Date: 20210809

File: 566-02-12149

 

Citation: 2021 FPSLREB 89

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

 

Yvonne McNeil

Grievor

 

and

 

TREASURY BOARD

(Department of Fisheries and Oceans)

 

Employer

Indexed as

McNeil v. Treasury Board (Department of Fisheries and Oceans)

In the matter of an individual grievance referred to adjudication

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

For the Grievor: Jessica Greenwood, counsel

For the Employer: Pierre-Marc Champagne , counsel

Heard at Charlottetown , Prince Edward Island ,

September 12 to 14, 2018, and July 9 to 12, 2019.

(Written submissions filed September 6, October 29, and November 12, 2019.)

REASONS FOR DECISION

I. Individual grievance referred to adjudication

[1] At all relevant times, Yvonne McNeil (“the grievor”) was employed by the Treasury Board (TB or “the employer”) at the Department of Fisheries and Oceans (DFO) with the Canadian Coast Guard (CCG) as a marine aids technician in the General Labour and Trades Group, classified at the GL-EIM-11 group and level. The grievor’s job location was Charlottetown, Prince Edward Island (PEI).

[2] At all relevant times, her terms and conditions of employment were partially governed by a collective agreement between the TB and the Public Service Alliance of Canada (“the Alliance”) for the Operational Services Group that was signed on April 6, 2011, and that expired on August 4, 2014 (“the collective agreement”).

[3] On September 1, 2014, the grievor filed a grievance, which stated as follows:

I Grieve:

Management has discriminated, hararassed, intimidated and has abused their authority with me because of my disability, age, gender and union affiliation. This situation has been continuously ongoing for the past year and has left me with no choice but to file a grievance based on the latest incidents. This is in violation of Article 19, and any other relevant article of my collective agreement, Human Rights Legislation, and any other relevant legislation.

I further grieve that Management has undermined me and has interfered with my ability to be able to earn a living in the Public Service.

I further grieve the negative financial impact management’s refusal to allow required leave for appointments.

I further grieve that this harassment, discrimination, unfair management practices has a negative impact on both my professional and personal reputation as well as causing undue stress and illness.

I Further grieve that this has a negative impact on my family and home life

[Article 19 is imbedded into the grievance]

Corrective Action:

That first level of grievance procedure be waived as per collective agreement and second level hearings proceed with myself and my union representative; to be held on a priority basis;

That Management cease this discrimination, harassment and intimidation;

That I suffer no loss of pay or benefits because of this situation;

That any sick leave, annual leave I used because of Management’s action be reinstated;

That the employer reimburse all costs associated with needs related to this discrimination and harassment;

That management be required to take harassment and discrimination training immediately;

That there be no negative repercussions to my exercising my rights.

That I receive any entitlements that maybe be awarded to me due to Human Rights Legislation

That the Canadian Human Rights Commission remain ceased of this file until resolution.

That I be made whole

[Sic throughout]

 

[4] At the bottom of the first page of the grievance presentation form is a box marked “C”, which contains the words, “Date on which each act, omission or other matter giving rise to the grievance occurred.” The grievor did not insert a date in this box.

[5] The grievance is worded in a general fashion and does not set out specific actions or dates. From the evidence presented and the arguments submitted, there appeared to be three separate lines of alleged discriminatory behaviour being advanced, as follows:

· with respect to training opportunities;

· with respect to the injuries she sustained at work and issues that flowed from them starting in or about July of 2013; and

· with respect to her actions that she maintained were related to her union affiliation.

 

[6] I will set out the evidence related to the training opportunities and union affiliation separately.

[7] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the PSLRA”) before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

[8] 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 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”).

[9] On February 17, 2016, the grievor referred her grievance to adjudication and on the same date delivered a notice to the Canadian Human Rights Commission (“CHRC”) under s. 210 of the Act and s. 92 of the Regulations.

[10] The notice to the CHRC contains a box that states, “Description of the issue involving the interpretation or application of the Canadian Human Rights Act [R.S.C., 1985, c. H-6; CHRA] and of the alleged discriminatory practice or policy”. In this box, the grievor stated as follows:

Article 19 No Discrimination. They [sic] employer communicated confidential and inaccurate information to the Workers Compensation Board; refused to provide leave for medical appointments; prematurely forced her to attend a Health Canada assessment; revealed performance issues to Health Canada; failed to provide ergonomic equipment relating to the grievor’s accommodation; failed to provide and removed training; and threatened to discipline if the grievor continued to perform her union role.

 

[11] Also on the notice is a box that states, “Prohibited ground of discrimination involved”. In it, the grievor stated, “Disability. Membership or activity in the Alliance”.

[12] Shortly after the grievor commenced testifying, I was advised that in July of 2015, she had been in a motor vehicle accident unrelated to her employment, in which she suffered a head injury that caused and continued to cause her cognitive problems, including difficulty with memory and her ability to focus. She confirmed that she was receiving disability benefits, without providing any specifics, and that she had last been in the workplace sometime in July of 2015.

[13] I was provided with no evidence from a medical professional about the extent of the grievor’s head injury or cognitive difficulties.

II. Summary of the evidence

Background

[14] At the time of the hearing, and since January of 2018, Mark Seaman was the area supervisor for marine and civil infrastructure in the CCG’s Atlantic (ATL region for PEI and New Brunswick (NB). He started with the CCG in November of 2009 in the Marine Aids division, and at the time relevant to the matters at issue, his substantive position was as a marine aids technician; he was a colleague of the grievor and worked in the same location as she did.

[15] At the time of the hearing, and since January of 2018, Darren Gaudet was the regional asset manager for the CCG’s ATL region. He started with the CCG in October of 1991. Between June of 2011 and January of 2018, he was the area supervisor for marine and civil infrastructure in the CCG’s ATL region for PEI and NB.

[16] At the time of the hearing, Dennis (Dan) Pike was the superintendent of maritime and civil infrastructure for the CCG’s ATL region. He joined the CCG in October of 1983.

[17] At the time of the hearing, Jacqueline (Jackie) Proulx was a senior labour relations (LR) advisor with the DFO. Between 2004 and 2016, she was in human resources (HR), providing staffing and LR advice and was the return-to-work coordinator for the DFO’s ATL region.

[18] At the time relevant to matters at issue in this hearing, Lisa Carson was an LR advisor with the DFO.

[19] At the time relevant to matters at issue in this hearing, Sherry Hannah was the CCG’s occupational health and safety (OHS) representative.

[20] At the time relevant to matters at issue in this hearing, Wayne Fagen was identified as a Union of Canadian Transport Employees (UCTE) representative. The UCTE is a component of and forms part of the Alliance.

[21] At the time relevant to matters at issue in this hearing, Kevin Doyle was a marine aids technician, colleague of the grievor, and member of the same bargaining unit as the grievor, and at times was in an acting foreman position.

[22] A number of other individuals were identified who did not testify. As such, they have been identified by either “Mr.” or “Ms.”, as the case may be, with a letter designation.

[23] “AtoN” appears to be an acronym for “Aids to Navigation”, a CCG division in its Charlottetown operation.

[24] The Workers Compensation Board of PEI (“the WCB”) is the responsible provincial authority with respect to injuries incurred while at work. The evidence disclosed that when a workplace injury occurs and reporting is required, two forms are to be completed, a “Form 6” or “Worker’s Report”, which is completed by the injured employee, and a “Form 7” or “Employer’s Report”, which is completed by an employer representative. Both forms consist of two pages. Entered into evidence were some Form 6s and 7s with respect to the grievor. I did not receive any evidence of whether a set of instructions came with the forms.

[25] PeopleSoft is a software system used in the federal public service that records and tracks individual employees’ leave credits and within which leave requests are made, granted or refused, and recorded.

[26] Entered into evidence were the grievor’s leave records with respect to fiscal years 2013-2014 and 2014-2015.

The collective agreement

[27] Article 6 of the collective agreement is entitled, “Managerial Responsibilities”, and clause 6.01 states as follows: “Except to the extent provided herein, this agreement in no way restricts the authority of those charged with managerial responsibilities in the Public Service.”

[28] Article 19 of the collective agreement is entitled “No Discrimination”, and clause 19.01 states as follows:

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.

 

[29] Article 36 of the collective agreement is entitled “Sick Leave with Pay”, and the portions of it relevant to this matter are as follows:

…

36.01

(a) An employee shall earn sick leave credits at the rate of ten (10) hours or, nine decimal three seven five (9.375) where the standard work [sic] is thirty-seven decimal five (37.5) hours per week, for each calendar month for which the employee receives pay for at least eighty (80) hours of pay, or seventy-five (75) hours of pay where the standard work week is thirty-seven decimal five (37.5) hours per week.

…

36.02 An employee shall be granted sick leave with pay when he or she is unable to perform his or her duties because of illness or injury provided that:

(a) he or she satisfies the Employer of this condition in such manner and at such time as may be determined by the Employer,

and

(b) he or she has the necessary sick leave credits.

36.03 Unless otherwise informed by the Employer, a statement by the employee stating that because of illness or injury he or she was unable to perform his or her duties, shall, when delivered to the Employer, be considered as meeting the requirements of paragraph 36.02(a).

36.04 When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 36.03, sick leave with pay may, at the discretion of the Employer, be granted to an employee for a period of up to two hundred (200) hours or, one hundred eighty-seven and one-half (187.5), where the standard work week is thirty-seven decimal five (37.5), hours per week, subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

36.05 When an employee is granted sick leave with pay and injury-on-duty leave is subsequently approved for the same period, it shall be considered, for the purpose of the record of sick leave credits, that the employee was not granted sick leave with pay.

…

 

[30] Article 37 of the collective agreement is entitled “Injury-on-Duty Leave” (IODL), and clause 37.01 states as follows:

37.01 An employee shall be granted injury-on-duty leave with pay for such period as may be reasonably determined by the Employer when a claim has been made pursuant to the Government Employees’ Compensation Act, and a Workers’ Compensation authority has notified the Employer that it has certified that the employee is unable to work because of:

(a) personal injury accidentally received in the performance of his or her duties and not caused by the employee’s willful misconduct,

or

(b) an industrial illness or a disease arising out of and in the course of the employee’s employment,

if the employee agrees to remit to the Receiver General of Canada any amount received by him or her in compensation for loss of pay resulting from or in respect of such injury, illness or disease providing, however, that such amount does not stem from a personal disability policy for which the employee or the employee’s agent has paid the premium.

 

Facts relating to the grievance

[31] The grievor is an electrician by trade. Before August of 2009, she worked in western Canada for between 20 and 25 years; she then returned east and joined the CCG’s ATL region in August of 2009. She described the duties and responsibilities of her substantive position as taking care of electrical needs in the service and maintenance of shore-side navigation aids including lighthouses, navigation lights, wharfs, and navigation towers as well as remote navigation aids, including those on buoys.

[32] The evidence disclosed that at least during a portion of the time covered by the issues described in this decision, the grievor was the union local president, although I was not provided with details of the specific bargaining unit that the local represented, of which Alliance component was involved, or of her being in any other union role, and if so, when.

[33] A copy of the grievor’s work description was entered into evidence. Under the heading “Effort” and the subheading “Physical Effort”, and the heading “Working Conditions” and the subheadings “Physical” and “Psychological”, it states as follows:

…

Effort

Physical Effort

Work frequently requires walking on uneven/slippery terrain, climbing, crouching and standing in awkward and unstable positions. There is often a requirement to stand on scaffolding and tall ladders which form part of towers or buoy cages for extended periods of time. Towers typically range in height from 2 metres to 42 meters.

Effort is required to lift heavy tools and equipment in and out of various work vehicles, trailers, craft, helicopters and from under helicopters during slinging operations. It is sometimes necessary to carry the gear for long distances over rough or slippery terrain.

Effort is required to lift heavy equipment on and off unstable platforms and small craft when servicing fixed and floating aids. The physical effort required to control the movement and positioning of the equipment is often exacerbated by poor weather conditions which create additional instability. Effort is required to manually position components when servicing or installing equipment. Effort is greatly increased in locations where there is little room to manoeuvre.

The work requires the wearing of personal protective equipment (PPE) that is sometimes cumbersome and reduces mobility which increases the physical effort required to complete the work. Physical effort is increased in adverse weather conditions.

Work at the office or in the workshop involves long periods of time sitting at a desk or standing.

…

Working Conditions

Physical

Work is often performed in a workshop environment where there is exposure to noise, dust, dirt and hazardous material.

…

Work performed on equipment and infrastructure involves a risk of bodily injury of [sic] death (electrocution, amputation, drowning, etc.).

…

Psychological

…

Stress can result from conflicting priorities, client demands and a fluctuating pace of work.

…

 

[34] Attached to the work description was a workplace health and public safety program job analysis form that stated that the degree of physical strenuousness of the job was heavy, which meant lifting things of up to 100 pounds and frequently lifting and carrying things of up to 50 pounds.

[35] The grievor was based out of a CCG facility on Lily Pond Drive in Charlottetown (“the Lily Pond site”), which contained both administrative offices and a shop-warehouse area. She and other electricians in her group (colloquially referred to as working on “fixed aids”) reported to a foreman, who in turn reported to the area supervisor, Mr. Gaudet, who reported to Mr. Pike.

[36] The foreman for the fixed aids in Charlottetown was Mr. Rick Birt. At a date that was not made clear, but sometime in or around the end of summer or early fall of 2013, he went on an assignment outside the Lily Pond site. In his absence, Mr. Gaudet implemented a system under which the employees who reported to Mr. Birt would rotate through the foreman position on an acting basis. This included the grievor and Mr. Seaman.

[37] “Maximo” was identified as a computer-based data system used to track CCG assets, their maintenance, and their service costs. It was a new system in 2010 that had been brought in to replace an older system. The evidence disclosed that existing information had to be migrated into it and that once it was populated, any new work with respect to assets could then be directly inputted into it. The specific way it functions and the exact date that it was up and running were not provided; however, those details are not germane to the issues I have to decide.

[38] Mr. Gaudet testified that starting sometime in 2010, and again, the exact date was not clear, each CCG base in its ATL region was to have an employee dedicated, for about a year, to inputting data into Maximo (“the Maximo project”). In or about June of 2010, the grievor, who had been on light duties (due to a minor incident earlier that year), showed an interest in being the Charlottetown employee dedicated to the project, and in August or September of that year, she was assigned to it.

[39] Mr. Gaudet said that during the course of what was supposed to be the one-year Maximo project, employees at the other locations stopped working on it, leaving the grievor as the only one working on it. She was asked, and agreed, to carry out the work for the entirety of the CCG’s ATL region, which in turn increased her total workload and required extending the time to complete the project. Mr. Gaudet believed that given the change in circumstances, the end date for the Maximo project was extended until March 31, 2013. However, the evidence disclosed that the work was not complete as of that date and that the grievor continued to work on it past that date. It eventually ended on March 31, 2014.

[40] Mr. Gaudet testified that although the grievor was working on the Maximo project, she would still have reported to the foreman for fixed aids, and as there was a shortage of employees in fixed aids at the Lily Pond site, she would have also been required, from time to time, to perform other duties related to her substantive position in the shop area.

The July 2013 injury

[41] The grievor testified that in July of 2013, she suffered a workplace injury to her right shoulder and neck, but she did not provide specifics (“the July 2013 injury”). She said that she suffered no restrictions as a result of the injury and that she lost no time from work. She did say that she took medication and that she underwent physiotherapy, for both, however, she did not provide details.

[42] I was not advised if a Form 6 or a Form 7 was completed for this occurrence, and none was entered into evidence. In a Form 6 that the grievor filled out in February of 2014, she referred to the July 2013 injury occurring on July 21, 2013; however, July 21 was a Sunday. There is no evidence that she worked weekend shifts. Other documentary evidence from the employer suggested that the injury occurred on July 23, 2013, which was more likely correct as that was a Tuesday.

[43] The grievor’s leave records disclosed that she took four hours of sick leave on July 25, 2013, one hour on July 26, 2013, and one hour on July 29, 2013. The records also disclose that on July 31, 2013, she took eight hours of vacation leave, and that on August 1, 2013, she took eight hours of sick leave. I was provided with no specifics as to the sick leave taken on each of July 25, 26, and 29, and the full day of sick leave on August 1; nor was there any evidence that any of it related to the July 2013 injury.

[44] Entered into evidence was a WCB inter-office memo dated September 5, 2013 (“the Sept. 5 WCB memo”), authored by Mike Kelly, who was identified as an entitlement officer with the WCB, which stated as follows:

…

I spoke to Rick Birt [phone number deleted], Rick told me he was moving to a new project and the new employer contact would be Darren Gaudet [phone numbers deleted].

Rick explained Yvonne is a Technician with the Coast Guard. She has been on a special project doing data entry for the last 2 years. He said occasionally she would have to go out into the field, if a Technician was needed. This was the case on July 23.

He clarified that she was not on the special project because of any health concerns. The project was slated to end on September 1. Due to Yvonne’s July 23, 2013 accident she remained on the project for this week. I did tell Rick that the last medical note I have on file from Dr. Jewers dated Aug 20 recommended “desk work (out of field work for now)”.

Rick said Darren wanted to get more functional information on her and were wondering if they could get someone from Health Canada to assess here. I did think it reasonable to see if she could do her job. He said that the Technician job can be very physical; lifting & climbing ladders.

Rick was aware that she did have to miss time occasionally in the past to attend physiotherapy appointments. I told Rick Yvonne had been referred to a specialist last year and had seen the specialist on August 21. I explained I never knew if it would have any impact on this claim.

I did tell him I would be opening her claim for a right scapula/trapezius strain.

…

 

[45] No medical documentation was entered into evidence dated in or about July of 2013 with respect to this injury. I heard no evidence from any healthcare professionals about it.

[46] I was provided no evidence as to the job functions of an entitlement officer.

[47] Mr. Kelly did not testify.

The October 24, 2013, injury (“the Oct. 24 injury”)

[48] On October 24, 2013, the grievor suffered an injury to her back when she tripped while trying to move a lantern in the warehouse at the Lily Pond site. She reported the accident to Mr. Seaman, who was, at that time, the acting foreman. On October 25, 2013, she filled out a Human Resources and Skills Development Canada (“HRSDC”) Hazardous Occurrence Investigation Report (“the Oct. 25 HRSDC report”). She stated that at the time of the accident, she was still on medication from the July 2013 injury. As stated earlier, she did not provide any detail about the medication.

[49] The Oct. 25 HRSDC report states the following:

· the injury occurred at the Lily Pond site;

· Mr. Seaman was a witness;

· the description of the injury was a sore neck, shoulder, and back; and

· the cause of the injury was lowering a lantern to the floor.

 

[50] Attached to the Oct. 25 HRSDC report is the grievor’s handwritten note, which states as follows: “Mark: Am going to wait until the weekend (I can take stronger medication) to see if will settle down before I involve WCB. If you don’t agree, come see me. Y”.

[51] I heard some evidence about the appropriate forms that should have been filled out.

[52] The evidence disclosed that from the time of the Oct. 24 injury until November 22, 2013, the grievor continued to go to work. She stated that she remained on the medication she had been on from the July 2013 injury and said that when she went off work that day, her doctor increased her medication. She went on to say that that since September of 2013, her medication had been increased five times, and that the level it had reached was too high for her to take it and be able to work.

[53] I was not provided any evidence of the name of her medication, its dosage, when the changes occurred, or, from a health professional, its effects, if any. No medical note or report was entered into evidence with respect to this injury.

[54] Documentation entered into evidence disclosed that on December 10, 2013, Mr. Seaman was asked and agreed to be the acting foreman for fixed aids. The length of the acting period was not disclosed.

[55] It appears that no Form 6 or Form 7 was completed by either the grievor or an employer representative immediately after the Oct. 24 injury. However, I assume that at some point they were filed, given that the evidence has since disclosed that the WCB dealt with the injury. However, no copy of either a Form 6 or a Form 7 was ever produced in evidence, and it appeared that the grievor and Mr. Seaman had a dispute over filing them. On December 16, 2013, at 11:41, Mr. Seaman emailed the grievor, telling her that WCB forms would have to be filled out for the loss of work. The following are his email exchanges with her that followed through to December 17, 2013:

[Mr. Seaman to the grievor, December 16 at 11:41:]

We will need new WCB and IIR forms filled-out for your latest loss of work injury.

Thanks Yvonne,

Mark

[The grievor to Mr. Seaman, December 16 at 11:43:]

Wcb already has the original, who’s asking for it?

[Mr. Seaman to the grievor, December 16 at 11:58:]

[Name redacted], our regional OHS rep has asked for a new form to be completed. The forms they have from the original injury stipulate “No loss of time”. Now that you are seeking to get that time back they are asking for a new form, for “Loss of time.” They are wanting to know if it was a continuation of that injury or a new one.

At the end of the day we will do whatever we can to help you get your time back.

[The grievor to Mr. Seaman, December 16 at 12:03:]

No problem, I just don’t have access to that paperwork here, that’s why I suggest regional who do, plus wcb already has the original and I’ve already had a meeting with them , so they know it was a re-injury and the circumstances, but as I said; when I come into town for therapy tomorrow, I will come in and dig them out; thanx Mark!

[Mr. Seaman to the grievor, December 16 at 12:09:]

Simply put they are looking for updated form(s). A written explanation of the “loss of time” vs “no loss of time.” Something they can have on file.

[The grievor to Mr. Seaman, December 16 at 12:14:]

Not a problem; you know the circumstances, as you were acting foreman then and I did discuss waiting a few days to see if it would settle down; as I was already going to physio, but you didn’t want to do that and we completed the paperwork right away. It didn’t settle down as hoped, as you know. Anyway, I will be in tomorrow to complete modified paperwork.

[Mr. Seaman to the grievor, December 16 at 12:29:]

Hi Yvonne,

I much appreciate you completing a new form. Here is the link if it would be more convenient for you to complete at home: [link redacted]

If there is anything else that I can do, please let me know right away.

[The grievor to Mr. Seaman, December 16 at 16:15:]

Mark: I have been using webmail to keep in touch as there’s something wrong with my vpn, so I can’t access that form. Also I was speaking to my wcb rep today and she says there’s no need to complete new wcb forms; it’s quite common for a case to change from no lost time to lost time as injury time progresses.

[The grievor to Mr. Seaman, December 16 at 16:21:]

Also Mark; my case worker said they need the employer’s original, ASAP; it doesn’t need to be modified. They only have my employee copy and the incident was 2 months ago; they should have received it by now!

[Mr. Seaman to the grievor, December 17 at 10:28:]

The original was not sent to WCB, as it was listed as a “First Aid” report. Since there was not a loss of time, nor an immediate consultation with a medical professional, the form is not submitted to WCB. When there is loss of time and/or medical attention sought – which results in a request for payment – the report is then upgraded and sent to WCB.

In saying that, there is going to be a new investigation due to the fact that there was approximately a month between initial injury and seeking of medical attention/loss of work date. Hence, a new set of WCB and IIR forms will have to be completed.

Essentially it has to be determined; What happened? How did it happen? Is it a new injury? Is it an aggravation of an existing injury? When was it noticed? Etc.

I truly appreciate your cooperation.

Regards,

Mark

[The grievor to Mr. Seaman, December 17 at 11:29:]

Medical attention was sought, as I was already going to physiotherapy for the previous injury and had a doctor’s appointment on October 30^th. This is a re-injury and I have no problem filling out more paperwork, but as I requested in my earlier email. WCB wants a copy of the original report. I can have my caseworker contact [name redacted] if need be.

[Sic throughout]

 

[56] Entered into evidence was an email exchange dated December 17, 2013, between Ms. Hannah and Mr. Seaman, copied to the grievor and Messrs. Gaudet and Pike, and the grievor’s response to Ms. Hannah, copied to Messrs. Seaman, Gaudet, and Pike. The exchange was as follows:

[Ms. Hannah to Mr. Seaman and others, at 10:24:]

…

Just to clarify, the employers report of accident has not been forwarded to the board as the October 24^th incident was filed as a “first aid” only. The board should not be in receipt of an employee copy as this should have gone via the supervisor and not directly to the board.

It is my understanding lost time as a result of a work place incident commenced mid-November, there is no report of incident for this injury. The employer is obligated to investigate and determine if the November time loss incident is related to the October incident. An up to date WCB form is required, as the Board currently has no documentation to adjudicate for any medical aid or time loss.

…

[The grievor to Ms. Hannah and others, at 11:30:]

…

Hi Sherry: My copy my wcb report is mine to provide to wcb if they request. It’s not the first time an employee has been asked to provide their copy to wcb when the federal government has not been timely in relaying the employers copy. The doctors letter states quite clearly that my time off is in direct relation to the October incident and that I probably should have been off sooner; I can ask my doctor for a copy of what he sent to wcb if you like.

…

[Sic throughout]

 

[57] I was not provided any evidence about the process or protocol with respect to filing forms, reports, or claims with the WCB, other than the grievor surmising that a form was supposed to be filed within 72 hours.

[58] On December 17, 2013, at 13:44, Mr. Gaudet sent himself an email memo about the grievor, which stated as follows:

I’m concerned that Yvonne is missing a lot of time. I’m not concerned with Leave abuse – I’ve seen her in the office and have seen how much pain she’s in.

I’m concerned she’s going to get “pinched” with her leave and lost financially.

She ran out of S/L last Thursday. I advised her in writing ahead of time. With S/L drained she’s now on A/L.

I called Sherry and she going to check with WCB.

I called [name redacted]. She has concerns that there is no paperwork in place to cover off Yvonne’s assignment with Maximo.

She’s going to go through the S/L to see if any can be reverted

…

[Sic throughout]

 

[59] The grievor returned to work on January 2, 2014.

[60] No medical report or note from a doctor was provided with respect to the Oct. 24 injury for the period immediately after it occurred through to when the grievor returned to work.

[61] The evidence disclosed that the grievor was supposed to be the acting foreman commencing on January 10, 2014. Mr. Gaudet indicated that just before that date, he approached her to arrange a meeting about it. She advised him that she would no longer act because she felt it was unfair to other union members. This was confirmed in an email that Mr. Gaudet sent to her that day, which stated as follows:

…

This is a follow-up to our conversation today regarding the acting opportunity as Foreman Fixed Aids.

I understand you no longer wish to act in that capacity. As such I will be moving on to the next person on the list.

I respect the reasons you mentioned and thank you for helping out the last time around.

…

 

[62] In her examination-in-chief, when the grievor was asked what she did in early January of 2014, she said that mostly, she worked on the Maximo project and seasonal buoy lights. When asked if she did desk work, she said, “a lot of it is desk work in the shop; charging batteries; programming flash characteristics (by connecting lights to the computer); charging solar lights and taking inventory.”

The January 8 or 9, 2014, incident (“the January 8 incident”)

[63] On either January 8 or 9, 2014, the exact date is not clear, the grievor and Mr. Seaman had a disagreement in the shop area of the Lily Pond site. As most of the evidence points to January 8, this date shall be used in this decision. Both the grievor and Mr. Seaman testified about it; however, their versions were slightly different. They are members of the same bargaining unit.

[64] The grievor testified that another person in the shop (Mr. A) had asked her for assistance with Maximo work orders, stating that he did not know how they were done as they were done differently than the way he was used to. She stated that Mr. Seaman was behind her and that he shouted at her something to the effect of the following: “… you don’t like the way I do Maximo”. She said, “he proceeded across the shop with a red face; very threatening.” She said that she did not like what he was doing and that he said that he was told to do the work orders. She said that she told him she did not think that was true and that he became red in the face, got in her face, and told her that a particular person told him to do them the way he was doing them. She said that she told him that that could not be right because that same person had told her something different. She said that Mr. Seaman then told her, “No; Newfoundland told me to do them”, to which the grievor replied that if anyone was supposed to do them, it was her. She said that Mr. Seaman then stated that he did not want to bother her at home while she was on sick leave.

[65] The grievor said that it was a loud conversation and that Mr. A was right next to her. She confirmed that when Mr. Seaman referenced not calling her at home while on sick leave, she used inappropriate language but then said that he “didn’t mind bothering me 10 000 times about the workers compensation form he messed up.” She said that she then left the shop and that Mr. A had words with Mr. Seaman. She did not disclose how she knew that Mr. Seaman and Mr. A had words after she left; nor did she specify what was allegedly said.

[66] The next question her representative asked the grievor was if she reported the encounter. She said that she did. When asked to whom, she said that she reported it to Mr. Gaudet and John Butler, the assistant commissioner. She was then asked how she reported it. She said that she was called into Mr. Gaudet’s office because he wanted to know what had happened and stated that she explained it to him. She then said that she emailed Mr. Butler about the situation after a little while, clarifying later that that was in February.

[67] Mr. Seaman described the encounter somewhat differently. He said that he was working at his desk when he heard the grievor and Mr. A making disparaging remarks about the work he was assigned to do in Maximo. He said that he got up and spoke to Mr. A. He told him, “if he had a problem with my work, to speak with me”. He said that the grievor then lashed out at him verbally, shouting. He said that he did not recall what was said but that the entire encounter was over in under a minute. He said that he was in shock; he offered her an apology then walked away to see Mr. Gaudet, to report it. He said that Mr. Gaudet asked him to write a report, which he said he did. When asked why he apologized, he said that it was a trigger mechanism; he does not like to upset people. He said that after he wrote his report, he left for the day because he was stressed and wanted to clear his head.

[68] I was not provided with a copy of Mr. Seaman’s report.

[69] Mr. Gaudet described what happened as follows:

· He was in his office when Mr. Seaman entered, whom he described as visibly upset.

· He asked Mr. Seaman what was wrong; Mr. Seaman told him that he had heard

Mr. A and the grievor talking about the work he was doing in Maximo.

· Mr. Seaman told him that he went over to them and told Mr. A that if he had a problem with his work to speak to him directly.

· Mr. Seaman told him that the grievor yelled at him.

· He said that another employee said that he heard the grievor yelling.

· He said that he looked for the grievor and initially could not find her but eventually did and brought her into his office.

· He said that the grievor told him that she regretted the incident and indicated to

him that she sought to apologize to Mr. Seaman.

 

[70] When asked if she stayed in the workplace after this, the grievor stated that she did, until a later date, when Mr. Gaudet called her into the office to discuss Maximo project. She said that at that time, Mr. Gaudet gave her a letter of counsel. This occurred on February 4, 2014, at 09:30, and will be addressed later in this decision.

[71] Mr. A did not testify.

[72] The employee identified by Mr. Gaudet as having heard the grievor yelling (later identified to be Mr. C) did not testify.

[73] At other times in her testimony, when referring to the January 8 incident, the grievor referred to it as the time that Mr. Seaman “came after [her]” and the time he “assaulted” her. There was no evidence of an assault.

January 9 to February 4, 2014

[74] The grievor’s leave records disclosed that in January of 2014, she took the following leave:

· Wednesday, January 8, one hour of certified sick leave, in the afternoon, approved by Mr. Seaman;

· Tuesday, January 14, one hour of certified sick leave, in the morning, approved by Kevin Doyle;

· Wednesday, January 15, eight hours of vacation leave, approved by Mr. Doyle; and

· Wednesday, January 22, three-and-a-half hours of other paid leave, approved by Mr. Doyle.

 

[75] Entered into evidence was the following email chain involving the grievor, Mr. Gaudet, and Ms. Proulx:

[The grievor to Mr. Gaudet and Ms. Proulx, January 14, 2014, at 14:49:]

Hi Darren: We’re going to have to reschedule tomorrow’s teleconference; as my Dr. Appointment was cancelled today due to an emergency and we won’t be discussing my progress or assessment until next week. I was also speaking to the occupational therapist and she says the physiotherapist that’s been overseeing my care since the fall will be doing the assessment and any associated paperwork. I’ve also spoken to [name withheld], as she has more experience than I in dealing with these issues; so I would like to have her sit in on the teleconference to represent me in matters that come up in which I have no experience. Anyway, I would like to postpone it until after my Dr./physio appointments next week; some time after January 22/13.

[Ms. Proulx to the grievor and Mr. Gaudet, January 14, 2014, at 15:04:]

It might actually be beneficial to have the meeting anyway, since we are discussing process. That way when you go to see your treating specialists, you will know what we are looking for. [Name withheld] and I have had several meetings with numerous employees in a similar situation, so I am glad she will be included in the discussion.

[The grievor to Ms. Proulx, copying Mr. Gaudet, January 16, 2014, at 16:03:]

Hi Jackie: I’m wondering what kind of info you’re referring to? Could you send me a list of questions you need answered when I go to my next appointments?

[The grievor to Ms. Proulx, January 20, 2014, at 13:46:]

Hi Jackie: I’m not sure if you missed this or not, but I have my Dr. Appointment tomorrow and if there’s specific information you require, could you please send me your list of questions?

[Ms. Proulx to the grievor and Mr. Gaudet, January 21, 2014, at 08:24:]

We need specific information on the breadth and scope of any limitations and how long they are expected to last. A note on a prescription pad is not enough information to provide an appropriate accommodation if one is required.

[The grievor to Ms. Proulx, copying Mr. Gaudet, January 21, 2014, at 07:34:]

Ok, thanx Jackie!

[Sic throughout]

 

[76] I was provided with no details with respect to the medical and physiotherapy issues or medication the grievor referred to in that email chain.

February 4 to April 30, 2014

 

[77] With respect to January 8 incident, Mr. Gaudet said that both the grievor and Mr. Seaman acted irresponsibly and, as such, he gave them both letters of counsel, personally. He said that Mr. Seaman did not like it but accepted it and that the grievor became angry before he completed the process, and left his office.

[78] Mr. Seaman stated that the incident was stressful and that it took a toll on his mental health. He confirmed that he was given a letter of counsel; however, I was not provided with a copy of it. The grievor’s was dated February 2, 2014. Mr. Gaudet said that he gave it to her in a meeting on February 4, 2014, at 09:30 (“the Feb. 4 meeting”). Its relevant portions state as follows:

…

Further to our discussion on January 9, 2014 regarding the situation between you and Mark Seaman in the EIM Tech Shop that day, this letter of counsel is to clearly outline expectations regarding behaviour in the workplace.

As you know, I undertook a fact-finding as a result of the above-noted situation. I have determined that you exhibited poor judgement and behaved in a manner that was disrespectful and unprofessional. Irrespective of the circumstances, it is not acceptable to speak to anyone in the workplace with the aggressive nature you displayed by yelling and resorting to personal attacks.

As an employee who has acted as the Foreman for this team you are expected to know and understand the requirement for acceptable behaviour in the workplace. All employees are expected to adhere to the values and expected standards of behaviour as articulated in the Fisheries and Oceans Canada Values and Ethics Code as well as the Treasury Board Secretariat (TBS) Values and Ethics Code for the Public Sector. This includes treating every person with professionalism, respect and fairness, as well as maintaining and promoting open and positive communications and working relationships. If you have concerns about a person or a workplace process, you are expected to raise it directly with the individual or with your supervisor or manager. These discussions are expected to be respectful and professional.

Please not [sic] that if this type of behaviour continues you may be subject to disciplinary action, up to and including termination.

This letter is not disciplinary in nature and will not be placed on your personnel file. The intent of this letter is to advise you of the results of the fact-finding, formally bring your attention to inappropriate behaviour in the workplace and clarify expectations with respect to appropriate behaviour in the workplace.

I would like to remind you of the availability of the Employee Assistance Program (EAP). This is a confidential 24-hour service where you can obtain the support of a qualified counsellor. The toll-free number is [phone number redacted].

…

 

[79] Handwritten by Mr. Gaudet on the bottom of the second page of that letter was the following:

Hand delivered

Feb 4/14

9:30AM

She left before a conversation could take place.

She was insisting she wants union representation

I did not say no.

 

[80] On February 4 and 5, 2014, the following email exchange between Mr. Gaudet and the grievor took place:

[Mr. Gaudet to the grievor, February 4 at 11:15:]

…

As a follow-up to our conversation of this morning. Where this is not a disciplinary process, there is no entitlement to union representation. However, I am not opposed to the idea of someone of your choosing to sit with you while you and I discuss the Letter of Counsel.

I would like to continue or conversation this after-noon [sic]. I have an opening at 3:15 pm. I am of course flexible to accommodate your schedule.

Please let me know if that time is convenient for you.

…

[Mr. Gaudet to the grievor, February 4 at 12:00:]

…

My apologies. Something came up on the home front. 3 pm to 3:20 pm works for me instead of 3:15pm.

…

[The grievor to Mr. Gaudet, February 4 at 13:36:]

…

Sorry Darren: As your letter suggested; I’ve made an appointment this afternoon with an EAP counsellor, so that doesn’t work for me. Also, with respect to the letter of expectation I received from you today; you refer to a fact-finding mission you undertook with regard to the situation created by Mark Seaman with me in the shop on January 9, 2014.In consultation with my union; I would like to request the results of this fact-finding mission.

…

[Mr. Gaudet to the grievor, February 4 at 12:00:]

There’s no formal report. The fact-finding is an informal process to establish the events that occurred.

The conversation this morning was going to include the findings, and give me an opportunity to establish expectations.

Perhaps we can continue our conversation tomorrow at 10am?

…

[The grievor to Mr. Gaudet, February 5 at 07:27:]

…

Good morning Darren: I didn’t get this message until this morning; as I booked 2 hours off with my foreman to go to the counselling you recommended at the end of the day yesterday and I won’t be in this morning as I have a doctor’s appointment.

…

[Mr. Gaudet to the grievor, February 5 at 12:23:]

…

We’ll look to book something when you get back in the office.

…

[The grievor to Mr. Gaudet, February 5 at 16:14:]

…

Sorry for the late reply; I’ve been very sick today and just got access to a computer. The doctor has put me off on sick [sic] due to stress until February 17, 2014

…

 

[81] Entered into evidence were two notes. The first is dated February 5, 2014, and is from the Downtown Walk-in Clinic on Water Street in Charlottetown, and the second is dated February 13, 2014, and is from the Central Queens Health Centre in Hunter River, PEI. The two notes state as follows:

[The note of February 5:]

…

Seen in clinic medical reason

Advised off until Feb17/14

[Doctor’s name illegible - later identified by the grievor as Dr. Champion.]

…

[The note of February 13:]

Patient has been off work since Feb 4/14 (last day worked) and will require one full month off due to medical reasons. I did not attend my patients yesterday.

[Doctor’s name illegible - later confirmed to be Dr. Paul Jewers.]

…

 

[82] In cross-examination, counsel for the employer brought the grievor to the issue of the Feb. 4 meeting and her comment in her examination-in-chief that she was never allowed a union representative when she met with Mr. Gaudet. In answering the question, she stated that Mr. Gaudet was “fixated” on having a closed-door meeting with her and added that he had been for some time.

[83] Mr. Gaudet emailed the grievor on February 11, 2014, at 11:38, stating as follows:

…

With reference to your PeopleSoft request for Other Paid Leave (code 669), in my email to you dated February 2, 2014, I explained that the criteria for leave with pay for other reasons are when circumstances not directly attributable to the employee prevent him/her from reporting to work, or when requesting leave for purposes not already specified in the collective agreement. Based on that, other Paid Leave is not the appropriate leave for the current situation.

Suitable options for this instance are:

Leave available to you in PeopleSoft

Advance of Sick Leave

Sick leave without pay

It should be noted that the advance of sick leave is for exceptional circumstances. In light of this particular situation with WCB, I feel this qualifies as an exceptional circumstance.

It should also be noted that there is a level of risk with the advancement of sick leave, in that, should WCB not approve your case, you will have a negative sick leave balance. Each monthly credit earned after that will be applied to the negative balance until it reaches zero. What this means is that you would not have any sick leave credits until the positive balance was restored, about 6-7 months.

Please give me a call or email, if you have any questions or would like to discuss further. Alternatively we can discuss upon your return to the office.

…

 

[84] On February 17 and 18, 2014, Mr. Gaudet and the grievor exchanged emails, as follows:

[Mr. Gaudet to the grievor, at 12:06:]

I received the doctor’s note you left on my desk. Although it does not specify the duration of time you will be on leave, based on the note dated Feb 13/14, it appears you intend to be off until March 4^th.

Further to the e-mail message I sent to you on Feb 11^th (see below), it is imperative that you advise what leave option you are looking to use. Without a response from you, the default leave on the books will be sick leave without pay because you are without sufficient leave to cover the time you are requesting away from the office.

Please advise as soon as possible.

Please note – Where it is possible that you are not in a position to monitor your work e-mail at home while you are off, I wanted to make sure that you received this message in a timely manner. For that reason, I will also be sending a copy of this e-mail to you by registered mail.

…

[The grievor to Mr. Gaudet, at 15:05:]

I understood your email of February 11 to be indicating you were going to advance the leave as an exceptional circumstance; as WCB has agreed to reimburse the time.

[Mr. Gaudet to the grievor, February 18 at 09:44:]

I offered as an option an advancement of paid sick leave for 7 days. Now we are looking at an advancement of 17 days. The risk to you as well as the risk to the Crown is greater. I was awaiting an answer from both emails below. That is to say a decision as to which option you wish to exercise. You have yet to clearly identify which option you wish to proceed with, and because of the consequences of choosing to request an advancement of sick leave with pay, I need to ensure that 1) you have all the necessary information and 2) you clearly indicate what type and duration of leave you are requesting.

Section 36.04 of the collective agreement says that sick leave with pay may be granted to an employee for a period of up to 200 hrs. (25 days). Subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

This means that once a single period of advanced sick leave with pay is granted, no more sick leave with pay can be advanced until the initial advancement is “paid back” – i.e. until your sick leave balance is in the positive. Be aware, it is estimated that it will take you 14.5 months to bring 17 days of advanced sick leave back to a positive balance.

Should you request it, I would agree to the option of advancing 17 days of sick leave with pay because it is close to the amount of time potentially reimbursed by WCB. We are, however, still awaiting their decision.

I would encourage you to contact compensation [phone number redacted] as early as possible to discuss your options if you believe there is a possibility that your absence from the workplace will extend beyond March 4^th, as a further advancement of sick leave with pay will not be an option.

Please let me know which option of leave you intend to choose.

…

[The grievor to Mr. Gaudet, February 18 at 10:21:]

Yes, it is the 17 days of advanced sick leave I’m requesting, as wcb has indicated a letter is being prepared to be sent to Dartmouth this week, reimbursing the sick leave and vacation leave I’ve had to use.

 

[85] Mr. Gaudet testified that the employer advanced the grievor the 17 days of sick leave. The evidence with respect to her leave usage disclosed that from December 12, 2013, to February 12, 2014, sick leave with pay was approved for the following dates, totalling 134 hours (16 and 3/4 days), in the following amounts:

December 27, 2013	8.0 hours
January 1, 2014	1.0 hour
January 14, 2014	1.0 hour
February 4, 2014	2.0 hours
February 5, 2014	2.0 hours
February 12, 2014	120.0 hours

 

[86] On February 18, 2014, Ms. Hannah emailed Mr. Gaudet, stating as follows:

…

I just left you a message regarding Yvonne...she has been approved from Nov. 22-Jan.1^st ....returned to work Jan. 2-Feb. 4^th – off again from Feb 5^th onwards.....according to WCB she is currently off on “WCB related” IOD and is requesting this new period to be approved under this claim as well......

If this is anticipated to be “long term” and this employee has no sick leave credits to cover her, you may want to consider placing her on direct benefits, depending on the diagnosis from her dctr [sic]?

For the interim, however, she will be receiving 26 days back in her sick leave bank as a result of the above approval. Formal letter from the board forthcoming.

…

 

[87] Ms. Proulx was shown that email and was asked about it. She said that she was not sure what Ms. Hannah referred to in it.

[88] Entered into evidence was a copy of a Form 6 signed by the grievor on March 7, 2014 (“the March 7 Form 6”), which contained the following information:

[Information about the Injury, Accident or Occupational disease]

• The date and time the grievor provided that the injury, accident or occupational disease occurred was the morning of January 8, 2014;

• The date and time the grievor reported the injury, accident or occupational disease was the afternoon of January 9, 2014;

• The person to whom the grievor reported the injury, accident or occupational disease was Mr. Gaudet;

• When answering the a series of questions about whether the injury was a relapse or recurrence of an earlier work related condition, the grievor answered yes; in answering the question of when the earlier injury was, she stated July 21, 2013; and, when answering if she filed with the WCB, she also said yes;

• When asked to fully describe what happened the grievor stated “Recovery Impairment due to workplace stress;” and,

• When asked if she received medical treatment, when and where, the grievor wrote down on February 5, 2014 and D R Champion.

[Information the grievor provided with respect to time loss and return to work]

• The date and time the grievor provided that she first missed work was February 4, 2014 at 14:00; and,

• The number of days the grievor stated that she missed after the day of injury was 20.

 

[89] Entered into evidence was a copy of a Form 7 signed by Mr. Gaudet on March 10, 2014, which contained the following information:

[Information about the Injury, Accident or Occupational disease]

• The date and time of the injury or specific incident was stated to be January 9, 2014 at 08:30, however underneath that it says unsure;

• Where it says it was reported to the employer it says yes and states that it was reported to Mr. Gaudet on that day in the afternoon. It also states that the grievor sought medical attention;

• Where it asks about previous pain or injury it states yes and refers to the July 21 injury;

• In the section for accident description it states as follows: “Yvonne is indicating this is as a result of workplace conflict;” in this same section is a question that asks the employer if it has any issue or concerns and it is stated “yes, Policy 1.3.6- Non-Compensable work-related Events. Interpersonal conflicts.”; and,

• In the section to set out lost time it states that the date she first missed work was February 4, 2014 and the date she returned to work as March 5, 2014.

 

[90] When asked about when she returned to work, initially, the grievor said that she thought it was two weeks, then later suggested the end of February, and then early March. When she was shown this Form 7 and was asked if the date with respect to the return to work was correct (March 5, 2014), she indicated that it appeared to be correct. When asked if she had to provide a medical note to return to work, she answered, “A doctor’s note; everyone has to supply [sic].” She was also asked if she was accommodated upon her return to work on March 5; she replied that she was not. When asked what she did at that time, she said that she worked on the Maximo project and that she had to be available for her substantive position.

[91] There is no evidence of any doctor’s note with respect to the grievor’s return to work in early March of 2014. There is no evidence of any letter or note of any kind from any medical professional indicating that any form of accommodation was necessary or the limitations or restrictions that would affect her return to work at that time.

[92] Entered into evidence was a letter dated March 17, 2014, which had been dictated by Dr. Paul Jewers of the Central Queens Health Centre (“the March 17 note”). It was addressed “To whom it may Concern” and stated as follows:

…

This patient has been seen by me for her neck and shoulder injuries which occurred at work.

During the evaluation process Dr. Sussan Askari, physiatrist, ordered an MRI of her cervical spine.

It was reported that she has multilevel compressive cervical myelopathy secondary to cervical spondylosis.

I am waiting for a neurosurgical opinion on her problem before I would clear her for any work in the field or any physical testing for field work. At this time her physiotherapy on her neck has also been suspended.

She is able to do desk work at an ergonomically appropriate work station for now.

…

 

[93] Upon identifying the March 17 note, the grievor was asked to explain. She said that an MRI was ordered after she saw a physiatrist at the end of August or in early September of 2013. She said that after the July 2013 injury, her doctor felt that her injuries were happening too easily and that they should find out why. She said that usually, there were no physiatrists in Charlottetown, and that her doctor was able to find one for her to see. She further said it was six months’ wait to undergo an MRI and that one was ordered in September.

[94] No physiatrist’s report was entered into evidence; nor was there any indication that one was provided to the employer. Nor did a physiatrist testify. No MRI report was entered into evidence; nor was there any testimony about an MRI or any findings that one disclosed. There is no indication that the grievor advised the employer that her doctor felt that her injuries were happening too easily.

[95] Entered into evidence was an email dated March 19, 2014, at 10:31, which Mr. Gaudet sent to himself as well as to Mr. Pike and Ms. Carson. It states as follows:

…

NOTE to SELF – Conversation with Yvonne -Leave

Present were: [Ms. B], Mark Seaman and Yvonne. In my office.

I came in this morning and found a doctor’s note on my desk from Yvonne, dated March 17 (Monday). It had been observed that she was absent Monday but not exactly from when to when.

I asked her to join me in my office. She asked me why and I told her I wanted to discuss her leave. She said she wanted an impartial witness. I said that’s fine. She asked [Ms. B] to join us. Mark Seaman – as her supervisor did as well – protocol, not as a witness.

I made the statement that I got her doctor’s note and reminded her that she is out of leave. She said she used her coffee break and lunch break to see the doctor and is not claiming sick leave. I reiterated that even if she’s going to do that she needs to discuss that with her supervisor.

I stated that when she is to be absent from the office she has to get her Supervisor’s permission before leaving.

She became defensively aggressive. I could not really keep track of all that she said in what order.

She made the statement that she was feeling intimidated.

She said she needed a witness. I asked her if we were going to need a witness for each little chat. She made the statement that she needs a witness because I change the facts of our conversations after the fact and she doesn’t trust me.

She made the statement that I drew her into my office under false pretense of discussing leave when my true intention was to discipline her. She said that during our conversation, I mentioned her leave and that it only took a very short time and that I had spent the last 15 minutes disciplining her and talking about her behaviour.

I commented that in this so called 15 minutes she’s done most of the talking.

She wouldn’t let me finish my sentences – at one point after being interrupted so many times, I asked her to let me finish. When I would try to give her examples she would cut me off and make excuses. I was trying to stay away from getting into a dispute about the specifics of instances and try to stay with the general statement that would cover all instances – The message I was trying to give was if an employee is absent from work, they need their supervisors [sic] permission … before leaving.

She got really aggressive … as a defence mechanism – my own opinion/observation.

When she told me she was feeling intimidated I unintentionally smiled. Perhaps ill-advised but it was a knee jerk reaction. I was calm in my approach, and she was the one being aggressive so it struck me a bit … not funny … ironic … that I was the one being accused of being intimidating.

When I told her she had been doing all the talking she showed me the notes she had taken – I guess to prove that I was dominating the conversation, I don’t know.

We weren’t going anywhere with the conversation. I didn’t want it to deteriorate more than it had. I wanted to warp [sic] it up. At that point I said “write this down. From now on, if you are absent from the workplace, you are to seek permission from your supervisor beforehand. You are in a deficit situation with your sick leave. You have none left to take. That’s what I wanted to talk to you about.”

She wrote it down and said “Is that all”. When I nodded, she got up and left … and [Ms. B] followed.

I then wrote this.

I asked Mark to make his own notes.

…

 

[96] Ms. B did not testify.

[97] In her examination-in-chief, the grievor described the meeting of March 19, 2014, as follows:

she thought the meeting was going to be about her leave because she had none left;

she was not supposed to be calling Jim;

Mr. Gaudet was talking about the snow storm day;

the snow storm day had nothing to do with leave;

she could not get a hold of Mr. Seaman, with respect to the snow storm;

Mr. Gaudet told her not to take her lunch and coffee breaks together; and,

that Mr. Gaudet told her to request leave before she left the building whether it was WCB related or not.

 

[98] Entered into evidence was an email dated March 24, 2014, from Mr. Gaudet to himself and others, the subject line being, “Note to self – Yvonne-Letter of Counsel – Discussion Wrap up March 24, 2014”, and the relevant portions of which state as follows:

March 24^th- 8:45am

Conference call with:

Wayne Fagan (phone)

Rhonda Basden (phone)

Yvonne McNeil (in my office)

Me (in my office)

The purpose of the meeting was to close the loop on the presentation of the letter of counsel date Feb 2, 2014.

I started by making the statement that the letter of counsel was not a letter intended to be disciplinary in nature. When I presented it, Yvonne thought it was disciplinary.

It was a reminder of expectations related to the adherence to Values and Ethics code when dealing with coworkers (this statement was repeated).

Yvonne asked do others get this process?

I asked “Do they or would they?” She repeated the question. I answered “If it is brought to my attention, I will deal with it”

She made a statement comparing the letter of counsel and the ECR (she was reading from notes). I didn’t follow. I asked her to repeat her statement.

She said Lisa and Mike O made a comment that the Letter of Counsel was insignificant in light of her efforts with ECR. Yvonne’s response was that it was relevant to her because she doesn’t agree with some of the content of the letter.

Yvonne indicated she will be preparing a statement via email in response to the letter of counsel.

Rhonda said it was fine and the statement will be attached to the letter of counsel and filed.

Wayne asked about the reporting structure – does Yvonne report directly to me? He seemed to be confused why I was involved. I told him Yvonne reports to Mark and Mark to me. Rhonda made the connection that since Mark was involved, I handled the case.

Yvonne asked questions about the recording of sick leave, related to the annual medical check-up (code 698 I think). Rhonda answered the question.

Wayne asked what the purpose of this conference call was … I answered to close the loop on the letter of counsel.

…

 

[99] Mr. Gaudet said that by the end of March, the work the grievor was carrying out on the Maximo project would come to an end, and that the March 17 note did not have sufficient information to allow the employer to make a plan with respect to work for the grievor on a going-forward basis.

[100] Entered into evidence was an email that Mr. Gaudet sent to himself dated April 2, 2014, which stated as follows:

Just had a quick chat with Yvonne at her desk. The purpose was to keep her in the loop.

I let her know that we have not heard from WCB yet, officially approving her WCB claim.

Side effect of that is we have not gotten a letter that would allow me to approve her leave (certified Sick) in the system.

With the storms and the hectic load of the year-end, I forgot to decline her request for leave. PeopleSoft automatically approves leave that is pending in the system at year end. I told her I was going to ask P&B to put the request back because we are waiting for the WCB letter to accept the certified sick leave.

I told her another snag with the delayed WCB is that her Maximo Assignment ended Monday Mar 31, and until we have word from WCB we cannot put her back to her substantive. She said she can’t be evaluated until WCB hears from the neurosurgeon.

Stand by

…

 

[101] On April 4, 2014, the grievor and Ms. Proulx exchanged emails about a meeting that Ms. Proulx had asked for to discuss assignments and work that could accommodate what was set out in the March 17 note. The meeting was arranged for Monday, April 7, 2014. Mr. Gaudet, the grievor, and Mr. Fagen attended in Mr. Gaudet’s office while Ms. Proulx called in, as she was not in Charlottetown .

[102] Entered into evidence was an email for the meeting organized by Mr. Gaudet and inviting the grievor and Messrs. Fagen and Pike and Ms. Proulx to the meeting, which was to be held on Monday, April 7, 2014, between 10:00 and 11:00. Mr. Gaudet and Ms. Proulx testified that the meeting took place.

[103] Mr. Gaudet and Ms. Proulx arranged a fitness-to-work evaluation (FTWE) for the grievor and proceeded to put together a package to send to Health Canada (HC), including a letter from Mr. Gaudet dated April 7, 2014 (“the Apr. 7 letter”), a copy of which was provided to the grievor; the relevant portions of it state as follows:

…

Ms. McNeil has reported 4 back related injuries that occurred during the performance of her duties:

January 9, 2014 Stress – employee indicates claim is relating to July 2013 injury re aggravated by a workplace conflict. Employee was out for 1 month –being reviewed by WCB but not expected to be approved.

October 29, 2013 Back/unsafe lifting –First Aid Only (Later went on to be on sick leave for Nov/Dec/first week of Jan.

July 23, 2013 Multiple, neck/back / improper lifting – Non disabling/no time lost

October 29, 2012 Back/ lifting – Disabling

March 31, 2010 Left arm / carrying load – medical Aid only

Ms. McNeil has accumulated almost 5 years of service, employed since August 13, 2009, and is presently employed in an indeterminate position as a Marine Aids Technician, classified as GL-EIM-11, in Maritime and Civil Infrastructure (MCI) within the Integrated Technical Services (ITS) of the Canadian Coast Guard (CCG), Fisheries and Oceans Canada (DFO), at the Coast Guard Base, Charlottetown PEI. A copy of the latest Position Description and a Job Analysis from has been included for your review. The regular duties of this position include traveling to and working in remote locations, climbing towers with a maximum height of 80 feet, carrying weights of up to 100 lbs. Ms. McNeil also works in the field, at remote locations with a co worker and is expected to act as rescuer in the event that the co-worker suffers a debilitating injury. Ms. McNeil is required to be able to travel by all means of transportation, including but not limited to; automobiles, boats, all-terrain-vehicles, plane and helicopters. Ms. McNeil is also required to be able to traverse uneven terrain.

Ms. McNeil began an assignment-at-level within MCI Charlottetown in August of 2010. The duties of this assignment was related to data verification and was in an office setting. This assignment ended March 31, 2014. While fulfilling the duties of this data verification assignment, Ms. McNeil reported to her substantive supervisor. During this time, Ms. McNeil took part in other assignments-at-level that were related to project management. The duties were related to procurement and were also in an office setting. Occasionally, at the discretion of her supervisor, Ms. McNeil would perform the duties of her substantive position in an effort to assist with workload.

During these periods of performing her substantive duties, Ms. McNeil reported work place injuries related to her back. She also reported reaggravation of these previously reported back injuries. Ms. McNeil has currently exhausted all her sick leave balance and has a negative balance pending a WCB decision to grant her coverage of time away from the office during November 2013, December 2013 and January 2014. Except for a few weeks, Ms. McNeil has mostly been absent from the workplace form October 29, 2013 to March 4, 2014.

Ms. McNeil has had some performance issues which stated shortly before her absences. These issues have been dealt with administratively. From February 4 to March 5, 2014 Ms. McNeil was on certified sick leave that she described as “… leave due to stress”. The absence followed management’s attempt at addressing aggressive behaviour that had contributed to interpersonal conflict in the workplace.

In your FTWE report, we would ask that you please include your answers to the following questions, where applicable:

Is this employee currently unfit for her substantive position?

If so, is this expected to be temporary or permanent?

Is the employee currently fit for work with limitations or accommodations elsewhere? If so, what are the specific limitations and/or accommodations?

…

[Sic throughout]

 

[104] Mr. Gaudet forwarded two blank consent forms to the grievor by email on April 7, 2014, and asked her to complete them, put them in a sealed envelope, and return them to him. One was to consent to the FTWE, and the other was to consent to the release of her medical information to HC doctors. She was to provide them to Mr. Gaudet, and he was to provide them, together with his cover letter (also dated April 7, 2014), to HC.

[105] In her examination-in-chief, the grievor was asked about how she became aware of the HC FTWE. She said that she thought that in April (of 2014), at a teleconference, Mr. Gaudet and Ms. Proulx brought up the subject of accommodation. She said that she did not have a union representative with her and that she asked to wait until Mr. Fagen was available. She said that she did not understand the accommodation process. She said that she did not know if the FTWE was discussed at this time, but she said that it was discussed shortly after. She said that Mr. Gaudet and Ms. Proulx gave her the consent papers.

[106] The next question the grievor was asked was whether the only accommodation discussed was one for $20 000 less in salary. The grievor said that it was. As this line of questioning continued, she stated that she was to take the assignment to the AtoN branch and that it would be her permanent job. When asked when this conversation took place, she said late March or early April. She then said that she refused to sign the consent papers and that another teleconference took place, with Mr. Fagen present. At this point, the grievor was shown a copy of a set of notes (made on May 6, 2014) that she identified were Mr. Gaudet’s.

[107] In her examination-in-chief, the grievor was asked if she had any discussions about the FTWE before attending it. She answered as follows:

• the FTWE was described as a physical examination;

• her doctor was clear about the neck, that there was no interference with neck until neurosurgeon saw her;

• she was to be sent written material on what was involved; and

• she did receive the material it was much later and that she had to request it more than once.

 

[108] Entered into evidence was the following email chain with respect to the HC FTWE between April 9 and 11, 2014, which involved the grievor, Mr. Gaudet, and Ms. Proulx:

[The grievor to Ms. Proulx, April 9 at 14:26:]

Hi Jackie: Can you please tell me where I can get an approved Health Canada medical form and a copy of the work description you’re using for me; also a copy of the information being provided to Health Canada, including the reasons for the disclosure to Health Canada.

[Ms. Proulx to the grievor, April 10 at 08:05:]

Hi Yvonne

You need to see Darren to get a copy of the WD being used. You will be copied on the letter going got [sic] Health Canada once it is completed. I have no idea what you mean by an approved Health Canada Medical Form.

[Mr. Gaudet to the grievor, April 10 at 16:22:]

Hi Yvonne

I took the National Model Work Description for the EIM 11. Model Number 40722. Specifically document 58499.

[Attached was a link to the work description.]

[The grievor to Mr. Gaudet, April 11 at 09:02:]

Thanx Darren: Is the letter to Health Canada Completed yet: as I require a copy.

[Mr. Gaudet to the grievor, April 11 at 09:04:]

I’m going to give you a scanned copy of the complete package (except for the private one that’s sealed in the envelop [sic]) once I have the complete package. I need that last form from you. It’s preventing me from sending it to HC.

 

[109] Ms. Proulx was shown these emails and was asked what HC medical form the grievor referred to in her email dated April 9, 2014, at 14:26. She replied that she could not say because the only forms the grievor would have needed would have been the consent forms that had been provided to her.

[110] On April 11, 2014, Mr. Gaudet received a grievance signed by the grievor that same day, which states as follows:

…

Grievance details:

I grieve management’s decision not to accept my harassment complaint based on the fact finding investigation conducted by the Area Supervisor of Charlottetown Coast Guard. I believe this fact finding to be inaccurate and the investigation to be in contravention of Fisheries and Ocean’s (DFO) and Treasury Board’s (TB) policies, directives and other legislation on such.

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

March 12, 2014

Corrective action requested:

Management accept my harassment complaint in accordance with Treasury Board policy.

A qualified person; to be agreed upon by both parties, investigate the complaint.

I be provided with a harassment free workplace

Any leave I used because of this event be credited back to me; to be made whole.

…

 

[111] I heard no evidence about this grievance; nor do I have any information about what happened to it.

[112] In cross-examination, the grievor was shown a document entitled, “Specific Functional Restrictions and/Or [sic] Limitations”, dated April 22, 2014 (“the April 22 note”), and signed by Melinda Elia, whom the grievor identified as a nurse practitioner.

[113] That document appears to have come from an Alliance “Education Program Participant Kit” dated September of 2012. It is a preprinted form that comprises pages 2 and 3 of a 3-page document, the first page being titled “Medical Questionnaire/Functional Analysis”, and it appears to be for a doctor to complete.

[114] The form has two sections (A and B). Section A contains two sections, one marked “Physical”, and the other “Mental”. Under each section is a number of activities (physical or mental, as the case may be), and adjacent to each activity is a box for someone to check whether there is a restriction or limitation. The terms “restriction” and “limitation” are defined. “Restriction” is defined as, “This patient is advised not to perform this activity in any capacity”. “Limitation” is defined as, “This patient is able to perform the activity in a reduced capacity.” Section B states as follows: “Please provide necessary details about any restrictions or limitations you have identified. It is not necessary to provide a diagnosis or treatment information.” The end of the form has a line for the signature of a physician and place for a date, which is preceded by the following statement: “I have provided this form to the patient named above.”

[115] The April 22 note identifies 8 things that may be limitations and 12 things that may be restrictions, without setting out the specifics of those limitations. They were set out as follows:

sitting	limitation
walking	limitation
lifting	restriction
carrying	restriction
pushing/pulling	restriction
climbing stairs	limitation
climbing ladders	restriction
climbing scaffolding	restriction
crouching	restriction
crawling	restriction
kneeling	restriction
bending	restriction
twisting	restriction
turning	restriction
repetitive activity	restriction
sustained postures	limitation
gripping	limitation
reaching	restriction
overtime	limitation
operating a vehicle	limitation
operating equipment	limitation
working heights	restriction

 

[116] Handwritten in section B is the following:

Requires Ergonomically Appropriate work station.

As She Temporarily is awaiting Consult from Neurosurgeon She is able to work as previously outlined in a letter written By Dr. Jewers. See Copy Attached –

…

[Emphasis in the original]

 

[117] I was not provided any evidence of Ms. Elia’s qualifications or on what information she based her assessment. She did not testify.

[118] In responding to a question in cross-examination about whether the employer asked for the April 22 note, the grievor responded by saying that the employer did not accept the “stuff from [her] doctor.” She further stated the following: “my doctor had the situation in hand; it went backward when Darren Gaudet started to interfere.”

[119] Entered into evidence was a copy of a WCB memo dated April 30, 2014 (“the Apr. 30 WCB memo”). It appears to be signed by Kerri Batchilder, who is identified as an entitlement officer at the WCB, and it states as follows:

…

I contacted Jacqueline Proulx (HR/RTW Coordinator) on April 29, 2014 to gather some information regarding Yvonne’s claim of harassment.

Jacqueline indicated that she is aware that there have been issues in the shop where Yvonne works. She believed Yvonne has been in center of these issues. She said Yvonne’s normal supervisor has been away for a while so they have been allowing each staff member to Act in the supervisor’s position. Jacqueline said Yvonne was given an opportunity to Act as supervisor however this was taken from her as there were issues around her professionalism with other staff.

Jacqueline indicated that Yvonne may have had pre-existing issues before any of her claims with Fisheries & Oceans. I explained to Jacqueline that just because a worker has a pre-existing issue does not meant that if the worker has an accident at work and sustains an injury to the sae area as the pre-existing condition, doesn’t mean they cannot have an accepted claim. Jacqueline understood. Jacqueline also confirmed that Yvonne has claimed stress as being the reason she went off work in Feb/14.

Jacqueline indicated that Yvonne had been working in a project position for quite some time and this project has just recently ended. This project was never an accommodated position for her past injuries. Jacqueline states that the medical they have indicates that Yvonne is unable to return to her permanent position as an electrician. She said they do not have any other positions available her on PEI which is at Yvonne’s pay level. Jacqueline understands that they have a duty to accommodate however the administrative work that Yvonne has been advised to do is a much lower pay level and it would not be fair for her to do administrative work and get paid $20000 more than everyone else in an administrative position.

Jacqueline indicated that they have put in a request for a Health Canada Assessment to determine her ability to return to work. She said they have been accommodating Yvonne however she is basically doing nothing at this time. Yvonne is filing and doing odds and ends around the office. She has been accommodated since Mar.31/14.

I asked Jacqueline if she has records of all the emails that have been sent to or received by Yvonne about what has been happening around the shop with regards to harassment. Jacqueline said that Darren Gaudet (Area Supervisor) would be the best person to speak to with regards recorded conversations and emails. Jacqueline confirmed that Yvonne has received a warning about her actions but has never been disciplined on file. She indicated that Darren Gaudet is away until May 1/14 but she will contact him to let him know that I need to speak with him as soon as he returns to PEI.

Jacqueline indicated that her understanding of stress claims is that the worker would have had to have a critical incident to cause stress in order to have an accepted claim. I explained our definition of traumatic event and Jacqueline stated that Yvonne has not had a traumatic event. I explained to Jacqueline that that decision is up to me to make and I am just trying to gather information form the employer’s side of the story in order to proceed with this decision.

…

[Sic throughout]

 

[120] Entered into evidence was a copy of an email dated May 1, 2014, from Mr. Gaudet to the grievor, and copied to Ms. Proulx, which states as follows:

Hi Yvonne,

The intent of the meeting is to discuss your current situation, including the following:

Your mobility in the region;

Future assignment options;

Where we stand with Health Canada

While these are the main items, other issues might arise as a result of our discussions.

In trying to schedule this meeting over the last week I have tried to accommodate your request to have a union rep attend the meeting. As you know, there is no entitlement for representation during this type of meeting. As you have asked to have someone with you during previous meetings, however, I have been trying to schedule something that would work for both you and the union representative. We really need to have this discussion as soon as possible so we can determine and take the next steps. I am rescheduling the meeting for Tuesday at 1pm (you indicated you were not available on Monday). Hopefully a union representative will be able to participate with you. Given the need to move forward, however, the meeting will not be rescheduled due to unavailability of a union representative. Whether a union representative is available or not, I will take notes during the meeting which will include an Action Item List and Record of Decision. I will share this with you so that you may also have a record of the meeting. As always, you are also welcome to take your own notes.

I will schedule the meeting for 30 minutes but the length will depend on the discussion and any questions that come up.

It is my hope that you will not feel it is necessary to have a union representative present at all our meetings. I will try to accommodate your requests where I can, however it might not always be possible or practicable.

…

 

[121] Entered into evidence was a copy of a WCB memo dated May 2, 2014 (“the May 2 WCB memo”), which appears signed by Ms. Batchilder and states as follows:

…

I spoke with Darren this morning regarding Yvonne’s claim for stress related to her workplace injury. I explained to Darren that Yvonne has submitted copies of some emails and correspondence that she had regarding issues at work. I told Darren that I wasn’t sure if she had provided all the information or just some of it. I wanted to gather information from the employer to help determine if I have all the necessary information to make a decision regarding Yvonne’s claim for stress.

Darren asked if this was normal to received copies of email from workers. I told him that a worker can submit any information and it will have to be reviewed as evidence on the file when making a decision.

Darren indicated that there had been no critical event in the workplace but rather interpersonal conflict on Jan.8 or9/14. He said the issues have been dealt with administratively. He said there has been no substantiated claim of harassment and things have been dealt with based on their policies. He confirmed Yvonne’s situation has been no different than any other employees. Darren said they have been in consultation with HR about the issues and there has been no disciplinary action taken to date.

I asked Darren if he would have a file in relation to her claim for stress and incident on Jan.8 or 9/14 and would be able to forward this information to me. Darren was hesitant to provide me with details as he is not sure if providing this information would break confidentiality. Darren asked if he could speak with Jacqueline (HR) first and set-up a conference call between the 3 of us to make sure he is allowed to provide information with regards to my questions.

Darren provided the following info for the conference call on May 5/14 at 2pm.

[Phone number and dial-in information deleted.]

…

[Sic throughout]

 

[122] Entered into evidence was a copy of a WCB memo dated May 13, 2014 (“the May 13 WCB memo”), which appears signed by Ms. Batchilder and states as follows:

…

On May 5/14 I connected with Jacqueline Proulx (HR/RTW Coordinator) and Darren Gaudet (Manager) during conference call.

I explained to Jacqueline that I had spoken with Darren last week and she preferred that she be involved with our conversation. I told Jacqueline that I was giving the employer an opportunity to provide their details about Yvonne’s claim for stress.

Jacqueline stated that there had been no critical incident to cause Yvonne stress. Jacqueline indicated that there was some interpersonal conflict in the past which had been dealt with administratively. Yvonne had been told what behaviour was appropriate.

I asked if there was a report written up about this incident. Darren indicated that there was no official report as there was no official disciplinary action taken. I asked Darren if he know what incident Yvonne is referring to. Darren said there was an interpersonal conflict incident on Jan.9/14 however as stated previously, this incident had been dealt with administratively and there is no official report.

I also asked Darren about Yvonne’s position at the time of her claim. Darren said she had been in an assignment position for the past 2 ½ years (approximately). He said there were 3 bases in the Maritime Provinces and Yvonne had expressed an interest when they became available. He said the job need to be completed so Yvonne had volunteered to take on this assignment. Darren also said the other 2 employees had finished up long ago but the job still need to be completed until other staff had been trained to complete this type of work on their own. Yvonne remained in this assignment until Mar.31/14.

I asked both Jacqueline and Darren about Yvonne’s permanent position as an Electrician. Jacqueline indicated that Yvonne’s Electrician position still exists but they have received a doctor’s note stated she is unable to return to work as an Electrician at this time. Yvonne requires sedentary work only. They have not received limitations from Yvonne’s doctor so they are requesting Health Canada completed a functional assessment. Jacqueline indicated that they have a sedentary position available however this position pays $20,000/year less than Yvonn’e permanent Electrician position. She said there is not many options available on PEI to offer her.

Jacqueline said she has discussed the available (Sedentary position with Yvonne but Yvonne has indicated that she doesn’t want an administrative position permanently so she does not want to be trained. Jacqueline told Yvonne that if she doesn’t take this administrative position then they have nothing else to offer her on PEI.

I asked Darren and Jacqueline about a meeting that was set-up between Yvonne and Mike Ouellette (Regional Director). Darren indicated that Mike Ouellette was going to be in PEI for other reasons and had attempted to meet with Yvonne however she had cancelled this meeting because she was on sick leave. Darren said Mike Ouellette tried several times to meet with her. Darren said that there is no report about Yvonne’s complaints there are only his own fact notes.

Darren indicated that I had mentioned the word harassment complaint during our conversation and she was wondering who the complaint was against. He said they have not received any official harassment complaint and they have a process to follow when filing harassment complaints. I told Darren that Yvonne has indicated that the harassment complaint is against him. Darren said he would have had to be notified by John Butler (Assistant Commissionaire) about any such complaints. Darren also said an external investigation would be completed and a report would be given to him and this has not been done.

At the end of this conference call I asked Jacqueline and Darren to provide me with something in writing about all the information they have provided and anything else that they have in relation to Yvonne’s incident on Jan.9/14. Jacqueline told Darren that she would provide me with the summary. I asked Jacqueline to provide this summary as soon as possible.

Jacqueline also indicated that she had spoken with Yvonne on May 5/14 and told her that it is important to have employees happy in the workplace. She told Yvonne that they were no doing tall this to harm her.

…

[Sic throughout]

 

[123] On May 5, 2014, Mr. Gaudet forwarded an email to his superior, Michael Ouellette, the director of integrated technical services. The email stated that the WCB had told him that the grievor was claiming through it that she had been harassed. He stated that he asked for the specifics of the claim from the WCB; he said that it refused his request. He said that if the employer did not respond, the WCB would rule based on information the grievor provided. He said that they (he and Ms. Proulx) tried to convince the WCB to provide them with information, but the WCB refused. He said that therefore, they consulted their personnel in access to information and privacy as they were concerned about what they could release to the WCB. He said that in the end, he provided the WCB with everything they had because they had no idea of the specifics of the harassment complaint or claim. He said that Ms. Batchilder asked for all correspondence to and from the grievor. He said that he gathered it up and sent it to her, with a summary.

[124] On May 6, 2014, at 13:00, a meeting took place involving the grievor, Ms. Proulx, Messrs. Gaudet and Fagen, and Mike Kehoe, the acting superintendent. Entered into evidence were printed notes that Mr. Gaudet made entitled, “Conference Call Summary Update on Yvonne’s FTWE”; their relevant portions state as follows:

…

Recap discussion yesterday – we are trying to find work based on limitations and qualifications

AtoN assignment was on the table as an option when we spoke last

Yvonne told Clair – not interested long term and it fell through

There is no job in the shop for the time being

We are looking at finding some duties for the short term. Time is limited on that assignment

First priority is to move forward with HC to identify limitations and timelines

If limitations are permanent we need to look for position for Yvonne

We look for vacant positions where deployment is possible

Been through openings and nothing available other than CR04 with AtoN in Ch’town

If we do not have work that the Yvonne can/will do, it could lead to a no work no pay situation

If there is nothing available, Yvonne could apply for DIO. Best to apply now anyway just in case, it can always be cancelled if not needed.

Option is DI

DI will cover 2 year max for a person who is unfit for their own position but can work somewhere

At the two year mark if the person is still able to work somewhere, they will come back to us to ask if we have anything, which is essentially where we are now. If we do not, they will train for job outside public service.

Not ideal solution

You need to decide what you want to do moving forward

This is normal process

Yvonne mentioned she has an opportunity to work for NCR with [name redacted] and is waiting for more information

Jackie/Mike Kehoe – No one was aware of the opportunity last meeting.

Also HSE Compliance officer – acting opportunity seems to be coming up as an option

Darren though it was to back fill [name redacted]

In the meantime, Darren is putting together an assignment agreement – within the shop to get us through to the time it take to get through the HC process

Wayne asked about the AtoN position

Jackie described the position and intent

Clair operationally could not support traing this month if here was no option for a long term commitment. Due to Claire’s conversation with Yvonne she felt Yvonne was not interested in ever deploying to the position.

Yvonne and Wayne discussed AtoN – recounted her conversation with Claire When asked if she was willing to consider the Aton position. Yvonne said only on a temporary basis. Not willing to take $20k pay cut.

Kehoe – where are we with the HC consent forms?

Yvonne –Gotta talk to Doctor tomorrow

Jackie- so you’re ok with submitting the forms without changing them.

Wayne was updated with the information around Yvonne changing the HC forms

Assessment is stalled with HC, they will not make appointment without unchanged consent forms

Jackie gave Yvonne the HC contact info so Yvonne can ask questions

Yvonne thought the doctors will discuss medical info with Darren. We explained that Darren would be the point of contact to relay limitations

Wayne asked if it should go to an excluded manager, Jackie explained that excluded or not Darren is responsible for writing request and getting response back. Darren is RCM.

Yvonne was asked if alleviated her concerns?<< Not answered, Mike summarised the conversation before Yvonne could answer>>

Wayne asked how long is the MCI assignment and was informed that it would be until the end of May for now, and that hopefully we would have HC report back by then. Wayne advised Yvonne – May be worthwhile to apply for DI with 13 week delay – can always withdraw if need be

Yvonne asked about the jutiesand was told that it would be administrative work in the shop. Darren expanded on the specific duties saying it would be Maximo related to floating aids and contractor bins. Details would be put in the assignment agreement.

Yvonne said that she had been harassed in that position and that her chair is not ergonomic. Yvonne was assured that the duties and role were not exactly the same as the previous assignment she had been on prior to March and that she would be reporting directly to Darren.

Mike committed to getting an ergonomic set up for her in the shop.

Wayne asked again why is AtoN was not an option? He was reminded that it was a very busy time for AtoN and they could not train someone that was not a long term option during the month of May. The manager there is looking for a long term fix.

Wayne asked what happens at the end of the month. He was informed that we hoped to have the HC assessment by then but either way we would continue on and re-evaluate next steps at the end of the month

Next Steps

HC consent forms filled tomorrow (Wednesday) after Yvonne’s Doctor’s appointment. Darren will FedEx the consent forms to HC

Darren will set up ergonomic assessment while we await HC appointment

…

[Sic throughout]

 

[125] Ms. Proulx was shown the email of May 1, 2014, and was asked about the meeting. She said that based on the March 17 note, the grievor could not work in her substantive position, and the CCG’s work in Charlottetown was largely operational and involved physical jobs. She said that the employer was looking for a place where she could work. One question was whether she could relocate. Ms. Proulx stated that she did not feel that the meeting went well; however she had connected by phone, so it had been difficult to hear the grievor.

[126] Entered into evidence was an email chain between the grievor and Ms. Proulx on May 9 and 22, 2014 (“the May 9 and 22 email chain”), which is as follows:

[The grievor to Ms. Proulx, May 9 at 12:16:]

Hi Jackie: I’ve recently been provided with some documents from WCB in which I discovered you made statements about me that I am concerned about; so I was just wondering if you could provide with the source of your information for the following statements:

“Yvonne was given an opportunity to act as supervisor, however this was taken from her as there were issues around her professionalism with other staff.”

“Yvonne is unable to return to her permanent position as an electrician.”

“Yvonne may have had pre-existing issues before any of her claims with Fisheries& Oceans.”

Thanx for your timely cooperation in this matter!

[Ms. Proulx to the grievor, May 9 at 13:07:]

Hi Yvonne

I cannot attest to the accuracy of the comments below without seeing the original document from which they were taken. The context surrounding my conversation with WCB is missing and some of the details below are not as I remember them.

[The grievor to Ms. Proulx, May 22 at 12:38:]

Hi Jackie: Sorry this took so long, I’m off work with my neck/back issues again, so I don’t have easy access to all the required technology. Please find attached letter in question.

[Sic throughout]

 

[127] The last email in the chain disclosed a PDF that was identified as “alluntrue.pdf”, which Ms. Proulx identified as the Apr. 30 WCB memo.

[128] Ms. Proulx was shown the May 9 and 22 email chain and stated that she strongly disagreed with what was set out in the grievor’s email as it was not something she would say. She said that it was someone’s summary of a conversation she had with someone from the WCB whom she did not know and had never had a conversation with before. She said that there were no questions in the summary and that parts of the conversation were not included in the summary. Ms. Proulx said that she did not say that the grievor was removed; she said that she was asked if the grievor was removed, and she replied that she did not know. Also attributed to her was the comment that the grievor was unable to work; Ms. Proulx said that she did not say it because she did not know. She said that the conversation she had was very odd, that there was much antagonism from this person, and that she did not understand why.

[129] In cross-examination, Ms. Proulx said that she discussed the misstatements in the Apr. 30 WCB memo with Ms. Hannah and an HR manager. She was told to leave it and that HR at CCG’s headquarters would speak to the WCB about it and about other issues with the WCB. She said that she did not know what happened after that.

[130] Entered into evidence was an email exchange between the grievor and Mr. Gaudet involving emails on April 30 and May 15, 16, and 21, 2014, with respect to leave. They are as follows:

[Mr. Gaudet to the grievor, April 30 at 11:43:]

…

I received your request for certified sick leave.

If you recall in an email I sent to you February 18, 2014 at 9:44 am, it says “…once a single period of advanced sick leave with pay is granted, no more sick leave with pay can be advanced until the initial advancement is “paid back” – i.e. until your sick leave balance is in the positive. Be aware, it is estimated that it will take you 14.5 months to bring 17 days of advanced sick leave back to a positive balance.”

To date you remain in a negative balance with your sick leave (-104 hours). I therefore cannot approve the additional 18 hours of sick leave until such time that your balance is returned to a positive balance.

Your options to cover these 18 hours are sick leave without pay or vacation.

I will deny the leave as entered in PeopleSoft. Please resubmit using one of the 2 codes mentioned above (certified sick leave without pay or vacation) by noon Wednesday May 7.

Also, be aware that Mark can approve vacation leave but not certified sick leave without pay.

…

[Mr. Gaudet to the grievor, May 15 at 16:04:]

…

I have denied your request for an additional 68 hours of Certified Sick Leave covering May 13-May 27.

Also you have not submitted the appropriate leave for the time described in the email below.

…

[The grievor to Mr. Gaudet, May 16 at 11:45:]

…

I am requesting an advancement of paid sick leave as per the collective agreement’s maximum of 200hrs; as you are aware there is a WCB administrative delay with regard to the negative balance of 97 hours in my paid sick leave bank.

…

[Mr. Gaudet to the grievor, May 21 at 13:12:]

I am unable to approve your request for a further advance of sick leave, as you still have a negative balance remaining from the previous advancement. As clarified with you previously, an advancement of sick leave with pay must be fully recovered before a second amount will be considered. I advanced the initial amount based on expected approval of your WCB claim, which to date has still not been approved.

Communication between an employee and supervisor or manager is important in these types of situations as there are various factors to be considered, and information you need in order to make an informed decision. As your manager, I cannot make assumptions about the type of leave you may wish to take. As you have exhausted your sick leave with pay, and have refused to submit and [sic] leave, my options are sick leave without pay or unauthorized absence. Unauthorized absence differs from leave without pay in that it is not authorized and is not pensionable; it could also result in disciplinary action.

I understand that this might be a difficult time for you but lack of communication will not resolve this issue and in fact could make it worse, as it could result in delays in processing paperwork, misunderstandings, unauthorized absences and overpayments which need to be recovered.

Based on all of this, with respect to the period of absence from May 13-27, I am willing to offer the following two options:

Certified Sick Leave without pay

Other earned paid leave (vacation)

I will approve a request for either of these for the period in question. If the request is not made before noon on Friday, May 23, however, I will be submitting certified Sick Leave Without Pay on your behalf.

Please let me know if you have any questions. I would rather work with you to address this as quickly as possible and with minimal impact to your pay until the WCB issue is resolved. But it is important that you understand that further refusal to submit leave could be considered insubordination and may result in disciplinary action, as well as unauthorized absence.

…

 

[131] Entered into evidence was a second version of the document entitled “Specific Functional Restrictions and/Or [sic] Limitations”, which was a form taken from the Alliance Education Program Participant Kit dated September of 2012, except that this version appears to have the signature of Dr. Jewers and is dated May 7, 2014 (“the May 7 note”). The first page appears to be a photocopy of the first page of the April 22 note, as the handwriting and check marks are identical. Part B on the second page, where it instructs to provide necessary details about any identified restrictions or limitations, states as follows:

…

If she is on certain medication for aggravation of her condition there may be some limitation of mental abilities.

she also would require an ergonomic work station

she is waiting for a neurosurgical evaluation + thus it is possible some of the above limitations and/or restrictions are temporary.

…

[Emphasis in the original]

 

[132] The May 7 note additionally contained what appeared to be the first page of the “Medical Questionnaire/Functional Analysis” form that was also signed by Dr. Jewers and dated May 7, 2014. This part of the form did not accompany the April 22 note signed by Ms. Elia. This page was also a preprinted form, and the following additional information had been put into it:

he saw the grievor on May 7, 2014;

the date of the injury, illness or disability was February of 2010, but that it has evolved since then;

the date which states “This patient is medically able to work with limitations or restrictions” was left blank; and,

the restrictions or limitations were temporary but could not say for how long.

 

[133] The grievor said that Dr. Jewers completed the May 7 note because of the employer’s insistence on having an FTWE. She used the Alliance form because she did not have the paperwork to give to Dr. Jewers. She said that she gave it to Mr. Gaudet, although she did not state when, and there is no documentary evidence that provided any information as to when it was given to the employer. It was put to Mr. Gaudet in cross-examination. When he was asked if he recalled receiving it, he said that he did not. He did not deny that it was received but could not recall seeing it.

[134] Entered into evidence was an email dated May 16, 2014, at 15:07, from Mr. Gaudet to Ms. Batchilder, which had attached a 10-page letter dated May 15, 2014, and 129 pages of other documents, including letters, notes, and emails (“the May 15 letter”). The letter set out a timeline of events, with the first date listed as August 2013, and the last as May 1, 2014. In addition to the timeline, Mr. Gaudet stated as follows:

…

Subject: IOD, January 9, 2014 – Y. McNeil

As a follow up to our conversation, and your request for further information regarding the above claim, I am submitting the following summary. As you can appreciate, it is difficult to formulate a response given the fact the department is not privy to the information provided by the employee, however, I have provided a detailed summary of events highlighting any involvement with Ms. McNeil since September as per your request.

An interpersonal conflict transpired between the claimant and her supervisor, Mark Seaman, on January 9, 2014. As a result, both employees were given a letter of counsel that articulated management’s expectations of respectful behaviour in the workplace. Disciplinary measures were not taken.

With respect to her claim of stress due to harassment in the workplace following this incident, I can tell you that Ms. McNeil filed a complaint against Mr. Seaman. This was in accordance with the federal government internal harassment complaint process. She was advised that the incident had already been investigated and concluded through a fact-finding, and that it did not meet the definition of harassment. I have confirmed with Labour Relations that there have not been any other harassment complaints filed by Ms. McNeil.

Timeline

…

The attached documents are being provided to you in their entirety as I wanted to provide you with as much relevant information as possible. We did confirm with our Access to Information and Privacy (ATIP) office that the information could be released to WCB.

…

 

[135] The WCB provided the grievor with the May 15 letter and attachments at a time not produced at the hearing. When she was asked how she became aware of it, she stated that she requested a copy of her file. She did not appear to know when she requested it or when she received it.

[136] In cross-examination, Mr. Gaudet was shown a package of documents that included the following:

• the March 7 Form 6;

• an undated two-paragraph printed document that appeared to bear the grievor’s signature;

• an email chain between the grievor and Mr. Butler dated February 5, 2014;

• an unsigned copy of the February 2, 2014, letter of counsel addressed to the grievor; and

• an email from Mr. Gaudet dated February 5, 2014, to a number of individuals, including the grievor, advising that Mr. Seaman would be the acting foreman for fixed

• aids from February 10 until June 6, 2014.

 

[137] The first email in the chain between the grievor and Mr. Butler (who was identified to me as a DFO assistant commissioner at the time), dated February 5, 2014, stated as follows:

…

Subject: Harassment

Good Afternoon John: I’m sorry to have to bother you with this, but I feel I have no option other than making a formal harassment complaint regarding an altercation initiated by Mark Seaman in our marine aids shop on January 8, 2014; involving myself and [Mr. B], during which Mark Seaman who is 6feet tall and approx.. 250 lbs stormed across the shop floor; all red in the face, shouting the question at us “Do you have a problem with the way I do things”. When I responded that my conversation with [Mr. B] had nothing to do with him, he continued to shout the question right in my face; so I shouted back that I was having a problem with what he was doing; as a result of how threatened he was making me feel. I am only 5 feet tall and 120 lbs. And this ambush humiliated and frightened me and I fear if something isn’t done he will assume this kind of behaviour will be tolerated.

…

 

[138] Mr. Gaudet was brought to the email chain of February 5, 2014, in conjunction with the summary he had included in the May 15 letter under the subheading “February 5”. That entry stated as follows:

February 5

Yvonne makes an allegation of harassment against employee “A” [Mr. Seaman] who was involved in the incident.

My Fact Finding results were used to rule on the allegation.

The allegation was not supported.

 

[139] Mr. Gaudet was then asked if this was how the harassment complaint was received. He replied that he did not recall and that he thought that a complaint had been sent to Mr. Butler. Mr. Gaudet was asked questions about what the grievor referred to in her email but stated that he did not attend the meeting involving Mr. Ouellette (the director of integrated technical services), who was to speak to the grievor about the alleged harassment. When it was put to him that he saw the February 5 email, he said that he was aware of the allegation but that he could not say that he had seen the email.

[140] The grievor did not testify about the February 5 email or the meeting with Mr. Ouellette. However, even though she stated that she reported the January 8 incident to Mr. Butler, it is clear that that alleged report was not made on or about January 8 or 9, when the January 8 incident occurred, but on February 5, 2014, in the email she sent to him claiming harassment. There is no indication that she made any other report.

[141] Part of the attachments to the May 15 letter was an email chain between the grievor and Mr. Ouellette on February 11 and 12, 2014, in which Mr. Ouellette attempted to meet with her, to provide her with a letter from Mr. Butler. I was not provided with a copy of the letter, any indication of whether it was delivered, and if so, when, or its contents.

[142] Entered into evidence was an email exchange between Messrs. Seaman and Gaudet, dated May 13, 2014, which stated as follows:

…

Ms. McNeil just called and explained that she had to depart rather quickly due to an [condition deleted] likely due to the illness she is experiencing.

The note covers off her injury which was not the primary reason for her visit. The reason for the two week delay is that is the only time in which she is able to see her physician. She is suffering pain from her pre-existing condition, therefore she will not be completing a WCB form 6. When asked for which leave she chooses to submit for, she claimed that “…all of her leave is being denied anyhow. So she is not submitting any.” I then suggested that she use her “Vacation” leave to which she replied that she used her vacation leave last year, which she never got back, so she will not be submitting it again. “I am not using my vacation leave because I did last year, for my injury, and never got it back.” I commented that I will relay the information.

…

 

[143] On May 14 and 15, 2014, Mr. Gaudet and the grievor exchanged the following emails:

[Mr. Gaudet to the grievor, May 14 at 09:10:]

Hi Yvonne,

I just wanted to draw your attention to the fact that – as promised – I have set up an ergonomic assessment for you.

It is set up for June 2 at 9 am.

I have put it in your Outlook calendar.

Thanks

…

[The grievor to Mr. Gaudet, May 15 at 15:07:]

I’m not sure what promise you’re referring to; as most of what I recall was a total disregard for my doctor’s March 17^th recommendation for the ergonomics; but I appreciate that something’s finally in the works for it. It’s unfortunate that I had to wait so long and am again experiencing so much pain!

…

 

[144] On May 15, 2014, Mr. Gaudet emailed the grievor, copying Mr. Fagen and Mses. Carson and Proulx. He stated that he and HR had been speaking with AtoN and that there was flexibility for an assignment opportunity starting on June 2, 2014. He asked her to see him when she returned to work.

[145] Entered into evidence was a letter dated May 20, 2014, from Dr. Karen MacDonald, a medical officer with HC, which states as follows:

…

Further to my letter of April 25, 2014 regarding your request for a fitness to work evaluation (FTWE) on Ms. Yvonne McNeil, I have received correspondence from Ms. McNeil indicated [sic] that she wishes to rescind all consent forms to release medical information. Also, we have never received a consent to undergo a fitness to work evaluation.

Ms. McNeil feels her family doctor is the best person to complete the fitness to work evaluation; however, this is not a third party unbiased assessment.

Both our occupational health nurse and I have had phone conversations with Ms. McNeil attempting to address her concerns.

As Ms. McNeil is unwilling to provide voluntary consent and comply with the fitness to work evaluation process, we are unable to proceed further and the matter must be handled by your department.

…

 

[146] The letter of April 25, 2014, which Dr. MacDonald referred to in her May 20, 2014, letter to Mr. Gaudet, was not entered into evidence.

[147] Entered into evidence was an email chain dated between May 23, 2014, at 14:46, and May 27, at 16:01, between a number of individuals, including the grievor, Messrs. Gaudet, Fagen, and Pike, and Ms. Proulx. The reference line is “Ms. McNeil – Leave”. The chain is with respect to issues involving leave requests and their administration. In the course of the exchange, the grievor suggested that two hours of leave on a particular day should have been covered by the employer because it was for “medical paperwork for health Canada [sic].” The grievor suggested that as the employer had requested Health Canada’s involvement, it was responsible for covering the leave. The following are the relevant portions of the chain:

[Mr. Gaudet to the grievor (copied to others), May 27 at 11:17:]

…

With respect to the question of the doctor’s note, it says “Yvonne will be off work until May 26, due to injury.” I require additional information (i.e. Was this a work place injury? If so, was it a new injury or a re-aggravation of a previous injury?) to determine appropriate next steps. Please provide this information to me as soon as possible. As explained to you previously, given the complexity of your situation, all injury related, WCB related and Sick Leave related information is to be provided directly to me rather than Mark.

… The form you were asked to complete was the Health Canada Consent Form (attached). The form does not require the consultation or attention of a doctor. The choice to see a doctor for the signing of a Health Canada consent form was your own, and therefore the absence from work must be covered by the appropriate leave in PeopleSoft.

I encourage you to speak to your supervisor or myself if you have any questions about leave entitlements, or to ensure the leave is appropriate, before you submit the request. This will ensure that leave is submitted in a more timely manner, may reduce denials of the requests and will allow for discussion about options should the leave requested not be available or appropriate.

…

[The grievor to Mr. Gaudet (copied to others), May 27 at 14:50:]

Hi Darren: There’s no form attached, I’m still awaiting advice on anything I had to take to my doctor’s office with regard to health [sic] Canada and information my doctor provided to them already in the absence of his March 17/14 recommendations which you neglected to include in your letter to them requesting the FTWE.

… I’m also not sure what the issue is with the May 26/14 Dr.’s note; as you were busy, I had the flu/ [illness redacted]; as I’d been working sick since the previous week because I have no sick leave left. I had to hand the note to March [sic] and get home and I phoned Mark very shortly thereafter and explained and he said all was ok. My doctor has just drafted a WCB review yesterday with regard to my latest neck issues from May 13-26/14 and when its available, I will get a copy of it for you if you wish. Nothing happened at the workplace with regard to this event it’s just the ongoing issues with my neck that you are already aware of from the doctor’s very explicit letter of March 17/14.

…

 

[148] The May 26, 2014, doctor’s note that the grievor referred to was not produced at the hearing.

[149] The last email in the chain, sent May 27, 2014, at 16:01, forwarded two HC consent forms, one to undergo an FTWE, and the other for the grievor’s doctor to release medical information to HC medical personnel and to speak to them. In cross-examination, she confirmed that at that time, she had not yet executed any consents that she had been sent.

[150] On June 9, 2014, an assignment agreement was entered into for the grievor, assigning her to the CCG’s AtoN branch in Charlottetown for the period from June 10 to July 31, 2014. She was to carry out administrative clerical work. Her group and level and salary would not change, and Claire MacLaren would be her immediate supervisor. The evidence disclosed that sometime in July of 2014, it was agreed that the assignment would be extended until the end of August 2014.

[151] On June 4, 2014, at 11:33, Mr. Fagen emailed Mr. Pike, copying Mses. Carson and Proulx, Mr. Gaudet, the grievor, and one other person who was not identified at the hearing. The relevant part of this email is as follows:

…

I am writing to you to get some clarifications, as well as, assure you that Yvonne is very eager to cooperate and be integrated back into the workplace, as a result of her injury late last year.

As you know, Yvonne has been currently accommodated into a clerical position so that she can return to the workplace based on her current limitations and restrictions. Consequently, she is not currently doing her substantive position. What is not clear yet is how Yvonne can be accommodated into her substantive position since we are awaiting a medical appointment with a specialist. Her physician has indicated that she must wait to see this specialist to determine what next steps to take with respect to her substantive position.

Yvonne is frustrated by how long this process has taken, especially since she has been denied advanced sick leave and has had to take annual leave to avoid a no pay situation. While we wait for a report from her specialist and medical information, the department has offered her permanent positions within the department that would amount to Yvonne taking a pay cut of some 20,000 thousand [sic] dollars. Needless to say all of the above has added undue stress unto Yvonne which simply does not help her current medical situation.

Yvonne is eager to provide the necessary medical information required and is cooperating with her medical practitioners. However, we do not understand why there is an urgency to get an evaluation from Health Canada at this time, more specifically, what information is lacking from her physician and/or specialist. Yvonne would be more than pleased to go back and get any clarifications that you are still seeking. We believe it is premature, at this point, to make a request to go to Health Canada since Yvonne has not yet even gone to the specialist that will help us determine what medical tests she can undertake. As well, the workers’ compensation process as also not been completed.

I am sure you are aware that you have an obligation to inform Yvonne why her own medical practitioner’s information is insufficient and that if you require clarification then you should seek it from her medical practitioner first. Only if the information is insufficient or you require further clarification that her medical practitioners cannot provide in order for her be [sic] accommodated or return to her position on a permanent basis, then we could look at alternative ways of getting this information such as an independent medical opinion. Health Canada is the employer’s doctor and is not considered an independent medical opinion. If you would like to discuss this point further we would be pleased to do so.

If there is a legitimate need for Yvonne to get an assessment from another medical practitioner, other than her own doctors such as Health Canada , then she would be very cooperative to do so.

Again, we do not understand the urgency for a Health Canada assessment at this time. Of particular concern are the forms themselves. We have reviewed them and they do appear to be too broad. Yvonne should only be required to release medical information to Health Canada that is specifically related to her workplace limitations and restrictions in this particular circumstances. Unfortunately, the forms do not have such parameters. As you can understand, a person should not have to disclose their FULL medical file so that they can be accommodated into the workplace for a specific injury for an unlimited time period into the future. To be clear, Yvonne doesn’t have a problem releasing her medical information that would assist her to be accommodated or return to work. In fact, she has tried to facilitate getting this information from her own physician for you. The issue is the requirement to give a blanket consent for all and any of her medical information into the future to Health Canada and the employer. Again to be clear, Yvonne doesn’t have a problem going to Health Canada if it is necessary in her medical assessment and her privacy is respected.

We understand that if she does not sign the Health Canada consent forms (as they are in their current form) then she will be forced to go on LWOP, and her current accommodation would be terminated. If this is the case then Yvonne has agreed to sign the consent forms as a symbol of good faith and cooperation and because of the financial hardship that will be created otherwise. She does not want to create unnecessary barriers to her return to work process or undergo financial hardship by being without her income. However, we will examine the recourses available to Yvonne, as a result of this situation.

As well, since the Health Canada forms have come to the union’s attention, the PSAC will be discussing them directly with Health Canada in the very near future.

I would ask the Department to have some empathy for the way Yvonne is feeling and what she is going through and find a process to determine her ability to return to work into her substantive position that will not invade her privacy that she is entitled to.

…

 

[152] Entered into evidence was a letter from the Charlottetown Physiotherapy Sports and Rehabilitation Centre entitled, “Ergonomic Assessment” (“the June ergonomic assessment”), which had a fax date of June 11, 2014, and was emailed to Mr. Gaudet on June 13, 2014. The date of the assessment is shown as June 2, 2014; it is noted as having been done by Edith Rogers. It identifies the following problems and solutions:

…

Problem:

The client’s chair is too large. This results in the chair seat pushing up against the back of the calves and she sits away from the chair back which results in no back support.

Solution:

Bring chair back forward to provide slightly better contact.

In any new chair ensure:

-elbows are at 90°and wrists are horizontal;

-sitting against the chair back with the curve at the curve of the client’s back;

-feet are flat on the floor (See information sheets attached).

Problem:

The client’s monitor is too high and cannot be lowered downward.

Solution:

Raise the chair to be looking horizontally at the top 1/3 of the screen. Will now require a footrest (see example attached). Discussed the option of computer glasses which provide for a full lens adjusted to the measured distance from the eyes to the screen.

Problem:

The client’s desk is too high in the desired position of feet flat on the floor and knees at 90°.

Solution:

In raising chair to be at an appropriate height for the monitor the client is now at a more appropriate height for the desk.

Problem:

The client looks down onto desk to read data to be centered into the computer. This head tilt can result in neck strain.

Solution:

The client has a document stand but it doesn’t fit between the keyboard and the monitor. Assess if this stand functions better in her new office. Other document stands could be considered (see examples attached).

Problem:

The client’s monitor and back wall are the same distance away. This static eye muscle positioning is fatiguing.

Solution:

Every 30 minutes take a few seconds to look at a far distant point.

Problem:

The client spends a large amount of the day working at the desk.

Solution:

Take a 30 second break every 30 minutes.

Stretch example:

Close eyes and take 2 deep breaths.

Reach both arms fully overhead.

Stand up and rotate all the way to the left and right twice.

Put one foot forward and bend over it then repeat on opposite leg twice.

Return to work

Problem:

The client has a significant amount of desk and office clutter. This can result in posture compromises and cramped positioning.

Solution:

Remove any non-essential items from the office. Place the frequently used items within a half circle of the client to avoid reaching.

…

 

[153] Attached to the June ergonomic assessment was an invoice dated June 9, 2014, and addressed to Mr. Gaudet, along with attachments with respect to different types of document holders and footrests that had been copied out of a catalogue, as was a specific yet unidentified chair. There were also three pages of diagrams setting out the appropriate workstation setup and guidelines for posture and using a computer mouse.

[154] On June 13, 2014, Mr. Gaudet emailed the June ergonomic assessment to the grievor and copied Mr. Pike and Ms. Claire. His email stated as follows:

…

Hi Yvonne.

I had asked that Edith send this report via email. I noticed this on the fax this morning. She faxed it Wednesday.

The quality of the print is poor. I called again this morning and asked if Edith could send it via email to help with the poor quality. She’s not in today, but I left the message.

In the meantime obtain what you need to meet the requirements of the report.

…

 

[155] In her evidence-in-chief, when she was shown the June ergonomic assessment, she said that she was provided with a chair, footstool, and document holder. She said that no monitor, desk, or computer glasses were provided.

[156] Counsel for the employer brought the grievor to her email chain with Mr. Gaudet of between July 7 and 25, 2014, as follows:

[Mr. Gaudet to the grievor, July 7 at 07:52:]

Since our last discussion/email exchange on this issue, I found out that prescription glasses are not deemed to be an accommodation. I had agreed to cover the cost before I was aware of all the Treasury Board policies related to this topic; I had assumed it would be a cost covered by the employer.

Treasury Board defines an accommodation as an alteration to the work environment. Prescription glasses unfortunately do not fit that description. These are a personal medical aid that are covered under the medical plan you have through work.

Also, the ergonomic report, item #2, suggests lowering the computer screen, elevating the seat of the chair, and placing a foot stool under your feet as a means to mitigate this issue. The employer has agreed to equip your work station with an adjustable computer screen, an adjustable chair and the foot stool mentioned in the report.

I apologize for the confusion, but I have confirmed that this is not something the employer would cover, therefore I am unable to approve this expense.

For the reasons mentioned above, if you chose to purchase glasses, the cost will have to be covered through your medical insurance.

[The grievor to Mr. Gaudet, July 11 at 15:48:]

As you know I purchased new glasses this winter, as you commented on them; so there’s no coverage for another 1 ½ yrs. In that respect. As stated to you previously, the computer glasses would have been the easiest and most versatile solution to my pain right now; but since I now have to wait for written confirmation that they are not covered by my medical insurance as a personal medical aid or any other coverage tactic, I have priced a chair. There are several appropriate for my situation, running from between 300-600 dollars. I didn’t have time to look for the smaller items; as I have no leave for that purpose or any other purpose and seem to be experiencing hurdles in my communication with the ergonomics assessor when seeking timely input.

[Mr. Gaudet to the grievor, July 14 at 14:01:]

You are authorized to purchase a chair, a document holder, and a foot stool. As mentioned previously, you can put that on your Master Card. Let Barb know it was for an accommodation so she can make note of that in the finance system.

Once you have done that and have received the items, let me know and we’ll have Edith come back for a follow up.

[Mr. Gaudet to the grievor, July 22 at 13:09:]

Have you been able to get the items purchased?

Let me know so that I can arrange for a follow-up with Edith.

[The grievor to Mr. Gaudet, July 25 at 15:31:]

Just got back from leave and chair arrived today and document holder and footstool should be here today or Monday.

[Sic throughout]

 

[157] As the cross-examination continued, the grievor stated that Mr. Gaudet had an adjustable desk and that she did not receive anything. When it was put to her that she received the chair and the footrest, she said that they were not put in her location but at a different desk and workstation.

[158] In her examination-in-chief, when she was asked about the ergonomic assessment on June 2, 2014, she stated that she did not receive much notice. There was no evidence about how much notice she received. It should be noted that according to the leave summaries entered into evidence, for the month of May 2014, she was at work for only 2 full days, was off work for 16 full days, and off work partially on 3 other days. The 2 full days of work were May 6 and 8, and the partial days were May 5, 7, and 9. She was off all the other workdays. The leave summaries further disclose that the last full day she worked before the partial day of May 5, 2014, was April 25. She also stated that while the person carrying out the ergonomic assessment asked many questions, the grievor said that she could answer only a few of them because she did not know what she would be doing.

[159] Entered into evidence was an email exchange on June 24, 2014, between Ms. Proulx and Messrs. Gaudet and Pike with respect to the AtoN position the grievor was assigned to at the time. The relevant portions are as follows:

[Ms. Proulx to Mr. Pike, copied to Mr. Gaudet and Ms. Carson, at 14:28:]

I have some information about the CR 04 position with Navaids, [sic] where Yvonne is currently on assignment. The position was available because another employee had taken relocation of spouse leave for five years. However the employee contacted Claire yesterday and asked to shorten the leave and if it was possible for her to return to her position within the next few months. Since it was her position and she is already trained, they will be taking her back. No firm date yet, but the bottom line is it does not look like the position will be an option if we need a new substantive position for Yvonne.

Darren and Lisa are aware of this information. I have asked Claire’s HR Advisor here to try and nail down a return date for the previous employee, and she has also suggested to Claire that perhaps Yvonne could be extended in her assignment until that employee returns – likely end of the summer.

We will need a plan for her anyway past July 30, since she is not seeing Health Canada until then, and it will take at least a few weeks for us to get anything form [sic] them after she has seen their doctor.

[Ms. Proulx to Mr. Pike, copied to Mr. Gaudet and Ms. Carson, at 15:50:]

As of an hour ago, Claire told her HR advisor that she is open to extending the assignment with Yvonne until the previous employee returns at the end of August or first of September. Claire will likely be in touch with you Darren. This will give Yvonne a temporary spot for the summer at least. Claire told her HR advisor that so far the assignment is going fine.

…

 

[160] Ms. Proulx was asked about that email exchange. She said that only a short-term assignment was available for the grievor and that the WCB situation was unusual. She said that usually, the WCB delivers a decision within a month. She also said that as of then, the HC assessment had not been done.

[161] Entered into evidence was an email chain, the first email being dated July 18, 2014, at 13:37, to all staff, which forwarded an email from Mr. Pike dated that same day, at 10:42. That email was followed by a series of emails exchanged between the grievor and Mr. Pike between July 18 and 31. The subject matter of the initial email from Mr. Pike was “Time Off With Pay For Medical Appointments/Personal Leave”. The following are the relevant portions of the exchange:

[Mr. Pike to Mr. Gaudet and 5 others, July 18 at 10:42, then Mr. Gaudet to the grievor and 25 others, July 18 at 13:37:]

…

First of all, as a guiding principle, all instances of employees’ absence from work must show up in Peoplesoft [sic]; there is no type of leave that does not have to be recorded. Secondly, the appropriate leave code must be used depending on the type of medical or dental appointment needed. The attached document clearly outlines when code 698 must be used and when sick leave must be used for medical or dental appointments. I just want to make sure that we are all on the same page. A recent cursory audit of leave use clearly indicates a need for us to ensure we are all following the rules as laid out in the attached memo.

…

[Mr. Pike to the grievor, July 29 at 16:34:]

…

A recurring appointment as you’ve described requires the use of sick leave. Since you don’t have sick leave, you would have to take leave without pay for the appointment. If this is linked with your WCB claim that is still has not been ruled on, you would be able to be reimbursed if you get approved at a later date.

I know it is not always possible but if it is, you should get your appointments in your off time.

…

[The grievor to Mr. Pike, July 31 at 12:08:]

…

Yes Dan: it would be nice if I was able to get medical appointments when I want them. I don’t know what the health care situation in NL is like, but PE you take what you can get, when you can get it. I’m lucky that I was even able to get a family doctor here, and that took 2 years. Anyway, I’ve cancelled the appointment. As a single parent I can’t afford unpaid leave and as Darren has refused to grant an advancement of leave until the WCB decision is final; I’ll have to continue to come to work sick and miss appointments. The really unfortunate circumstance here is not only will I also have to cancel my Health Canada doctor’s appointment for the same reason, but my own doctor and WCB advisor went through a lot of trouble to get me pushed up the line from a 2015 appointment with the neurosurgeon to August 11, 2014; which I will also have to cancel for the same reason.

…

[Mr. Pike to the grievor, July 31 at 13:01:]

Code 698 is used for the Health Canada assessment and not sick leave. It would not be advisable for you to miss that assessment. If you do, we would have to end the assignment you’re on and you would be on leave without pay until the assessment is done. I urge you to consider the consequences of missing the HC appointment.

…

[Mr. Pike to the grievor, July 31 at 13:01:]

Please call me at [phone number redacted]

…

 

[162] In her examination-in-chief, the grievor was asked if she spoke with Mr. Pike. She confirmed that she did, stating that he said that if she did not go to the HC FTWE, she would lose her assignment. Her email to him refers to cancelling two appointments. She did not clarify the other appointment that Mr. Pike mentioned.

[163] In his examination-in-chief, Mr. Pike was asked about the exchange and said that “code 698” is used for medical appointments. He said that on a couple of occasions over the course of a fiscal year, employees receive up to a half-day away from work without having to use leave. He said that generally, there had been a misunderstanding of how it was to be used, which is why he sent his July 18, 2014, email. He said that for the HC FTWE, the grievor should have used code 698 as it was an employer-requested medical appointment.

[164] Mr. Pike testified that at or about this time, he and the grievor communicated regularly.

[165] On August 1, 2014, Mr. Pike emailed the grievor, confirming that if her HC appointment were to run past her normal hours of work, she was entitled to compensation, as the appointment was employer-directed. With respect to the neurosurgeon appointment, he said the following:

…

On the issue of leave for the neurosurgeon appointment, I would like to clarify that since this is not an employer directed appointment it would normally require sick leave and I had indicated that you would have to take leave without pay. However, if you choose to use annual leave for the appointment, that would be fine too and is your choice.

…

 

[166] On August 14, 2014, Ms. Hannah emailed Ms. Proulx and others, stating as follows:

…

Yvonne has been placed on LWOP effective Aug. 8^th with a dctr’s [sic] note putting her off until Sept. 4^th.

I contacted WCB , PEI , Karie Batchilder the case worker was out of the office, I spoke with her Manager Don Bradley and explained that there are 2 outstanding claims and without adjudication and reinstatement of sick leave the employee is no longer receiving pay.

Don did not find any information on file to indicate that either claim had been decided on and did not want to comment without speaking with Karie. She indicated Karie may be in the office this afternoon, and if not, early next week and will contact us.

I had requested if it was possible to adjudicate the July 2013 “multiple” neck/back claim separately if the “stress” related claim was still in question as this would reinstate sick leave and put her back on pay if approved. She did not want to comment on that possibility either.

…

[Sic throughout]

 

[167] Entered into evidence was a letter dated September 9, 2014, from Ms. Batchilder to the grievor, which states as follows:

…

Your claim for workers compensation benefits as a result of your injury on October 24, 2013 has been accepted for injury on duty (IOD) benefits for the period October 30, 2013 to September 4, 2014 (539 hours) for time missed due to medical appointments and time off supported by medical evidence. Injury on Duty benefits beyond September 4, 2014 are pending further medical information from your treating physician. The diagnosis accepted under this claim is right neck, right shoulder and low back strain.

As well, a decision regarding your claim for stress will be address [sic] in a separate decision letter in the near future.

You are also entitled to medical aid benefits.

Approved medical aid costs related to your injury will be paid until the date of closure. These may include: visits to a physician, chiropractor or physiotherapist, surgery prescriptions, transportation for these appointments or other health care supplies or services.

…

 

[168] Entered into evidence was a letter from Charlottetown Physiotherapy Sports and Rehabilitation Centre dated September 5, 2014, which had attached an ergonomic assessment at her AtoN workstation that indicated that it had been carried out on August 6, 2014 (“the August ergonomic assessment”). It states as follows:

…

Problem:

The client’s laptop is her CPU. This is located in the middle of the desk in the way of the monitor which is off to the right turned sideways.

Solution:

Move the laptop over to the left and align the monitor in midline with the keyboard and turn it to face forward.

Problem:

Monitor is position to high. This model can’t be lowered down any further.

Solution:

Ensure next monitor can be lowered down low enough to be looking at the top of the screen. This is the optimal position for use with bifocals. Otherwise client would require computer glasses in order to not be tilting head back to look at the screen.

Problem:

The client’s desk is positioned at a 90° angle to the door. In greeting visitors the client would often just rotate the head to the right. This can cause a significant amount of strain to the neck.

Solution:

Take the time to turn as a log with the whole body and the chair when talking to visitors at the door.

Problem:

The client indicated her next office may lack sufficient cord length for communication and power cords.

Solution:

Ensure the future office has communication (i.e. telephone and internet) cords and power cords long enough to align the office as noted above.

…

 

[169] Mr. Gaudet was asked what happened with respect to the August ergonomic assessment. He said that he was away from the office all of August that year, that the grievor was at AtoN reporting to Ms. MacLean, and that the grievor left the workplace on August 7, 2014.

[170] During cross-examination, when counsel for the employer addressed the August ergonomic assessment with the grievor, she said that she did not receive any of the material with respect to the ergonomic assessments at either the Lily Pond site or her AtoN assignment. When the June ergonomic assessment was then shown to her, with the email showing that it was sent to her on June 13, 2014, and she was asked if she pointed out that the assessment was no good or if she did anything, she said that she had acquired what she could, although she did not identify what she obtained. At this point, she became quite agitated and argumentative and said, “I know the employer is hiding an ergonomic assessment.” She did not explain what it meant.

[171] It was pointed out that she left work while on the AtoN assignment in August of 2014. She told counsel for the employer that neither of the footstool or chair was helping. She had headaches.

[172] In her examination-in-chief, the grievor was asked about leaving work in August of 2014. She replied that she left because she was in significant pain and because her doctor had become tired of trying to secure the proper ergonomics for her. When she was then asked if she returned to her substantive position, she said that she did not, because her doctor had put her off work and had stated that he could not make it such that she could work painlessly.

[173] Entered into evidence was a letter from Dr. Jewers dated September 9, 2014 (“the Sept. 9 note”), which stated as follows: “This patient has been off work since August 7, 2014 due to a workplace injury. Her return to work date will depend upon her therapy but may be possible in 3 to 4 months time.” It did not say anything else. I was not provided any evidence that he issued another medical note or report dated after the Sept. 9 note.

[174] By letter dated September 18, 2014, Dr. MacDonald of HC wrote to Mr. Gaudet about the grievor’s FTWE (“the Sept. 18 FTWE”), stating as follows:

…

I have received Ms. McNeil’s fitness to work medical of September 3, 2013 for the position of marine aids technician.

Ms. McNeil is currently unfit for her substantive position, including any alternative work while she is undergoing treatment and rehabilitation.

This is considered to be temporary and we recommend a further fitness to work medical once she is cleared by her family physician to return to work. Likely this will be on the order of a few months.

…

 

[175] The last paragraph of the Sept. 18 FTWE states that a further FTWE be carried out once the grievor’s family physician had cleared her to work. I was not advised if another one took place or if she was cleared to work, in her substantive position, by her family physician after the Sept. 18 FTWE.

[176] Dr. MacDonald did not testify.

[177] The grievor was asked in her examination-in-chief if she received the Sept. 18 FTWE before or after receiving her neurosurgical opinion. First, she indicated that she did, but then, she could not recall. I was not provided with the date of the neurosurgical evaluation, the name or names of the doctor or doctors, or the opinion.

[178] Entered into evidence was a letter dated November 6, 2014, from Ms. Batchilder at the WCB (“the Nov. 6 WCB decision”), which states as follows:

…

Issue

The issue before me is whether you suffered a personal injury by accident on January 8, 2014, according to the Government Employees Compensation Act, Workers Compensation Act, and Board policy.

Decision

I have determined that according to the Government Employees Compensation Act, Workers Compensation Act, and Board policy you have not sustained a personal injury by accident. As your situation does not meet the criteria for approval of workers compensation benefits, your claim for stress is denied.

Background

I spoke with you on February 13, 2014, in relation to another claim for October 24, 2013 which you have with the Board, and the note to file, summarizing the conversation states,

“On Feb. 4/14 she went to the Water Street Walk-in clinic and saw Dr. S. Champion. She confirmed that Dr. Champion put her off work due to stress. She has been harassed by Darren Gaudet (employer) since Sept/13. He has been trying to have her assessed by a doctor at Health Canada. Yvonne said she has been seeing a counsellor as a result of the harassment. Yvonne has filed a complaint to the Assistant Commissionaire [sic] (John Butler) and she is waiting for the Regional Director (Mike Ouellette ?) to come to Charlottetown to meet and discuss her complaint. I explained that she may need to file a new claim for stress. She indicated that it is all related to this workplace injury and how her Area Supervisor (Darren Gaudet) has been harassing her since the Oct/13 incident. She again explained that she has filed a Harassment complaint against Darren Gaudet on Feb.4/14.”

Attached to your Workers Report you included a copy of an email, dated February 5, 2014, which was addressed to John Butler, Assistant Commissioner with the Canadian Coast Guard, Atlantic Region. The email states,

“Good Afternoon John: I’m sorry to have to bother you with this, but I feel I have no option other than making a formal harassment complaint regarding an altercation initiated by Mark Seaman in our marine aids shop on January 8, 2014; involving myself and Jim Laird, during which Mark Seaman who is 6 feet tall and approx.. 250 lbs stormed across the shop floor; all read [sic] in the face, shouting the question at us “Do you have a problem with the way I do things”. When I responded that my conversation with Jim had nothing to do with him, he continued to shout the question right in my face; so I shouted back that I was having a problem with what he was doing; as a result of how threatened he was making me feel. I am only 5 feet tall and 120 lbs. And this ambush humiliated and frightened me and I fear if something isn’t done he will assume this kind of behaviour will be tolerated.”

On your Worker’s Report and in conversation with you on February 13, 2014 you indicate that you sought medical attention with Dr. S. Champion on February 5, 2014. Dr. Champion’s report states, “being bullied at work +stressful”. Dr. S. Champion advised you to be off work until February 17, 2014 and to follow-up with Dr. Jewers.

You saw Dr. Jewers, family physician, on February 13, 2014 and his report states “had been off nortriptyline until she began dealing with in appropriate [sic] demands from her employer. . . . She has to return to medication and requires time off work to deal with anxiety related to her recovery & issue as work.” He lists your diagnosis as “sprains of each area, secondary headaches”.

On May 2, 2014 I spoke with Darren Gaudet, Area Supervisor, to gather information from your incident on January 8, 2014. Mr. Gaudet did not provide much information besides confirming that there was no critical event in the workplace but rather interpersonal conflict on January 8 or 9/14. He also confirmed that the issues have been dealt with administratively. Mr. Gaudet requested a conference call with Human Resource Department on May 5, 2014.

On May 5, 2014 a conference call took place between Mr. Gaudet, Area Supervisor, Jacqueline Proulx (HR/RTW Coordinator) and me. I was provided with some information about the incident on January 8, 2014 however I requested that they send me a summary of our conversation and any further information they may have in relation to your claim for workplace stress. An email was received from Mr. Gaudet dated May 20, 2014 which contained further information in relation to your claim.

On September 10, 2014 you dropped off a note dated September 9, 2014 from Teresa Kinnear, MSW, RSW with Counselling Service which states, “This letter is to certify that I have been seeing the above mentioned Yvonne McNeil through her Employee Assistance Program re workplace stress since September 2013”

Rationale for Decision

…

[Emphasis in the original]

 

[179] I was not advised if the grievor appealed the Nov. 6 WCB decision.

[180] The Nov. 6 WCB decision referred to a report from Dr. Jewers about the grievor’s visit with him on or about February 13, 2014. It refers to the medication nortriptyline. No such report was entered into evidence before me.

[181] Ms. Batchilder did not testify.

[182] Just before her examination-in-chief ended, the grievor was asked about her return to work after leaving the workplace first in August of 2014 and then permanently in the summer of 2015. She said that she returned to work as a marine-aids technician, “on ease back”. She did not explain what she meant by that.

[183] The next question she was asked was if she was performing marine-aids technician work when she left in the summer of 2015, to which she said that she “left [her] substantive position”. She was then asked if she had any accommodations in July of 2015 before she left; she answered that she had had none. She was asked if any restrictions or limitations were in place. She agreed, although she did not state what they were. She was then asked if there was stress in the workplace. She said that there was and that she sought treatment from Teresa Kinnear. At this juncture, she identified a letter dated September 9, 2014, which was signed by Ms. Kinnear, who operates a counselling service in Charlottetown. The letter stated simply as follows: “This letter is to certify that I have been seeing the above mentioned Yvonne McNeil through her Employee Assistance Program re workplace stress since September 2013.”

[184] When she was asked why she sought treatment, the grievor stated as follows: “because of the way Darren Gaudet was treating me I needed someone to talk to.”

[185] Ms. Kinnear did not testify.

[186] There is no information from a medical professional about the grievor’s condition after the Sept. 18 FTWE.

[187] Neither Dr. Champion nor Dr. Jewers testified; nor were any of their clinical notes or records produced into evidence.

[188] In her examination-in-chief, the grievor was asked if she could access her WCB file; she replied that she could. When she was asked when she requested it, she replied that she made many requests and that she had the documents that would show the dates, but she would have to look them up. I was not provided any indication of when she requested her WCB file or when she received a copy of it or if she received multiple different versions of it, except that there was a reference to a document from the WCB file that the grievor possessed and forwarded to Ms. Proulx. She could have received a copy of the file at that time.

Allegations relating to union affiliation

[189] On June 3, 2014, Mr. Seaman emailed Mr. Gaudet (“the June 3 email”), stating as follows:

…

On Monday June 2 [Mr. C] mentioned to me that Ms. McNeil had confronted him at noon. She inquired as to what he had said to the investigating party in regards to an incident that occurred in the technical services shop in early January 2014. He proceeded to tell her that while standing by the supervisor’s cubicle, he heard her yelling. He could not discern what subject she was talking about nor who it was directed towards. She told [Mr. C] that that was not the information that went up the line. She added that they (they?) did a test and anyone standing by the supervisor’s cubicle, by the print room, could not hear someone talking loudly in the technicians [sic] workshop. There was a comment to the effect that left [Mr. C] with the impression that the [sic] will be repeating his statement again with another interviewing party.

…

 

[190] In her examination-in-chief, the grievor was asked about speaking with colleagues about the January 8 incident. She was asked for her recollection. She stated that she spoke to a colleague, Mr. C, and asked if he had heard her raise her voice during the January 8 incident. She said that he said that he did hear her raise her voice. When she was asked where he was during the January 8 incident, she said that it was unclear. She said that when she asked him if he had heard Mr. Seaman’s voice, Mr. C said that he had not. She then stated that she told Mr. C that someone else attested to not hearing anything. That person’s identity was not made known to me. The grievor was asked if she spoke to any other employees (about this topic), to which she responded “No, not like this, but I did get witness statements.” No witness statements were produced into evidence.

[191] On June 6, 2014, Mr. Gaudet emailed the grievor about her approaching Mr. C, as outlined in the June 3 email, stating as follows:

…

I have been advised that you approached one of your co-workers about the information he provided during my fact-finding. If you have any questions or concerns about the fact-finding that was undertaken please feel free to come and discuss them with me. Based on previous discussions I understand that you were not satisfied with the outcome, but there is an appropriate process to deal with this and as you know, recourse was also available to you. It is not appropriate for you to question or challenge any of the witnesses. This could be perceived as harassment and may result in disciplinary action if it continues.

I appreciate that there have been a lot of issues recently and that all of this has been frustrating for you. I encourage you to speak to either your supervisor or myself and ask questions as issue [sic] arise to reduce the potential for misunderstanding or to reduce the necessity to address the issues after the fact, by which time there could be other complicating factors.

…

 

[192] Mr. Gaudet was asked about the June 3 email and his email of June 6, 2014, to the grievor. He said that he was concerned because earlier, the grievor suggested that he was misrepresenting the facts and that Mr. Doyle was concerned that she had approached him. He said that the grievor was the president of the union local and that the indication from what was conveyed to him was that perhaps she tried to intimidate Mr. C. He also said that other union officials in Charlottetown could have undertaken this on behalf of the union, instead of the grievor.

[193] On June 9, 2014, the grievor responded to Mr. Gaudet’s email of June 6, 2014, stating as follows: “Hi Darren: As local president it was my responsibility to conduct some fact finding with regard to a future grievance.”

[194] On June 11, 2014, Mr. Gaudet emailed Ms. Carson and Mr. Pike, forwarding the grievor’s June 9, 2014, email, and stating as follows:

…

FYI – it continues

Kevin Doyle popped in to the workplace yesterday to touch base [deleted specifics of Mr. Doyle’s absence from the workplace].

I mentioned to him that Yvonne had approached another of the employees that had given their account of the incident with Mark and that she had given them a hard time about it. I told him it was inappropriate for her to do that and if he didn’t wish to respond he didn’t have to. I didn’t want to see him ambushed.

Today he told me that she approached him first thing yesterday morning after I left for Annandale PEI. All he would say was that he didn’t want to “complain” about it because “I don’t want to get in trouble” … and “Man she has a hate on for you!” He said she started with “As President of the Union…” That in itself is enough to intimidate some of the employees around here. He told me that she filled him in on what has been going on since he’s been gone [date redacted] but didn’t get into the details.

…

 

[195] Mr. Gaudet said that despite his instruction to the grievor, she approached Mr. Doyle, who in turn complained to him, which is why he sent his June 11, email. Entered into evidence was an email from Ms. Carson to Mr. Pike dated June 12, 2014, which also forwarded to Mr. Pike the email chain between the grievor and Mr. Gaudet of June 6 and 9, 2014, respectively. The June 12 email states as follows:

I believe this requires a discussion with Wayne . Would you prefer to speak to him or would you like me to?

Since she sent this email she approached another witness.

There are several issues with this.

Regardless of her role in the union, it is completely inappropriate as an employee and as a party to the situation for her to be challenging the witnesses about their statements;

Her right to challenge is through the grievance process. She has grieved the harassment decision – as she believes the fact-finding Darren undertook to be inaccurate – so I expect it will be raised in the grievance hearing;

She has a right to gather information – but not by challenging the witnesses. She has made a request under the Privacy Act for all information related to this situation. If she feels she is missing some information, she should be making further requests to management or through ATIP;

The responsibility for investigations belongs to management, not the union;

Although one witnesses [sic] (employee and union member) tried to minimize it, he told management he felt she was trying to intimidate him. He said it didn’t work.

Let me know how you would like to handle it.

…

 

Allegations relating to training opportunities

Financial Training and Small Vessel Training

 

[196] The issue of financial training arose in the course of the evidence out of a question put to the grievor about when Mr. Gaudet became the area supervisor. In answering, the grievor said that her first experience with him was in January of 2012, during her relocation. She did not elaborate on any details of her relocation. She was then asked if the experience was positive or negative, to which she answered that it was negative. She stated that the first thing he did was tell her that her financial training had been cancelled.

[197] Entered into evidence was an email from Mr. Gaudet to Laurie Morash on January 12, 2012, at 09:18, which states as follows:

…

I spoke to Yvonne about our conversation from yesterday.

I thought she was going to Dartmouth for a meeting Ottawa was paying for (NCSP to meeting with Gaetan Chartier) and that she could stay an extra half day without incurring additional travel costs for training. Turns out this was not the case.

She will not be traveling to Dartmouth for the training. We’ll look at arranging the financial training in the new fiscal year as funds and opportunity permit.

…

 

[198] Ms. Morash’s position was not identified to me; nor did she testify.

[199] The grievor pointed to the January 12, 2012, email as cancelling this training. Handwritten on the top of the document was, “CANCEL TRAINING”. She identified it as her handwriting and said that she wrote on it during the grievance process. Other handwriting was on the bottom of the document, but it was obscured and could not be read, and its author was not identified.

[200] Mr. Gaudet testified that he recalled having a discussion with the grievor about this training. His recollection was that she had been on a major capital project for a number of months (not reporting to him) and that at the end of it, she wanted to do it again and wanted to receive financial training. He said that he agreed but that shortly after that, the budget was slashed, and this developmental training was at a lower level than other training, so it was denied.

[201] The grievor identified a response to the January 12, 2012, email that she sent to Mr. Gaudet at 13:25 on that date, which stated as follows: “Hi Darren; That lack of training funds doesn’t affect the boating course Laurie is supposed to be booking me in right now, does it? I got missed last year.”

[202] The grievor identified the boating course referred to in the email as the Small Vessel Operating Proficiency course. She stated that others in the office had the proficiency but that she did not.

[203] With respect to the small vessel training, Mr. Gaudet testified that it was for employees who would operate vessels. He said that it had been a while since employees operated vessels. He said that he had concerns and that he had asked the CCG training centre to put on a refresher course. He said that the grievor was not included as she was on assignment and was not to operate a vessel.

[204] During her cross-examination on this topic, a number of different questions were put to the grievor about these interactions, and her answers indicated difficulty remembering. Those exchanges were as follows:

Q: Darren Gaudet will say you had positive interactions before 2012?

A: He could have had before 2012; I don’t know; I would have to look at my own documentation;

Q: In 2012 the first interaction with financial training was negative now you are saying you have to be polite; are you now saying you had negative relations before that?

A: I am saying I don’t honestly remember the time frame before that;

...

Q: With respect to expenses do you recall Darren Gaudet or Mr. Pike having to cut expenses by forty-six percent?

A: I don’t think they shared that with me; I can’t remember an explanation about it;

Q: With respect to Maximo training you said why you didn’t attend?

A: I wasn’t included;

Q: Do you recall an explanation?

A: I don’t recall; there is an email at home that Terra Roberts giving;

Q: Do you know what the training was for?

A: It was never explained to me;

Q: So you don’t know that you were above that level and didn’t need it?

A: Someone else sent me the email:

Q: Darren Gaudet didn’t explain it to you?

A: He might have; I don’t remember;

Q: You’re memory?

A: There was an email to everyone but me from Terra Roberts; I didn’t see it or get it;

Q: With respect to mid-management meeting in Nova Scotia, Halifax or Dartmouth, you said denied, do you recall management saying you could take leave and they would pay for time but not your expenses?

A: I could’ve taken vacation but they wouldn’t pay expenses;

Q: Do you recall that it was not work related? Do you recall that being explained?

A: The main thing I recall reading was him saying he didn’t approve me serving coffee;

Q: You say they needed your technical knowledge; was training required for your duties?

A: No; lots of other employees were allowed to participate;

Q: So lots of colleagues went that day?

A: Not to that particular one; [name redacted] got to go and take his wife and got a company truck for dangerous goods training;

Q: Were you doing that work?

A: I was only doing Occupational Health and Safety at that time in shop;

Q: Management saying as you are in Maximo, this is for substantive?

A: That was in October 2013, Maximo was ending told September 2013;

Q: You were in Maximo until when?

A: September 2013:

Q: You continued in Maximo only to September of 2013?

A: It was 2013;

Q: It didn’t continue?

A: I had a management position one month in September of 2013;

Q: Management told you in September of 2013 that Maximo would end in December of 2013, and it ended in March of 2014; are you saying this isn’t true?

A: Official word was it was to end in September of 2013;

Q: What did you do September of 2013 to March of 2014?

A: I did inventory and maintenance work; ordered buoy lights; I got injured in the shop; I did that until the doctor put me off;

Q: You said last time you were doing light duties while doing Maximo?

A: I was always told Maximo would be ending 2011-2012-2013 always orally never put in writing until the WCB documents;

Q: The manager will say that you were in the position until March of 2014 doing Maximo duties; you are saying that is not true?

A: I was doing buoy maintenance; when I came back in January (2014) I was doing Maximo duties and other things.

…

[Sic throughout]

 

[205] At this juncture in the cross-examination, the morning break was taken, and it was extended as the grievor was reviewing documents. When the hearing reconvened, counsel for the CCG returned to questioning about when the assignment to the Maximo project was to end. The grievor responded by referring to what Mr. Birt told the WCB, which was set out in the Sept. 5 WCB memo from the WCB’s file, the details of which have been set out earlier in this decision.

[206] Upon producing the Sept. 5 WCB memo at the hearing, the grievor was asked when she saw it for the first time, to which she said as follows: “I honestly can’t remember.” When asked if it was before September of 2014 or before 2014, she said that she could not remember and that “there are thousands of documents.” When she was asked if she would agree that she continued on the Maximo project until March of 2014, she stated as follows: “No, I was acting foreman.” And when asked about after that, she replied that she was the acting foreman until the end of September. When asked about after that, she said that she worked on buoy lights until she left. She was asked what she did in January of 2014, to which she said the following: “was not given any duties after January 2014, I was assaulted”.

Dangerous Goods Transport

 

[207] Entered into evidence was an email from a DFO training clerk to the grievor dated October 17, 2013, which stated as follows: “Yourself, Carl Myers and Mark Seaman require Transportation Dangerous Goods according to my recurring training plan and JVI is offering a course on Monday Oct. 21^st, would this date be possible for you and the others?”

[208] The grievor said that this email was forwarded to her as the previous month, she had been the acting foreman. She said that she passed it on to Mr. Seaman, who was then the acting foreman. When she was asked if she attended the training, she said that she did not. When she was asked if Messrs. Seaman and Myers attended it, she said that she believed so. When she was asked if she had been under a workplace accommodation at the time, she said that she had not been. She also stated that this training was required for her job. When asked if the training was one-time or annual, she stated that she thought it was carried out every year or two. When asked if she had taken the training before, she said that she had, several years before then. When asked if Mr. Seaman responded about the email, she said not that she recalled.

[209] Mr. Gaudet testified that the CCG implemented this training through an outside organization in Summerside, PEI, and received a group rate for 15 people. He said that 15 people had already signed up. He added that since the grievor was on the Maximo project and it was not part of her day-to-day duties, and since the maximum number had signed up, she did not take the training then. He stated that he told her that since she was not doing it at that time, she would receive the training when she returned to her substantive position. He said that he did not recall any objection from her at the time.

[210] Mr. Gaudet stated that the assignment to the Maximo project ended on March 31, 2014. However, at that time, the grievor was medically unfit to carry out the duties of her substantive position.

Health and Safety Conference

 

[211] Entered into evidence was an email chain with respect to a health and safety conference scheduled for November 1 to 3, 2013. The initial email was sent from an administrative assistant at the Alliance’s Charlottetown office on July 23, 2013, at 08:28, to a number of people, including the grievor. It stated as follows:

…

Subject: 2013 H&S Conference

Please see attached information regarding the 2013 H&S Conference which is scheduled for November 1-3, 2013.

DEADLINE FOR APPLICATIONS is September 27, 2013

…

 

[212] On July 29, 2013, at 13:48, Carl Myers emailed a number of people, including the grievor. He copied Local 60905 and forwarded the earlier July 23, 2013, at 08:28, email. He stated as follows:

…

Subject: FW: 2013 H&S Conference

Do any of you wish to attend?

I am especially thinking of you Yvonne as you represent our local on the OSH committee.

Please let me know.

…

 

[213] Carl Myers specific position was not made clear to me.

[214] On August 19, 2013, at 08:04, the grievor emailed Mr. Birt and copied Mr. Gaudet, stating as follows:

…

Subject: FW: 2013 H&S Conference

Hi Rick: I’ve submitted my name for this conference, but this year they are stressing the importance of employer contribution also (see attached English letter). As usual I’m using my own time and money for incidentals, but only one night’s hotel expense is being covered and no coverage for the Friday afternoon I have to book of [sic] from work. Therefore, I’m requesting some financial assistance from the employer to cover one night’s hotel expense and 4 hours of paid time off to travel to this health and safety training.

…

 

[215] On August 29, 2013, at 12:06, Mr. Gaudet emailed the grievor and copied Mr. Birt, stating as follows:

…

Subject: FW: 2013 H&S Conference

Hi Yvonne

I certainly applaud your desire to further your knowledge in that domain, however, it is considered to be above and beyond the training required to effectively perform the duties of that volunteer position.

I’m sorry but I cannot approve the request to cover the additional costs not covered by the union. I support Rick granting you annual leave so that you can attend.

…

 

Middle Manager’s Forum

 

[216] In her examination-in-chief, the grievor was asked about a middle-manager’s event in October of 2013. She answered that she belonged to the “Connect Group”. What this group was, did, or stood for was not explained.

[217] She testified that a person who was organizing the event asked for technical expertise to set up phones and projectors. She said that she emailed the person to see what was needed, to volunteer, but that she could not obtain leave to attend. Her counsel asked her if she was to serve coffee; she replied in the negative. She was shown an email chain from between October 18 and 21, 2013. The first email was a mass one sent to over 100 people about a “Middle Manager’s Forum” scheduled for October 28, 2013, and seeking volunteers. The grievor responded that same day, asking what sort of technical help was needed. She received a response later in the day and responded again, stating that she would see if she could get the time off. She emailed Mr. Seaman as follows: “I’m a member of the connect group and this is an event I can help with. I’ve used up all of my volunteer and personal time for safety related events and I need my vacation time for another issue; is there any time I can be granted for this event?”

[218] Mr. Seaman forwarded her request to Mr. Gaudet and advised the grievor that he did not have authority to grant her any leave other than what was in her PeopleSoft account. Mr. Gaudet responded to her request on October 21, 2013, stating as follows:

I spoke with Rhea’s office and they said there was no travel for this event. Local managers are attending in person and if there are managers in area offices outside of HRM who wish to attend, they must do so “virtually”. Volunteers are the same.

Normally I could support you being away from the workplace to volunteer for a DFO event like this without you having to take leave. Where you are not located in the area the event is taking place, I would have to authorize you being on travel status. Even if I had money in the budget to support this, the rules for the MMF do not permit travel costs to be incurred to support or attend the event.

I asked if anyone was going to be attending locally (Ch’town [sic]) to see if you could offer your assistance locally and they said no (Gulf Region).

They asked me to thank you for offering to assist, but they could not allow travel for this event.

None are scheduled for PEI in the foreseeable future – that they know of.

Not the best of news.

Sorry.

…

 

[219] In cross-examination, it was put to the grievor that she was allowed to take vacation to attend the event; however, the employer would not pay her travel expenses. She agreed. When it was then put to her that the event was not related to her work, which was explained to her, she said the following: “the main thing I recall reading was him saying he didn’t approve me serving coffee.”

[220] The reference to the grievor serving coffee was on the second page of the May 15 letter, under a summary section for October of 2013 and the subheading “Middle Manager’s Forum”; it states as follows:

…

Yvonne requested time off to volunteer at a DFO Middle Manager’s Forum in Dartmouth. She wanted to volunteer to serve coffee.

She had no personal leave and no volunteer leave left and preferred not taking vacation leave because she already had plans for that leave.

I checked to see if she actually needed to take time off to volunteer for a DFO function. I thought I could just approve her participation without requiring time to be taken off.

The Regional Director General’s office informed me they were not permitting any travel cost to be incurred related to the Middle Management Forum, and the only way Yvonne could travel to Dartmouth without taking leave is if she was on travel status . . . thereby incurring travel costs.

…

 

[221] There is no evidence that the grievor filed any grievances about these training issues at or about the time they occurred.

III. Summary of the arguments

[222] Both the grievor and employer provided extensive written submissions.

A. For the grievor

[223] The grievor submitted that there are these seven distinct allegations:

a) in communications with the WCB, the employer stressed irrelevant and prejudicial information, undermining her claim for benefits;

b) the refusal to grant her appropriate sick leave advances was a failure to accommodate her disability;

c) the employer improperly and prematurely forced her to attend the HC FTWE on the basis of the discriminatory and unfounded perception that her disability permanently prevented her from performing in her substantive position;

d) the interactions between the employer and HC before the FTWE revealed the employer’s discriminatory perception and intentions with respect to that evaluation;

e) the refusal to provide her with the training she requested is another example of the employer demonstrating that it did not think that she was capable of performing in her substantive position;

f) the employer’s failure to provide a timely ergonomic assessment of her workstation further demonstrated its failure to accommodate her disability; and

g) the grievor was discriminated against for her role in the union.

 

[224] The grievor referred me to Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (“Elk Valley”), Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT), Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, Nicol v. Treasury Board (Service Canada), 2014 PSLREB 3, Lloyd v. Canada Revenue Agency, 2009 PSLRB 15, Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35, Reynolds v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 47, Canada Post Corp. v. Canadian Union of Postal Workers, [2010] C.L.A.D. No. 222 (QL), Grover v. National Research Council of Canada, 2005 PSLRB 150, and McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4 (“McGill University Health Centre”).

[225] As remedy, the grievor requested this:

· a declaration that the employer breached the IODL provision of the collective agreement;

· damages for the employer’s violation of the IODL provision of the collective agreement;

· that she be made whole for any sick or vacation days that she had to use before the WCB issued its decision, if they have not already been credited to her; and

· compensation under the CHRA.

B. For the employer

[226] The employer submitted that the grievance should be dismissed.

[227] In addition to Elk Valley and McGill University Health Centre, the employer referred me to Burchill v. Canada (Attorney General), [1981] 1 F.C. 109 (C.A.), Diks v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 3, Kagimbi v. Deputy Head (Correctional Service of Canada), 2013 PSLRB 19 (upheld in 2015 FCA 74), Hurley v. Treasury Board (Department of National Defence), 2018 FPSLREB 35, Duval v. Treasury Board (Correctional Service of Canada), 2018 FPSLREB 52, Emard v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 66, Nadeau v. Deputy Head (Correctional Service of Canada), 2014 PSLRB 82, Legros v. Treasury Board (Canada Border Services Agency), 2017 FPSLREB 32, Holmes v. Deputy Head (Office of the Director of Public Prosecutions), 2019 FPSLREB 67, Taticek v. Treasury Board (Canada Border Services Agency), 2015 PSLREB 12, Guraluk v. Treasury Board (Department of Human Resources and Skills Development), 2018 FPSLREB 42, Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SFCP-FTQ), 2008 SCC 43, Leclair v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 97, Layne v. Deputy Head (Department of Justice), 2017 PSLREB 10, Morrow v. Treasury Board (Department of Natural Resources), 2017 FPSLREB 8.

IV. Reasons

A. Credibility

[228] The test for credibility is set out in Faryna v. Chorny, [1952] 2 D.L.R. 354, in which the British Columbia Court of Appeal stated 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 witnesses, 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.…

…

 

[229] Much of the evidence in this case is documentary.

[230] At the outset of the grievor’s testimony, I learned that she suffered a head injury in a motor vehicle accident at an unspecified date in 2015. I was told that she suffered from post-concussive symptoms that affected her memory and her ability to focus, which was clear in her testimony. I did not have the benefit of seeing or hearing medical evidence with respect to the injury and how it affected her cognitive abilities. Much of the grievor’s oral evidence was not consistent with either the testimonies of other witnesses or the documents created at the time the events occurred. In addition, she often spoke of what she believed and made assumptions as to what other people believed or were thinking, and their motives. In short, much of what she said did not meet the test articulated in Faryna.

[231] During the course of her testimony, it was not uncommon for her to answer questions by stating that she did not recall or that she would have to look at documentation that she had at home. The grievor’s examination-in-chief proceeded over three days in September of 2018, and her cross-examination did not take place until September of 2019. Yet, despite her testimony being carried out over the course of those four days, documents that allegedly existed and were not present at the hearing did not surface. Indeed, in her very last exchange with counsel for the employer with respect to the issue of her attempt to discuss the January 8 incident with co-workers, when she was asked why she did not find someone else to do it, she said that Mr. Fagen told her to do it and that she had an email to this effect, but she did not have it at the hearing.

[232] It also appeared that the grievor was not always forthright with the employer with respect to her health and ongoing medical condition. She had requested and received a copy of her WCB file, in which there were documents that the employer would not have been privy to. Some of them were entered into evidence at the hearing, either through her testimony or when her counsel cross-examined employer witnesses on information in them; for example, the memos created by the WCB employees. There were documents entered into evidence that referenced medical reports or notes that were neither produced before me nor, it would appear, provided to the employer at the relevant times.

[233] While I have no doubt that the grievor suffered from physical injuries both in July and October of 2013, the evidence before me after the fact clearly disclosed that it was likely that they were far more extensive than she let on to her supervisors and that they exacerbated a pre-existing condition. Before me, she downplayed the July 2013 injury, stating that she suffered no restrictions or loss of work but that she took some medication and went to physiotherapy. Yet, it appears from the Sept. 5 WCB memo (in her WCB file) that Dr. Jewers might have provided more detailed medical information to the WCB as far back as the summer of 2013 (as this is referred to), but nothing was produced at the hearing. A comment in the Sept. 5 WCB memo also mentions the grievor being referred to a specialist the previous year (presumably 2012) and to having seen one but more importantly that her family doctor, Dr. Jewers, allegedly recommended her moving out of fieldwork. This is inconsistent with the grievor’s testimony that she suffered no restrictions. It also suggests an ongoing problem that appeared to have been exacerbated.

[234] In this same vein, the May 7 note (also from Dr. Jewers) said that the date of her injury, illness, or disability, without identifying it, was in February of 2010. This suggests that there were problems dating back some time that pre-existed the 2013 injuries and that again might have exacerbated by them.

[235] The grievor’s evidence with respect to her WCB claim that was advanced by way of the March 7 Form 6 was also troubling. In it, she alleged that she suffered an illness or disability that arose from the January 8 incident. She referred to it as “Recovery impairment due to workplace stress.” I have no doubt that an incident occurred in which she and Mr. Seaman had a short and heated exchange with raised voices, which in and of itself was likely stressful.

[236] However, it would appear from her evidence that except for a brief period in which she and Mr. Seaman separated themselves, she returned to work and appeared to continue to work without any difficulties and without receiving any professional treatment. Only some four weeks later, on February 4, 2014, when she received Mr. Gaudet’s letter of counsel, she left the office, went to a clinic, obtained a note from a doctor other than her regular one, and then went on extended sick leave for a month. The note she produced dated February 5 provided no insight as to the reason for her absence from work. While she produced a second note on February 13, 2014, from Dr. Jewers, it was equally vague, again simply stating that she should stay off work. It also said that actually, the doctor had not seen her. However, these notes produced to the employer appear different from what was disclosed in the Nov. 6 WCB decision (which denied the claim with respect to the January 8 incident). That decision referred to her talking to the WCB and sending a report (not produced to the hearing) and to her seeing a doctor on February 5 (Dr. Champion), from which the decision indicates that a report was produced and that she was being bullied at work. That decision also references a report from Dr. Jewers and the grievor being taken off the drug nortriptyline. Clearly, there is much more to all of this, and it was well within the grievor’s control to produce, which she did not do.

[237] The only medical professional note that states anything of significance is the March 17 note, which does not mention the January 8 incident or stress or its relation to either the July 2013 injury or the Oct. 24 injury. The inconsistencies and gaps in the evidence were all within the grievor’s control to address at the hearing, and she could have produced evidence to close the gaps. She chose not to. This brings into question the information she provided to the WCB and to her treating medical professionals and what they might have said to her and to the WCB.

B. The merits of the grievance

[238] For the reasons that follow, the grievance is dismissed.

[239] The grievor alleged that she was discriminated against by the employer based on her age, gender, disability, and union affiliation. The Board stated in Diks that the test in workplace discrimination cases is as follows:

…

76 In order to demonstrate that an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination. A prima facie case is one that covers the allegations made and which, if the allegations are believed, would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the respondent (Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 28 (“O’Malley”)).

77 An employer faced with a prima facie case can avoid an adverse finding by calling evidence to provide a reasonable explanation that shows its actions were in fact not discriminatory; or, by establishing a statutory defence that justifies the discrimination (A.B. v. Eazy Express Inc., 2014 CHRT 35 at para. 13).

…

 

[240] As set out in Elk Valley, to make a case of prima facie discrimination, complainants (or grievors) are required to show that they have a characteristic protected from discrimination, that they experienced an adverse impact of some type, and that the protected characteristic was a factor in the adverse impact. Discriminatory intent is not required to demonstrate prima facie discrimination. At paragraph 45, the Supreme Court of Canada rejected a suggestion that a fourth element be added requiring a finding of stereotypical or arbitrary decision making, stating this:

[45] … The goal of protecting people from arbitrary or stereotypical treatment or treatment that creates disadvantage by perpetuating prejudice is accomplished by ensuring that there is a link or connection between the protected ground and adverse treatment. The existence of arbitrariness or stereotyping is not a stand-alone requirement for proving prima facie discrimination. Requiring otherwise would improperly focus on “whether a discriminatory attitude exists, not a discriminatory impact”, the focus of the discrimination inquiry ….

 

[241] The grievance itself is vague. It does not set out any specifics of the alleged discrimination or a date upon which it took place. It merely states that the grievor was harassed and discriminated against, which caused her undue stress and illness and caused her to suffer a negative impact to her personal and professional reputation. I heard no evidence about either her personal or professional reputation or about how the employer’s actions caused a negative impact on them.

[242] In argument, the grievor set out seven allegations ,which she claims altogether amount to discrimination. Those are as follows:

1) In communications with the WCB, the employer stressed irrelevant and prejudicial information, undermining her claim for benefits.

2) The refusal to grant her appropriate sick leave advances was a failure to accommodate her disability.

3) The employer improperly and prematurely forced her to attend the HC FTWE on the basis of the discriminatory and unfounded perception that her disability permanently prevented her from performing in her substantive position.

4) The interactions between the employer and HC before the FTWE revealed the employer’s discriminatory perception and intentions with respect to that evaluation.

5) The refusal to provide the grievor with the training she had requested demonstrated that the employer did not think that she was capable of performing in her substantive position.

6) The employer’s failure to provide a timely ergonomic assessment of her workstation demonstrated its failure to accommodate her disability.

7) The grievor was discriminated against for her role in the union.

 

[243] A review of these allegations indicates that the main focus of the grievance stems from an injury (or injuries), illness, or both injuries and illness, which amounted to a disability, and the employer’s handling, or in the grievor’s opinion mishandling, of its obligations to her with respect to them. I will each address each allegation separately; however, first I shall summarize the grievor’s health issues, missed work, and leave use.

1. The grievor’s illness, injury, and disability and leave between October 1, 2013, and November 30, 2014

[244] The grievor suffered workplace injuries in July and October of 2013. There is some tangential evidence that she had suffered some injuries earlier, in March of 2010 and October of 2012, and as such, it is possible that they might have had some bearing on her issues. In the May 7 note, Dr. Jewers refers to the date of the grievor’s injury, illness, or disability as starting in February of 2010. However, other than that statement, there is no evidence about it exactly or of its impact.

[245] In the July 2013 injury, the grievor suffered an injury to her back; however, there was no medical information provided about the extent of it. Her testimony was that she lost no time at work but that she took medication and undertook physiotherapy. I was not provided with any indication of the course of physiotherapy or the medication that was prescribed and taken. The grievor’s evidence in this respect was very vague. However, entered into evidence during her cross-examination was the Sept. 5 WCB memo, which was extracted from a copy of the WCB’s file after a question had been put to her and the hearing had adjourned for her to review documents in her possession.

[246] The Sept. 5 WCB memo referred to a medical note on file from Dr. Jewers, dated August 20 (presumably of 2013), which allegedly recommended “desk work (out of field work for now)”. When she was asked when she first saw the memo, the grievor said that she could not remember. There was no evidence that the note or any other note from Dr. Jewers, or from any doctor for that matter, was provided to the employer about the July 2013 injury between the date of the injury and the grievor going on extended sick leave on November 22, 2013. It also refers to a specialist being seen the previous year; this would suggest that something happened in 2012. Again, there was no information provided in evidence.

[247] As for the Oct. 24 injury, the grievor testified that she injured herself lowering a lantern to the floor and described it as a sore neck, shoulder, and back. As for the July 2013 injury, very little information and documentation was provided at the hearing. A hazardous occurrence report (the Oct. 25 HRSDC report) was completed, but it provided no more detail than what was just described. After the Oct. 24 injury, it appears that she took one hour of sick leave with pay on that day, one hour of sick leave with pay on October 29, one hour each of family related leave with pay and sick leave with pay on October 30, and eight hours of sick leave without pay on October 31. The evidence was not specific as to the sick leave being related to that injury.

[248] Attached to the Oct. 25 HRSDC report was a “post-it” note written by the grievor, in which she said that she would wait before involving the WCB and that she would take stronger medication. However, there was no indication of the medication she was on or if she had seen her doctor (or any doctor for that matter) for the injury. The only semblance of medical information on the Oct. 24 injury, and perhaps the July 2013 injury, is the March 17 note from Dr. Jewers. I say “perhaps”, because of this:

· chronologically, it is the first note from a medical professional provided to the employer with any information on the grievor’s injuries or problems and is dated eight months after the July 2013 injury and almost five months after the Oct. 24 injury;

· it states that he saw the grievor for neck and shoulder injuries (not back injuries);

· it states that the grievor “… has multilevel … cervical myelopathy secondary to cervical spondylosis”;

· it states that another doctor, a physiatrist, ordered an MRI of her cervical spine;

· it does not set out the physical limitations with respect to the grievor’s work;

· it does not set out to what, if any, extent the Oct. 24 injury exacerbated the July 2013 injury;

· it does not set out to what, if any, extent the July 2013 injury or the Oct. 24 injury exacerbated the earlier (March 2010 and October of 2012) noted injuries; and

· it does not set out to what, if any, extent the July 2013 injury or the Oct. 24 injury exacerbated any other pre-existing condition.

 

[249] The grievor did not lead any evidence to explain what her actual medical issues were, however, “myelopathy” is defined by the John Hopkin’s medical website (hopkinsmedicine.org) as an injury to the spinal cord due to severe compression that may result from trauma, congenital stenosis, degenerative disease, or disc herniation. The Mayo Clinic’s website (mayoclinic.org) defines “cervical spondylosis” as a general term for age-related wear and tear affecting the spinal discs in the neck.

[250] The evidence disclosed that starting November 22, 2013, the grievor was off work until January 2, 2014, due to difficulties that she testified related to her injuries. The evidence also disclosed that she had exhausted all her sick-leave-with-pay credits by December 17, 2013, and that part of this time off was covered by using vacation leave. She was at work largely for the entire month of January of 2014, with only 1 full day off that month. She worked full days on February 3 and 4. After she received her letter of counsel, she was off from that day until March 5, 2014. She was at work in March and April, albeit off work for a total of 15 days during those months. In May of 2014, she was at work 2 full days, off work 16 full days, and off work partially 3 other days.

[251] In June and July of 2014, the grievor was largely at work, until the end of July, when she was off from July 18 to 28. In August, she was at work for the first few working days of the month, until she went on leave on August 7, which she remained on throughout August, September, October, and November of 2014.

[252] The May 7 note from Dr. Jewers can be read to mean that the grievor was not able to work at all, as the portion of the note that asks for a date on which she would be able to work, with limitations or restrictions, was left blank. His Sept. 9 note indicates that she had been off work since August 7, 2014, and that her return-to-work date would depend on her therapy. The Sept. 18 FTWE states that she is unfit to carry out her substantive position, including any alternative work while she undergoes treatment and rehabilitation. There was no evidence with respect to the treatment and rehabilitation, or therapy, or how long it would take.

[253] On March 7, 2014, the grievor filed another WCB claim (the March 7 form 6), stating that an injury, accident, or occupational disease occurred on January 8, 2014, alluding to the interpersonal conflict that occurred that day between her and Mr. Seaman. However, the evidence did not disclose a physical altercation or injury of any type. In the section of the March 7 form 6 that asked for a description of what happened, the grievor wrote, “Recovery Impairment due to workplace stress.” Where it asked if she sought medical treatment, and if so, where and when, she stated that she saw Dr. Champion on February 5, 2014. Dr. Champion does not appear to be her family doctor and did not testify, and there is no documentary evidence from him that could shed light on the grievor’s injury, illness, or disability.

[254] The March 17 note makes no mention of the January 8 incident; nor is there any reference to stress or recovery impairment due to it. There is no evidence from any healthcare professional of any link between the January 8 incident and the grievor’s multilevel cervical myelopathy that is secondary to cervical spondylosis, as described by Dr. Jewers in the March 17 note.

[255] The April 22 note, made by Ms. Elia, a nurse practitioner, did not set out the grievor’s injury, illness, or disability. Ms. Elia did not testify, and no information was provided with respect to her qualifications. The note set out 8 limitations and 12 restrictions in a very limited manner, without stating with sufficient detail how they related to the grievor’s job functions. They did not indicate what she could or could not do in her substantive position or in a modified position. For example, as set out earlier (para. 115), the April 22 note identified sitting and walking, simply as a limitation; it did not say anything more about how long she could sit or how far she could walk; it also identified lifting and carrying as restrictions but did not say if the restriction was for a certain weight, or distance, or what particular manner she could lift. These are things that are critical in assessing work functions and possible accommodations for an employee.

[256] The second page of the May 7 note appears to be an exact photocopy of the first page of the April 22 note as the handwriting and check marks are identical. This note set out the same 8 limitations and 12 restrictions, again in a very limited manner, without stating what they were, as in the April 22 note. Again, they did not indicate what the grievor could or could not do in her substantive position or in a modified position.

[257] The only other medical note from a healthcare professional that provides any insight into the grievor’s injury or disability is the Sept. 18 FTWE of Dr. MacDonald, which does not actually speak about her injury or disability but states, “Ms. McNeil is currently unfit for her substantive position, including any alternative work while she is undergoing treatment and rehabilitation.”

[258] No other medical records were entered into evidence, and no healthcare professional testified. The neurosurgical opinion referred to in the March 17 note was not produced into evidence; nor was any information about what it revealed.

[259] I have no doubt that the grievor was disabled, and, that this disability related to problems she was having with her shoulder, neck and back, likely sustained by injuries at work and potentially due to a chronic condition. The exact nature and extent that the disability is not clear, as very limited medical evidence was provided. As will be set out in more detail below, this lack of information provided little assistance in determining what effect the disability had on the grievor’s ability to carry out the duties of her substantive position; the Maximo project; or, the administrative and clerical position she temporarily moved into in June of 2014.

2. The allegations of discrimination

a. In communications with the WCB, the employer stressed irrelevant and prejudicial information, undermining the grievor’s claim for benefits

 

[260] The grievor made three WCB claims. The information about the reporting of the first two injuries was far from clear, as it was for their exact nature and extent, their treatment, and the limitations they caused her with respect to her work.

[261] The very limited information about the reporting of the July 2013 injury to the WCB came out of the Sept. 5 WCB memo, which was written by a WCB entitlement officer, who did not testify. The memo contains alleged information from the grievor’s supervisor at the time, Mr. Birt, who also did not testify, and it refers to a medical note, which was not produced, from her family doctor, who did not testify. The Sept. 5 WCB memo seems to indicate that the July 2013 injury was worse than the grievor led those at the hearing to believe and that there were limitations to what she could do. It is unfortunate that if this was the case, the information was not provided to the hearing; nor did it appear to have been provided to the employer.

[262] It is also clear that initially, the grievor did not believe that the Oct. 24 injury was very serious, as preliminary communications between her and her supervisor disclose that she would wait before involving the WCB. The evidence of this is her handwritten post-it note to him attached to the Oct. 25 HRSDC report that states as follows: “Mark: Am going to wait until the weekend (I can take stronger medication) to see if will settle down before I involve WCB. If you don’t agree, come see me. Y”.

[263] According to the grievor’s testimony, she did not take any significant time off work until she went on sick leave for an extended period from November 22, 2013, until January 2, 2014. Until she left work, she appeared to have provided little information to her supervisors about her health or the effects of the injuries on her ability to carry out the duties associated with the Maximo project or her substantive position.

[264] It appears that eventually, the WCB was notified, but the evidence as to the reason for the delay was not clear. The grievor, in her evidence, pointed a finger at the employer. However, there does not appear to be any indication of when she reported it to the WCB or that she told the employer that she had done so. It appears that either a lack of communication, or miscommunication, between her and the employer was the problem. Despite that the actual Form 6 and Form 7 filed were never produced at the hearing, both would have been completed and filed, since the grievor was eventually covered for the injury, and as the evidence disclosed that the WCB approved her claim for benefits related to it in a letter to her dated September 9, 2014.

[265] There is very little evidence about the information the employer provided to the WCB on the July 2013 injury and the Oct. 24 injury. The WCB’s September 9, 2014, letter stated that the grievor’s claim for benefits that arose from the Oct. 24 injury had been accepted in terms of IODL benefits. This letter, as reproduced earlier in this decision, does not explain why it took so long to approve the claim. There is no suggestion in it that actions taken by the employer, or anyone acting on its behalf, caused the approval to take as long as it did.

[266] The evidence also did not disclose that the grievor was entitled to any benefits with respect to the July 2013 injury; nor was there any evidence to explain why.

[267] In early March of 2014, the grievor filed a third claim with the WCB, which it dealt with separately (from the other claims). In it, she claimed that she suffered a work-related injury that arose from the January 8 incident. She stated that it was a relapse of the July 2013 injury and that it was “Recovery impairment due to workplace stress.”

[268] On January 8, the interpersonal conflict between the grievor and Mr. Seaman took place. Mr. Gaudet’s only involvement was that he saw both the grievor and Mr. Seaman that day, after the incident. The evidence disclosed that the grievor did not take any significant time away from work after the January 8 incident until she left the office on February 4, 2014. Indeed, her leave records disclose that she was off for only an hour on January 8 and that her next missed work was an hour on January 14. However, February 4, 2014, was the date she was given her letter of counsel by Mr. Gaudet. There is no evidence that any accident or injury occurred on that day. The only thing that appears to have happened was that Mr. Gaudet gave her the letter of counsel. The grievor remained off work from that date until March 4, 2014. There was no evidence from any healthcare professional that linked any injury, illness, or impairment of recovery from earlier injuries to the January 8 incident.

[269] In conversations in late April and early May of 2014, Ms. Batchilder of the WCB discussed with Mr. Gaudet and Ms. Proulx the grievor’s claim related to the January 8 incident. In the Apr. 30 WCB memo, Ms. Batchilder said the following: “I contacted Jacqueline Proulx … on April 29, 2014 to gather some information regarding Yvonne’s claim of harassment.” In the May 2 WCB memo, she indicated that she had spoken to Mr. Gaudet, and he confirmed in his evidence that they had spoken. The May 2 WCB memo indicated and Mr. Gaudet testified that Ms. Batchilder related to Mr. Gaudet that the grievor was providing emails and correspondence with respect to issues she was having at work and that Ms. Batchilder was not sure that she had everything. She asked the employer to provide information and stated the following: “I told Darren that I wasn’t sure if [the grievor] had provided all the information or just some of it. I wanted to gather information from the employer to help determine if I have all the necessary information to make a decision regarding Yvonne’s claim for stress.”

[270] Mr. Gaudet and Ms. Proulx testified that in the telephone conversations, Ms. Batchilder indicated to them that the grievor claimed that Mr. Gaudet was harassing her and was the cause of her stress. Both Mr. Gaudet and Ms. Proulx stated that they asked Ms. Batchilder for more details so that they could provide her with specific information. However, not only did Ms. Batchilder decline, but also, she stated that the claim would be determined without the information; the information was that the WCB suggested that Mr. Gaudet was the cause of the injury. As such, Mr. Gaudet and Ms. Proulx determined that they would send Ms. Batchilder copies of everything they thought was relevant that was related to what they knew of the January 8 incident and the alleged harassment. The result was the May 15 letter with attachments that at its outset states as follows:

… As you can appreciate, it is difficult to formulate a response given the fact the department is not privy to the information provided by the employee, however, I have provided a detailed summary of events highlighting any involvement with Ms. McNeil since September as per your request.

 

[271] In her submissions, the grievor pointed to what she believes are misstatements and irrelevant facts intended to mislead the WCB.

[272] It is difficult to fault the employer for providing the May 15 letter. The evidence before me in the Apr. 30, May 2, and May 13 WCB memos, and the oral testimonies of both Mr. Gaudet and Ms. Proulx, disclosed that it would appear that the grievor suggested to the WCB that the basis of her claim for stress, as set out in the March 7 Form 6, were the actions of Mr. Gaudet. Yet, the March 7 Form 6 states that it was the January 8 incident, which was her interaction with Mr. Seaman. It is clear that the employer was not privy to the information that she had provided to the WCB, save and except what was in the March 7 Form 6 and what little information Ms. Batchilder provided it via their telephone conversations. This is further evidenced by the comment in the Nov. 6 WCB decision, where it refers to information provided to it by the grievor and alludes to medical information and possibly reports from Dr. Jewers and Dr. Champion. If they exist, she did not produce them at the hearing. There is no evidence that any of this was ever produced to the employer at the time it was required to provide information to the WCB in May of 2014.

[273] All this being said, there is no evidence that would suggest that the information that the employer provided in the May 15 letter, together with the attachments, was either irrelevant or prejudicial or that it undermined the grievor’s claim for benefits. In addition, there is no evidence that would suggest that the employer provided other information that was either irrelevant or prejudicial or that undermined her claim for benefits.

[274] In denying the claim with respect to the January 8 incident, the WCB did not identify why it took eight months to make a determination; nor is there any suggestion that any action taken by the employer, or anyone acting on its behalf, caused it to take as long as it did. It does appear that the grievor’s doctor was sending documentation to the WCB; perhaps it was a cause? However, this is mere speculation.

[275] In her submissions, the grievor referred to the Apr. 30 WCB memo that she obtained from the WCB and her subsequent email chain (the May 9 and 22 email chain) with Ms. Proulx about some statements in it that caused her some concern and asked her for the source of that information. In her evidence before me, Ms. Proulx stated that she believed that there were inaccuracies in the summary. She stated that she did not speak to the WCB but that she believed that someone in LR at the employer’s headquarters dealt with it. She thought that it could have been Ms. Hannah.

[276] The grievor pointed to Mr. Gaudet’s reference to the “volunteering to serve coffee” reference and the issue involving the failure to fill out a form or correct form as evidence of his lack of respect for her. I have no doubt that their relationship eventually became strained. It became clear during the course of the evidence that the grievor did not appear to believe that they had a good relationship at any time. However, this did not appear to be his view, although I suspect that it changed once he heard that he was the source of her alleged stress claim. However fractured the relationship might have been, it does not equate to discrimination. There is no evidence that her disability was a factor in this strained relationship nor is there any evidence that anything set out in the materials provided to the WCB caused an adverse affect on the grievor or her claims.

[277] The grievance was filed and referred to adjudication under s. 209(1)(a) of the Act. The grievor alleged a breach of clause 19.01 of the collective agreement, the no-discrimination clause. It was incumbent upon her to establish this breach on a balance of probabilities. There is nothing in the evidence that establishes any link whatsoever between any actions or inactions by the employer and the delay in the approval of her WCB claims. As such, I find no breach of the collective agreement or the CHRA under this allegation.

[278] Therefore, the grievor failed to establish a prima facie case of discrimination as it relates to this allegation.

[279] The evidence has not established that the employer’s communications with the WCB were either irrelevant or prejudicial, or in any way undermined the grievor’s claim for benefits. There is no evidence that the grievor did not get the benefits to which she was entitled.

b. The refusal to grant the grievor appropriate sick leave advances was a failure to accommodate her disability

 

[280] Clause 36.04 of the collective agreement states as follows:

36.04 When an employee has insufficient or no credits to cover the granting of sick leave with pay under the provisions of clause 36.03, sick leave with pay may, at the discretion of the Employer, be granted to an employee for a period of up to two hundred (200) hours or, one hundred eighty-seven and one-half (187.5), where the standard work week is thirty-seven decimal five (37.5), hours per week subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

 

[281] Sick leave with pay was earned under clause 36.01 of the collective agreement based on the hours worked in any given month. In the case of the grievor, she earned 10 hours of sick leave with pay for every month in which she was paid for at least 80 hours of work. If she received pay in all 12 months of a year for at least 80 hours of work each month, over the course of that year, she earned 120 hours of sick-leave-with-pay credits, which equalled 15 full workdays. Sick leave accumulates from year to year (April 1 of one year through March 31 of the next); thus any unused time or credits remain in an employee’s sick-leave bank.

[282] Clause 36.04 allows the employer, at its discretion, to advance sick leave if an employee has none. It is not a gift; it has to be paid back. For someone like the grievor, who had an 8-hour workday, 200 hours is the equivalent of 25 days.

[283] The documentary evidence and testimony of Mr. Gaudet indicated that he was concerned about the grievor’s lack of sick leave as early as mid-December of 2013, as he wrote a note to himself about it on December 17, stating as follows:

I’m concerned that Yvonne is missing a lot of time. I’m not concerned with Leave abuse – I’ve seen her in the office and have seen how much pain she’s in.

I’m concerned she’s going to get “pinched” with her leave and lost financially.

She ran out of S/L last Thursday. I advised her in writing ahead of time. With S/L drained she’s now on A/L [annual leave also known as vacation leave].

I called Sherry and she going to check with WCB.

I called [name redacted]. She has concerns that there is no paperwork in place to cover off Yvonne’s assignment with Maximo.

She’s going to go through the S/L to see if any can be reverted

…

[Sic throughout]

 

[284] Assuming that Mr. Gaudet is correct in the dates and leave calculation at that time, the grievor had run out of sick-leave credits as of Thursday, December 12, 2013, with 3.5 months to go in the fiscal year.

[285] In her testimony, the grievor stated that she had requested the full 200 hours under clause 36.04. This is not exactly accurate. The first mention of an advancement of sick leave is found in an email from Mr. Gaudet to her on February 11, 2014, at 11:38, in which he addressed her PeopleSoft request for “other paid leave”. In his evidence, he said that the purpose of the email was to address the grievor’s failure to identify the type of leave she was using. He told her that the leave type she indicated was not appropriate and set out her options, one of which was an advancement of sick leave. He told her that this option is used in exceptional circumstances but that he felt that the circumstances warranted its use. He also cautioned her of the risk in using an advancement and mentioned the possibility of her being put into a negative balance, which would require having to pay back sick-leave credits as they would be earned and applied until her balance returned to zero.

[286] On February 17, 2014, at 12:06, Mr. Gaudet emailed the grievor and said this:

…

Further to the email message I sent to you on Feb 11^th (see below), it is imperative that you advise what leave option you are looking to use. Without a response from you, the default on the books will be sick leave without pay because you are without sufficient leave to cover the time you are requesting away from the office.

Please advise as soon as possible.

…

 

[287] The grievor responded at 15:05 that same day, stating as follows: “[she] understood your email of February 11 to be indicating you were going to advance the leave as an exceptional circumstance; as WCB has agreed to reimburse the time.” Mr. Gaudet replied the next day at 09:44, stating as follows:

…

I offered as an option an advancement of paid sick leave for 7 days. Now we are looking at an advancement of 17 days. The risk to you as well as the risk to the Crown is greater. I was awaiting an answer from both emails below. That is to say a decision as to which option you wish to exercise. You have yet to clearly identify which option you wish to proceed with, and because of the consequences of choosing to request an advancement of sick leave with pay, I need to ensure that 1) you have all the necessary information and 2) you clearly indicate what type and duration of leave you are requesting.

Section 36.04 of the collective agreement says that sick leave with pay may be granted to an employee for a period of up to 200 hrs. (25 days). Subject to the deduction of such advanced leave from any sick leave credits subsequently earned.

This means that once a single period of advanced sick leave with pay is granted, no more sick leave with pay can be advanced until the initial advancement is “paid back” – i.e. until your sick leave balance is in the positive. Be aware, it is estimated that it will take you 14.5 months to bring 17 days of advanced sick leave back to a positive balance.

Should you request it, I would agree to the option of advancing 17 days of sick leave with pay because it is close to the amount of time potentially reimbursed by WCB. We are, however, still awaiting their decision.

…

 

[288] The grievor responded 36 minutes later by stating the following: “Yes, it is the 17 days of advanced sick leave I’m requesting, as wcb has indicated a letter is being prepared to be sent to Dartmouth this week, reimbursing the sick leave and vacation leave I’ve had to use.” When Mr. Gaudet was asked about the exchange, he said that she asked for 17 days and that he granted the 17 days.

[289] Also, on February 18, at 11:11, Ms. Hannah emailed Mr. Gaudet, stating as follows:

…

I just left you a message regarding Yvonne...she has been approved from Nov. 22-Jan. 1^st ....returned to work Jan. 2-Feb. 4^th – off again from Feb 5^th onwards.....according to WCB she is currently off on “WCB related” IOD and is requesting this new period to be approved under this claim as well......

If this is anticipated to be “long term” and this employee has no sick leave credits to cover her, you may want to consider placing her on direct benefits, depending on the diagnosis from her dctr [sic]?

For the interim, however, she will be receiving 26 days back in her sick leave bank as a result of the above approval. Formal letter from the board forthcoming.

…

 

[290] Ms. Hannah did not testify. Ms. Proulx was asked about this email. She said that she was not sure about what Ms. Hannah referred to. In cross-examination, Mr. Gaudet was brought to the February 11 and 17 to 18 email exchanges. It was put to him that he took into account the risks. He said that it would take a certain amount of time for the grievor to earn back the 17 days and that if they had to be earned again and paid back, she could not take any sick leave until that happened, unless the WCB approved her claim. He confirmed that he did see Ms. Hannah’s email of February 18, 2014, at 11:11, after he confirmed to the grievor that he would advance the 17 days. Asked if he revisited his earlier email, he said that he did not and that until the employer received a letter from the WCB confirming that the grievor would be reimbursed the time, he could not action it. When asked if he considered giving the grievor a larger advance, he said that he did not. He said that typically, what is needed is advanced, but that if the WCB does not approve a related claim, there is an even greater financial impact.

[291] On May 16, 2014, the grievor asked for a second advancement of sick leave. In her email, she refers to a WCB administrative delay with respect to the negative balance of 97 hours in her sick-leave bank. There is no explanation of what is meant by “administrative delay” or what the “97 hours” refers to. There is no evidence that suggests that there was any administrative delay from the WCB, and there is no evidence whatsoever that speaks to the delay assessing and either approving or denying the grievor’s WCB claims.

[292] As with the previous allegation, the grievor alleged a breach of clause 19.01 of the collective agreement. It was incumbent upon her to establish this breach on a balance of probabilities. Nothing in the evidence establishes any link whatsoever with the alleged failure to advance amounts of leave and discrimination of any kind, let alone based on her disability.

[293] The advancement of leave under clause 36.04 is discretionary. “Discretion” is defined in Webster’s New World Dictionary of the American Language, Second College Edition, as follows: “the freedom or authority to make decisions and choices; power to judge or act; . . . as one wishes”.

[294] The word “discretion” in clause 36.04 is not modified by the word “reasonable” or by the phrases “shall make every reasonable effort” or “shall not be unreasonably withheld”, all of which are used in other places in the collective agreement, particularly in the articles dealing with leave. Had the parties to the collective agreement wished to place conditions on the discretion given to the employer when advancing leave in clause 36.04, they could have done so; they did not.

[295] The evidence disclosed the reasons that the employer advanced the grievor the 17 days of sick leave with pay in February of 2014. While Mr. Gaudet was concerned about her not having any leave and having financial issues, he was mindful of the risk to both her and the employer were the WCB claim denied. This is evidenced by his email of December 17, 2013, as well as those between him and the grievor on February 17 and 18, 2014. It is also clear that some information had been circulated, albeit the exact nature of which was not provided, which suggested that the WCB might approve the grievor’s claim or claims. If it turned out to be accurate, it would have engaged the IODL provisions of the collective agreement, thus alleviating the grievor’s difficulties at having no leave. However, it did not come to fruition in this time frame, and only 1 WCB claim of the 3 pending was eventually approved, even then only some 7 months later.

[296] Clause 36.04 also refers to the granting of up to a maximum of 200 hours. The employer is not required to grant the maximum. There was a risk to both the employer and the grievor if the WCB did not approve her claims. By mid-May of 2014, when she made her second request for an advancement of sick leave, her WCB claim with respect to the July 2013 injury was close to 10 months old, her claim with respect to the Oct. 24 injury was about 5 months old, and her claim with respect to the January 8 incident was about 2 months old. Ms. Proulx testified that in her experience, the WCB dealt with claims much more quickly than it handled the grievor’s claims. It would not have been unreasonable for the employer to consider the risk involved in advancing further paid sick leave to the grievor in the face of the situation, given what it knew at the time. While the grievor might have perceived that all her claims would be approved, it did not happen, and in fact, the evidence presented at the hearing disclosed that only 1 of her 3 claims was accepted.

[297] The evidence disclosed that the employer granted the grievor time off when requested and advanced the grievor sick leave.

c. The employer improperly and prematurely forced the grievor to attend the HC FTWE on the basis of the discriminatory and unfounded perception that her disability permanently prevented her from performing in her substantive position

 

[298] As I set out at the outset of the reasons section of this decision, I have no doubt that the grievor was injured. However, the exact nature and extent of the injuries was vague. They appear to be some combination of problems with her neck, back, and shoulder. While she claimed that an injury arose from the January 8 incident, no physical injury was recorded, there was no evidence by any healthcare professional documenting an injury, and there was no evidence from a medical or mental-health professional that the interaction between the grievor and Mr. Seaman amounted to stress that had any bearing on the grievor’s neck, back, and shoulder injuries sustained in July and October of 2013 or her recovery from them.

[299] After the Oct. 24 injury, and before giving the employer the March 17 note, the grievor had been off work from November 22, 2013, until January 2, 2014, when she returned and remained at work and took the odd day off until February 4, 2014, at which time she left work until March 5, 2014. On March 19, 2014, Mr. Gaudet received the March 17 note, which stated that she had at that time a multilevel compressive cervical myelopathy secondary to cervical spondylosis. The note further referenced that she was awaiting a neurosurgical opinion before the doctor would clear her for any fieldwork or physical testing for fieldwork. It also said that the physiotherapy for her neck had been suspended. Dr. Jewers provided no indication of her abilities and capabilities or of what she could not do, except to state that she was able to do “desk work” at an ergonomically appropriate workstation. Neither fieldwork nor desk work was defined or explained in the note, and Dr. Jewers did not testify.

[300] By mid-March of 2014, in the span of approximately eight months, the grievor had done the following:

· filed 3 WCB claims;

· used all of her paid sick leave by December 17, 2013;

· been off or away from work approximately 54 of 92 working days;

· provided the employer with limited information with respect to her injury and potential recovery; and

· not provided the employer with any information with respect to her physical limitations.

 

[301] Despite returning to work in early March of 2014 and remaining at work through April, the grievor continued to miss work, and she missed the entire month of May, except for two full and three partial days worked that month. Shortly after she returned to work in June of 2014, on June 10, she was assigned to a clerical position while retaining her substantive pay and benefits. This assignment was initially for the balance of June and all of July but was extended in late July to continue to the end of August, although she left work either on August 6 or 7, 2014. The Sept. 9 note from Dr. Jewers said that she had been off work since August 7 and that her return-to-work date would depend on therapy but that it could be in three to four months’ time. At the time of filing her grievance, she had not returned to work, and the evidence before me showed that she remained off work at least through the end of November 2014.

[302] The following is clear from the limited information that the grievor provided to the employer, especially from the July 2013 injury until the March 17 note:

· she missed a substantial amount of work due to what appeared to be problems with her neck, shoulder, and back;

· she had used up all her sick-leave-with-pay credits; and

· she was not likely in any condition to be able to carry out the tasks related to her substantive position, which the evidence plainly disclosed was physically strenuous by requiring an ability to frequently lift and move heavy objects.

 

[303] The evidence provided to the employer, at the relevant times and at the hearing well after the fact, did not indicate specifically the grievor’s limitations or the tasks she could carry out, and if she could carry some out, to what extent. Indeed, the FTWE stated that she was “… unfit for her substantive position, including any alternative work while she is undergoing treatment and rehabilitation.” What also came to light was the May 7 note, which suggested that the grievor might first have suffered from the injury or illness that was the subject matter of her complaints as far back as February of 2010. From the minimal medical professional information provided, it could be that the July 2013 and the Oct. 24 injuries were exacerbations of this pre-existing ailment.

[304] An employer is entitled to know what, if any, work an employee can carry out in a safe manner in the workplace. Specifics with respect to restrictions and limitations are important as they could impair an employee’s ability to carry out the tasks related to the employee’s job, which could in turn put him or her at risk of further injury or put other employees at risk. They are also needed due to the respective obligations of the parties as set out in Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R 970.

[305] This was undoubtedly the case with the grievor by late 2013 and early 2014. Her work on the Maximo project was nearing its end and in fact came to an end in or about March of 2014. Had she not been suffering from health problems related to some combination of her back, neck, and shoulder, she would have returned to working in her substantive position. It was clear that given what her employer knew at the time, it could not happen.

[306] It was perfectly logical for the employer to start the process of assessing the grievor through the HC FTWE when it did at the beginning of April of 2014, given the excessive lost time she was experiencing and with the very little direction that had been provided as to what she could or could not do, and accepting what her doctor had said was accurate

[307] The grievor stated in her evidence that the employer did not accept the “stuff” from her doctor, that her “doctor had the situation in hand”, and that “it went backward when Darren Gaudet started to interfere.” I do not accept this as accurate. What the grievor’s doctor knew and thought, let alone advised her of, was far from obvious to the employer, and very little information was forthcoming.

[308] There is no evidence that as the grievor suggested, her doctor had things in hand; in fact, the opposite appears to be the case. This is evidenced by the fact that she had difficulties at least as far back as July of 2013 (if not sooner) and right into early 2014, and the doctor provided nothing with any detail until the March 17 note. It does not surprise me that the employer sought an FTWE after receiving the March 17 note, given what appeared to be the grievor’s serious difficulties with coming to work and being able to perform work, coupled with a lack of information and direction.

[309] It became obvious that, albeit with hindsight, the grievor should not perform any work, but this came only with the HC FTWE. I neither heard nor saw any evidence from any healthcare professional’s perspective suggesting that this was in any way inaccurate. In fact, the precursor to this is the May 7 note, which obliquely suggested that the grievor should not perform any work. That form has a line that references the employee being able to return to work. For the grievor, it was left blank. Perhaps it was an oversight; perhaps not. Dr. Jewers did not testify, so it is not known.

[310] The only tangible evidence before me, the March 17 note, suggests that the grievor was suffering from an illness or condition that was causing her problems with her back and spine and perhaps causing issues with her neck and shoulder as it states, “It was reported that she has multilevel compressive cervical myelopathy secondary to cervical spondylosis.” The evidence also disclosed that she suffered two injuries at work (the July 2013 injury and the Oct. 24 injury) that were related to her neck, back, and shoulder. The limited evidence before me suggests that those injuries exacerbated her pre-existing condition. The evidence also disclosed that given her condition, she would have certain limitations. Since she had been off work for an extensive amount of time and was clearly in pain and likely unable to perform a significant amount of physical work, of which her job was largely composed, it cannot be said that the FTWE was either improper or premature, given the absence of sufficient information flowing from the grievor or her physician to the employer.

[311] The evidence quite conclusively indicated that the injuries she sustained appeared to have significantly contributed to the impairment of her ability to carry out the functions of not only her substantive position but also, at times, the largely clerical duties related to the Maximo project and later to the AtoN assignment.

[312] It is also inaccurate to suggest that the employer forced the grievor to undergo the HC FTWE. The process was voluntary. The initial indication was that she chose not to sign the consent documents. Failing that, no FTWE could be undertaken. This is also supported by Dr. MacDonald’s letter to Mr. Gaudet of May 20, 2014, in which she states that the grievor had rescinded her consents to the release of medical information and had not consented to the FTWE.

[313] There was no evidence that the employer viewed the grievor’s health issues related to her injuries as permanent. In the April 14 letter to HC, it asked the following four questions:

1) Is the grievor currently unfit for her substantive position?

2) If so, is this expected to be temporary or permanent?

3) Is the grievor currently fit for work for with limitations or accommodations elsewhere?

4) If so, what are the specific limitations and, or, accommodations?

 

[314] While it is clear that that employer certainly had questions as to the grievor’s abilities and limitations, there is no evidence that it viewed them as permanent, or, that it forced the grievor to attend the HC FTWE on the basis of a perception that her disability permanently prevented her from performing in her substantive position.

d. The interactions between the employer and HC before the FTWE revealed the employer’s discriminatory perception and intentions with respect to that evaluation

 

[315] The evidence with respect to the employer’s interaction with HC and the FTWE was limited. As part of carrying out a FTWE, the employer provides HC with package of material, part of which is a cover letter to provide the HC evaluator or evaluators with relevant and pertinent information. This was provided to HC in the Apr. 7 letter, which was accompanied by the work description and job analysis form, the relevant portions of which were set out earlier in this decision. The beginning of the Apr. 7 letter sets out a brief summary of the injuries the employer appears to have on record for the grievor. At the end, the employer asks the four questions that were just referred to in addressing the previous allegation.

[316] The letter also states that the grievor had some performance issues that were dealt with administratively and that her absence from work from February 4 to March 5, 2014, which she described as leave due to stress, followed management’s attempt at addressing aggressive behaviour that had contributed to interpersonal conflict in the workplace (the January 8 incident).

[317] The grievor left work on February 4, 2014, and remained off work until March 5, 2014, for what she claimed was stress causing a recovery impairment related to her earlier injuries. The only evidence with respect to this claim are her words. This is not reflected by any other evidence, let alone from a healthcare professional. What is interesting about the WCB claim that the grievor advanced in the March 7 Form 6 is that immediately after the January 8 incident, which she claimed was the source of the injury, she did not appear to take any significant amount of time off work and appeared to suddenly have to leave work, claiming stress as the cause, when, on February 4, 2014, she was given the administrative letter counselling her for her part in that incident. Given all her injuries, actions, and claims, including that of stress, it certainly was within the realm of the employer to bring it to the attention of the potential evaluator as it might have been related to what was going on with the grievor and with her ability to carry out tasks related to her position, given that she had specifically stated that it did relate.

[318] This does not demonstrate a discriminatory perception or intention. In addition, the grievor has not demonstrated that there was in any way an adverse impact of some type caused by the interaction between the employer and HC.

e. The refusal to provide the grievor with the training she had requested demonstrated that the employer did not think that she was capable of performing in her substantive position

 

[319] I heard evidence about the following potential training:

1) financial and small vessel training;

2) dangerous goods transport training;

3) the health and safety conference; and

4) the Middle Management Forum.

 

[320] This allegation, like the previous four, was based on the grievor’s perception of what she thought employer representatives were thinking. While I heard some minimal evidence about training that she said was denied, the evidence also disclosed upon what basis the employer made those decisions.

[321] The evidence disclosed that sometime in or about June of 2010, the grievor, who had been on light duties due to a minor incident earlier that year, indicated an interest in being the Charlottetown employee dedicated to the Maximo project and that in or about August or September of 2010, she was assigned to it for a year. She remained largely on that project until the end of March of 2014.

[322] The Apr. 7 letter (from Mr. Gaudet to HC) references injuries sustained by the grievor in March of 2010 and October of 2012. However, the only details are that she injured her left arm on the first occasion and her back on the other. There is no evidence of an ongoing disability or illness that required any form of accommodation. The evidence later disclosed that she was next injured while on duty in the July 2013 injury and then again in the Oct. 24 injury. According to her evidence, neither of these injuries affected her ability to do her work until she left work after the Oct. 24 injury on November 22, 2013.

i. Financial Training

 

[323] The limited evidence surrounding financial training indicated that it was cancelled in January of 2012. There is absolutely no evidence that there as any relation to this cancellation as a result of a disability, illness, injury, or any other protected ground. The reason given in the evidence was a funding issue. There is no evidence that this was not the case. The grievor’s speculation or belief about the employer’s intent was not evidence.

[324] There is no evidence that this training had any link whatsoever to her substantive position or to the Maximo project.

ii. Small Vessel Training

 

[325] The evidence surrounding the small vessel training is similar to that surrounding the financial training — very limited. The grievor referred to another employee receiving it and stated that it occurred at or about the same time as the financial training. Again, evidence with respect to this was largely the grievor making a statement that others in the office had a proficiency that she did not have.

iii. Dangerous Goods Transport

 

[326] Entered into evidence was an email dated October 17, 2013, at 17:41, which a DFO training clerk sent to the grievor. It indicated that she and two other colleagues at the Charlottetown CCG office required dangerous goods transport training and that a course was being offered on October 21, 2013. The grievor said that it was sent to her in error as it was meant for the acting foreman, the position she had been in earlier that at the time Mr. Seaman occupied. She said that she forwarded it to him.

[327] The time on the email was 17:41, or 5:41 p.m., and there was no evidence as to when she saw it or forwarded it to Mr. Seaman. October 17 was a Thursday, and given the late hour at which it was sent, it is possible that she did not see it until the next day, Friday, October 18. October 21 was the following Monday. There is no evidence that Mr. Seaman was at work on Friday, October 18, or when he saw the email or if he saw it, whether he actioned it. He testified, and no one asked him any questions about this topic.

[328] The grievor said that she did not attend this training. When asked if the others mentioned in the email attended it, she said that she believed so. However, there was no actual evidence that anyone attended or that she was denied it. In addition, she indicated that she had received this training in the past.

[329] The only other evidence about this training is that it an outside organization provides it and that the CCG receives a group rate when 15 people sign up for it. Mr. Gaudet indicated that one time when the training was being given, the grievor was working full-time on the Maximo project. As such, since the maximum number of people had signed up for the training, she did not take it. However, she was to go the next time it was offered, when she was no longer on the Maximo project. He provided no other details.

[330] There is also no evidence that the training mentioned for October 21 was attended by anyone else from the CCG in Charlottetown. But there is some evidence that such training did proceed at some point and that the grievor did not attend, the reason being that 15 had already registered, which was the maximum allowed; that she was not performing the work of her substantive position; and that when she was back in her substantive position, she would receive the training.

[331] The evidence before me did not disclose that at any point after November 22, 2013, the grievor was ever in a position to resume her full-time duties as a marine aids technician.

iv. Health and Safety Conference

 

[332] Entered into evidence was an email chain with respect to a health and safety conference scheduled for November 1 to 3, 2013. The originating email in the chain was from the Alliance’s Charlottetown office and was sent on July 23, 2013. On July 29, 2013, another member of the Alliance’s local office forwarded it to Alliance members, including the grievor. Specifically, it asked the grievor if she wished to attend, pointing out that she was the local’s representative on the OHS committee.

[333] On August 19, 2013, the grievor emailed Mr. Birt, telling him this:

…

… I’ve submitted my name for this conference, but this year they are stressing the importance of employer contribution also (see attached English letter). As usual I’m using my own time and money for incidentals, but only one night’s hotel expense is being covered and no coverage for the Friday afternoon I have to book of [sic] from work. Therefore, I’m requesting some financial assistance from the employer to cover one night’s hotel expense and 4 hours of paid time off to travel to this health and safety training.

…

 

[334] On August 29, 2013, Mr. Gaudet replied and advised her that the employer would not cover costs not covered by the Alliance. He stated that he felt that the training was above and beyond what was needed for her involvement in a volunteer position. But he did agree to grant annual leave to go to the conference.

[335] From the emails brought forward, it appears that the Alliance’s local suggested that the grievor attend as she was its representative on the OHS committee, and it would also appear that the Alliance was prepared to pay for at least part of the costs. There is no evidence that this training was required for the grievor’s position. The evidence disclosed that the employer was not prepared to cover costs associated for training that the Alliance determined she would or should take.

[336] There is no indication that the employer’s position had anything to do with her disability or with a perception of it or whether she could carry out the tasks related to her substantive position or that it had a perception about her ability to carry out the tasks related to her substantive position. It appears that the Alliance was keen on having her attend the training as its representative on the OHS committee in Charlottetown. This does not appear to have anything to do with the grievor’s substantive position; nor is there any indication that the denial of her request to have her costs covered was protected by either the collective agreement or the CHRA.

v. Middle Manager’s Forum

 

[337] This allegation must fail as it does not meet the very threshold of the allegation that the employer denied her training opportunities. This was not a training opportunity. The evidence did not disclose that this forum was a form of training that the grievor required for either her substantive position or her Maximo project assignment. Furthermore, the evidence did not disclose that she actually wanted to attend the forum for training; she merely sought paid leave so that she could volunteer and assist with respect to technical issues. When she made her request, she prefaced it by saying the following: “… this is an event I can help with. I’ve used up all of my volunteer and personal time … and I need my vacation time for another issue; is there any time I can be granted for this event?”

[338] In addition, the evidence disclosed that the grievor could have attended, just that the employer would not approve the travel. The restriction on the approval of the travel applied not only to her but also to everyone else.

[339] There is no indication that the employer’s position with respect to the Middle Management Forum had anything to do with her disability or with a perception of it or whether she could carry out the tasks related to her substantive position or that the employer had a perception about her ability to carry out the tasks related to her substantive position. There was also no evidence whatsoever that the employer’s decision had anything to do with any other protected ground.

[340] The evidence did not disclose that the employer’s actions regarding training demonstrated that it thought she was not capable of performing in her substantive position. In fact, some of the assertions of the grievor under this heading were not actually about training that had anything to do with her position. The Financial training was not related to her substantive position. The Middle Manager forum was an instance where the grievor was looking to volunteer to assist in technical aspects of the conference. It was not training denied; in fact the evidence disclosed that the grievor could go, just that the employer would not cover her travel costs. The Occupational Health and Safety training was training the bargaining agent was suggesting she go on. Finally, with regard to the Dangerous Goods Transport, there is no indication that the grievor was actually denied this training.

f. The employer’s failure to provide a timely ergonomic assessment of the grievor’s workstation demonstrated its failure to accommodate her disability

 

[341] The first mention of ergonomics was in the March 17 note, where it states that the grievor was able to carry out desk work at an ergonomically appropriate workstation. “Desk work” was not defined by Dr. Jewers. According to the grievor, during the period of January through March of 2014, she carried out a combination of work involving both the Maximo project and what she described as desk work in her evidence, which included “… charging batteries; programming flash characteristics (by connecting lights to the computer); charging solar lights and taking inventory.” The exact nature and detail of how she performed these things that she described as “desk work” was not provided.

[342] According to the evidence, work on the Maximo project had come to an end by the end of March 2014. Mr. Gaudet received the March 17 note on March 19, 2014. On May 14, 2014, he emailed the grievor that he had arranged an ergonomic assessment for June 2, 2014, which was carried out on that day and was of a workstation that she used at the Lily Pond site. At the time the ergonomic assessment was arranged for June 2, the grievor was off work, but her designated work location was still the Lily Pond site; her assignment to the AtoN branch had not been arranged yet but occurred later in May of 2014. The assignment agreement was entered into on June 9, 2014. The second ergonomic assessment was carried out on Wednesday, August 6, 2014, while she was on assignment to the AtoN branch. The same person carried out both assessments. The assessments were set out in their entirety earlier in this decision.

[343] Between March 19 and June 2, 2014, there were 49 working days. Based on the evidence, the grievor was at work for 18 of those days in full and was away for 28 full days and 6 partial days. Those 28 full days included the last week of April and the first part of May as well as the rest of May, save and except for the week of May 5, during which she was absent for parts of 3 of the 5 days. Her first day back at work after the extended absence in May was the first working day in June, June 2, which was the day on which the first ergonomic assessment was carried out.

[344] The ergonomic assessment in August took place the day before the grievor left work on or about August 7, 2014. After it was done, she remained off work for the balance of that month and all of September, October, and November of 2014. Also during this time, her doctor provided the Sept. 9 note, which merely said that she had been “… off work since August 7, 2014 due to a workplace injury” and that “[h]er return to work date will depend on her therapy …”. In addition, HC provided the Sept. 18 FTWE, which stated that she was “… currently unfit for her substantive position, including any alternative work while she is undergoing treatment and rehabilitation.”

[345] The Sept. 9 note did not specify what was meant with respect to “workplace injury”, whether there was a new injury, or whether it related to one or a combination of the July 2013 injury, the Oct. 24 injury, and the January 8 incident. It made no reference to her workstation causing or exacerbating any difficulties. The Sept. 18 FTWE provided no information that would suggest that her workstations had any bearing on her disability or that they contributed to her inability to carry out the functions of the clerk position she was assigned to in June, July, and the first few days of August of 2014.

[346] The June ergonomic assessment was faxed to Mr. Gaudet on June 11 and emailed to him on June 13, 2014. He said that he saw it on June 13 on the fax machine, but the quality was poor, so he asked that it be emailed, which it was. He forwarded it to the grievor on June 13, 2014, and told her to obtain what she needed.

[347] Of the 7 problems identified in the June ergonomic assessment, 3 did not require purchasing any equipment but required the grievor to take steps, such as removing clutter from her workspace, taking a break every 30 minutes, and gazing at a distant point every 30 minutes. The other issues could be dealt with by raising her chair and buying a footstool and the appropriate document stand.

[348] I heard no evidence about why these items would not have been appropriate for her new workspace. The evidence disclosed that the employer approved supplying an adjustable computer screen, adjustable chair, and a footstool.

[349] The August ergonomic assessment was done one day before the grievor went on extended leave for the balance of August through the end of November of 2014. I do not know when the assessment was arranged. However, the report was not sent until September of 2014. I do not know why it took close to a month for the report to be sent.

[350] While it may appear that it took some time to arrange the initial ergonomic assessment, the evidence did not disclose that it was untimely. There was no evidence as to when the request was made or to the resources in PEI to carry it out. What Dr. Jewers meant by “… desk work at an ergonomically appropriate work station” was, at best, unclear, given that the grievor’s work on the Maximo project had come to an end and that her substantive position required significant physical tasks. What became clear, albeit after the grievance was filed, was that the grievor should not have performed any task related to her substantive position or any other work whatsoever, as the FTWE determined that she was completely unfit to do any work.

[351] Accommodation, as set out by the Supreme Court of Canada, is a three-way inclusionary and cooperative process that should involve the employer, employee, and bargaining agent (when the employee is represented by one). The very limited evidence before me demonstrated that the grievor suffered injuries to her back, neck, and shoulder areas, and that according to Dr. Jewers, they could have been related to (or were exacerbated due to) a pre-existing problem. It was clear that she should not carry out what Dr. Jewers called “field work”; however, he did not specify the exact nature of her limitations or how they could impact the tasks related to her position. According to the grievor’s evidence, the July 2013 injury and the Oct. 24 injury did not occur in the field but in the warehouse area, while she lifted and moved equipment. According to her, desk work included working with equipment such as lanterns and lights. Could she perform this work? If so, to what extent? If Dr. Jewers canvassed it, he did not address it. It appears to not have been canvassed until the FTWE, which disclosed that she should not work at all.

[352] The grievor’s accommodation process in the March through June 2014 time frame was in the initial stages, and the best way to describe it would be to say that it appeared to lurch forward with fits and stops. The parties appeared not to be of the same mind on any number of issues. While the process was not what those of us in the LR field would hold up as the gold standard, it moved forward in the face of a difficult employer-employee relationship and with very limited medical information and information related to the grievor’s abilities, limitations, and restrictions with respect to her work.

[353] In addition, when the grievor testified, she said that the person conducting the ergonomic assessment asked her questions about her work. She said that she sent a large number of emails about what the employer had planned for her and then stated that the person conducting the ergonomic assessment did so without knowing what the grievor would be doing. It is difficult to conduct an ergonomic assessment of a workspace without knowing whether the workspace will be used, the work an employee will do there, and, the specifics and limitations of the employee. The situation involving the grievor was much like placing the cart before the horse. While everyone knew that she was injured and disabled in some way, the full extent of the injury, illness, or disability was far from clear. More importantly, the same was true for the limitations and restrictions. Had the full extent of her limitations and restrictions been known, an ergonomic assessment might have made sense.

[354] That said, the employer did act on the recommendation of having an ergonomic assessment carried out, twice, however without knowing what sort of limitations or restrictions were going to be needed, it was largely a wasted process.

g. The grievor was discriminated against for her role in the union

 

[355] The basis for this appears to be the grievor’s action of attempting to conduct some form of inquiry or investigation of her own under the guise of her union role.

[356] The evidence disclosed that the grievor and Messrs. Gaudet, Seaman, Doyle, A, and C were all members of the same bargaining unit. The evidence also disclosed that the grievor was the president of the union local; however, the time frame within which she held this position was not clear. I did not hear any evidence of whether she held other positions in the union, and if so, when.

[357] I also did not hear any evidence about her authority in her role as a union executive to carry out any sort of investigation.

[358] At paragraph 123 of her written submissions, the grievor stated that the element of this part of the grievance goes to her attempted investigation into what was an improperly executed investigation into her harassment complaint. She stated that she had reason to believe that the investigation was not entirely impartial as Messrs. Seaman and Gaudet had acted as allies against her in contentious situations in the past. In support, she cited an email she sent to her union representative, Mr. Fagen, on March 19, 2014, about a meeting that day. At paragraph 124, she submitted that after receiving the letter of “council [sic]” from Mr. Gaudet denying her harassment claim, she intended to file a grievance on the basis of the harassment investigation that was improperly conducted by an untrained person who might have been biased. She further stated that she understood that part of her role as the president of her union local was to conduct some preliminary fact-finding to aid in the grievance process.

[359] There is nothing in the evidence to suggest that the fact-finding conducted by Mr. Gaudet into the January 8 incident was in any way an investigation into harassment or into a complaint made by the grievor that she had been harassed. The evidence before me was that on January 8, she and Mr. Seaman engaged in a brief but heated exchange that was over in a matter of minutes. Mr. Seaman reported the incident to Mr. Gaudet. Later, Mr. Gaudet sought the grievor and spoke to her. There is no evidence that when he spoke to her, she made any form of complaint that Mr. Seaman had harassed her.

[360] Mr. Gaudet appeared to carry out a brief fact-finding by hearing both Mr. Seaman’s and the grievor’s sides and by speaking to a couple of people. After this, he determined that both of them had acted inappropriately and gave them both letters of counsel.

[361] The grievor did not grieve the letter of counsel given to her on February 4, 2014. But on February 5, 2014, she emailed Mr. Butler. She recounted her version of events surrounding the January 8 incident, under the subject line “harassment”. I heard virtually no evidence about what happened with this except for the documents entered into evidence by both parties that were attached to Mr. Gaudet’s May 15 letter. I did not see a copy of Mr. Butler’s letter that Mr. Ouellette had in hand and was ostensibly trying to deliver to the grievor on or about February 11, 2014, during his visit to Charlottetown. I suspect that whatever Mr. Butler did (or did not do) in relation to the grievor’s February 5, 2014, email, it was not acceptable to her, as on April 11, 2014, she filed a grievance stating that she was grieving management’s decision not to accept her harassment complaint based on the fact-finding investigation conducted by Mr. Gaudet. That grievance stated that the date on which that act took place was March 12, 2014.

[362] I did not hear any evidence about whether the grievor had Mr. Butler’s action or inaction related to her February 5, 2014, email judicially reviewed. No written harassment complaint dated March 12, 2014, was provided to the hearing. I did not hear any evidence about what happened with the grievance dated April 11, 2014, other than that it was delivered to Mr. Gaudet.

[363] The evidence clearly disclosed that what Mr. Gaudet did with respect to the January 8 incident was to conduct fact-finding into what happened on that day. There is no evidence that he had been presented with any form of harassment complaint by the grievor about Mr. Seaman. Based on the evidence, she complained about Mr. Seaman and used the term “harassment” on February 5, 2014. By that point, Mr. Gaudet had investigated the January 8 incident and had delivered to both participants letters of counsel. The grievor could have grieved hers; she did not.

[364] Bargaining agents have rights protected by law. In the federal public sector, those rights can be enforced before the Board and by making a complaint under the appropriate provisions of the Act. However, a bargaining agent’s rights and duties are not unlimited. While they play a role in bargaining on behalf of unionized employees, and to a certain extent in representing them, those rights and duties are set out in the legislation, collective agreements, and jurisprudence. The grievor was still a TB employee and did not possess any particular right to conduct an investigation of her own at the employer’s place of business. It is clear from the evidence that the employee that the grievor sought was not happy with her approaching him in the workplace and that he made his views known to management. The employer controls the workplace, except as circumscribed by legislation, collective agreement, or jurisprudence. The employer was well within its rights to speak to the grievor about her actions in this vein.

3. Has the grievor established a prima facie case of discrimination based on her allegations

[365] The grievor has submitted that, over the course of a period of time, through a series of actions that she has identified in her seven allegations, the employer has discriminated against her on the basis of age, gender, disability and union affiliation.

[366] Other than knowing the grievor’s age and gender, there was no evidence that links any of the actions taken by the employer as being discriminatory towards the grievor on the basis of age or gender. The grievor has therefore failed to establish a prima facie case under these protected grounds, either under article 19 of the collective agreement or the CHRA.

[367] With respect to union affiliation, the grievor has failed to establish that the action by the employer in writing to her and instructing her to cease and desist her own personal investigation into a workplace incident had any basis related to her position in the union. The employer is entitled to manage its workplace. There is no evidence that its actions had in any way had any connection to her position in the union local or as an executive member. The grievor has therefore failed to establish, on a balance of probabilities, that the employer has breached article 19 of the collective agreement, as it relates to union affiliation.

[368] Almost exclusively the evidence produced at the hearing was about her injuries and illness and allegations about the employer’s conduct as it related to a disability connected to those injuries and any underlying illness or disability.

[369] Based on the evidence before me it is clear that the grievor has a disability. As best as I can determine, it was a problem related to her neck, shoulder and back. The grievor’s allegations as they relate to the protected ground of disability fall under two broad categories:

i. Failure to accommodate; and,

ii. Actions in dealing with HC and the WCB

[370] The disability engages the employer’s duty to accommodate. The law with respect to accommodation is well established. It is a three-way cooperative process, which in unionized workplaces involves the employer, employee and the union. The difficulty in this case is that information provided to the employer was largely both untimely and insufficient. Based on the evidence before me, as set out earlier in these reasons, the employer did what it could with this limited information. Perhaps more could have been considered, however the grievor was not cooperative and forthcoming. Based on what limited information was provided the employer advanced the grievor sick leave; carried out an ergonomic assessment of her work spaces; and placed her in a non-labour intensive position without the loss of salary or benefits.

[371] In the end, the Sept. 18 FTWE disclosed that the grievor should not perform any work. There was no evidence to suggest that this assessment, which was actually carried out sometime in July of 2014, was not correct. The evidence before me (which was more than what was in the hands of the employer at the relevant times) did not disclose that the grievor suffered any injury after the Oct. 24 injury or that something exacerbated the July 2013 injury, the Oct. 24 injury, or both (despite the grievor’s allegations about the January 8 incident). This suggests that she should not have been working in any position, and from the available evidence, this was likely the situation as far back as the Oct. 24 injury. This fact is also supported by the fact that when the WCB approved the grievor’s claim related to the Oct. 24 injury, it awarded her 539 hours, which is the equivalent of 67.375 days. While this total is less than the number of days she was off work, this hearing was not privy to the reasoning behind the WCB’s decision.

[372] Given all these facts, no accommodation would have been appropriate in light of the grievor’s medical condition. As such, the employer cannot be held to have breached the collective agreement or the CHRA by failing to accommodate her. The only accommodation that would have been appropriate in the circumstances was to allow the grievor to be absent from work. The evidence disclosed that it did that.

[373] As set out earlier in these reasons, between July of 2013 and early April of 2014, the grievor had been physically injured on the job twice; made three WCB claims; missed a substantial amount of work; and, the scant medical information provided indicated that she should not be doing any physical work albeit with no indication of restrictions or limitations. While the grievor speculates that the employer may have had some ulterior motive, the actual evidence disclosed a much different story. The employer has a duty to accommodate and failing sufficient information, can initiate a FTWE. It did so. There was nothing in the evidence to suggest that it was pre-mature, given the status of the grievor’s health, her attendance, and, the clear inability to carry out the normal functions of her job. Nor was there any evidence that the employer’s communications with HC had any untoward or nefarious purpose. I have already set out earlier in this decision the correspondence and the factual underpinnings with respect to the information the employer provided to HC.

[374] It is difficult to fault the employer in pursuing a HC assessment, as it is clear from the evidence that the grievor continued to have problems and pain with her back, neck and shoulder in the spring and early summer of 2014, leaving the workplace for good in early August of 2014 not to return for an extensive period of time.

[375] In regards to the employer’s communications with the WCB, it is clear that the employer’s contact with that organization was extremely limited. The grievor suggests that the employer’s communications somehow played a role in a delay in assessment or, possibly resulted in a less than satisfactory award by that body. There is absolutely no evidence of this whatsoever. The evidence disclosed that except for providing information when requested to the WCB, it was largely not involved in that process. It appears that the basis for the grievor’s allegations in this regard arises from the May 15 letter and attachments. In early May of 2014, the employer was requested to provide the WCB information more detailed information regarding allegations of harassment. The evidence also disclosed that the WCB was not forthcoming in what information had been provided to it by the grievor. However, it did suggest that one of the claims being pursued by the grievor related to harassment at the hands of Mr. Gaudet. The May 15 letter and attachments were provided by the employer not knowing what exactly the WCB was looking for. Mr. Gaudet with the assistance of Ms. Proulx produced the summary and attached the documents they deemed necessary to address the concerns and accusations they believed were being made.

[376] It is difficult to assess the statements contained in the May 15 letter and attachments, without knowing the allegations being made by the grievor. Indeed, during the course of the hearing, the allegations and information in support of those allegations made to the WCB by the grievor were not produced into evidence. Based on the evidence before me, there does not appear to be any evidence of discrimination in the employer’s actions as they relate to the WCB.

[377] While the grievor has established that she was disabled, the allegations upon which she formed her claims of discrimination have not been substantiated. As such, she has not established a prima facie case of discrimination. The evidence disclosed that the employer strived over the period in question to accommodate the grievor’s needs, based on very limited information that was largely not helpful. In the end once a FTWE was completed it was clear that the grievor should not be at work at all while she was undergoing treatment and rehabilitation. I heard no evidence of when or how long this process was going to take. The only accommodation based on the evidence before me was for the grievor to not be at work.

4. Other allegations in the grievance

a. “… Management has undermined me and has interfered with my ability to be able to earn a living in the Public Service.”

 

[378] The grievor stated in her grievance that management had undermined her and that it had interfered with her ability to earn a living in the public service. There was no evidence of this.

[379] As of the hearing, the grievor was still employed by the employer, albeit on leave, which was described to me only as “disability”. She did not elaborate on the terms of the leave or the disability benefits she was collecting. The very limited and best evidence before me, the HC FTWE, disclosed that she was unable to carry out the functions of her substantive position and that she should not carry out any other work. While the report was dated September of 2014, the assessment that led to that conclusion was done in the summer of 2014. Indeed, based on the limited information from the medical professionals, what led to the grievor being unable to work was an illness, an injury, or both that contributed to a disability. However, the evidence was scant in this respect. She applied for and was granted WCB benefits that translated into IODL benefits, which she received. While there might have been a delay in processing the benefits, there is no evidence that the employer was responsible for it.

[380] While the Sept. 18 FTWE arrived after grievance was filed, I heard no evidence as to what transpired with respect to the grievor’s back, shoulder, and neck issues, which were the basis of the July 2013 injury, the Oct. 24 injury, and the source of Dr. Jewers’ March 17 and May 7 notes. While the grievor said that she returned to work sometime between August 7, 2014 (the date on which she left work for an extended period), and July of 2015 (when she was in a motor vehicle accident), I have no idea as to the state of her health in relation to her ability to carry out the functions of her substantive position. The evidence before me never suggested that she was able to fully carry out the functions of her substantive position after the Oct. 24 injury. It also suggests that it is highly likely that at the very least, the grievor was totally disabled from carrying out any job functions sometime between the spring and summer of 2014, on a going-forward basis.

[381] From the best, albeit limited, evidence before me, what interfered with the grievor’s ability to earn a living was her health, as it was affected by injuries she sustained at work or injuries that exacerbated another unknown diagnosed condition. As an employee, she was entitled to certain benefits, as negotiated by her union, contained in her collective agreement. There is a difference between earning a living and receiving benefits.

b. There was a negative financial impact due to management’s refusal to allow required leave for appointments

 

[382] The evidence before me disclosed that the grievor often was required to attend medical appointments; however, there was no evidence that she was denied leave to attend them. Nor was there any evidence that could suggest that she suffered any negative financial impact due to any denial of leave for attending appointments.

c. The employer’s harassment, discrimination, and unfair labour practices had a negative impact on the grievor’s professional and personal reputations

 

[383] I heard no evidence about the grievor’s professional or personal reputation or that anything the employer did had any impact on either her professional or her personal reputation, whatsoever.

d. The employer’s actions had a negative impact on the grievor’s family and home life

 

[384] I heard almost nothing about the grievor’s family or home life. In short, I heard what part of PEI she lived in and its approximate distance to the Lily Pond site and that she was a single mother of one child who as of the hearing had grown up.

[385] While I have no doubt that the injuries and the effects of them and the loss of work affected the grievor, as they would have any individual, as I have found that there was no prima facie case of discrimination, this allegation must also fail.

5. Arguments suggesting that the employer breached other provisions of the collective agreement or its policies

[386] Burchill stands for the proposition that a different issue than was grieved cannot be brought to adjudication. The grievance is rooted in allegations of discrimination and harassment. As such, at the adjudication of her grievance, the grievor could not bring forward complaints with respect to other employer actions, such as issues with respect to the application of the IODL provisions of the collective agreement or an alleged breach of the Government Employees Compensation Act (R.S.C., 1985, c. G-5). She did not grieve these actions, and at adjudication, she could not attempt to bring them forward.

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

(The Order appears on the next page)

V. Order

[388] The grievance is dismissed.

August 9, 2021.

John G. Jaworski,

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