and including February 11, 2015:

[The grievor to Mr. Fox, February 2, 2015, at 7:24 a.m.:]

Good morning Jason

Thank you for your voicemail message last week expressing concern for my absence. I had intended to come in today (Monday) to speak directly with you but honestly, I am afraid it would trigger more stress and would further hurt my health.

As you know, I was absent most of last week and visited my doctor. He is treating me for stress caused by my work environment and climate; he has advised me that he does not feel I am fit to work at this time and has recommended I take leave to remove myself from the stressors and triggers within our office environment and to commence medical treatment to address the effect this has had on my health. He has noted that this stress is deteriorating my physical condition and well-being and these reasons are what prompted me to finally seek medical attention and prioritize my health after a very long period of distress that I mitigated as I could so I could complete my professional duties and responsibilities without interruption. I can no longer do so and it is quite clear that the work directorate management culture is not improving or changing, and thus, I am seizing my own health welfare before any further deterioration occurs.

My next visit with my doctor is scheduled for March 2, 2015.

My doctor is also recommending a change in work environment, in a position outside our directorate where my stressors lie. Thus, I am requesting an accommodation to this effect and would appreciate if this request could begin to be actioned immediately so that it may be in place when I am ready to return to the organization. I am eager to continue to be a contributing employee to the PPSC but cannot wholesomely continue to do so in the current work directorate with its unresolved issues and toxic behaviours from certain personnel. Could you please advise me of who will be tasked with this so that I can be assured that this request is being processed?

I have never taken a stress leave but understand from the TBS policy that a manager normally keeps in touch with the affected employee while they are on leave- I am requesting that due to the current stressors that affect my health, I would prefer email contact with you in lieu of telephone calls.

[deleted paragraph with respect to the status of her work files]

. . .

I will follow up shortly with a copy of my doctor’s note and will see that you get a copy of the original document which prescribes the measures indicated above. I do not have a scanner at home but will attempt to take care of that today.

Thank you,

. . .

[Mr. Fox to the grievor, February 2, 2015, at 10:34 a.m.:]

Good morning Cathi

Thank you for keeping me up to date. I hope that you are feeling better soon.

I will be responsible for following up on the content of the doctor’s note. Once I read it, I will be able to consult with LR and will get back to you regarding any next steps.

Given the situation, I don’t think it is appropriate to communicate by e-mail using your work address as you are on leave. As per your request, after this e-mail I will communicate with you at the address below unless you have another personal address that you would like me to use . . . .

Best regards,

Jason

. . .

[The grievor to Mr. Fox, February 2, 2015, at 2:55 p.m.:]

Hi Jason,

Yes, you are correct—I didn’t specify my home email but that is preferable to me as well.

I managed to scan my letters and will send to [sic] you via my home email address.

Thank you for your prompt reply to my earlier email,

Cathi

. . .

[The grievor to Mr. Fox, February 2, 2015, at 3:02 p.m.:]

Hello Jason

Attached are my medical certificates requesting a period of leave and accommodation and another absence note to cover Tuesday to Friday last week. I will send you the originals this week.

Please let me know as soon as possible who will be responsible to handle my accommodation request.

Thank you,

Cathi

. . .

[Mr. Fox to the grievor, February 5, 2015, at 9:51 a.m.:]

Good morning Cathi,

I am following up on our exchanges earlier this week regarding your request for accommodation. I have reviewed the letter and in order for me to properly consider your request I will need additional information from your doctor. I will follow up shortly with a letter to your doctor including forms that your doctor will need to complete to provide the information I require.

As usual if you want to discuss anything with me in more detail, I am available for you. I hope you are feeling better.

Jason

. . .

[The grievor to Mr. Fox, February 5, 2015, at 11:53 a.m.:]

Hi Jason, please forward to me the notes/document you require and I will submit them to my doctor. Can you please elaborate on what information is missing?

Thanks,

Cathi

. . .

[Mr. Fox to the grievor, February 11, 2015, at 5:54 p.m.; “the February 11 email”:]

Cathi,

As per my previous message, this message and attachments describe the information I need to follow up on your request and provides the forms to share with your doctor to do so. I am happy to discuss any of this with you should you have any questions.

The doctor’s note you provided does not give me the information I require regarding any functional limitations you may have in order to consider accommodation options. As such, you will find attached a letter to your doctor explaining the process and the information I require. These forms will allow the doctor to specify any physical and non-physical limitations that you have vis-à-vis your current job.

I understand that you will return to see your doctor on March 2, 2015. At that time, or when you feel you are ready to return to work, I ask that you share the attached letter and ask that the accompanying functional abilities forms be completed by the doctor. This will allow me to consider accommodation options to address any functional limitations you may have. Also attached is a consent form that you should read and sign and return to me at the same time as the others. As I mentioned, this information is necessary to develop a return to work plan if required and identify accommodation options.

I hope you are feeling better and that your health is improving. As usual, I am available to discuss any of these matters with you.

Jason

. . .

[38]  Mr. Fox and the grievor testified that attached to the February 11 email was a letter from him addressed to Dr. Chan and dated February 11, 2015, a “Functional Abilities Form” (FAF), and a “Medical Assessment Consent Form” (“the consent form”).

[39]  The FAF set out basic information about the grievor and her work duties. With respect to work capacities, the FAF provides a section for the doctor to indicate whether there are any limitations or restrictions; if so, a space is provided for the doctor to expand upon them. The work capacities set out both physical and non‑physical activities related to the work position. The non-physical activities that are asked to be assessed are scheduling demands, social and emotional demands, and cognitive and mental demands that cover 25 areas.

[40]  The consent form stated as follows:

. . .

I understand and agree that:

- the PPSC will provide my medical practitioner with a detailed description of the reason(s) for requesting the medical assessment, and details about the capacities required for my job, and that I will receive a written copy of this written referral before the evaluation;

- exam or assessment is NOT to determine whether or not I am in a perfect state of health but rather that I can meet the essential requirements of my position and assist in determining appropriate accommodation if required; and,

- The PPSC is restricted by the Privacy Act to release to my medical practitioner only information that is directly relevant to my situation and necessary to conduct the medical assessment, as described in the written referral.

I authorize my medical practitioner to provide the PPSC with:

- an interpretation of the medical assessment which will provide information only related to my ability to perform the duties, and fulfil the responsibilities of my job including any functional limitations/restrictions due to the medical condition(s) identified during the assessment. The information will NOT include a diagnosis; and

- any information required to clarify my medical practitioner’s interpretation of the medical assessment, if necessary. I understand I will be made aware of all communication with my medical practitioner.

. . .

I have had sufficient time to read the information above or had it explained to me by Jason Fox. I understand the nature of the medical assessment. I declare that I have given my consent voluntarily. I understand that I may withdraw my consent at any time. If I revoke my consent to undergo the medical assessment, I authorize my medical practitioner to advise the PPSC that I have done so.

. . .

[Emphasis in the original]

[41]  The covering letter to Dr. Chan contained a mistake with respect to the start date of the grievor’s absence from work (incorrectly identified as January 28, 2015). And in one place, her name was spelled incorrectly.

[42]  On February 12, 2015, at 1:53 p.m., the grievor emailed Mr. Fox (“the February 12 email”), after receiving the February 11 email. She pointed out concerns she had with the letter and the forms and stated as follows:

. . .

I have several issues and concerns about the forms you have provided and will not present these to my doctor in their current form.

First there are factual errors in the letter you have addressed to my doctor. In paragraph 2, the date should be amended to January 27 2015, and not January 28 2016. On page 2, paragraph 2, I would request that my name be corrected.

On the Functional Limitations Form, in Section A, you have checked off “Injury/Illness is = Non-Work related”. This is incorrect and you have been advised in writing that my injury is in fact work related, it is an occupational injury. I will not present this form to my doctor unless it is corrected to reflect accurately.

I also wonder what information you are seeking from this form that is not already known to you- that my medical restriction is a requirement to remove me from a harmful and toxic work environment (human resources directorate) to eliminate the stressors that are degenerating my health and to avoid any further depletion of my mental well-being. This has been made very clear to you via my medical letter from my doctor that I have already given to you. So I do not understand why you would think that I have revised physical accommodation needs, schedule demands, emotional demands nor cognitive demands, when only restriction has been succinctly identified by my doctor as a requirement to remove me from the HRD environment and assign me to a position/function outside of the HR directorate.

As for the Medical Assessment Consent form, I was troubled by the language in this document that states that ‘the reasons I have been asked to undergo a medical assessment have been fully explained to me’ - which is untrue - and that I have had a personal explanation from you regarding the need to have this ‘medical assessment’ and that I am voluntarily giving consent’ for something that I am hearing about for the first time in this attachment-- what is this all about?? I have been to my doctor multiple times and have already been medically assessed by my doctor- and hence, have fulfilled my obligation to do so, and have provided you a very clear and concise medical letter from my doctor which specifically states that I have an occupational injury caused by a very toxic work environment and that a stressor that is degenerating my health has been issues with harassment and a toxic work environment that continues to decline with no reparation, reform, or changes to the climate. The reality is, Jason, that I have experienced founded harassment allegations from two HRD managers and those findings have been accepted by the deputy head. Yet, the treatment I endure has not bettered or altered, causing enormous strain, stress, and anxiety on me.

I continue to fail to understand why despite a workplace assessment, multiple grievances, complaints, sick/stress leaves, departures, exit interviews that are depreciative of the credibility and integrity of HRD managers, there is a reluctance to accept that the HRD environment is toxic, emotionally and mentally harmful to one’s health, and that it continues to degenerate and depreciate while management pretends it is not happening.

I must ask why you are subjecting me to additional stress when you are informed that my current predicament has placed me on stress leave. I cannot understand why you would disrespect me by first asking a labour relations consultant to contact me directly, seeking information you could have posed to me yourself. Then, why do you disrespect me and my doctor’s opinion by maintaining via the functional abilities form that I do not have a work related illness. Then, the medical assessment form you have sent to me is perhaps the most distinctly disturbing action thus far, as it is not only irrelevant, but suggests that this is something we had discussed which we had not. You don’t even referent it in your email below, nor as an enclosure to the letter you expected me to take to my doctor, so I believe it lacks transparency and low ethics, as well as a genuine concern for my well-being nor my situation.

As I stated right off the bat in my email to you February 2, I am eager to resume work functions in the accommodation I have requested and that is ordered by my doctor in order to protect and preserve my health from the unhealthy toxic environment in the human resources directorate. Please tell me what information you specifically require at this time to complete my accommodation request and make it happen as soon as possible. Who is the department’s disability management expert who will assist in my placement into a PPSC directorate outside HRD?

I do not wish to waste my doctor’s time with unnecessary and irrelevant forms, so once I receive accurate documents that specify any outstanding information you do not already have/know and that you mandatorily require to outfit my accommodation request, I will schedule an appointment with him only at that time.

Thank you.

Cathi

[43]  On February 19, 2015, at 1:51 p.m. (“the February 19 email”), Mr. Fox responded, as follows:

Good afternoon Cathi,

Since your message last week, I have sought additional clarification on several points you raised. I will be sending revised documentation in the next few days reflecting this. You will also find below clarifications you requested in your message on February 12^th.

While I respect and understand your request to communicate in writing, I feel that this can lead to errors and omissions or may not provide the clarity that a conversation might. In that context, I would ask that you seek clarifications as needed regarding my motivations and intentions in a respectful manner when these may not be clear at first glance. My intention and motivation in all my communications with you is to work with you in good faith to identify possible approaches that will support your return to work in a safe and healthy manner.

First I will make the corrections to the typos you identified. I will also change the check in section A to “Work-related” as I now have a better understanding of the intention of that box.

Based on your previous messages, I understood (perhaps incorrectly) that that you were familiar with the established process and policies as you wrote that: “Per the TBS policy, I know that I am responsible to take any other forms to my doctor but am delayed because you have not provided any to me. Your immediate attention is appreciated so as not to cause any undue delay.”

In my response, I attempted to provide a concise description of the reason I required these forms as well as the steps to follow while respecting your request to communicate in writing. To elaborate and clarify my previous message, please find at the following link a detailed explanation of the process and steps for obtaining additional information and the responsibilities of managers and employees at each step: http://www.tbs-sct.gc.ca/hrh/dmi-igi/hcp-pss/hcp-pss-eng.asp

The intention of my initial message and the included attachments was to provide you with the forms you appeared to know and accept were required and be responsive to your request for “immediate attention” while initiating the first step of the process which is to explain the steps in obtaining functional abilities information and why this information is required.

While I read your Doctor’s recommendation, it provides insufficient information on any limitations you may have: this is information I require to understand what is needed to support you in returning to work. Your doctor provides a recommendation that you would benefit from work in a different area, but this is a recommendation for one option only, it does not tell me what limitations you may have in the assignment of work. I require the information regarding any limitations as I will be looking at all options available to accommodate your situation: not just the doctor’s recommendation. To do this, the letter and functional abilities assessment forms serve to provide the doctor with a description of your work environment and the day to day physical and cognitive capacities required to perform your duties. I am not in a position to assume or assess any limitations you may have and that is why I am asking your health practitioner to outline them. This will ensure that all options considered do not exacerbate any limitations you may have or prevent or delay your return to work. You will see from the TBS website that this is a standard form that the doctor will likely be familiar with. I trust the explanation provided above clarifies the process and the reasons for asking.

Like the other form, the consent form is also a standard form used for employees to provide their voluntary consent to exchange medical information. While I understand now that you did not feel that the initial message explained the reasons adequately, I hope that the information I provided above and the link to the TBS website clarifies these reasons while respecting your request to do so in writing. As I mentioned, your previous messages referred to your awareness of these forms, so I did not conclude that you had no knowledge of this as you mentioned. With respect to your reference to a personal explanation from me, this is presented as an alternative to having sufficient time to read the information in the form. I am happy to do so if you have not read it.

I also want to confirm that in the absence of a confirmation in writing on your part to either myself or Amy regarding any new allegations of “harassment” or “bullying”, that I will proceed with the understanding that the incidents being referred to are the same ones that were recently investigated. While I am not aware of the results of the investigation, I have been told that appropriate follow up action has occurred or is occurring. If you mean to raise any substantively new allegations, please communicate with me or alternatively with Amy so that they may be considered through the appropriate channels and mechanisms.

Finally, as I have mentioned to you before, I will be the one considering your accommodation request and am supported by Amy Campbell in that endeavor.

Hopefully this message has provided the clarity you need regarding your return to work and your request for accommodation. I will send you an updated letter and forms. If you would like to discuss any of this or seek clarification, please contact me so we may have a productive exchange about the process or any of your concerns.

Best regards,

Jason

[44]  The grievor brought Mr. Fox to the February 19 email and cross-examined him on it, suggesting that it was his attempt to return her to what she called her “old job”. He stated that his intent had been that if there was a limitation with respect to her then-current job, it should also not be part of any job she were accommodated in.

[45]  On February 20, 2015, at 1:27 p.m. (“the February 20 email”), the grievor responded to the February 19 email. She stated in part as follows:

. . .

Without commenting on your statements and engaging in an unproductive dialogue, please do send me the revised functional abilities form and I will present it to my doctor to complete.

As you point out the employee consent form is voluntary, I do not wish to give consent to the department to dialogue or exchange information about my functional abilities or restrictions- I do not see the purpose of this form as I have repeatedly indicated my agreement to bring the required mandatory forms to my doctor to provide information regarding my restrictions and will then remit them to you as early as possible as you are responsible to coordinate my accommodation request.

While I expect that you will not finalize any accommodation arrangements without final approval from my doctor, I can give you a heads up that I do not expect that there will be any restrictions beyond a reporting arrangement outside of the human resources directorate as my doctor’s not clearly states and I have repeatedly indicated. I expect that my doctor will confirm that I may resume all the particular functions and skills required of my regular job, with the exception of the above restriction. This should enable you, if you have not begun to do so already, to canvass other PPSC directorates for an appropriate placement for me to return to. Since I have no objection to retaining some of my files outside of the directorate (as some are not necessarily HR specific- PSES, CHRBP, Employee Engagement, Corporate Planning, etc.), perhaps there is an opportunity to assign me with one or more of these files to another corporate directorate.

My doctor is on vacation during the next week so as you mentioned you will forward forms to me in the next few days, regrettably, I will not be able to bring these to him before he returns Monday, March 2, which coincides with my next medical appointment date. Since I anticipate he will give me the green light to return to work so long as the required accommodation is in place, I doubt you will have this ready for Tuesday March 3. I then ask you to clarify what my leave status will be as I would no longer be stationed on sick leave, but a more appropriate leave until the accommodation is in place might be leave with pay (other). Please confirm.

Finally, I do wish to clarify something that perhaps is misperceived on your part. My concerns or issues about matters in the workplace that have caused and exacerbated psychological tension I feel and anxiety preventing me from returning to the human resources directorate do not revolve solely on the two founded harassment complaints that were issued in October 2014 - it extends farther than that.

The HRD environment and work culture has been on a steady decline in engagement for a long while, even before your arrival to PPSC in spring 2013. This decline is also reflected in the latest TBS PSES results for the PE group- which I hope senior PPSC and HRD management has taken notice of. . . It clearly shows a decline in the trust PEs have particularly of how harassment is handled is handled by senior management and it also reflects the fear of reprisal that was highlighted in the workplace assessment. I cannot say that I disagree with these findings.

. . .

I honestly believe that the psychological distress that I have developed (and others are experiencing, including those who have left the organization citing similar concerns) is a culmination and reaction and reflection of PPSC management’s prolonged refusal to validate and address both harassment and misconduct of HRD managers. It is clear via the workplace assessment, PSES 2014 results, reasons for leaving and colleague to colleague conversations what the real catalysts of dissatisfaction in HRD are. It is especially distressing to me that there is no ownership or accountability of these transgressions and because there is no change in behaviour or culture, I have to believe that these concerns or issues remain unaddressed.

Therefore, I hope this suffices as a broader explanation of the justification of my accommodation request and I thank you in advance for expediting this request so that I can return to PPSC duties as soon as is permissible.

Thank you,

Cathi

[Sic throughout]

[46]  Mr. Fox replied by email on February 23, 2015, at 4:37 p.m. (“the February 23 email”), as follows:

Thank you for providing your views and perspectives about the points below.

As promised in my last message, you will find attached an updated letter to your doctor, an updated functional abilities form and the letter of consent that you should bring to your doctor at your appointment on March 2^nd. Please let me know if you have any outstanding questions.

Given your expectation regarding your doctor’s re‑assessment to allow you to return to work, I am in the process of identifying possible options based on the information I have thus far. I hope to be in a position to finalize these quickly when I have all the necessary information from your doctor on March 2^nd. My aim is to support you to return to work on March 3^rd assuming your doctor concurs and an appropriate accommodation is identified. With respect to your question regarding leave, it would be premature for me to confirm this in advance of your re-assessment on March 2^nd.

In order to facilitate this, I would also ask that you provide me with a recent copy of your resume and that you bring to my attention any special skills, abilities or experience that you might have that will help identify possible options.

I would like to take this opportunity to remind you of the availability of the Employee Assistance Program. EAP has a range of services that might assist you. You may reach the confidential EAP hotline at [number omitted], 24 hours a day, seven days a week,

Thank you,

Jason

[47]  Entered into evidence was the following:

• the revised letter to Dr. Chan dated February 23, 2015, in which Mr. Fox made the amendments that the grievor had identified in the February 12 email;
• a revised FAF, in which Mr. Fox changed the reference to “non‑work‑related” injury or illness to “work related”; and
• the consent form, which was unchanged.

[48]  The relevant portions of the February 23, 2015, letter to Dr. Chan state as follows:

. . .

As you know, you provided a note in support of Catharine Holmes’ recent period of sick leave beginning January 27, 2015. In this note, you indicated that Ms. Holmes is experiencing significant stress and you noted that it was your opinion that she would benefit from a change in work environment. Ms. Holmes advised me that her follow up appointment with you would occur on March 2, 2015, that she would be assessed again at that time and that she anticipated you would find her fit to return to work with a restriction that she not work in the Human Resources Directorate.

I am interested in having some additional information regarding your recommendation and any additional limitations Ms. Holmes may have. Therefore, I am writing to you as her manager, to request that you complete the enclosed Functional Abilities Form. This form provides information on the physical and non-physical capacities Ms. Holmes requires to effectively perform the duties of her job as well as the working conditions and any particular risks or stressors of the job. In addition, could you please indicate on the form when you recommend that Ms. Holmes be reassessed so that we can develop a plan to support her reintegration into her position in the Human Resources Directorate at the earliest opportunity. In the interest of assisting your assessment, please be advised that follow up action with respect to Ms. Holmes’ allegations of harassment and bullying has occurred and continues to occur.

We request that you complete the grey shaded areas with a view to providing as much information as necessary to specify Ms. Holmes’ functional limitations and restrictions. This information will enable us, in collaboration with Ms. Holmes, to arrange a reasonable accommodation (e.g. modified/alternate duties and/or work schedule, gradual return to work, adjustments to equipment), if applicable, and ensure a healthy, safe and supportive work environment.

Please do not include any diagnostic or treatment information (including medication). If you require additional information in order to complete the form (e.g. specialist referral(s), diagnostic tests, laboratory analysis, etc.), please complete the form to the best of your ability and advise when this information may be available.

The information provided by you in the FAF will only be used to confirm Ms. Holmes’s ability to return-to-work and arrange a workplace accommodation, as necessary. . . .

[Emphasis in the original]

. . .

[49]  On Monday February 23, 2015, at 8:02 p.m., the grievor emailed Mr. Fox, stating as follows:

Jason,

For the second and last time, I will not be signing the (voluntary) consent form.

Also, I will not present the letter to my doctor in it’s current format. It is my doctor’s recommendation that I not return to HRD - and I have no intention of returning to my position there at this time – so I am very confused why you indicate in the letter your intent for me to remain there. ??

As you mention you would likely to quickly finalize an accommodation option--what other directorates are you canvassing for opportunities for my accommodation request? That may help me to give you suggested possible compatibilities with my skills, experience, and interests.

Cathi

[Sic throughout]

. . .

[50]  Mr. Fox emailed the grievor on February 25, 2015, at 9:54 a.m., stating as follows:

Cathi,

Thank you for providing clarity regarding your perspective.

Based on the information I have, I am not able to agree to put in place your doctor’s recommendation that you be placed in a unit outside of HRD.

Please advise me following your scheduled reassessment on March 2 if you are fit to return to work in your substantive position.

Thank you.

Jason

[51]  The grievor and Mr. Fox exchanged the following emails on Tuesday, March 3, 2015:

[The grievor to Mr. Fox, at 9:50 a.m.:]

I attended an appointment with my doctor yesterday and presented him with your letter indicating that your intent was to send me back to my substantive position despite his written instruction and my continual accommodation requests that I not be returned to the human resources directorate. He has signed the letter to acknowledge having simply received it and he also completed the functional abilities form which continues to specify that the work limitation to safely return me to work is that I cannot return to the HRD work environment due to ongoing stress and anxiety and it also clearly states that his doctor’s order is that I may return to work duties at PPSC when the accommodation he has specified (a position outside of the HRD) is met.

As you have had ample time since February 2 when I informed you of my work injury,and that on that same date, I requested, in writing, an accommodation on medical grounds, I expect that per my employee rights to accommodation you will oblige to complete this accommodation request as soon as possible so that I may return to work duties. I have suggested several options for your consideration and you also indicated that you had assembled some possible options despite not responding to my last email where I enquired where you have solicited interest so that I may assist in determining an appropriate accommodation. In the meantime, my doctor has provided a sick note permitting me to remain on sick leave until my next appointment with him in a couple weeks as I continue to be treated for stress.

I note that you have not yet approved my leave requests for January 27-30 and February 2-27 in PeopleSoft for an unknown reason despite the fact that I presented you with doctor certificates for both on February 2. Please approve them at your earliest convenience so that I may be apprised of my sick leave balances. As you have not approved these latest requests, so I cannot know my actual balances, and thus, I may be required to ask for an advance of sick leave credits to cover time the doctor has recommended I restore my health and well-being.

I will scan and send the signed letter and FA form as soon as I am able to- I don’t have a scanner at my home.

Cathi

. . .

[Mr. Fox to the grievor, at 4:36 p.m.:]

Cathi,

Thank you for the update. I will look at the information you mentioned below when I receive it.

I have also updated my approval in PeopleSoft this morning, so your various balances are up to date.

Thank you,

Jason

[Sic throughout]

[52]  On March 5, 2015, at 1:40 p.m., the grievor emailed the following to Mr. Fox:

Jason, thank you for your patience with getting these forms scanned.

Attached are:

-the signed letter you prepared for my doctor;

-the signed FAF that my doctor has completed which continues to stipulate that my limitation is that I may not return to a position within HRD;

-a new medical certificate of sick leave.

Please let me know when I may meet with the PPSC Disability Coordinator to discuss my work accommodation options that respect my doctor’s orders so that we can finalize my return to work details.

. . .

[53]  The FAF was returned to Mr. Fox, as completed by Dr. Chan on March 2, 2015 (“the redacted March 2 FAF”). It identified that the grievor had limitations or restrictions with respect to the following non-physical work-related capacities:

Under the heading of social and emotional demands:

• relationships and network building;
• influencing others;
• conflict resolution (negotiating and mediating);
• teamwork;
• seeking and responding to feedback or constructive criticism;
• exposure to emotional or confrontational situations; and
• working closely with the public, clients, or others (e.g., colleagues and supervisors).

Under the heading of cognitive/mental demands:

• attention to detail;
• working under specific instructions;
• attaining precise limits or standards;
• multitasking;
• problem solving;
• decision making;
• adaptability;
• sound judgement;
• continuous alertness and sustained concentration and focus;
• self-supervision and autonomy;
• retention of information;
• organizational ability and time management;
• initiative;
• analytical thinking; and
• effective written communication.

[54]  Dr. Chan also wrote in the section that was provided for more details. The copy provided to the employer stated as follows:

Under undue psychological stress and anxiety at the workplace.

. . .

Cannot return to current work environment due to harassment. Needs accommodation with regards work environment.

. . .

May return when accommodation of work return may be met by organisation [sic].

[55]  The grievor provided the redacted March 2 FAF to Mr. Fox. She had deleted a portion of Dr. Chan’s details without advising Mr. Fox that she had done so. The complete section of the redacted March 2 FAF filled in by Dr. Chan was as follows:

Under undue psychological stress and anxiety at the workplace.

Experiencing harassment leading to mental illness.

Anxiety/depression.

. . .

Cannot return to current work environment due to harassment. Needs accommodation with regards work environment.

. . .

May return when accommodation of work return may be met by organisation [sic].

. . .

[56]  The sick-leave certificate that the grievor provided to Mr. Fox in her March 5, 2015, email was dated March 2, 2015. It merely stated that she was unable to attend work due to illness or injury from March 2 to 31, 2015. She testified that on March 2, she was put on a new medication. Its prescription was filled that day, and it took three weeks to take effect.

[57]  The grievor entered into evidence an email chain between Mr. Fox and Ms. Campbell dated March 2, 2015. It should be noted that the grievor was not privy to this chain at that time. It states as follows:

[Ms. Campbell to Mr. Fox, at 3:21 p.m.:]

Hi Jason, I will be in at PPSC tomorrow morning, on the 12^th floor across from [name omitted] . . . if you need me. May not stay all day, but should be there around 830 till noon.

You have my cell . . . .

. . .

[Mr. Fox to Ms. Campbell, at 3:23 p.m.:]

Hi Amy,

I may swing by. I am expecting to hear from Cathi today or tomorrow to provide an update on her assessment that is scheduled for today. I have not received anything to date.

jason [sic]

[58]  Mr. Fox emailed the grievor on March 9, 2015, at 2:55 p.m. (“the March 9 email”), stating as follows:

Cathi,

As you did not send the signed consent form, I am taking the fact that you brought these to your doctor and that you sent them to me directly as an indication that you consent that I read them. I would appreciate if you could confirm if the absence of the consent form is an oversight or intentional should I need to follow up with your doctor on the contents of these.

Discussions recently took place with all PPSC branches, but no suitable work outside of HRD was identified. It is also extremely problematic to remove work for which HRD is responsible and accountable outside of the existing reporting structure. As such, I am not able to accommodate your request and your doctor’s recommendation to work outside of HRD. I remain fully prepared to put in place a plan that will support your reintegration to your substantive position within HRD, including providing conflict management training, career or life skills coaching, or any other training that would promote a healthy return to work.

I have considered your request to advance sick leave. I am not prepared to approve your request to advance sick leave at this time. Your current leave balances in PeopleSoft show the following balances:

• Sick Leave - 90.375 hours

• Vacation Leave - 46 hours

• One-Time Vacation Entitlement - 37.5 hours

You may use these available balances to cover your current absence from work. I recommend that you communicate with your compensation advisor if you have any questions about these balances and how to access your disability benefits in the event these are needed. You may also want to contact the Employee Assistance Program confidential hotline (1‑800‑268-7708, 24 hours a day, seven days a week) to see if any of their services can be of help to you.

I hope that you are feeling better soon. Please let me know if the situation changes or how we may accelerate your return to work in HRD by developing a plan in collaboration with you and your physician that will provide the appropriate support.

Jason

[59]  In cross-examination, the grievor agreed that on March 9, 2015, she did not suggest that she was fit to work. When it was put to her that on that date, she stated that she was not being accommodated and therefore had been constructively dismissed, she said that Mr. Fox frustrated her return to work by not accommodating her.

[60]  Still in cross-examination, the grievor agreed that she had not been required to deal with Mr. Desharnais or Ms. Kelly with respect to her accommodation issues.

[61]  In her evidence-in-chief, the grievor stated that Mr. Fox did not explain the consent form and the FAF. In cross-examination, she was brought to them and was asked questions about what had not been explained to her. She responded, “It was never explained to me. Mr. Fox said it was to bring to my doctor. I didn’t believe I needed to undergo a second evaluation.” When counsel for the employer asked her if in her view, the January 28 Chan note should have caused the employer to consider accommodating her, she initially did not answer. However, once pushed, she agreed with counsel for the employer that it should not have.

[62]  Counsel for the employer brought the grievor to the consent form and the FAF. She agreed that as of March 9, 2015, she had not signed the consent form. He then put to her that she had refused to sign it because she did not want another assessment, not that she did not understand it. She responded that she had disagreed with the need for another assessment. When counsel suggested to her that therefore, in her view, the employer should have acted exclusively on Dr. Chan’s first note, she then answered, “No.”

[63]  When counsel for the employer pointed out the dichotomy of the grievor’s answers with respect to the questions about the assessment and consent form, she stated that she did not agree that she had disagreed, because she went back to her doctor. She then reiterated that she had cooperated and that she would bring any necessary forms to her doctor. But at the same time, she had not been prepared to sign the consent form.

[64]  Counsel for the employer brought the grievor to the February 23 email, in which she stated, “For the second and last time, I will not be signing the (voluntary) consent form”, then to that portion of it in which she stated that her doctor had recommended that she not return to the HRD, and finally to her statement that she had no intention to return to her position there. He suggested to her that in the February 23 email, she told Mr. Fox that he should consider only Dr. Chan’s first note. She agreed. When counsel then put the January 28 Chan note to her and suggested that she was relying on it, she refused to agree.

[65]  Counsel for the employer put to the grievor the redactions she made to Dr. Chan’s comments in the FAF. He asked her if she had informed Dr. Chan that she had removed part of his comments. She did not answer despite me directly instructing her to. Instead, she spoke about her interpretation of the FAF’s meaning.

[66]  In cross-examination, the grievor brought Mr. Fox to the March 9 email and again suggested to him that he had tried to return her to her job. He stated that there was an openness to it but that it was not an intention. He also said that he did not have clarification about her abilities and limitations. The grievor then suggested to him that he had refused to accommodate her, to which he said that based on the information he had, he had been unable to assess a suitable accommodation.

[67]  On Tuesday, March 10, 2015, at 7:04 a.m., the grievor emailed Mr. Fox two grievances and stated as follows:

Good morning Jason,

Please find 2 grievances presented to you this morning.

Kindly confirm receipt and return scanned copies of your signature on page 2.

Thank you,

Cathi

[68]  One of those grievances is before me as file 566-02-11224, and the other is as follows:

Grievance details . . .

I grieve that the PPSC has violated the TBS Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service, by failing to accommodate me as per my physician’s opinion as to my medical needs and that it has failed to follow the TBS Guidelines as set out in the Managing for Wellness - Disability Management Handbook for Managers in the Federal Public Service.

Date on which each act, omission or other matter giving rise to the grievance occurred . . .

March 9 2015

Corrective action requested . . .

- The PPSC shall return to [sic] me to work immediately with accommodation as per my medical restrictions and

- The PPSC shall manage the accommodation of my functional restrictions in accordance with the process set out in the Handbook (noted above) and

- That my leave from the date I was certified by my physician to be fit to return to work with accommodation (March 2 2015) be treated as LEAVE WITH PAY-OTHER and

- That I be made whole.

[69]  In her evidence, the grievor stated that she did not refer the second grievance to the Board for adjudication. It is dated March 10, 2015.

[70]  On March 16, 2015, Mr. Fox wrote to the grievor and stated as follows:

I am following up on my previous message that outlined your available leave balances and recommended that you discuss these with your compensation advisor.

According to my calculation, your current sick leave balance will cover your absence until March 18^th when your balance will be fully used. Please let me know if you plan to use other available leave balances after that date to cover your most recent note which is until March 31.

If I do not receive any indication from you before March 18, I will assume that your leave will be covered as sick leave without pay after that date and will communicate with compensation to avoid potential over payments [sic].

If you have not already done so, I recommend that you contact your compensation advisor to discuss these and how to access disability benefits should you need them.

Thank you.

Jason

[71]  The grievor replied on March 17, 2015, at 6:37 p.m., stating as follows:

. . .

Please excuse the delay in response- I had a pre-scheduled appointment with my doctor for today so I wanted to be sure there were no unexpected issues before I returned a response to you.

Find attached a medical certificate my doctor has produced today that declares me fit for duty immediately (March 18 2015). As I mentioned to Amy last week, with March Break, I have some obligations with my children this week so I am not available to resume duties before next week- I will submit the appropriate leaves (I have not used my Personal Leave for 14-15 so I will submit this as well as 2 days of annual leave to cover the remainder of this week). As you confirmed my leave balances recently, I will assure that I submit to you the remainder of sick leave owed to cover March 2 to March 17 (today).

Therefore, I am ready to report for work duties beginning Monday March 23, but the medical requirement remains in effect- that I be placed in a position outside of the human resources directorate and my doctor certificate continues to stipulate this. Please confirm what my accommodation shall be commencing March 23. Shall I report to the Commissionaire’s desk at 9am?

In the event that the department cannot provide an accommodation for me outside of HRD beginning next Monday, please confirm what my leave status shall be- I re‑affirm that I believe it should be leave with pay (other). I will not be submitting sick leave as I am fit to resume working and I will not use annual leave – I should not be penalized because the department has failed in its obligation to accommodate my medical requirement and I am ready and able to work.

I did not receive a response from you last week when I inquired about setting a meeting with the Disability Coordinator-- when can I expect a meeting with Staffing and the Disability Coordinator to discuss my situation and collaborate on possible options that respect my doctor’s note? Should I contact the Disability Coordinator (Caroline Cleroux) myself to establish a meeting? Please advise.

Thank you,

Cathi

[72]  On March 17, 2015, the grievor forwarded by email a medical note from Dr. Chan dated that day (“the March 17 Chan note”), which stated as follows:

. . .

I feel that Catharine is fit to return to work from 18^th March 2015, as long as she does not return to her previous work environment/ department because of previous aforementioned reasons, Hopefully she will be accommodated to ensure her mental well-being.

. . .

[73]  On March 20, 2015, at 4:22 p.m., Mr. Fox emailed the grievor as follows:

. . .

With respect to your request for accommodation to work outside of HRD, my message on March 9, 2015 indicated that I am not able to accommodate you at the present time. As I continue to express to you, the information received from your physician to date is insufficient and has not allowed management to fully participate in a process that would identify limitations and possible accommodation needs, if applicable. To date, management has been prevented from participating fully in this process. You have refused to provide your consent to allow management to contact your treating physician to get clarification about its concerns, and further, the copy of page two of the FAF you provided to management appears to have been altered or modified.

Notwithstanding that management has insufficient information to confidently accommodate you in a position that would be suitable to any possible limitations that you may have, management has in good faith made unsuccessful attempts to find possible alternate work opportunities for you. However, I remain of the opinion that the lack of information provided (both in terms of substance and scope) prevents me from understanding what functional limitations you may have that could prevent you from performing your duties or alternatively, performing work in another position.

As your current medical information indicates that you are ill, I am prepared to approve sick leave without pay effective Monday March 23, 2015. As a result, I will advise compensation to ensure you are not in an overpayment situation. As I mentioned in previous messages, I recommend that you contact your compensation advisor to discuss the process of accessing disability benefits should you need them.

I remain fully prepared to implement a plan that will support your reintegration to your substantive position within HRD, including providing conflict management training, career or life skills coaching, or any other training that would promote a health return to work. Alternatively, if you allow management to fully participate in the accommodation process by appropriately engaging a medical practitioner, which may be your physician or an alternate medical service provider such as Health Canada, I would be more than willing to participate. If you would like to use the Informal Conflict Management System to discuss this, I am also fully prepared to participate in such a process to discuss the situation.

With respect to your question about meeting with staffing and the disability coordinator, at the PPSC, an employee’s manager is his/her point of contact for any accommodation request. As such, as I previously indicated, all of your communication should be with me in this regard.

. . .

[74]  On March 23, 2015, at 5:44 p.m., Mr. Fox emailed the grievor, as follows:

. . .

In terms of your sick leave, I am still left with a number of outstanding questions regarding the Functional Abilities Assessment Form [FAF] dated March 4, 2015 that I was not able to clarify due to the lack of signed consent. Due to the information supplied by your physician on this form, I cannot accept that these limitations no longer exist without clarification from him. Your physician indicated two main areas of your duties, Social/Emotional Demands and Cognitive/Mental Demands that amount to 21 capacities required to perform your duties that appear to be impacted by a medical condition. As your manager, I have a right to ask and understand the substance and extent of your limitations or restrictions as well as their duration, in order to be comfortable that you are able to return to the workplace whether in your own position or in another area. This would also help me understand what aspects of your current work environment specifically affect your medical condition which would then assist me in evaluating any necessary accommodation in terms of a new work environment.

As such, I will proceed to communicate with compensation operations to indicate that you are on sick leave without pay effective Monday March 23, 2015. I once again encourage you to contact your compensation advisor to discuss the process of accessing disability or other benefits should you need them.

. . .

[75]  On March 24, 2015, at 12:05 p.m., the grievor emailed the PPSC’s compensation section. The subject line stated: “manager has threatened to stop my pay”. The body stated as follows:

. . .

I have recently become aware that my manager has unethically and illegitimately threatened to halt my pay effective March 23, 2015.

Can you please advise if you have been advised to halt my pay?

Is there a protocol in which Compensation would advise me at once in a situation where my manager has halted my pay?

. . .

[76]  On March 26, 2015, at 3:28 p.m., Mr. Fox received an email that had attached a letter from James MacGillivray of the law firm of Rasmussen Starr Ruddy. Mr. MacGillivray indicated that the grievor had approached his firm to provide her with assistance in connection with her workplace situation and related illness.

[77]  On March 30, 2015, the grievor wrote to Dr. Chan (“the March 30 letter”), stating among other things the following:

. . .

Enclosed are recent communications I received from my manager including information he is seeking in order to facilitate my return to work. I was very disturbed to read Mr. Fox’ letter he intended for me to provide to you as it contains a number of inaccuracies and omissions that I believe were presented to deceive you as well as prejudice you against continuing to support the recommendation that I be removed from the human resources directorate (HRD) which would preserve my mental well-being and spare me from harassment.

As I have previously indicated to you, I am not the only HRD employee who have lodge harassment allegations against HRD managers; at least 2 other HRD employees have also presented medical certificates from their physician’s to restrict them from placement in the HRD and PPSC has accepted those certificates and placed them in positions outside HRD accordingly. Of note is that these employees were not restricted from contact with HRD employees, simply a reporting structure outside of HRD. Because the PPSC has a fairly small corporate structure, occasional communications and interaction may be required to gain approvals on projects or clarify program requirements.

You should note that due to Mr. Fox’ continual disrespectful communications and harassing tactics in my attempts to be accommodated under the Canadian Human Rights Act, particularly his ignorance of your medical certification that I am fit to return to duties, I have now engaged a lawyer to interface on my behalf. Mr. Fox continues to harass me, despite acknowledging and confirming to the Workers Safety Insurance Board (WSIB) that I have suffered a psychological stress injury, and has threatened to halt my pay 4 times since March 20 and force me onto ‘sick leave without pay’ despite my ability to return to work so long as the required restrictions are in place. I have told Mr. Fox that I view this as harassing and cruel, particularly when he is well aware of my personal situation, that I am a single woman and the sole custodian of 2 young children with a mortgage and financial obligations like most other families.

I have prepared some comments for you with respect to the letter Mr. Fox has prepared as many statements are erroneous, incomplete, and/or taken out of context and I do not want his perspectives or claims to incorrectly influence you to recommend that I may return to an environment where employees continue to leave, citing distrust of HRD managers; where HRD managers continue to lie to employees, showing no remorse or apology, where no meaningful remediation actions have been taken as a result of the Workplace Assessment Mr. Fox mentions in his letter on p.1/2, where interview participants (over 20 HRD employees who voluntarily partook in this exercise) reported harassment, distrust of HRD managers, loss of credibility and low leadership skills in this directorate. 2014 Public Service Employee Survey (PSES) results recently released publicly on the Treasury Board Secretariat (TBS) website also validate harassment is reported by more than 1/3 of its employees.

Mr. Fox’ letter requests that you respond to 6 questions he has with respect to the Functional Abilities Form you completed March 2nd and I scanned and returned to him March 5th. Could you please prepare a short letter with your responses that I will provide to my lawyer to return to Mr. Fox as he is now interfacing with PPSC on my behalf to address my right to accommodation?

. . .

[Sic throughout]

[78]  In cross-examination, the grievor stated that she never gave Mr. Fox a copy of the March 30 letter. She was asked about the comment she made in it about his disrespectful communications up to March 30, 2015, and she was asked to point them out to the hearing. She could not. However, she did suggest that that the content was disrespectful. She also stated that she believed that Dr. Chan believed that the comments were disrespectful.

[79]  The grievor was then brought to her following statement: “Mr. Fox continues to harass me”, and it was put to her that she never filed a harassment complaint against him. She agreed. She was asked if she told Dr. Chan about the harassment complaints she had made against Mr. Desharnais and Ms. Kelly. She replied that he knew about them. When she was asked if she told Dr. Chan about the outcomes of those complaints, she said that he knew that she had engaged in processes, and she said that she believed that she told him that she felt that the concerns had not been properly addressed. When she was asked if she was certain that Dr. Chan would not confuse complaints against Mr. Desharnais and Ms. Kelly with any against Mr. Fox, she said she thought that he would know the difference.

[80]  On April 2, 2015, Dr. Chan wrote to Mr. Fox (“the April 2 letter”), the relevant portion of which is as follows:

Thanks for your correspondence concerning my patient Catharine Holmes. Thanks also for taking the time in describing explicitly your actions during this dispute with Catharine. From the information that both you and Catharine have explained to me, this dispute has been going on for some time and far precedes the time from which I have been her family physician. With all the information that has been presented to me in written form I should clarify that my role here is as Catharine’s family physician. I am not an expert in human resources, legal matters, and nor am I your department’s occupational health officer. My role as her family physician is to act as her advocate, ensure the best for her health and well being [sic] with medical investigations and treatment if appropriate, and also to ensure that she does not act in any way which may cause harm to others and society.

As her family physician I take her presenting medical complaints seriously and genuinely unless proven otherwise. Whilst there are no doubt predominantly external factors affecting Catharine’s physical and mental health, my ability to affect these are very limited. Hence my focus is to stick to areas that I can affect, in this case providing Catharine counseling, support and recommending treatment to ensure best recovery of her health. The allegations made by Catharine are serious and your letter implies that your department have considered this situation purposefully. Unfortunately regardless of all your actions, it has not alleviated Catharine’s mental stress, and anxiety. . . .

. . . I feel according to Catharine’s complaints, your department has failed to ensure that she will feel “safe” . . . Regardless . . . .

. . .

[Sic throughout]

[81]  On April 9, 2015, Mr. Fox signed a “Leave Application and Absence Report” for the grievor, which set out that as of March 30, 2015, at 9:00 a.m., he authorized her to be on sick leave without pay. Mr. Desharnais approved it. She did not initiate the leave application and later grieved that she had been placed on sick leave without pay.

[82]  On April 10, 2015, at 2:49 p.m., Mr. Fox emailed Mr. MacGillivray with respect to the April 2 letter, stating as follows:

. . .

As per my previous communications with Ms. Holmes and her Doctor, what I require in my efforts to identify possible accommodations is a clear picture of the nature, extent and duration of Ms. Holmes’ current limitations. My letter to Dr. Wai-Sun Chan provided additional information and six specific questions in order to provide this clarity.

Unfortunately, Dr. Wai-Sun Chan has not responded to these questions which prevents me from fully understanding the substance and extend of Ms. Holmes limitations or restrictions as well as their duration in order to be comfortable that she may return to the workplace, whether in her own position or in another area.

Furthermore, Dr. Wai-Sun Chan’s letter seems to indicate that if the information and opinion he provides remains inadequate that I refer the matter to our internal occupational health officer. As such, I will be providing in the coming days documentation required to conduct a Fitness to Work Evaluation by Health Canada in order to obtain the clarity necessary to assist me in identifying and evaluating any accommodation options for Ms. Holmes.

I have asked Ms. Holmes to clarify how and when I am to communicate with you on these matters. She has only indicated that I am to answer your questions. If you or Ms. Holmes could provide additional clarity regarding this I would appreciate this.

. . .

[83]  On April 13, 2015, at 2:57 p.m., Mr. MacGillivray replied, stating as follows:

. . .

I feel compelled to say that I having [sic] read quite a few doctors reports over the years it seems to me that the report from Dr. Wei-Sun [sic] Chan leaves very little to the imagination. That having been said, I appreciate that you wish to collect as much information as possible in your efforts to accommodate Ms. Holmes serious condition.

Ms. Holmes has made an appointment with her doctor for April 14, 2015 at which time she will request that he directly answer the six questions set out in your letter. When I have those answers in hand, I will forward them to you.

You conclude your email by indicating that you have asked Ms. Holmes to clarify how and when you are to communicate with me. It would be my hope that you would communicate directly with Ms. Holmes with a view to accommodating her current medical situation, even if, for the time being, it is only a temporary accommodation. Save from returning to her ordinary place of work, Ms. Holmes appears fit for other employment.

. . .

[84]  On April 14, 2015, at 4:22 p.m., Mr. Fox replied, stating as follows:

. . .

I will review any new information provided by Dr. Wai-Sun Chan, however due to the consistent lack of information and somewhat hostile response on behalf of Dr. Wai-Sun Chan in his April 2, 2015 report I will be proceeding with a Health Canada assessment. Please note that although we feel the invoice prepared by Dr. Wai-Sun Chan on April 2 is significantly above the reasonable and customary rates for such an assessment, in an effort to minimize additional impact on Ms. Holmes we agree to reimburse this amount. It is not our intention, however, to reimburse additional fees for information provided.

As per your clarification, I will continue to communicate directly with Ms. Holmes on all these matters.

. . .

[85]  On April 16, 2015, at 4:22 p.m., Micheline Luc-Duc, a PPSC compensation and benefits advisor, wrote a seven-page letter to the grievor with respect to sick leave without pay and disability benefits. It sets out the effects of being on sick leave and those of other benefits, such as pension, dental, and health-care plans, as well as the requirements and process involved in qualifying and applying for disability benefits under the employer’s policy.

[86]  On April 17, 2015, at 4:50 p.m., Mr. Fox emailed the grievor, stating as follows:

. . .

As requested, I am writing to reiterate your leave status and clarify some information from your previous message.

In terms of your leave status, since my email to you on March 16, 2015 I have urged you repeatedly to communicate with your compensation advisor to discuss your leave situation and disability benefits should you need them. I also indicated that if other leave was not used you would be placed on sick leave without pay which is generally automatic when someone remains sick after exhausting their sick leave. Most recently, I confirmed on March 27th that if you did not submit a request for additional leave as of March 30th , I would consider you to be on sick leave without pay. When I returned to the office on April 7th, I reiterated that since I had not received a response either way, I told you I would ask compensation to place you on sick leave without pay as of March 30. I did that on April 9th. After receiving your message today, I reconfirmed with compensation that you are currently on sick leave without pay as of March 30, 2015 and that a letter was sent to you on April 16. This should be reflected on your next pay.

I must also clarify the following statement in your message: “We both agree that my illness was caused by the workplace. . .” You will recall that on February 12th I initially checked “non-work related” on the Functional Abilities Form and that you communicated your disagreement. You will also recall on my subsequent message on February 19 that I had changed this indicating that “I now have a better understanding of the intention of that box.” For the purpose of clarifying, I changed this after reading the following statement from a TBS resource and best practice: “Managers do not decide whether an illness, injury or medical condition is work-related. If an employee says that it is, it should be treated as such unless or until a worker’s compensation board rules otherwise.” I did not change it to demonstrate agreement or not, I was recognizing that someone else makes this determination. On the Employer’s Form 7 for the Workplace Safety and Insurance Board I indicated a reference to your medical note. Your claim is still in progress, once a decision is made, we will both be given the decision in writing and the option of appealing their ruling.

. . .

[87]  On April 28, 2015, at 11:19 a.m., the grievor emailed Mr. Fox, Ms. Roussel, and others, stating as follows:

. . .

Despite the information you have provided, I firmly believe that there was no justifiable reason for Compensation to stop my pay without my consent, authorization or knowledge, and likewise, Mr. Fox and Mr. Desharnais authorized an action against me without any justified reason to do so and seemingly, contrary to the TBS Directive on Leave. I believe this amounts to a fraudulent activity, for which someone is responsible. I would like to know what the DoJ Compensation Services protocol is for reviewing complaints of inappropriate application of the TBS Directive of Leave.

I will discuss this situation with my lawyer as it is still not clear to me what rationale was used to place me on sick leave and stop my pay in the first place as you can imagine, this has been very prejudicial and harmful to me. I am still in the dilemma of awaiting confirmation from DoJ Compensation Services of what I am to do with the disability claim information and acknowledgement form of disability leave that DoJ Compensation has provided to me. As I have repeatedly stated below, I have provided written confirmation to Mr. Fox, over a month ago, from my attending physician that I was fit to return to work on March 18. Mr. Fox accepted my medical notes and I have never requested sick leave beyond March 18 nor indicated any intention to do so as I planned to return to work duties on Monday, March 23. Thus, I continue to be bewildered why an action was authorized to withhold my pay and place me, unilaterally, on sick leave without pay.

. . .

[88]  In cross-examination, the grievor asked Mr. Fox about the leave process and how he could have determined to place her on sick leave without pay while having insufficient information to accommodate her. He stated that he did not question that she was sick and stated that he had accepted that there was an illness of some sort. He said that he had questioned her ability to do her job or any other job. He said that he had sought clarity with respect to her exact issue and to whether it was medical, a disability, or an interpersonal conflict.

[89]  Entered into evidence were the following employer documents:

• “Disability Management: Employee Wellness Resource”;
• “Handling Disability Management Cases - The Tool”;
• “Managing for Wellness - Disability Management Handbook for Managers in the Federal Public Service”; and
• “Obtaining Information from Health Care Practitioners in Cases of Employee Illness or Injury”.

[90]  The document entitled “Handling Disability Management Cases - The Tool” contains a diagram setting out the process involved with illness and injury claims that require an absence from work. Step one is to report a work-related injury or illness. Step two is that the employee uses his or her sick-leave credits. Step three is that a workers’ compensation claim is initiated to the appropriate provincial workers’ compensation board. Step four is determining what to do after that board issues a decision.

[91]  On the fourth step, the process changes, depending on the appropriate board’s decision. If it allows the claim, the employer then addresses the matter through injury‑on-duty leave. If the claim is denied, the employee has the option of appealing the decision and may remain on sick leave as long as necessary, including being granted sick leave without pay. The employee has the option of applying for disability insurance under the employer’s plan if an absence for recovery is likely to exceed 13 weeks.

[92]  At a date that is not clear but that was sometime before February 11, 2015, the grievor filed a Workplace Safety and Insurance Board of Ontario (“WSIB”) claim. An unsigned copy of it dated February 10, 2015, was entered into evidence. It is a printed WSIB form entitled, “Worker’s Report of Injury/Disease” (“Form 6”). It has a number of different sections in which to provide information.

[93]  The grievor listed Mr. Fox as the employer contact and provided his office telephone number. She listed the date and hour of her awareness of the illness or accident as being January 19, 2015, at 4:30 p.m. However, handwritten next to the “19” is the number “26”. The grievor wrote in type the date and hour the illness or injury was reported to the employer as January 20, 2015, at 9:00 a.m. Again, however, handwritten next to the “20” is the number “27”. She identified Mr. Fox as the employer representative she notified of the accident or illness.

[94]  Form 6 has 39 boxes to check off to indicate the physical area of the injury and a 40th box that states “Other” and that provides space in which to write the injury. The grievor checked that box and wrote, ”psychological”. She indicated that the accident or illness occurred on the employer’s worksite and in the province of Ontario and that she had not had a problem of this nature before. The grievor wrote as follows as the details of the accident or illness: “Prolonged stress injury due to unresolved harassment & misconduct in workplace. Feb. 2, informed manager in writing that injury was psychological stress of toxic work environment (occupational) SEE ADD NOTES”.

[95]  In the section of the Form 6 where it asks when the grievor first experienced problems with the injury or condition, she filled in “Spring of 2012” and wrote, “I repeatedly brought forward issues to [management] but they continued to deny/refuse any issue existed despite evidence, multiple recourses & departures”. She indicated that she had seen a health care professional (who is not identified) and that she was prescribed medication. Where the form asks if she spoke to the health care professional about returning to regular or modified work, she indicated that she had and that she was given modifications at that time. She further stated that she told Mr. Fox that she went for this medical treatment on February 2, 2015.

[96]  A section of the Form 6 deals with lost time and return to work. In that section, the grievor indicated that the date on which she first lost time and pay was January 20, 2015. A section is provided for claimants to enter additional information, which she filled in as follows:

My injury is a prolonged stress induced injury, psychological in nature and has gradually onset due to unresolved issues of harassment and misconduct in my workplace by directorate managers. I am a non-unionized public servant and have attempted to bring forth my issues in the available recourse channels to senior management, including the deputy head of my organization, to no successful resolution. Senior management has repeatedly failed to take any noted action to remediate the workplace issues of misconduct and harassment and I contend that this failure to remediate workplace issues has instilled a culture of indifference which has resulted in psychological distress which has made me ill to the point of medical intervention by my doctor, an ordered period of stress leave and an immediate request for an accommodation to a different directorate to remove me from any further distress resulting from this toxic environment. On February 2 2015, I informed my immediate manager in writing that my injury was psychological stress resulting from a toxic work environment and unresolved office issues (ie: occupational injury) of harassment and bullying and sent him a scan of the original doctor’s note the same day confirming this information.

. . .

[97]  On February 10, 2015, at 11:49 a.m. the grievor emailed Elsie Lalonde, whose position I was not provided, but from the email exchange, she might have been the manager of occupational health and safety. In the email, the grievor indicated that she knew that she had to provide a copy of the Form 6 to the employer and that she was inquiring of Ms. Lalonde if that was her. In her response, Ms. Lalonde indicated that she had the Form 6 and that she had forwarded a copy of it to Mr. Fox. Those emails were not provided to me. In the last paragraph of her reply email to the grievor, on February 11, 2015, at 12:47 p.m., Ms. Lalonde stated as follows:

Finally, I understand that you have been off for a short while at this point and hope to return before your sick leave runs out. You should know that if the period of time off goes longer and you decide at a later time to apply for long term disability under the Public Service Management Insurance Plan (PSMIP), the waiting period is 13 weeks. Therefore, I recommend that you apply now just in case, as you can always cancel your application if you are able to return to work before the 13 week period elapses.

[98]  On February 18, 2015, Mr. Fox completed the employer’s response to the Form 6, which is done on a WSIB form (“Form 7”). He emailed a copy of it to Ms. Lalonde on February 20, 2015, at 11:36 a.m. It indicates the following:

• he was advised of the grievor’s accident or illness on February 2, 2015;
• he lists the accident or illness as gradually occurring over time;
• he lists the accident or illness as stress, as per the medical note he had received;
• he describes the accident or illness as: “The employee describes the injury as a ‘prolonged stress induced injury, psychological in nature and has gradually onset due to unresolved issues of harassment and misconduct’ in the workplace by directorate managers”; and
• as additional information, he states: “To my knowledge, the employee’s allegations of harassment and misconduct have been looked into and dealt with via various formal and informal recourse mechanisms.”

[99]  Entered into evidence was a letter dated April 21, 2015, from the WSIB to the grievor, which states as follows:

Subject: Initial Entitlement Review to Traumatic Mental Stress

This letter will confirm the recent decision made in your case relating to Traumatic Mental Stress.

Details of the Case:

A claim was established with the Workplace Safety and Insurance Board (WSIB) for a traumatic mental stress (TMS) injury.

In our conversation, you advised that you are attributing your traumatic mental stress injury to the actions of your employer relating to an employment situation.

You confirmed that you were not the object of physical assault.

You also confirmed that there were no life threatening verbal comments made towards you.

Criteria:

Loss of earnings (LOE) benefits for a psychotraumatic disability resulting from the effects of work-related mental stress may be considered if there has been:

1. An acute psychological reaction to a sudden and unexpected traumatic event arising out of and in the course of the employment

or

2. A final psychological reaction to a series of sudden and traumatic events arising out of and in the course of employment (the cumulative effect of such events)

Unless there are exceptional circumstances, the stress reaction is considered to be temporary.

Workers are not entitled to benefits for traumatic mental stress that is a result of the employer’s employment decisions or actions. Workers who develop mental stress gradually over time, due to general workplace conditions, are not entitled to benefits.

For a mental stress claim to be allowed for benefits there must be sufficient evidence to confirm the series of events that led to the stress reaction, and the diagnosis must be related to those events.

Policy does allow entitlement for benefits for stress that develops as a result of a sudden and unexpected traumatic event such as:

- Witnessing a fatality or horrific accident

- Witnessing or being the object of an armed robbery

- Witnessing or being the object of a hostage taking

- Being the object of physical violence

- Being the object of threats of physical violence

- Being the object of harassment that includes physical violence or threat of violence

- Being the object of harassment that includes being placed in a life threatening or potentially life-threatening situation

Policy does not provide entitlement for stress that develops as a result of an employer’s actions or decisions such as:

- Terminations

- Demotions

- Transfers

- Changes in productivity expectations

- Discipline

- Changes in working hours and/or duties

Decision:

I have completed a detailed review of your case and have noted it does not meet the criteria for traumatic mental stress as there was no sudden and unexpected traumatic event or events to trigger your psychological reaction. As a result, entitlement to traumatic mental stress is not in order.

I have made this decision based on the information available to me. If you do not understand the decision, or if you do not agree with the conclusions reached, please call me. I would be pleased to discuss your concerns.

It is important to know that the Workplace Safety and Insurance Act (the Act) imposes time limits on objections. If you want to object to my decision, the Act requires that you notify me in writing no later than October 21, 2015.

. . .

[Emphasis in the original]

[100]  In cross-examination, the grievor confirmed that she made a WSIB claim, that she reported her disability, that the claim was denied (as set out in the WSIB letter dated April 21, 2015), and that she did not appeal that decision.

[101]  The grievor returned to work, albeit in a secondment at Industry Canada, effective October 13, 2015. She and Mr. Fox signed the secondment agreement on September 30, 2015. On Monday May 30, 2016, she moved permanently to a position at Health Canada (HC).

1. Ms. A

[102]  Ms. A was a work colleague of the grievor who testified about an accommodation she received from the employer in early 2014. Entered into evidence was a copy of a letter dated January 23, 2014, from a treating doctor (an oncologist) outlining functional limitations and restrictions due to her previous diagnosis and required treatments relating to her illness. In that correspondence, the doctor stated that Ms. A had to have certain restrictions due to ongoing cancer treatment, which was expected to run for a specific period.

[103]  Ms. A testified about the accommodation process that she underwent. While she said she that she had not been immediately accommodated, after some discussions, the employer accommodated her. She also said that she was required to undergo assessments to complete two FAFs, which were done by her oncologist. She received the first FAF shortly after she brought the January 23, 2014, letter to Mr. Fox. It was filled out on April 23, 2014. She received the second one in August of 2014, and it was filled out in November of 2014.

[104]  Without getting into specific details, Ms. A underwent cancer treatments.

C. File No. 566-02-11833

[105]  This grievance (dated November 4, 2015) states that the final level grievance officer in rendering his decision after hearing two other grievances, acted in a manner that was disciplinary and that his actions amounted to harassment and was punitive, suggesting that the decision was humiliating and was a continuance of the constructive dismissal alleged in file No. 566-02-11224.

[106]  The two grievances in question were entered into evidence dated July 24, 2015. One bears employer file number 675-3-1143 (“grievance 1143”), and the other, file number 675-3-1144 (“grievance 1144”).

[107]  Grievance 1143 stated as follows:

. . .

I grieve that the PPSC has placed me on a fraudulent leave status, “Sick Leave without Pay”, whilst no medical certificate, diagnosis or opinion has been presented to suggest or conclude that this is accurate. On the contrary, the PPSC has been in possession of medical information that confirms that I was deemed fit to work with an accommodation required on medical grounds, by my physician on March 17 2015, which was later confirmed by Health Canada in its letter to the PPSC on July 3 2015, as a result of the PPSC’s request that I undergo a Fitness Evaluation.

This illegitimate leave status is prejudicial to me as it penalizes me financially and has a negative effect on my current and future employment status.

. . .

Corrective action . . .

. . .

- immediately correct my leave status retroactive to March 23, 2015 to reflect as “Leave With Pay – Other”;

- reimburse the week of vacation leave I was forced to expend from March 23-27 2015 while the department knowingly suggested that I inappropriately apply leave credits in lieu of my manager arbitrarily placing me on ‘Sick Leave without pay’ when there was no basis to do so;

- reinstate my pay effective March 30, 2015

. . .

[Emphasis in the original]

[108]  Grievance 1144 stated as follows:

. . .

I grieve that the PPSC has continued a prejudicial and discriminatory practice to prevent me from accessing my wages despite its possession of medical information that confirms that I was deemed fit to work with an accommodation required on medical grounds, by my physician on March 17 2015, which was later confirmed by Health Canada in its letter to the PPSC on July 3 2015, as a result of the PPSC’s request that I undergo a Fitness Evaluation.

This discriminatory treatment is prejudicial to me as it has unfairly penalized me financially since March 30 2015.

. . .

Corrective action . . .

. . .

- reinstate my pay effective March 30, 2015

. . .

[Emphasis in the original]

[109]  A final-level grievance response dated October 29, 2015 (“the October 29 response”), was issued for both grievances by George Dolhai, who was, at that time, a deputy director of the PPSC and the third step in the grievance process. It stated as follows:

. . .

This is the final level response to your grievances dated July 24, 2015, in which you allege the following:

675-3-1143 the Public Prosecution Service of Canada (PPSC) has fraudulently placed you on sick leave without pay. You state that this leave status is contrary to the medical evidence and that this leave status is prejudicial to you as it penalizes you financially and has a negative effect on your current and future employment status. As corrective action, you request that the PPSC change your leave status to leave with pay‑other effective March 23, 2015; that your vacation leave from March 23-27, 2015 be reimbursed and that your salary be reinstated effective March 30, 2015.

675-3-1144 the PPSC has continued a prejudicial and discriminatory practice to prevent you from accessing your wages. You state that discriminatory treatment is prejudicial to you. As corrective action, you request that your salary be reinstated effective March 30, 2015.

As your grievances are substantially the same, I will respond to both in this decision.

Management attempted to provide reasonable time for you to present your arguments at the first level, however, you chose not to. Subsequently you requested that your grievances be transmitted directly to third level. As management did not agree with your request you were advised on August 26, 2015 that your grievances would be heard at the second level.

You provided written submissions for both grievances on September 9, 2015. An extension was granted until October 27, 2015 for the employer to respond and therefore you were asked to provide your written submissions by October 20, 2015. You advised us by way of an email dated October 22, 2015 that you no longer wished to provide additional submissions. I would also like to reiterate that although you were provided the options to have an in-person hearing at each level, your decision was to provide written submissions. A second level response to these grievances was rendered on September 15, 2015.

Before rendering a decision I have considered all the relevant facts and previous submissions as requested. It is my understanding that the substance of your allegations have already been dealt with through previous grievances, one of which is currently at the Public Service Labour and Employment Board awaiting adjudication, and I will not provide additional comment. The final level response to these grievances was rendered on May 1, 2015.

In terms of management’s actions since this date, I am satisfied that the PPSC continues to fulfill its responsibilities related to the administration of leave and its attempts to accommodate your medical limitations.

Consequently, your grievance and corrective actions requested are denied.

. . .

[Sic throughout]

[110]  In cross-examination, the grievor stated that she did not refer either grievance to the Board; nor did she seek judicial review of them. She stated that grievance 1143 could not be referred to adjudication because it was not adjudicable.

[111]  The grievor provided no evidence about the final-level grievance hearing that led to the October 29 response. In cross-examination, she stated that the reason she filed a grievance against the final-level response was that the employer had refused to change its position.

III. Summary of the arguments

A. For the grievor

[112]  The grievor submitted that she came to the PPSC with a good employment record and that things changed in the spring of 2013. Senior management did not respond to her concerns about a dysfunctional workplace. She remained there and fell ill.

[113]  Senior management did not respond to the harassment investigation conclusions, which exacerbated her condition. She submitted that she felt that it added to her stress. The toll of these pressures culminated in January of 2015, when she woke up and could not go to work. She submitted that in her view, the illness was due to management not dealing with her concerns. She stated that she felt that her complaint had been mischaracterized and that the PPSC had minimized it.

[114]  The grievor submitted that she emailed Mr. Fox on January 27, 2015. She submitted that she felt that the department knew that her health problem was serious because

• she was communicating through a lawyer;
• she had filed a WSIB claim; and
• she had informed management that she had suffered a workplace injury.

[115]  The grievor submitted that in her opinion, she had been forthcoming with Mr. Fox and that his behaviour had been adversarial. She said that she felt that the employer had done the following: “kicked me when I was down” and that her manager had done the following: “threatened to send me back to my substantive position” and “intentionally provoked me to react.”

[116]  The grievor submitted that once she was deemed fit to work in mid-March of 2015, the PPSC made “numerous attempts” to “stall, frustrate, and hinder” her accommodation request and that even though she had brought more than one note from her doctor, she was asked to return to her substantive position.

[117]  The grievor stated that she complied with every one of management’s requests, even though she and her doctor had become frustrated. She said that she did so to avoid delays.

[118]  The grievor stated that more than once, she asked for an accommodation meeting. That suggests that she sought a win-win solution and collaboration and that there were corporate files that could be transferred. But the employer said that doing so would be inconvenient.

[119]  The grievor submitted that when Mr. Fox informed her that her effects were to be removed from the workplace, she felt humiliated. She stated that she considered his behaviour continuing harassment.

[120]  The grievor submitted that Mr. Fox did not understand her medical needs even though Ms. A had received accommodation and had come from the same toxic environment. He said that he did not understand and that the grievor said that she “found it insulting”.

[121]  The grievor submitted that Mr. Fox crossed the line when he wrote to her doctor and suggested that she was healthy. He characterized her grievances as unfounded or resolved. She said he did so to discredit her with her doctor and that she felt that he meant to persuade her doctor that she was a problem employee. He cast doubt on what she had said to her doctor and implied that it was not true.

[122]  The grievor stated that when she asked for an advance of sick leave, Mr. Fox denied it. She said that that was intentional, as was the fact that he refused to tell her how much leave she still had. She submitted that his actions did not assure her that the employer would respond to her accommodation request. His actions were cruel and cold, and when he threatened to stop her salary, it was the last straw. She stated that his behaviour was abusive and offensive.

[123]  The grievor stated that the employer stopped her pay and that she was not informed of it. She said that Mr. Fox did not copy her on emails, so he knew that she would be caught off guard. She stated that the department concealed it from her.

[124]  The grievor submitted that the department subjected her to an assessment at HC, despite her saying that she felt that she did not require one. When it sent the package to HC for the assessment, she stated that in her opinion, it was an example of the department mischaracterizing her as someone misusing leave, which she stated was not true.

[125]  The grievor submitted that the department refused an accommodation meeting. It never asked her about a temporary accommodation because it did not want to.

[126]  The grievor submitted that it refused her leave with pay even though it knew that at least one other person had been put on that leave.

[127]  The grievor submitted that the HC assessments were carried out in July of 2015. The department refused to reinstate her and granted an accommodation meeting only in September of 2015. She said that she found employment in October of 2015. She said that the department left her in a state of limbo. It never removed her from being on leave without pay.

[128]  The grievor stated that she filed her second grievance in November of 2015. She said that the PPSC had no intention of taking her back. She stated that she started her secondment on October 13, 2015, at which point her pay was reinstated.

[129]  The grievor stated that the department was malicious and that it took advantage of her.

[130]  The grievor stated that she is being treated for anxiety and depression and that her life did not return to normal after she left the PPSC.

1. Jurisdiction with respect to the constructive dismissal grievance (566-02-11224)

[131]  The grievor submitted that she construed the employer’s actions as constructive dismissal. She said that Mr. Fox never gave her any reason to believe he would fulfil his duty to accommodate her. His behaviour was the opposite; he would only return her to her substantive position. She said that he knew about her psychological problems, that she had been harassed, and that she had received a medical recommendation to not return to her substantive position. He created distress and distrust. He mischaracterized the work environment, which demonstrated that he did not take her request seriously. He made no effort to demonstrate that he cared about her, and he refused to meet with her to discuss the accommodation request.

[132]  Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, states that a constructive dismissal can occur in two ways. In the first way, an employer can unilaterally breach the employment contract by showing that it will not be bound by it. In the second way, the employer can demonstrate through a series of acts that it will not be bound by the contract; therefore, a breach has occurred. The grievor’s position was that the employer constructively dismissed her in the second way.

[133]  The grievor referred me to the definition of “employment contract” in Black’s Law Dictionary Free Online Legal Dictionary 2^nd Ed., as well as a second definition, obtained from BusinessDictionary.com.

[134]  The grievor stated that her offer of employment required her to be bound by the Values and Ethics Code for the Public Sector (“the V&E code”) and that an employer and an employee have obligations to each other. She submitted that the PPSC deviated from the V&E code and that her rights were ignored. The V&E code requires respecting the rule of law. In her opinion, the PPSC disrespected it. She referred me to excerpts from the TB’s website on frequently asked questions about the V&E code.

[135]  The PPSC ignored the WSIB inquiry and did not investigate the grievor’s workplace inquiry. She referred me to an excerpt from the Human Resources and Skills Development Canada website entitled, “Labour: Information on Occupational Health and Safety: 8 Violence Prevention in the Work Place [sic]”.

[136]  The grievor referred me to an excerpt from the Canada.ca website entitled, “Employment Insurance and fraud”. She submitted that the department disrespected the law by deliberately listing a false release of employment, which breached the law.

[137]  The grievor referred me to the Policy on Terms and Conditions of Employment, the Directive on Terms and Conditions of Employment, the Directive on Leave and Special Working Arrangements, and the Policy on Harassment Prevention and Resolution. She submitted that the Directive on Leave and Special Working Arrangements requires the employer to manage leave transparently. Her position is that the PPSC put her on sick leave without pay without evidence.

[138]  With respect to the Policy on Harassment Prevention and Resolution, the grievor submitted that the PPSC failed to ensure that no harassment occurred.

[139]  The grievor referred me to an excerpt from the PPSC’s website and its mandate, mission, and values. She stated that the PPSC did not adhere to its values or to respect, integrity, and leadership.

[140]  With respect to the PPSC’s policies on disability management, it did not follow them, its behaviour was contrary to them, and it did not provide her with a safe and healthy workplace.

[141]  The PPSC did not demonstrate collaboration in the workplace. The employer is expected to accommodate up to the point of undue hardship. There is no evidence to suggest that it would have suffered any undue hardship. It had a duty to accommodate the grievor. She said that her doctor assessed her and found that she had a disability. She stated that she was forthcoming about her problems and that it was clear to her that Mr. Fox had no intention of accommodating her. She said that she had made it clear that she needed time to adjust and that she felt that Mr. Fox was intent that he would not entertain any accommodation.

[142]  The grievor referred me to British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3. She stated that the employer had to make a sustained effort and that she believed that the PPSC had no intention to accommodate her as of March 9, 2015.

[143]  The grievor referred me to Nicol v. Treasury Board (Service Canada), 2014 PSLREB 3, Rogers v. Canada Revenue Agency, 2016 PSLREB 101, Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4, Martin v. Treasury Board (Department of Veterans Affairs), 2014 PSLRB 37, Attorney General of Canada v. Gatien, 2016 FCA 3, Vorvis v. Insurance Corporation of British Columbia, [1989] 1 SCR 1085, Honda Canada Inc. v. Keays, 2008 SCC 39, Bhasin v. Hrynew, 2014 SCC 71, Antunes v. Limen Structures Ltd., 2015 ONSC 2163, and Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419.

[144]  As relief, the grievor requested the following:

• the difference in salary lost;
• a refund of five vacation days that she had to use;
• reimbursement of all fees she paid to lawyers;
• damages under the CHRA; and
• aggravated or bad-faith damages.

B. For the employer

1. File 566-02-11224

[145]  The grievor’s argument centred exclusively on this grievance.

[146]  This grievance was referred to adjudication under s. 209(1)(c)(i) of the Act, which gives the Board jurisdiction over terminations of employment or demotions for unsatisfactory performance or any other reason. The grievor also alleged that the duty to accommodate was violated and that the situation she found herself in amounted to a constructive dismissal.

[147]  The employer submitted first that constructive dismissal does not apply to the public sector. In support, it referred me to Hassard v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 32, and Cameron.

[148]  Potter sets out the principles behind constructive dismissal. First, the burden of proof is on the grievor to establish that it occurred. Second, constructive dismissal can be established in one of two ways, as follows:

• the employer unilaterally changed the terms and conditions of the employment contract in a way that would be considered serious enough to constitute a constructive dismissal; or
• it made a series of acts that taken together show that it no longer intended to be bound by the employment contract.

[149]  If it is accepted (the employer submitted that the Board should not) that constructive dismissal applies in the public sector, then the grievor had the burden of proof of showing on a balance of probabilities that a change was made to her terms and conditions of employment that was so substantial that it amounted to the termination of her employment contract.

[150]  The test is not her perception of things; she had to demonstrate that the conduct evinced the termination of the employment contract.

[151]  The employer referred me to Nadeau v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 31, which considered the application of constructive dismissal and left open the question of whether it applies in the public sector, based on the facts in that case. However, it did accept that to establish constructive dismissal, the test is set out in Potter.

[152]  The employer’s primary position was that constructive dismissal, based on Hassard and Cameron, does not apply in the federal public sector. However, in the off‑chance that the door is still open, as in Nadeau, the grievor did not establish based on any evidence that she was terminated.

[153]  If the Board finds that it does not have jurisdiction, either because constructive dismissal in the federal public sector does not exist or because the grievor did not establish that she was constructively dismissed, it should automatically dismiss the portion of the grievance with respect to the allegation that the employer failed to accommodate her.

[154]  The jurisprudence holds that jurisdiction with respect to the duty to accommodate is not a stand-alone right. The adjudicator must have jurisdiction before having jurisdiction over the duty to accommodate. The employer referred me to Chamberlain v. Treasury Board (Department of Human Resources and Skills Development), 2013 PSLRB 115, and Malhi v. (Department of Employment and Social Development), 2016 PSLREB 2.

[155]  In her grievance of March 9, 2015, the grievor alleged that she had been terminated as of that date. She had the burden of proof to establish those facts.

[156]  The Board requires only one document to dispose of this matter, which, in the email chain between the grievor and Mr. Fox, is his final email in the chain to the grievor at 2:55 p.m. on March 9, 2015. The emails in the chain disclose the grievor’s attitude and tone and whether she collaborated with the accommodation process.

[157]  This case is simple. It starts with the January 28 Chan note, which states that the grievor experienced work-related stress. Dr. Chan put her on leave and recommended moving her out of the directorate where she was working and into another one. That triggered the accommodation request.

[158]  Mr. Fox followed policies. The first thing he did was determine if he could work with the January 28 Chan note. It stated nothing about returning the grievor to work. It referred only to a mental-health issue. The PPSC is small, and all its parts have contact with the HRD. The note also stated nothing about any functional limitations or restrictions for the grievor. It did not indicate the cause of her stress or if she could or could not work with certain people.

[159]  The January 28 Chan note cannot be applied in and of itself. However, Mr. Fox started to act on it. He wanted Dr. Chan to fill out a FAF. As part of that process, information had to be provided to Dr. Chan. The first part of the process is that the grievor had to review and sign the consent form. Mr. Fox followed the process and explained that to her. The jurisprudence in this area is unanimous; the employer has a right to ask for more information. The duty to accommodate does not require that an employer blindly accept a doctor’s recommendation.

[160]  Mr. Fox was not required to accept Dr. Chan’s recommendation; it made no sense. Two harassment complaints had been filed, yet the recommendation made no mention of contact with specific people, the volume of work, the hours of work, or the nature of the work. The employer had the right to inquire and obtain information. This is when the grievor became unhappy, as is clear both in her evidence and in her arguments. Her main point was that she provided the January 28 Chan note, which said that she should work outside the HRD. The employer was required to comply with that. In essence, her position was, “Don’t ask me for any information, and I will not sign the consent form.”

[161]  The process does not work the way the grievor wanted it to work.

[162]  A major part of the grievor’s argument was about Mr. Fox and his alleged behaviour. At her request, all communications were in writing. The email dated February 2, 2015, stated that she requested communication via email in lieu of the telephone. She wanted it in writing; Mr. Fox agreed.

[163]  Then, before the Board, the grievor stated that there was no dialogue, yet she created the situation by asking for all communication to be in writing. She did not want a dialogue. She then suggested that Mr. Fox’s behaviour disclosed that he did not want to accommodate her, and she accused him of threatening and harassing behaviour, which the documents do not reflect in any way. Any reasonable person reviewing her written communications with Mr. Fox would reach the same conclusion. He was polite, professional, and efficient. He was to the point, and he addressed her concerns.

[164]  In contrast, the tone of the grievor’s email communications is vindictive and accusatory. She refused to comply with requests.

[165]  In the February 20 email, the grievor refused to consent to the functional abilities assessment. On February 23, 2015, at 8:02 a.m., she stated. “For the second and last time, I will not be signing the (voluntary) consent form.” On March 26, 2015, at 8:15 a.m., she emailed Mr. Fox and in the third paragraph, stated: “There is no need or requirement for me to sign a consent form and further, I have repeatedly agreed since my email on February 5 to relay questions to my doctor on your behalf, and to relay his responses back to you.”

[166]  In the March 9 email, Mr. Fox informed the grievor that discussions had taken place with all PPSC branches but that no suitable work outside the HRD had been identified for her. This was confirmed in the oral evidence of both Mr. Fox and Ms. Roussel. He also set out in the body of the email the grievor’s leave balances and stated that at that point, he was not prepared to advance her any sick leave. He then advised her to speak to her compensation advisor about accessing disability benefits in the event she needed them. He sent the email on the same day the grievance was written and just hours before she sent it to him.

[167]  Simply put, on March 9, 2015, the date of the grievance, based on all the information available on that date and at that time, could a reasonable person have felt that he or she was being terminated? It is not possible. It is clear that as of that date and time, the employer was working towards an accommodation and that the grievor created an obstacle by not signing the consent form for her doctor.

[168]  The policy with respect to handling disability management cases sets out the steps in the process, depending on the fact situation. The normal process involves going on sick leave, using it up, and then applying for disability benefits. On both March 9 and 23, 2015, Mr. Fox told the grievor to speak to her compensation advisor.

[169]  The March 17 Chan note provided nothing to help the employer and did not indicate how to accommodate the grievor.

[170]  The grievor insisted that she was fit to return to work. She stated as much in her evidence and argument. However, she was never fit to return to work in her position. She might have been fit to return to work with an accommodation. However, this differs from being fit to work, and the two concepts should not be confused. She had a medical condition, and she was not fit to return to work.

[171]  The grievor also created another obstacle to her return to work and potential accommodation by making her WSIB claim, which in the end, was denied. The employer never admitted that she had been subject to a workplace injury.

[172]  On March 2, 2015, Dr. Chan dated and signed a FAF on which he checked off 21 boxes identifying difficulties (without details) with respect to social or emotional and cognitive or mental demands, but he provided no further information. After that, he wrote the extremely harsh April 2 letter to the employer, which in essence stated that he was the grievor’s advocate, she felt bullied and harassed, the employer must accommodate her, and he should not be bothered.

[173]  The grievor caused the delay in the accommodation process. However, her delays occurred after the grievance was filed. Therefore, according to her, the employer must have not wanted to do anything to return her to work, and anything it did was a sham. She had to convince the Board of that. Yet, even after she filed her grievance, the employer still tried to return her to work. That shows that she was not constructively dismissed. She was the only person working against that process.

[174]  The employer took steps to have HC carry out a fitness-to-work evaluation (FTWE). Mr. Fox prepared the materials. The FTWE took place, and a report was issued on July 3, 2015, which provides information different from the material that Dr. Chan provided. It is specific as to what the grievor could and could not do and as to her interactions with specific people. Despite what she suggested, she could not be placed outside the HRD doing the same work. She was not to have contact with people in her reporting structure.

[175]  Once the employer received the FTWE report, it had a better idea as to what it could do to move forward. Efforts were made. Eventually, the grievor found a position that suited her, and she left the PPSC. However, there was no termination, no discipline, and no demotion.

[176]  The grievor has her perception of the facts. Despite what really happened, which is clear on the face of the documents in which it is written, she argued the contrary based on her perception of what took place. She made untrue statements. She suggested that Mr. Fox’s tone was disrespectful. Yet, when she was challenged to show when that had been so, she could not. She said that he threatened her. He did not. However, he did tell her what could happen if certain events occurred. She stated that she complied with every request, yet she refused to sign the consent form for the FAF, which demonstrates that she did not comply every time. She continuously told the hearing that she was not sick, yet she contradicted herself, because she was sick, she said that she was sick, and the medical documents confirmed that she was sick.

[177]  The employer referred me to Baun v. Statistics Survey Operations, 2014 PSLRB 26, Theaker v. Deputy Head (Department of Justice), 2013 PSLRB 163, Hood v. Canadian Food Inspection Agency, 2013 PSLRB 49, Leclair v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 97, Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970, and Taticek v. Treasury Board (Canada Border Services Agency), 2015 PSLREB 12.

[178]  While the grievor did refer her grievance to adjudication under s. 209(1)(c)(i) of the Act, she referred to the employer’s behaviour and suggested that it was malicious. The case law is clear in that a request for further information is not maliciousness or bad faith; it is a legitimate business action, which is what the employer tried to do. It is not required to blindly follow the instructions of a family doctor.

[179]  On March 9, 2015, the grievor was not terminated from her position; she was on sick leave with pay. A process was ongoing with respect to the duty to accommodate.

[180]  The grievor made many allegations. However, they are her perceptions. She accused every person representing the employer of fraud and malice, especially Mr. Fox. According to her, the employer acted fraudulently by setting out a process that would apply to her, given her situation. She insisted that she was fit to work and that therefore, the employer’s actions were fraudulent.

[181]  The employer referred me to the following quote from the investigator, referring to the grievor, which is set out in the executive summary of the Desharnais harassment complaint report:

. . .

Nature abhors a vacuum, as do employees seeking information. Based on the limited information at hand, the complainant has constructed and woven suppositions into a cohesive argument. In the hands of so highly skilled an author, the complainant’s position seems on face value to have some credibility. However, it is rooted in suppositions that are not based in fact, but on a foreshortened view of the respondent’s actions.

. . .

2. File 566-02-11833

[182]  This grievance is not a proper grievance before the Board as it is against the third-level response to grievances 1143 and 1144, neither of which was referred to adjudication. The grievor suggested that Mr. Dolhai’s third-level response amounted to discipline as she referred the grievance under s. 209(1)(b) of the Act.

[183]  If the grievor wanted to dispute the issues raised in grievances 1143 and 1144, she should have referred them to adjudication. The employer submitted that for me to have jurisdiction, I would have to determine that Mr. Dolhai’s response amounted to disguised discipline. There is no evidence of that, and the grievor made no argument.

[184]  This cannot be fixed by s. 241(1) of the Act, as it is not a defect in the proceedings; there was no technical mistake or error. The grievor knew what she was doing when she filed this grievance. Its wording states that Mr. Dolhai handled grievances 1143 and 1144 in an ill spirited manner.

C. The grievor’s reply

[185]  The grievor submitted that she grieved the harassment complaints.

[186]  The grievor submitted that the employer’s witnesses were not reliable or credible.

IV. Reasons

A. Request to seal documents

[187]  The grievor submitted copies of harassment reports issued with respect to the harassment complaints she made against Mr. Desharnais (Exhibit G-41) and Ms. Kelly (Exhibit G-42). Also submitted were copies of medical information (Exhibits E-2, G-35, and G-36) involving Ms. A, who testified. Both parties requested that these documents be sealed.

[188]  In Basic v. Canadian Association of Professional Employees, 2012 PSLRB 120 at paras. 9 through 11, the Public Service Labour Relations Board stated as follows:

[9] The sealing of documents and records filed in judicial and quasi-judicial hearings is inconsistent with the fundamental principle enshrined in our system of justice that hearings are public and accessible. The Supreme Court of Canada has ruled that public access to exhibits and other documents filed in legal proceedings is a constitutionally protected right under the “freedom of expression” provisions of the Canadian Charter of Rights and Freedoms; for example, see Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (CanLII).

[10] However, occasions arise where freedom of expression and the principle of open and public access to judicial and quasi-judicial hearings must be balanced against other important rights, including the right to a fair hearing. While courts and administrative tribunals have the discretion to grant requests for confidentiality orders, publication bans and the sealing of exhibits, it is circumscribed by the requirement to balance these competing rights and interests. The Supreme Court of Canada articulated the sum of the considerations that should come into play when considering requests to limit accessibility to judicial proceedings or to the documents filed in such proceedings, in decisions such as Dagenais and Mentuck. These decisions give rise to what is now known as the Dagenais/Mentuck test.

[11] The Dagenais/Mentuck test was developed in the context of requests for publication bans in criminal proceedings. In Sierra Club of Canada, the Supreme Court of Canada refined the test in response to a request for a confidentiality order in the context of a civil proceeding. As adapted, the test is as follows:

. . .

1. such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

2. the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

. . .

[189]  The subject matter of file 566-02-11223 was whether the grievor was constructively dismissed from her position. The harassment complaints against Mr. Desharnais and Ms. Kelly provided some historical context, but neither of them testified. The issues raised in the harassment complaints, while not insignificant, are not central to this hearing; nor were they robustly reviewed. The salutary effects of the order outweigh the deleterious effects on the right to free expression, given that the allegations in the complaints were largely unfounded, that the respondents to those complaints were not parties to the hearing, and that the matters in those complaints were not central to the hearing and were not reviewed by this panel of the Board in any detail.

[190]  With respect to the medical documents related to Ms. A, the grievor brought forward Ms. A’s personal medical issues to address the accommodation process. They contain information that should not be in the public domain. There is a serious risk to Ms. A’s privacy, who is not a party to these proceedings, and her personal medical circumstances are irrelevant to the matter before me.

[191]  Therefore, I order the documents sealed that were submitted and marked as Exhibits E-2, G-35, G-36, G-41, and G-42.

B. File 566-02-11223

[192]  The employer objected to my jurisdiction to hear this matter, submitting that it did not fall within s. 209(1)(c)(i) of the Act, under which the grievor referred it to adjudication. Given the nature of the grievance, which is an allegation of constructive dismissal, it was not possible to hear the evidence on the objection without hearing the evidence on the merits of the grievance. As such, I heard all the evidence and reserved on the question of jurisdiction.

[193]  To be within the Board’s jurisdiction under s. 209(1)(c)(i) of the Act, a grievance must have as its subject matter a demotion or termination of employment of an employee in the core public administration under s. 12(1)(d) of the Financial Administration Act (R.S.C., 1985. c. F-11; FAA) for unsatisfactory performance or under s. 12(1)(e) of the FAA for any other reason that does not relate to a breach of discipline or misconduct.

[194]  Sections 12(1)(d) and (e) of the FAA state as follows:

12 (1) Subject to paragraphs 11.1(1)(f) and (g), every deputy head in the core public administration may, with respect to the portion for which he or she is deputy head,

. . .

(d) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service whose performance, in the opinion of the deputy head, is unsatisfactory;

(e) provide for the termination of employment, or the demotion to a position at a lower maximum rate of pay, of persons employed in the public service for reasons other than breaches of discipline or misconduct . . . .

[195]  For the reasons that follow, the employer’s objection to jurisdiction is allowed, and the grievance is dismissed.

[196]  For me to have jurisdiction, the grievor had to establish that on a balance of probabilities, the employer’s action constituted a termination of employment (as that is what she alleged, a constructive dismissal) and that it was done for alleged unsatisfactory performance or other reasons (s. 209(1)(c)(i) of the Act).

[197]  Nothing in the grievance, the evidence, or argument suggested a demotion. Nor was there any allegation of one. And I heard no evidence and there was no argument from the grievor that the alleged constructive dismissal had anything to do with her performance. As such, the grievance could not be referred to the Board under s. 209(1)(c)(i) of the Act, under s. 12(1)(d) of the FAA.

1. Alleged constructive dismissal

[198]  The Supreme Court of Canada discussed constructive dismissal in Potter, at paras. 30 to 33, as follows:

30 When an employer’s conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal. . . .

31 The burden rests on the employee to establish that he or she has been constructively dismissed. If the employee is successful, he or she is then entitled to damages in lieu of reasonable notice of termination. . . .

32 . . . There are two branches of the test that have emerged. Most often, the court must first identify an express or implied contract term that has been breached, and then determine whether that breach was sufficiently serious to constitute constructive dismissal . . . .

33 However, an employer’s conduct will also constitute constructive dismissal if it more generally shows that the employer intended not to be bound by the contract. . . .

[199]  Potter sets out that the burden rested on the grievor to establish that she was constructively dismissed by establishing either that an express term of the employment contract was breached and that the breach was serious enough that it constituted dismissal or that the employer’s conduct demonstrated that it would not be bound by the contract. The grievor did not meet that burden.

[200]  At the time the grievance was filed, the grievor had left the workplace, was on certified sick leave, and was collecting pay on the basis of the sick-leave credits she had earned as part of her employment contract. This continued after she filed her grievance. Indeed, as of her grievance, the employer had been looking for a position for her outside the HRD, as she had requested; however, it had not located one.

[201]  Those actions of Mr. Fox on behalf of the employer certainly do not signal any intent that the employer intended to no longer be bound by the employment relationship; nor do they indicate that any term of the employment contract was breached. Mr. Fox told the grievor that her position was there for her, and he and the employer were prepared to take steps to put in place a plan to support her reintegration into her substantive position with respect to an accommodation, depending on what might be needed.

[202]  While he did state at that time that he was not prepared to advance her paid sick-leave credits, he also told her about her current leave balances and that she could use them to cover her ongoing absence from work. As part of the employment relationship, the grievor earned leave credits for vacation and sick leave as well as a one-time vacation leave that she was entitled to use for time off work, and the employer confirmed that she was entitled to use them. Employees terminated in the federal public service lose their paid sick-leave credits.

[203]  The allegation in the grievance is very specific, as follows:

1. the PPSC took numerous actions to frustrate her request and delay her return to work with an accommodation;
2. through the March 9 email, Mr. Fox refused to accommodate her medical restrictions; and
3. Mr. Fox attempted to make her working conditions so intolerable that she would feel compelled to resign.

[204]  Renaud identified the now well-recognized principles to follow in duty‑to‑accommodate cases, as follows:

. . .

43 The search for accommodation is a multi-party inquiry. Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation. The inclusion of the complainant in the search for accommodation was recognized by this Court in O’Malley. At page 555, McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

44 This does not mean that, in addition to bringing to the attention of the employer the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of the employer’s business. When an employer has initiated a proposal that is reasonable and would, if implemented, fulfil the duty to accommodate, the complainant has a duty to facilitate the implementation of the proposal. If failure to take reasonable steps on the part of the complainant causes the proposal to founder, the complaint will be dismissed. The other aspect of this duty is the obligation to accept reasonable accommodation. This is the aspect referred to by McIntyre J. in O’Malley. The complainant cannot expect a perfect solution. If a proposal that would be reasonable in all the circumstances is turned down, the employer’s duty is discharged.

. . .

2. The PPSC took numerous actions to frustrate the grievor’s request or delay her return to work with an accommodation 

[205]  In some cases, the multi-party search can be dealt with simply by a short letter or note from a family physician, and an employer can easily implement what is necessary. However, this does not mean that an employer must put in place what a physician states is required or what an employee wants. Some cases will require a more fulsome process and much more extensive discussion, input, and cooperation.

[206]  From the evidence before me, it is clear that as of March 9, 2015, the process of accommodation was in its preliminary stage. Between January 26, 2015 (the grievor’s last day of work at the PPSC), and March 9, 2015 (the date indicated on the grievance of the act, omission, or other matter that gave rise to it), the information provided to the employer by her family physician was as follows:

• the January 28 Chan note;
• a note dated January 30, 2015, simply stating that she was unable to attend work from January 27 to 30, 2015, and “Work related stress” had been written on it;
• a note dated March 2, 2015, simply stating that she was unable to attend work from March 2 to 31, 2015; and
• the redacted March 2 FAF.

[207]  As of late January, Dr. Chan indicated that the grievor was suffering from stress, which he attributed to her work environment. However, he did not testify; nor were any of his clinical notes or records produced. As such, I am not privy to what he knew or what she told him.

[208]  It is clear that on March 2, 2015, Dr. Chan wrote a note that stated that the grievor was not fit to work from March 2 to 31, 2015, and that he filled in the FAF that she unilaterally redacted. The (albeit) redacted March 2 FAF identified that she had limitations or restrictions with respect to 21 non-physical work-related capacities specifically in the areas of social, emotional, and cognitive and mental demands. The employer was well within its rights to require more information from Dr. Chan to help determine a workplace accommodation, including whether one was required, and if necessary to request and obtain an assessment from its healthcare professionals at HC, which, in the end, it did.

[209]  In her evidence, the grievor testified that on March 2, 2015, she was prescribed a new medication that took three weeks to take effect. In cross-examination, she agreed that as of March 9, 2015, she was not fit to work. Therefore, it is difficult to understand how as of March 9, 2015 (the date of the grievance), the employer was delaying her return to work when she was not fit to work. It was illogical for her to suggest that she was being delayed in her return to work on March 10, 2015, by virtue of the position Mr. Fox took in the March 9 email since at that date, neither she nor her family physician felt that she could return to work. There is simply no evidence of the employer delaying her return to work, or return to work with an accommodation, as of the date of the grievance.

[210]  It is clear that on March 9, 2015, the only thing the employer was not prepared to do was to accede to the grievor’s demand to be moved to a position outside the HRD. The fact that both she and her physician characterized it as an accommodation did not necessarily make it so.

[211]  Many factors and variables may have to be taken into account when an employee’s illness or disability intersects with his or her work environment. In Herbert v. Deputy Head (Parole Board of Canada), 2018 FPSLREB 76 at para. 393, I commented as follows about the participation of health professionals with respect to workplace accommodations:

[393] In his testimony before me, Dr. Suddaby stated that most psychiatrists and psychologists make accommodation recommendations that are not appropriate because they do not know enough about the workplace or the job at issue. He stated that when all the stakeholders involved communicate effectively with the appropriate level of disclosure, it is likely that the employee will be in a better position. The input of all stakeholders is important but highly unusual in our healthcare system. Dr. Suddaby’s comments are particularly well placed, especially when dealing with the grievor and his situation.

[212]  The goal of medical professionals is the well-being of their patients, and I have no doubt that this was so with respect to Dr. Chan and his relationship with the grievor. The difficulty lies in the fact that treating physicians are faced with multifaceted problems that are not always physical and not always medical in nature; this is particularly problematic with respect to workplace issues involving conflict between employees. Treating physicians may or may not be in any position to address workplace conflict. That is not to say that their contribution is not welcome or not helpful; they often can and do assist and play a role in addressing workplace accommodation issues. The question becomes what and how much of a role do they play?

[213]  While the grievor did testify and at times did speak of what she said she told Dr. Chan, for reasons that shall follow later in this decision, I am hesitant to accept much of what she stated as accurate, as I find her evidence largely not credible.

3. Through the March 9 email, the PPSC refused to accommodate the grievor’s medical restrictions

[214]  The reasons set out in the last section apply equally to this allegation.

[215]  In addition to those reasons, the March 9 email states the opposite.

[216]  The March 9 email stated that Mr. Fox was unable to accommodate the grievor’s request and Dr. Chan’s recommendation to work outside the HRD. His stated reason was that no suitable work outside the HRD was identified and that doing HRD work outside it was problematic because of the uniqueness of its work and reporting structure. It was specialized work, and as such, it would have been difficult for her to carry it out outside that structure.

[217]  The March 9 email also stated that Mr. Fox was prepared to put in place a plan that would support the grievor’s reintegration into the work environment in her substantive position and if possible accelerate her return to work by developing a plan in collaboration with her and Dr. Chan that would provide the appropriate support.

[218]  The March 9 email does not speak of the grievor’s medical restrictions or illness except that he asked her to let him know if the situation changed (bearing in mind that other than the redacted March 2 FAF, the most recent medical note from Dr. Chan was dated March 2, 2015, and stated that she was unable to attend work from March 2 to 31, 2015).

[219]  In cross-examination, Mr. Fox stated that at that time (March 9, 2015), he did not have clarification about the grievor’s abilities and limitations. When she suggested to him that he was refusing to accommodate her, he denied it, stating that based on the information he had, he could not assess a suitable accommodation.

4. The PPSC attempted to make the grievor’s working conditions so intolerable that she would feel compelled to resign

[220]  There was no evidence about the grievor’s working conditions. The grievance was filed on March 9, 2015, and she had not been at work since January 26, 2015, some 30 working days before then.

[221]  While the Desharnais harassment complaint report suggested that a part of the alleged harassment being perpetrated against the grievor was that in the summer of 2013, Mr. Desharnais kept her out of the loop with respect to work, that some of her work was being stalled, and that she had seen a decrease in assigned file activity, there was no evidence that the employer removed duties or significantly altered her duties. Nor was that the allegation in her grievance, in the evidence, or in her argument.

[222]  The grievor provided no evidence about what if any changes the employer attempted to make to her working conditions.

[223]  There is no evidence that the grievor resigned. Nor was there any evidence that she considered resigning.

a. Failure to accommodate as a stand-alone grievance

[224]  The grievor could certainly file a grievance under s. 208 of the Act alleging that the employer failed to accommodate her, and indeed, she filed one as one of the two she delivered to Mr. Fox on March 10, 2015, at 7:04 a.m. However, she did not refer that grievance to the Board for adjudication.

[225]  The right to file a grievance and have it dealt with through the grievance process does not in and of itself give the Board jurisdiction. For that to occur, the grievance must fall within one of the areas delineated by s. 209 of the Act. In most cases, the Board has jurisdiction over an alleged failure of the duty to accommodate because it falls under s. 209(1)(a), which provides jurisdiction over the interpretation or application in respect of the employee of a provision of a collective agreement or arbitral award. Most, if not all, collective agreements between the TB and bargaining agents in the federal public service contain an article that addresses discrimination.

[226]  The following clause, as set out in the agreement between the TB and the Public Service Alliance of Canada for the Program and Administrative Services Group (“the PA collective agreement”), contains language typically found in all collective agreements in the federal public service and states as follows:

NO DISCRIMINATION

19.01  There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

[227]  The difficulty with the grievor’s situation is that she was not covered by a collective agreement; hence, she could not refer to adjudication a grievance alleging a failure to accommodate. While that may sound and appear unfair, the legislation is clear. The Board does not have inherent jurisdiction over labour and employment matters in the federal public service, only those specifically set out in the Act. Indeed, even employees who are covered by a collective agreement that contains a no‑discrimination clause, such as the one set out in the PA collective agreement, can be foreclosed from adjudication of an alleged failure to accommodate if their bargaining agent is not prepared to represent them at adjudication (see s. 209(2) of the Act).

[228]  As such, the grievor’s allegations in her grievance with respect to the failure to accommodate are not adjudicable.

C. File 566-02-11833

[229]  The employer also objected to my jurisdiction to hear this grievance, submitting that it did not fall within s. 209 of the Act, and specifically that the grievor did not establish that the action set out in the grievance amounted to a disciplinary action that resulted in a termination of employment, suspension, or demotion under s. 209(1)(b).

[230]  For the reasons that follow, I allow the employer’s objection, and the grievance is dismissed.

[231]  The Board has jurisdiction over individual grievance matters as set out in s. 209 of the Act.

[232]  In grievance 1143, the grievor alleged that the employer had fraudulently placed her on sick leave without pay, and in grievance 1144, she alleged that it had acted in a discriminatory manner by preventing her from accessing her wages. Mr. Dolhai, the delegated authority, denied both grievances at the final level of the grievance process.

[233]  The grievor did not provide any evidence with respect to the grievance process involving grievances 1143 and 1144. From Mr. Dolhai’s final-level response, the only evidence about the grievances indicates that they were denied at earlier levels and that the grievor was given the option of an in-person hearing at the other levels of the grievance process, which she declined in favour of written submissions.

[234]  The entirety of the decisions on grievances 1143 and 1144 was set out in the evidence section of this decision.

[235]   The grievance process in the federal public service is currently set out in the Regulations and is a continuation of the process that has been in place, largely unchanged, for decades. The process was initially implemented at the time of the Board’s predecessor, the Public Service Staff Relations Board, under the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), and then, it was continued under the PSLRA.

[236]  The process set out by the Regulations provides that if an employee who has filed an individual grievance is unsatisfied with a decision at a level in the grievance process, he or she can refer the grievance forward in the process until it is exhausted. When that happens, depending on the nature of the grievance, the grievor may refer it to the Board for adjudication, if the Board would have jurisdiction over it (currently, under s. 209 of the Act).

[237]  While s. 208 of the Act permits filing grievances with respect to virtually every aspect of the employee-employer relationship, s. 209 circumscribes the matters that can be brought to the Board for adjudication. As stated earlier in this decision, not every grievance filed under s. 208 is within the Board’s jurisdiction. In the grievor’s case, being not covered by a collective agreement, those matters are even further restricted. Terms and conditions of employment that are set out in a collective agreement, which include matters of pay and leave, may arguably be referred to the Board for adjudication under s. 209(1)(a) of the Act, which provides jurisdiction over matters involving the breach of a term of a collective agreement.

[238]  As the grievor’s terms and conditions of employment were not governed in part by a collective agreement, the Board has no jurisdiction to hear alleged breaches of such terms and conditions that it would otherwise have jurisdiction to hear and determine because they are set out in a collective agreement. Again, while this may seem unfair, this is clearly what the legislation sets out.

[239]  There was absolutely no evidence presented whatsoever that Mr. Dolhai’s denial of grievances 1143 and 1144 was in any way disciplinary; nor did the grievor make any submissions on this point. It is evident that she filed this grievance in an attempt to adjudicate an issue over which the Board had no jurisdiction, which she knew.

D. Credibility

[240]  The test for credibility is articulated in Faryna v. Chorny, [1952] 2 D.L.R. 354, which states as follows:

. . .

If a trial Judge’s finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in the witness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility of the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility. . . A witness by his manner may create a very unfavourable impression of his truthfulness upon the trial Judge, and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling the truth. I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie.

The credibility of interested witness [sic], particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. . . .

. . .

[241]  Much of the evidence in this case is documentary. Most of the oral testimony came from witnesses called by the employer. While the grievor testified and called one witness, Ms. A, her testimony was only about what had happened in her specific case, and she had nothing to contribute with respect to the grievor’s situation, as she was not involved.

[242]  In her evidence-in-chief, cross-examination, and submissions, as well as in many of the emails she authored, the grievor spoke of how she felt, what she perceived, what she believed, her assumptions as to what other people believed or were thinking, and her perceptions and assumptions as to the motives of people acting for the employer, especially Mr. Fox. However, they are not evidence of what happened but are supposition and conjecture.

[243]  The grievor provided very little substance in her evidence-in-chief. As set out earlier in this decision, she spent a great deal of her time merely identifying the documents set out in her briefs. Her oral testimony was largely extracted in cross‑examination by counsel for the employer, was not helpful to her case, and, in short, damaged her credibility.

[244]  The most glaring example of the grievor’s lack of credibility is the issue surrounding the execution of the consent form that Mr. Fox asked her to sign. On a number of occasions before me, she stated that she always cooperated with the employer (specifically, Mr. Fox) and that she would bring whatever forms were necessary to her doctor. This is simply not true, as she specifically told Mr. Fox (in at least two emails) that she would not sign the (voluntary) consent form. In cross‑examination, when this was brought to her attention and the dichotomy in her statement and her emails was pointed out, she would not agree. She suggested that going to her doctor meant that she was cooperating.

[245]  The grievor often would not answer simple questions put to her in cross‑examination. She stated that the consent form was not explained to her, yet when she was asked what was not explained, she just said it was not explained and went on to state that she did not believe that she required another evaluation. The consent form is clear and unambiguous and is set out earlier in this decision. If he was not clear initially on the reason for the consent form, Mr. Fox clearly explained it to her in the February 19 email.

[246]  The grievor wrote the March 30 letter to Dr. Chan. It was not copied to the employer at the time of the events at issue. In cross-examination, the portion of the letter in which she tells Dr. Chan that Mr. Fox was disrespectful to her in his communications with her was put to her. She was asked to identify for the hearing the “disrespectful communications” she identified him making. She could not.

[247]  I have reviewed all the communications between the grievor and Mr. Fox put forward at the hearing (before the March 30 letter), and in none could Mr. Fox’s communications or actions be seen as inappropriate, harassing, disrespectful, vindictive, or offensive, which are all terms she used in describing his communications with her. His emails were, at times, perhaps not what she might have wanted to hear and were sometimes blunt and to the point. However, this does not equate to harassment or disrespectful communications.

[248]  With respect to the grievances identified as 1143 and 1144, once the grievor had used up her sick leave with pay credits and was placed on sick leave without pay, she suggested in both her correspondence and her evidence before me that these actions were taken without notice to her. She suggested that they came as somewhat of a shock.

[249]  This is patently untrue. Time and again, the employer advised her of the amount of sick-leave credits she had (as well as her other available leave) and could use. She was told to get in touch with her compensation advisor in case the leave ran out. Mr. Fox specifically told her in the March 9 email that he would not advance her any sick‑leave credits. It is clear and obvious that she was specifically given information by the employer that she chose to ignore.

[250]  What is likely the most egregious action the grievor took in this matter was falsifying the FAF. Dr. Chan gave her the completed FAF to provide to the employer. Of her own accord, she redacted information from it and withheld it from the employer. That disclosed that she was prepared to falsify things and to mislead the employer to achieve what she believed she was entitled to.

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

(The Order appears on the next page)

V. Order

[252]  For both grievances, I am without jurisdiction.

[253]  Both grievances are dismissed.

[254]  Exhibits E-2, G-35, G-36, G-41 and G-42 shall be sealed.

July 5, 2019.

John G. Jaworski,

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