Date: 20220125

Files: 566-02-9129 to 9132

and 12599 to 12601

 

Citation: 2022 FPSLREB 3

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

 

Neil Shreedhar

Grievor

 

and

 

TREASURY BOARD

(Canada Border Services Agency)

 

Employer

Indexed as

Shreedhar v. Treasury Board (Canada Border Services Agency)

In the matter of individual grievances referred to adjudication

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

For the Grievor: Julia Williams, counsel

For the Employer: Kétia Calix, counsel

Heard at Toronto, Ontario,
February 11 to 14, 2020,
and via videoconference,

September 21 to 24, October 5 to 8, and November 4 and 5, 2020.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] Neil (Nilesh) Shreedhar (“the grievor”) was, at all relevant times, employed by the Treasury Board (TB or “the employer”) with the Canada Border Services Agency (CBSA) either as an inland enforcement officer (IEO) at the border services officer 3 (FB-03) group and level or, in such other positions as set out in this decision, at the CR-05 group and level. At all material times, the grievor’s place of work was in and around the Greater Toronto Area (GTA), Ontario, in what is known within the CBSA as the Greater Toronto Enforcement Centre (GTEC).

[2] On November 1, 2011, the grievor filed the following grievances that have become Board File Nos. 566-02-9129 and 9130:

[File no. 566-02-9129:]

DETAILS OF GRIEVANCE ...

I grieve CBSA has not complied with he process and procedures as found in the Health Canada Fitness to Work Evaluation (FTWE).

I further grieve that CBS referred me to Health Canada for a FTWE that did not properly assess my medical condition. Specifically, Health Canada failed to have me assessed by an expert knowledgeable and qualified in the field of learning disabilities.

CORRECTIVE ACTION REQUESTED...

That CBSA follow the directions in the FTWE letters;

That I be referred for a Health Canada assessment by a qualified practitioner in the filed of learning disabilities;

That I be compensated for pain and suffering and be awarded punitive damages;

And any other action deemed appropriate in the circumstances.

 

[File no. 566-02-9130:]

DETAILS OF GRIEVANCE ...

I grieve my employer is in contravention of Article 19 by way of comments, made on my Evaluation with regard to comments made about my medical condition references to a Health Canada assessment. I further grieve that my evaluation was untimely and includes incidents that did not occur in the time period of March 31 2010 to 01 April 2011.

CORRECTIVE ACTION REQUESTED...

That my evaluation be revised and that the inappropriate references removed;

That I be compensated for pain and suffering and be awarded punitive damages;

And any other action deemed appropriate in the circumstances.

[Sic throughout]

 

[3] During the course of his submissions at the end of the hearing, the grievor withdrew this grievance.

[4] On September 5, 2012, the grievor filed the following grievance that has become Board File Nos. 566-02-9131 and 566-02-9132:

Grievance details...

I grieve that I have been demoted. I am further aggrieved that I have been harassed, discriminated against and that the employer has failed to accommodate me.

Corrective action requested...

...

I request that I be reinstated to my FB-03 position, that I be compensated for all lost pay and benefits and any other corrective action appropriate in the circumstances. I reserve the right to claim financial compensation in light of the allegation that the contested acts constitute a breach of the Canadian Human Rights Act on the basis of discrimination based on an enumerated ground.

 

[5] On June 10, 2014, the grievor filed the following grievance that has become Board File No. 566-02-12599:

Grievance details ...

Management has failed to Accommodate me as per my request and failed to provide me with a respectful workplace free of harassment, placing me in work situations where I am geared to fail due to my medical condition.

...

Corrective action requested ...

To have my Accommodation followed and be placed in work situations where I am geared to succeed.

 

[6] On July 28, 2014, the grievor filed the following grievance that has become Board File No. 566-02-12601:

Grievance details...

I AM GRIEVING THE PUNISHMENT THAT WAS GIVEN TO ME. I HAVE NOT BEEN ACCOMMODATED UNDER THE DUTY TO ACCOMODATE POLICY AND CONTRACT.

Corrective Action Requested...

TO BE MADE WHOLE.

 

[7] On September 12, 2014, the grievor filed the following grievance that has become Board File No. 566-02-12600:

Grievance details...

On 08 Sept 2014, I was notified that my grievance G14-3971-116125 has been declined and the suspension stands. As these actions are in relation to a medical issue, we site C.A. Article 19.01 – There shall be no discrimination, 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, religion 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.

Corrective Action Requested...

Removal of the suspension from my record and compensation for unpaid days. To be made whole.

 

[8] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) 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 (PSLRB) 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; 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.

[9] 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 PSLREBA, the PSLRA, and the Public Service Labour Relations Regulations (SOR/2005-79) 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”).

[10] The hearing of the grievances before me was scheduled for and did take place on February 11 to 14, 2020, in person in Toronto. Due to the COVID-19 pandemic and lockdown measures, the hearing continued for the balance of the hearing days by videoconference.

II. Summary of the evidence

A. Background

[11] At all relevant times, the grievor’s terms and conditions of employment were partially governed by collective agreements between the TB and the Public Service Alliance of Canada (“the Alliance”). The collective agreements that may be relevant for the purpose of this decision are as follows:

· for the Border Services Group that was signed on March 17, 2014, and that expired on June 20, 2014 (“the 2014 FB collective agreement”);

· for the Border Services Group that was signed on July 3, 2018, and that expired on June 20, 2018 (“the 2018 FB collective agreement”);

· for the Program and Administrative Services Group that was signed on March 1, 2011, and that expired on June 20, 2014 (“the 2011 PA collective agreement”); and

· for the Program and Administrative Services Group that was signed on June 14, 2017, and that expired on June 20, 2018 (“the 2017 PA collective agreement”).

 

[12] Article 19 of each collective agreement is entitled “NO DISCRIMINATION”, and the portions relevant for the purpose of this decision state as follows:

[In the 2014 FB collective agreement and the 2011 PA collective agreement]:

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.

...

[In the 2018 FB collective agreement and the 2017 PA collective agreement]:

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, gender identity and expression, family status, mental or physical disability, membership or activity in the Alliance, marital status, or a conviction for which a pardon has been granted.

...

 

[13] Identified during the course of the hearing was the Workplace Health and Public Safety Programme (WHPSP), later identified as the Public Service Occupational Health Program (PSOHP), which both appear to be the same organization within Health Canada that was responsible for carrying out work-related health assessments of employees on behalf of the employer. For simplicity in this decision, it will often be referred to simply as Health Canada (HC).

[14] At all material times, the grievor worked in that part of the CBSA that was responsible for addressing issues involving persons who had entered Canada either illegally or without the proper documentation or who had remained in Canada illegally or without the proper documentation. This unit was called the Released Removals Unit (RRU). For ease in the decision, I will refer to the persons who are subject to the work of the RRU and the IEOs in this area as “non-citizens”.

[15] As of the hearing, Kristen Gale was an IEO at the FB-03 group and level. At the time of the events relevant to these grievances, she was known as Kristen O’Gorman. Between June 2 and September 25, 2008, she supervised the grievor.

[16] As of the hearing and since 2016, Cynthia Garcia was a regional programs officer with the CBSA in Mississauga, Ontario. In 2008 to 2009, she was an IEO at the FB-03 group and level and a colleague of the grievor. In October of 2008, she was in an acting program manager (PM) 5 position and was assigned as a mentor and coach for the grievor.

[17] As of the hearing and since 2005, Michelle Clark was a hearings officer with the CBSA. For a period of five years until December of 2013, she was an IEO, and between 2007 and 2012, she was an IEO supervisor at the FB-05 group and level. Between August 27, 2012, and April or May of 2013, she was responsible for the court tracking unit and supervised the employees in that unit, which during that period included the grievor, as he was working there as an enforcement assistant at the CR-05 group and level.

[18] As of the hearing and since January of 2013, David O’Sullivan was a hearings officer with the CBSA. From sometime in 2008 until sometime in 2009, he was an acting superintendent in the RRU. Sometime in 2009, his acting appointment was made indeterminate. Between January and August of 2009, he supervised the grievor.

[19] As of the hearing, Dale Lewis was an IEO and investigator with the CBSA. In 2009, he acted as a mentor to the grievor.

[20] As of the hearing and since November of 2019, Marija Cuvalo was the acting director for passenger operations in the Toronto district of the CBSA. In June of 2008, she was the chief of operations for the RRU at the GTEC.

[21] As of the hearing and since 2004, Carman Alexander-Nash was a chief of operations with the CBSA in several locales. In June of 2009, she was responsible for the RRU in the GTEC, and the grievor reported indirectly to her that month.

[22] As of the hearing and since 2004, Anne Raposo was an inland enforcement supervisor with the CBSA. In April of 2013, she was on assignment as an acting chief of the operational support unit for the RRU. She was in this position from April until the start of August 2013. During this period, the grievor reported indirectly up to her.

[23] As of the hearing and since 2009, Chukwu Uzoruo was an IEO with the CBSA in the GTA. In May of 2014, he was in an acting inland enforcement supervisor position, and during this period, the grievor reported indirectly upwards to him.

[24] As of the hearing and since 2017, Khalida Jelani was a superintendent in passenger operations at Pearson International Airport in Toronto. In April of 2013, she was an inland enforcement supervisor at the FB-05 group and level and was the grievor’s supervisor. While she could not exactly remember when she stopped being the grievor’s supervisor, she did confirm that it was approximately around January or February of 2014.

[25] As of the hearing and since February 15, 2020, Jonathan Kamin was retired from the public service. The last position he held before his retirement and since November of 2014 was as the assistant director for the Enforcement and Intelligence Division of the CBSA. Between May and July of 2014, he was a chief of operations for the operations support unit at the GTEC, and the grievor reported indirectly to him.

[26] As of the hearing and since December of 2019, Goren Vragovic was the director general (DG) for the Commerce and Trade Branch of the CBSA at its headquarters in Ottawa, Ontario. In August of 2012 and since May of 2011 until November of 2019, he was the regional DG for the CBSA’s GTA region. As the DG for the GTA, he was responsible for all CBSA operations in the region, including approximately 2000 employees delivering the admissibility of persons and goods into the country, as well as materials and enforcement activities. He had 10 direct reports, of whom 6 were operational directors, and 1 was an executive director. As well, 2 to 3 administrative staff reported up to him directly.

[27] At the time of the matters relevant to the facts in issue in the grievance, Pnina Ptasznik was a labour relations (LR) advisor for the CBSA. She did not testify.

[28] In 1985, the grievor obtained his bachelor of arts (BA) degree in economics from York University in Toronto. In 2006, he graduated from Seneca College, in Toronto, from its Human Resources (HR) Management Certificate Program, with high honours. And in 2008, he received a master of business administration (MBA) degree from Centenary College in New Jersey, in the United States, summa cum laude (with the highest distinction). He is bilingual in both official languages.

[29] The grievor joined the federal public service in October of 1991 and was a clerk at the CR-03 group and level until he joined the Citizenship and Immigration department. In or about November of 2005, he was given an acting appointment as a removals and expulsions officer with the CBSA at the PM-02 group and level in the GTA. By letter dated May 4, 2006, the grievor was offered an indeterminate appointment to the removals and expulsions officer position at the PM-02 group and level in the GTEC, in an English-essential position. By letter dated July 14, 2006, the grievor was offered and accepted an indeterminate appointment to the removals and expulsions officer position at the PM-02 group and level in the GTEC, a bilingual position.

[30] Entered into evidence was a letter that the grievor received dated February 20, 2007. It advised him that a conversion process was being completed within the CBSA and that the position he was in at that time, as a customs and immigration officer (CIO) in Expulsions at the PM-03 group and level, was being converted to the IEO position at the FB-03 group and level. While some of the duties and responsibilities of the IEO were similar to those of his previous position in removals and expulsions, there were additional tasks and duties that were new to the grievor and those others who were caught by the conversion process.

[31] Mr. O’Sullivan testified that in the process of removing a non-citizen, there are a number of steps and items that are required. Non-citizens have case files assigned to them. The information pertinent to those persons is kept in a computer tracking system called the National Case Management System or “NCMS”, for short. Depending on a particular non-citizen’s fact scenario, the citizen is removed either by land or by air. A passport is a required document; flight bookings have to be made, cash bonds may be in place, and timely steps must be taken, some in a particular order. The NCMS tracks the process and keeps up-to-date information. The information is good only if it is updated in the system. Non-citizens can be compliant or not compliant; some are violent and conduct themselves in a manner that would be considered criminal, and some are not honest.

[32] After the conversion process, in 2007 to 2008, the grievor began working in a branch of the RRU known as the Failed Refugee Project (FRP). At the time, Ms. Cuvalo was the chief of the RRU. She testified that this was a good place for the former removals and expulsions officers who had been converted to IEOs to get trained. Ms. Cuvalo testified that she was actively involved with the grievor and his supervisors in both creating and implementing training plans for him. She identified that there were four supervisors who reported up to her. Entered into evidence was a copy of the IEO work description that was received by the grievor on March 5, 2007.

[33] The relevant portions of the IEO work description are the following:

Client Service Results

Detection, investigation, arrest, removal order issuance and removal of persons determined to be in contravention of immigration legislation; disposition of files/cases and information and services to clients, partners and stakeholders for the Canada Border Services Agency (CBSA).

Key Activities

Identifies potential violations/violators of immigration legislation; initiates, plans, develops and implements research and investigative projects and initiatives of files; identifies and implements approaches and investigative concepts and methodologies; identifies diverse sources of information and coordinates, plans and conducts interviews; analyzes, assesses and interprets information and data gathered from various diverse sources and uses judgment and expertise to identify, verify and substantiate information.

Coordinates and leads joint investigations and task force operations with officials and representatives of Canadian and International law enforcement, security and intelligence organizations; obtains and executes search, arrest and other special warrants; identifies and forecasts team/task force human, financial and material resource requirements and develops business cases and proposals to obtain resources.

Provides advice, guidance and direction on the interpretation and application of immigration legislation to teams of investigators (up to 30 investigators/technical experts from public and private sector organizations), associates, clients, officials and representatives of partner organizations and stakeholders; and testifies during administrative proceedings and proceedings in courts of law.

Analyzes and assesses ongoing cases based on emerging information and data; identifies and assesses trends and developments; conceptualizes various potential scenarios based on the circumstances, issues and individuals associated with files and renders decisions to address evolving environments.

Acts as the Minister’s delegate in the Minister’s delegate review process. Analyzes case evidence and makes decisions such as ordering release, continuing detention or issuing removal orders (deportation orders, exclusion orders or departure orders depending on the severity of allegations).

Functions as the lead officer in removal processes and can be required to escort violators from Canada.

...

Skill

The work requires knowledge of an extensive body of national and international legislation, regulations, treaties, conventions, charters, legal processes and codes, such as the Immigration and Refugee Protection Act, the Canadian Charter of Rights and Freedoms, the Criminal Code, the Canada Evidence Act, the Access to Information and Privacy Acts and the concepts and principles of natural justice, procedural fairness and administrative review; documentation and report writing within the constructs and demands of a legal/legislative and judicial review environment.

The work requires analytical skills and the knowledge of administrative decision-making principles, practices and methodologies; research, interview, investigation, information/fact finding, verification, validation, concepts, principles, methodologies, techniques and best practices to establish, gather and develop data/information and file/case facts; identify, research and compile profile information ;research, apply and/or establish legal precedents and jurisprudence.

The work requires knowledge and analytical skills to apply critical thinking; evaluate and weigh evidence, facts, circumstances and risk elements associated with files/cases; to make final decisions under delegated authorities and provide advice, guidance and interpretations of legislative guidelines to colleagues, partners and project team members, including law enforcement officials/investigators, clients, and other stakeholders, such as Canadian and international advocacy groups and NGOs.

The work requires the knowledge and analytical skill to equate foreign violations to Canadian violations and act accordingly.

The work requires knowledge of the mandate, objectives, priorities, programs, policies and operating guidelines of the CBSA; the mandated, programs, priorities and key contacts of Canadian and international governments, law enforcement, security and intelligence agencies, to comprehend the interaction and interrelation across organizations, contribute to inter-organizational task forces, working groups, and project teams; identify Canadian and international industry best-practices; identify Canadian and international sources of intelligence, obtain and verify sensitive and/or protected and up to top secret classified information and substantiate decisions and actions based on intelligence/information when testifying in administrative proceedings and courts of law.

The work requires knowledge, awareness and understanding of Canadian and international social/cultural, religious, and political issues, events and environments, such as trends and developments in migration, terrorism, international crimes and other matters and sensitivities of specific client groups, to conduct research, gather data and evidence, compile reverence material for the disposition of files/cases; respond to enquiries, address concerns, develop approaches to inform, counsel/advise and explain issues relevant to the files/cases and issues managed and promote a positive public image of the CBSA. Decisions and actions must withstand court, intense media and public scrutiny.

The work requires the knowledge of principles, methods and techniques of defence using specialized techniques and methodologies (Control and Defence Tactics) to apply techniques for self-defence, defence of partners, task force and project team members, associates and the public, when clients become physically aggressive.

Analyzes and synthesizes diverse factual and situational data, information and intelligence; develops cases/files and technical/administrative material including research and investigation reports, affidavits, correspondence and briefing material for submission and review by senior officials and representative of Canadian and international legislative bodies, law enforcement, security and intelligence organizations, and representatives of alleged violators (Canadian and international lawyers, advocacy groups and NGOs). Alerts and updates senior management on the status and issues surrounding high profile/contentious cases and provides information and intelligence to Canadian and international officials and representatives of law enforcement, security, intelligence and immigration organizations.

...

The enforcement officer requires verbal communication skills to conduct investigational interviews to obtain information from informants and clients. These interviews can be contentious in nature when clients are reluctant to provide information.

...

Effort

Enforcement officers are required to regularly restrain individuals who are uncooperative during arrest situations. Enforcement officers are required to ... handle protective equipment and weapons. Enforcement officers apply continuous sensory effort when conducting surveillance activities and when conducting international escorts/removals. This requires continuous attention to the target and the ability to rest is limited.

...

Responsibility

...

Consults with, coordinates and leads investigations and actions with law enforcement, security and intelligence organizations, such as surveillance and arrests; identifies circumstances which require search and arrest warrants; ... exercises judgement and authority as a peace officer to use force to restrain and detain individuals; exercises authority to seize and retain documents and other personal assets (such as cash, bonds and vehicles) and submits operational plans for organizational dismantlement and issues orders and direction to arrest, detain, appear for enquiry, to release on terms and conditions, to submit for examination. Issues removal orders and/or removes individuals from Canada or grants permission for violators to remain in Canada.

...

Performs investigation and removal activities by applying critical thinking; evaluates and weighs evidence, facts, circumstances and risk elements associated with files/cases and makes final decisions under delegated authorities. Applies investigative knowledge, expertise.

...

Working Conditions

...

The work involves effecting arrests in uncontrolled environments with exposure to individuals who may be violent; attempt to use lethal weapons or otherwise become physically aggressive.

...

 

[34] A copy of the work description of a CIO or removals and expulsions officer was not provided in evidence; nor did I hear any evidence about the specifics of that position.

B. The identification of the grievor’s performance and learning issues

[35] Ms. Gale testified that the FRP was responsible for removing non-citizens. She stated that the grievor had removals training. She testified that there are several aspects to the process that included these:

· reviewing the file;

· initiating and conducting risk assessments;

· preparing for interviews;

· conducting interviews;

· post interview review of information;

· dealing with family members;

· taking care of bookings for removal; and,

· addressing issues of travel documentation.

 

[36] Ms. Gale said that during the period she supervised the grievor, from early June through late September of 2008, she noticed he had difficulty carrying out functions. One of the training methods used during the training of the newly converted IEOs was to have them shadow experienced IEOs. She said that they would shadow for about three to five interviews and that then, they should have been comfortable on their own. She said that the grievor shadowed another officer for two weeks. She said that this was not necessarily an inordinate amount of time but that the feedback she received from both the officer and the grievor was that the grievor was not comfortable carrying out interviews on his own.

[37] When Ms. Gale was asked to identify the problems, she said that it was difficult to isolate them and that sometimes, the grievor would forget to obtain information, despite it being basic and despite having an information sheet to work with. She said that if the object was a pre-removal risk assessment (PRRA), he seemed to be generally unprepared.

[38] Ms. Cuvalo testified that in or about July of 2008, two supervisors who reported to her advised her that the grievor was having difficulty carrying out certain tasks with respect to questioning potential non-citizens and that he was not learning and keeping up with his peers. Given these difficulties, Ms. Cuvalo became involved with the grievor’s training and learning and together with him and some supervisors developed a structural performance and learning plan. What this plan was and how it operated was explained in the evidence. Ms. Cuvalo said that the plan was in place for about a year.

[39] Ms. Gale said that she and Ms. Cuvalo devised a process of using closed files as a learning tool. They developed a series of questions, and the grievor was to review the files and answer the questions. She said that he worked on this for a number of weeks and that he had difficulty finding the answers. She said that when they initially started this training, they would give the grievor an hour-and-a-half to review the file and answer the questions. She said this was later whittled down to 30 minutes. She said that an IEO carrying out this work for real would have about 15 minutes to do it. Ms. Gale described that many of the difficulties were related to the use of time. She described him asking to be excused to finish a particular review that he had had for three days that she said should not have taken that long.

[40] Ms. Gale said that he was not on par with his colleagues and that he had trouble catching on. Entered into evidence was Ms. Gale’s written record of a meeting, dated July 14, 2008, between her, Tanya Andrews, another acting supervisor, and the grievor, the relevant portions of which state as follows:

...

The purpose of this meeting was to talk to Neil regarding his progress in the FPR unit and to discuss with him that he is not appearing to be up to par with his colleagues. Specific questions were asked in order to identify areas of concern for both the supervisors, and for Neil.

1) Interviews- Neil was asked to describe how he feels about interviews and how he feels he is doing in the unit.

– “I feel like everything is very hectic. I have too many files and I am having trouble knowing what needs to be addressed. I have too many loose ends at all times.”

¡ It was explained to Neil that he has very little files assigned to him, not even a third of what his colleagues have, including the recently hired officers- some of which started only a week before him.

¡ It was further explained to Neil that all five of the new officers that have no Immigration background were doing interviews on their own in about 2-3 weeks; and that he is not there yet. Neil also advised that he had sat in with officer [name redacted] and that she was really helpful; she started in FRP a week prior to him.

¡ Neil still needs someone to sit in with him for PRRA initiation interviews and stated that although he is “getting there” he is not ready to conduct PRRA initiation interviews on his own yet.

¡ Neil stated as well that he is absolutely not ready to do a PRRA decision interview.

Suggestions:

– Neil was advised to write everything that he learns down. This way he can review the process and flow of the interview

– Neil will continue to have an officer sit with him for PRRA initiation interviews, and will be assigned to sit with another officer for PRRA decision interviews until he can be assessed on his own by either supervisor in the unit.

– It was explained to Neil that the case material is extremely sensitive and that from a legal standpoint it is imperative that he fully understands the policies and procedures at GTEC.

–It was explained to Neil that in FRP, you will never be able to “clear your desk” or tie up all loose ends, as FRP has a high volume of files on a daily basis that require immediate attention.

2) Learning in FRP

Neil is not learning FRP as fast as other officers have in the past. It appears that there are several issues with regards to how Neil is learning in FRP.

¡ It was pointed out to Neil that he required constant supervision to minimize errors

¡ Neil was told that on several occasions I have had to remind him more than once about a procedure and/or policy [i.e.: the warrant shelves, the warrant paperwork,, Direction to report]

¡ It was addressed that Neil’s 509’s constantly have errors, despite the fact that he has been at GTEC for over two years.

Suggestions:

– It was suggested to Neil to print of [sic] a calendar to keep track of daily appointments; and to write himself a daily agenda of what needs to be done. Neil has already had an appointment comet into GTEC that he was not prepared for and had not made arrangements for. Neil agreed to this.

– It was suggested also to write down notes as he learns new ideas/procedures. This way he can refer back to his own notes if he has questions or cannot recall something. Neil agreed to this.

– Neil was reminded to pay attention to detail to avoid handing in files or other work that are filled with errors. Specific examples were brought to his attention and he agreed to pay closer attention to detail.

3) Priorities

Prioritizing is a key element that FRP officer must exhibit. This was explained to Neil and he agreed. He admitted that prioritizing was definitely one of his areas of concern, especially in this unit. He stated that he does not yet understand the order in which he should undertake his work.

- examples of how his lack of prioritizing skills were brought to his attention [client waiting at the front, email from [name redacted]].

Suggestions:

– It was explained to Neil that he needs to understand that in situations where he is required to multi-task; he needs to be able to decide which task needs the more immediate result. An example of it DOJ called and needed information faxed over immediately for a stay motion being heard this afternoon or a COD package that was due the next day- which one takes priority? Neil was also told that there are usually several ongoing tasks as an FRP officer. If in doubt please ask a supervisor or fellow officer.

4) Time Management

a) the first mandatory Friday meeting he asked to be excused from because of an outstanding COD package (he knew the COD package was due three days earlier and did not have any other assigned work at the time) Neil was told at the time of this incident that this amount of time for one COD package is completely unacceptable. Neil was reminded of this issue today, regarding his time management skills

b) Again, on Friday, he asked to be excused because he was “bogged down and swamped” with files- again, Neil had very little files assigned to him

It was discussed to Neil that he appears to become flustered when more than one task is required of him in one day. Neil stated that he is finding it difficult to keep up and does not understand the whole picture yet.

Suggestions:

– It was suggested to Neil to seriously observe his colleagues and how they deal with situations as they arise. He should have been exposed to this in his two weeks sitting exclusively with [name redacted], a very experienced FRP officer.

– It was suggested to Neil to physically print out the calendar from Outlook and keep it in front of his computer and write down all appointments, all tasks that need to be done, and all removals.

Conclusion

We ended the meeting with Neil saying that he would try and improve and that he would take our suggestions into account. He also stated that he would like a couple more weeks to see if he can get up to par, but said that maybe this unit was not for him.

...

[Emphasis in the original]

 

[41] In her evidence, Ms. Gale was brought to the written record of the July 14, 2008, meeting and was asked about the specifics it sets out. With respect to the reference to appointments, she said that the grievor would be late and unprepared and that he would not have the appropriate material with him. She said that she did not know if he wrote his appointments down but that she had told him to. With respect to the references to the “warrant shelves” and “warrant paperwork”, she said that he would put material in the wrong place, would not have the paperwork done, and would not have the proper information.

[42] Entered into evidence was Ms. Gale’s memo dated August 1, 2008, reflecting a meeting that took place that day at 10:00 involving herself, Ms. Cuvalo, and the grievor, the relevant portions of which state as follows:

Kristen’s comments:

–– this week the feedback from the officers who have been sitting-in on interviews with Neil is that the interviews are still all over the place; there is no organization in the line of questioning

–– interview questions have an order in which they are asked; Neil needs to stick to the order

Marija’s comments re: Next steps:

–– not conduct interviews at this time; in order to understand the process, Neil will review closed files (not active) and identify points in the file in order to assist in understanding the process

–– Kristen will review the file with Neil to point out key pieces of information (i.e. A44 report, Notice of Arrest, removal order, PRRA) and then Neil will review files on his own; this is the building block from where we need to start

–– until further notice, Neil will stay as an observer on escorted removals until further notice

–– training suggestions; interview role plays with the common types of scenarios officers face ie. Interview conducted with counsel present, without counsel, travel document issues, client refuses to sign and/or complete travel document application, initiating PRRA, delivering PRRA decision, serving a direction to report for removal, addressing issues of non-compliance (i.e. client did not comply with a requirement on the call-in notice such as providing proof of a child’s birth certificate)

...

[Sic throughout]

 

[43] Entered into evidence was a typewritten list of questions or statements that Ms. Gale identified that she developed for the grievor that may be asked or stated by non-citizens during the removal process. She said that she did this to assist the grievor; she said that she gave a copy to him and that she went through it with him. It was based on reviews of the closed and completed files.

[44] Ms. Gale said that she and Ms. Cuvalo came up with role-playing scenarios to assist in training the grievor. He would be in his position, and one of them would be the non-citizen. She said that despite this, he still had trouble. She said that she discussed his shortfalls with him. She said that she identified the difficulties he was having and that he was given feedback after every single role-play scenario; there were about 17. Entered into evidence was a memo made by Ms. Gale with respect to the August 18, 2008, scenario. During this scenario, Ms. Gale identified that the grievor made a number of basic mistakes, including these:

With regard to the client information sheet:

· having the wrong name;

· not having the house number or postal code under the address section;

· not having the last name of the spouse and no questioning regarding the status of the relationship between the client and alleged spouse;

· no driver’s licence recorded despite a driver being identified; and,

· telephone number recorded three times;

With regard to the interview:

· not prepared for the interview;

· making up reasons for the interview;

· asked for the passport twice; and,

· did not identify the removal date.

 

[45] Entered into evidence was a typewritten 12-page summary of the grievor’s training compiled by Mses. Gale and Cuvalo and covering the period from June 2, 2008, to September 18, 2008. In addition, it listed previous, related training that the grievor had been provided as far back as 2005. On the last page, Ms. Gale provided a brief summary, which stated as follows:

Summary:

Based on the performance during the coaching period from 02June2008 to present day (18Sept2008), the following gaps have been identified:

1) Neil has demonstrated that he is unable to follow instructions

2) Neil’s interviewing skills are not satisfactory

3) Neil cannot follow work processes; he appears to have the knowledge base with regards to the Immigration Refugee Protection Act however, he is not able to apply the work processes and analyze what needs to be done and when.

4) Neil is not learning the work processes on par with his colleagues

5) Neil has trouble with time management

¡ Cannot remember appointments

6) Neil does not demonstrate good judgement.

[Sic throughout]

 

[46] Ms. Gale testified that she provided her summary to the grievor. In her testimony, she stated that there were many different deficiencies that did not seem to have any consistency in how and when they would appear. There were different types of problems in different scenarios.

[47] As part of the plan, the evidence disclosed that there were regular meetings and discussions with the grievor. Entered into evidence were copies of the notes of meetings held with the grievor, his immediate supervisor or supervisors, and Ms. Cuvalo on September 19, October 6 and 20, and November 7, 2008, and on January 23, 2009. In addition to the meetings and related notes, Ms. Cuvalo prepared a memo summarizing all the monitoring and meetings done of and held with respect to the grievor between August of 2008 and May of 2009.

[48] On September 19, 2008, the grievor and his union representative met with Mses. Gale and Cuvalo to discuss his performance. Ms. Cuvalo made typewritten notes of the meeting, and both she and Ms. Cuvalo testified about the meeting. This is the relevant portion of the notes:

...

Marija’s comments:

–– severe gaps in performance that need to be rectified before the full range of duties can be introduced such as the escort function, shifts, duty

–– continue to work with you

Neil’s comments:

– Maria Chianello (supervisor) told me to focus; I am a perfectionist; my grades are between 94-100; I think I could do what is required of me; I am hard on myself

– With the interviews, I’ll get the information; Maria told me to be focused and to concentrate on what is being done

– When I deliver PRRA, I can get the basics but it may not be done in a sequence

Marija’s comments:

–– we’ve done 14 interview role plays and the skills sets are the same; you need to demonstrate that you meet this competency and I am not satisfied that you are able to conduct an interview on your own

Neil’s comments:

–– want to sit on an assessment board; did this as a CR-03; would like to do French and Human Resources

Marija’s comments:

–– you are an IEO and before other pursuits can be pursued, you need the skills to function as an IEO

–– you have been here since June 2008 and it is now September 2008; I respect that you have other interests but you are an FB-03 IEO and not meeting the competencies of the position

Neil’s comments:

–– move to another unit?

Marija’s comments:

–– these skills sets are the same; an FB-03 is an FB-03 no matter what unit

Next steps:

–– continue with role plays before conducting an actual interview with a supervisor

–– these gaps need to be rectified or we may have to look at other positions and even a lower position

–– in the meantime, no escorts, shifts, duty, projects until skill sets are up to par

[Union representative]’s comments

–– have Neil attend Removals Training again

–– suggested to Neil to identify his own best learning strategy

–– are any other officers being trained like this?

Marija’s comments:

–– no, other officers not trained like this; regular training method is not working for Neil and, in conjunction with Neil, trying to provide training opportunities that will enable Neil to meet the competencies of the position

...

[Union representative]’s comments

–– other officers never had to go through this; there is a financial impact because the officer cannot do escorts, shifts, projects

Marija’s comments:

–– skills sets are not being demonstrated in a controlled environment at GTEC; other functions of the IEO are in an uncontrolled environment; cannot introduce these functions of an IEO until satisfied that Neil meets the required competencies in the unit

...

 

[49] Entered into evidence was a typewritten summary of a further four role-play exercises conducted on September 23 and 24, 2008, with the grievor, Mses. Gale and Cuvalo, and Mr. O’Sullivan,. Ms. Gale testified that a copy was given to the grievor. The testimonies of Mses. Gale and Cuvalo was that the object of the role playing was to continue to try to bring the grievor up to speed and to try to build his skill set. The results set out in the summary disclosed similar difficulties to those already pointed out in earlier assessments and discussions with the grievor. These included the following about him:

· [he] was late;

· was not addressing a missing travel document (passport);

· did not fully review the file;

· did not ask about the spouses’ status;

· put the wrong information on the client information sheet;

· missed basic key information such as work location and telephone numbers;

· prepared for the wrong interview;

· used an out of date form ....

 

[50] Ms. Gale said that in the meetings she had with the grievor and Ms. Cuvalo, they made suggestions to him to overcome the difficulties he was having. She confirmed that his work objectives were made clear to him. She confirmed that she discussed his performance with him often. She said that at the end of September of 2008, she stopped supervising the grievor, as she had 15 officers reporting to her, and the role of assisting in the grievor’s training was taking too much time.

[51] On October 8, 2008, Ms. Cuvalo wrote to the grievor with respect to the performance and learning issues. The relevant portion of that letter stated as follows:

As per our meeting on 19September2008 with you and your union representative [name redacted], this letter is a re-cap [sic] of that meeting and an outline of next steps.

You were transferred to Released Removals Failed Refugee Project (FRP) on 02June2008 from the Removals Screening Unit. During the month of June and the first half of July, you were in training by shadowing and working with senior officers. This is standard procedure for all new officers in the unit. On 14July2008 the supervisors met with you to discuss your progress and areas of concern. The notes to this meeting were given to you on 19September2008 and reviewed with you.

As a result of the performance concerns identified at that time, a more structured training and performance monitoring program was developed which started on 01August2008. Between 01August2008 and 05Setpember2008 your training included [sic].

...

The required core competencies of an Inland Enforcement Officer are the ability to demonstrate good judgement, to manage time, to follow work processes, to analyze client files and determine what steps need to be taken in accordance with legislation and with removals work process, to conduct interviews to obtain and evaluate information and recommend appropriate action, to make decisions (i.e. on arrest and detention, on proceeding with a removal), and to follow direction given to you by the Employer.

Based on your performance during this coaching period and as noted on the attached review and summary, I am not satisfied that you demonstrate these competencies at this time and as such, the full range of duties cannot be assigned to you. As a result, you are not currently conducting interviews or being assigned cases, going on escort, participating in road projects, working shift or duty.

We will continue to work with you, to provide training in order for you to improve and meet the required competencies; the next steps are ....

...

In this respect, we will be meeting with you every week, or as required, to provide you with feedback and to determine next steps. I recognize that you are trying your best and that you are committed to learning the required competencies. However, if the gaps in performance are not rectified in the foreseeable future, it is my obligation to inform you that another FB-03 job with different skill sets or a lower level position will need to be considered.

...

 

[52] In her evidence before me, Ms. Cuvalo testified that at the time she wrote the October 6, 2008, letter, the grievor was performing about 15% of his IEO duties, and the duties he was carrying out were very specific and low risk. When asked why she felt that he was performing only 15% of his duties, Ms. Cuvalo said that it was because the grievor was not demonstrating the competencies of the position.

[53] Ms. Garcia testified that while her substantive position was the same as that of the grievor, in 2008 to 2009, she was in an acting supervisory role as his trainer and mentor. She stated that she was responsible for what was called police-response training. As part of this training, the IEOs learn how to use small “notebooks”, which they are issued as a tool. They are to record work-related things that are noteworthy, are often used in court or administrative proceedings, and can be subject to subpoenas and production orders. IEOs are trained on how and what to note in their notebooks.

[54] She testified that as part of her duties, she would carry out random notebook checks on the IEOs. She described the problems with the grievor’s notebook when she checked one of his. She said that the most noteworthy of the errors was that he had noted groceries to be purchased.

[55] Ms. Garcia also provided other examples of errors she saw the grievor making in carrying out his IEO duties, which were not dissimilar to those already described by Mses. Gale and Cuvalo.

[56] In January of 2009, Mr. O’Sullivan began supervising the grievor. He said that he did not recall anything from the early portion of the supervision; however, he had begun to make notes in May or June of 2009, when he was tasked with conducting work analysis, mentoring, and training until August of 2009. He said that in general, his analysis of the grievor’s work was that it was lacking and incomplete and that there were errors. He said that he had several meetings with the grievor and that he reviewed his work with him and provided him with feedback.

[57] Mr. O’Sullivan said that he found himself correcting the grievor’s work. He said that his recollection of the amount of time he spent coaching and mentoring the grievor was disproportionately high compared to any other officer he was supervising. He said that during the period he recalled, when he was supervising the grievor, the grievor did not perform all the duties of an IEO; nor did he perform the duties that he was assigned successfully. Mr. O’Sullivan identified notes that he made of his supervision and mentorship of the grievor.

[58] Mr. O’Sullivan testified and his notes recorded that over a period of 29 interview dates, the grievor was averaging 1.75 interviews per day. He said that this was below what was expected in a day. Mr. O’Sullivan stated that he would meet with the grievor regularly to review his work, which was something he did not do with the other IEOs. One of the documents created by Mr. O’Sullivan that was entered into evidence was simply entitled, “Summary”. It stated as follows:

...

Overall I would [sic] Neil’s work in the removals unit can be described as basically competent, with several areas that need improvement.

Neil is managing his interviews and interview times relatively well. His current case work is being managed reasonably well. Based on the cases I observed, for the most part, he is keeping NCMS and his case notes up to date.

Neil seems to be challenged with certain procedural steps, in particular the correct staging of cases in NCMS to accurately reflect the case status. He seems to struggle with the use of NCMS as the tracking tool for case activity, impediments and travel document activity. In detailed conversations and case reviews with Neil, he sometimes does not seem to grasp the full scope of the removals process, in particular the Act and Regulations that govern our work.

One specific example is the [sic] Neil’s apparent lack of understanding of the Public Policy Under A25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class and how to determine a client’s eligibility.

Neil’s follow up work on existing cases is another area that needs improvement. Some cases have been assigned to Neil since late 2008 and there has been no action on the case since that time.

I find that Neil requires a regular amount of supervision and follow up work to ensure he is doing alright.

I cannot question Neil’s effort. He comes in early, and stays on task throughout his work day.

...

 

[59] Sometime in early 2009, the grievor was being mentored by Mr. Lewis, who at the time was working as a field investigator, which often included interacting and cooperating with local police departments. Mr. Lewis testified to issues he observed in the grievor’s performance while working with him. He described a particular incident when they were attending a detachment of the Toronto Police. It involved the grievor’s tool belt, which held his handcuffs, baton, and OC (aka pepper) spray. He said that to be issued a tool belt with these defensive tools, an IEO receives training and must pass a test. He said that the grievor had a tool belt, with tools, and that he was wearing it as part of his uniform, so he must have received training and passed it. Yet, on this occasion, he was wearing the tool belt loosely. Mr. Lewis described it as someone wearing a belt for a 38-inch waist loosely when the person has a 30-inch waist; the belt and tools would flop about. He said that his concerns were two-fold: first, it would have been difficult to retrieve one of these defensive tools from the belt, when needed, the way the grievor was wearing it; and second, it would have been easy for an assailant to take one or more of the items from the belt.

[60] Mr. Lewis advised that on this particular occasion, he spoke to the grievor about the belt, took the belt from him, made the appropriate adjustments for him such that it would fit him properly, and gave it back to him. He said that the grievor’s comment to him was that the police must not like loose-fitting clothing. Mr. Lewis further described that during this particular event at the police station, the grievor was the IEO who would be arresting a non-citizen. He said that before he and the grievor entered the station, they had a discussion to the effect that when the police were finished speaking with the non-citizen, the grievor was to step up, arrest the person, perform a cursory search, control the person, and put him in handcuffs.

[61] He said that what happened was that the police officer was speaking with the non-citizen and advising him that the CBSA would be taking him into custody and that when the police officer was clearly finished and released the non-citizen, nothing happened; the non-citizen just stood there, waiting. He said that the grievor must not have been paying attention because he then asked the police officer if he was done with the non-citizen. When this fact was confirmed to the grievor by the police officer, Mr. Lewis said that the grievor then told the non-citizen that he was under arrest. He then said that the grievor told the non-citizen that he would perform a cursory search, which Mr. Lewis said is not done. He then went to handcuff the non-citizen with his hands in the front. Mr. Lewis said that he had to instruct the grievor to handcuff the non-citizen behind the back, which the grievor then did, but he put the handcuffs on upside down. Mr. Lewis said that the difficulty with putting the handcuffs on upside down is that it presents problems with locking them, which in turn puts the arresting officer in a vulnerable position and at risk. Mr. Lewis said that the grievor was doing things that were not proper and were unsafe and that he was not doing it the way IEOs are trained.

[62] The grievor was asked about this encounter and stated that at the time, he was in a state of high stress, and that he did not pick up on the cue that the police officer was done. He said that it was an awkward situation. He repeated several times how stressful the situation was, and he stated that it would have been easier to learn if Mr. Lewis had carried out the arrest and he had just watched.

[63] Mr. Lewis stated that he discussed this with the grievor after it happened as the incident was embarrassing as the police were watching. When Mr. Lewis was asked if he recalled any other incidents with the grievor, he described a discussion with him when they had a non-citizen in custody in a vehicle. He said that just before they brought the individual out to process him, he asked the grievor what the next step was. He said that the grievor said that they would do a PRRA. Mr. Lewis said that he told the grievor that the PRRA was done at the end of the process. He said that the grievor told him that “everyone got a PRRA”. Mr. Lewis said that the grievor missed all the steps before the PRRA. Mr. Lewis explained that he brought the grievor through the process. He said that he reminded the grievor about the training that he had received. He said that the grievor did not come out with him in the field with no training. He said that he also noted that he found that the grievor would do things in the wrong order.

[64] Mr. Lewis stated that there are file checklists and that a training manual sets out the steps to be taken and when, which steps come first, and what scenarios lead to what further steps in the process. He said that all IEOs are provided with the training manuals and materials. The training manual for enforcement for investigations and arrests was entered into evidence, as were training materials for other aspects of the IEO job, including the forms and documents used.

[65] The only question Mr. Lewis was asked on cross-examination was if he was aware of the grievor’s medical issues, to which he answered, “No.”

[66] Mr. O’Sullivan also testified that he reviewed the grievor’s notebook and stated that he found that parts of it did not comply with the policies or enforcement manuals. He said that he went through the notebook with the grievor and that he pointed out where the proper procedures had not been complied with. A copy of the grievor’s notebook from July 22, 2008, to June 11, 2009, was entered into evidence, and Mr. O’Sullivan brought the hearing to several examples of how the grievor’s notebook entries did not comply.

[67] Entered into evidence were a number of email exchanges made in June and July of 2009 that included the grievor and Mr. O’Sullivan, at times either Mses. Cuvalo or Alexander-Nash, and, at times, union representatives. These emails were put to Mr. O’Sullivan, who was asked to describe what was happening in the emails, which were largely the reporting of the grievor’s work over that period.

[68] On June 22, 2009, the grievor met with Ms. Cuvalo and his union representative, as well as Ms. Alexander-Nash, who was at the time chief of operations for the RRU, along with and Carmen Manlongat (the chief of operations-investigations). Ms. Cuvalo testified that the assessment of the grievor’s work was that he could not work without constant supervision and therefore could not be put on the regular shift. The notes of the meeting indicate that the grievor pointed out his educational achievements. In the course of her testimony, Ms. Cuvalo said that while his educational achievements were good things, management’s concern was his ability to carry out the functions of an IEO, which he needed to be able to do and were what he was being paid to do.

[69] Entered into evidence was a copy of the grievor’s performance in the RRU dated June 23, 2009, for the period of January 26 to June 12, 2009, and prepared by his supervisors for that period. The assessment disclosed that the grievor was either not meeting expectations or that he was having difficulty and needed improvement in all the areas of work. On June 23, 2009, the grievor and his union representative again met with Mses. Cuvalo, Alexander-Nash, and Manlongat to discuss his performance and the next steps in training and performance.

C. The disclosure of a potential disability, and the HC assessment process

[70] A further meeting took place on July 8, 2009 (“the July 8 meeting”), again between the grievor, his union representative, and Mses. Cuvalo and Alexander-Nash. Ms. Cuvalo testified that at this meeting, the discussion focused on the grievor’s continued failure to meet the required competencies of the IEO position. She said that as of this meeting, the grievor was still performing only about 15% of the duties of an IEO. It was during this meeting that the grievor’s union representative, Janina Lebon, raised the topic of the duty to accommodate. When asked to explain, she stated that it was based on a learning disability and that the grievor learned differently than others did. Ms. Cuvalo stated that the employer was not provided with any documents to this effect and that the grievor was not supportive of Ms. Lebon raising this as a possibility.

[71] Ms. Cuvalo testified that after the July 8 meeting, a process was instituted to carry out an HC assessment based on the grievor’s reference to needing accommodation on the basis of a disability. In this respect, on August 14, 2009, Ms. Cuvalo wrote a letter to the grievor, the relevant portion of which stated as follows:

As per our meetings on June 22 and 23, 2009 and July 8, 2009 with you and your union representative, Janina Lebon, this letter is a re-cap [sic] of those meetings and an outline of next steps.

By way of background, you were transferred to the Released Removals Failed Refugee Project (FRP) on June 02, 2008 from the Removals Screening Unit. As part of the job, Inland Enforcement Officers at GTEC are regularly rotated to other units in order to learn and to be able to perform all the functions of the Inland Enforcement Officer position. During the month of June and the first half of July 2009, your training consisted of shadowing and working with senior officers. This is standard procedure for all new officers in the unit. As a result of the performance concerns identified at that time, a more structured training and performance monitoring program was developed specifically for you and in consultation with you. This more intensive training commenced on August 1, 2008.

You have been provided with a summary of all the Meetings, Training, and Performance Monitoring from June 2, 2008 to May 8, 2009 and I have attached this again for your reference. In summary, your training since coming to FRP has included ....

...

At this point in time, and as discussed with you, through this process of coaching, providing direction, structured training, and performance monitoring, there continue to be severe gaps in your performance. These gaps are reflected in the review and assessment summary from Investigations and Removals that has been provided to you and is attached again for your reference.

The requirements for an Inland Enforcement Officer position are the ability to demonstrate good judgement; to manage time effectively and efficiently; to follow work processes and procedures; to analyze client files and determine what steps need to be taken in accordance with legislation and with the removals work process; to conduct interviews to obtain and evaluate information and to recommend appropriate action; to make decisions (i.e. on arrest and detention, on proceeding with a removal); and to follow direction given to you by the Employer in all matters pertaining to your duties.

Based on your performance, as noted on the attached review and summary, you have not demonstrated that you meet the requirements for the Inland Enforcement Officer position. I recognize that you have been trying your best and that you have been committed to learning the duties of the position; however, you have not demonstrated that you can perform the duties of the position to the level required. At the meeting on July 8, 2009, your union representative suggested there is a possibility that you may have a learning disability. It was indicated in this meeting that you learn differently from others. For this reason, we will be requesting a Health Canada assessment to determine your ability to learn, to implement what you have learned, and your ability to perform the duties of the Inland Enforcement Officer position. Until the Health Canada assessment is completed, you will be assigned other duties such as screening files in the Removals Screening Unit.

Based on your performance in the Inland Enforcement Officer position and on the findings of Health Canada, you may be placed in another position that is more suited to your abilities. This position could be at a lower level. In the meantime, we encourage you to actively seek out other positions that may be a better match with your abilities.

...

 

[72] As set out in that letter, the grievor was reassigned from his position to the Removals Screening Unit pending the outcome of the HC assessment. However, he remained an IEO and continued to receive the same pay and benefits at the FB-03 group and level. His supervisor in that unit was Angela Beard, who reported to Ms. Alexander-Nash.

[73] Dr. Joel Glass was identified as having been a medical doctor with the title of Medical Officer at the WHPSP at HC between November of 2009 and January of 2011. He did not testify. I was not provided any evidence as to his credentials, if he had any specialities, or what specifically his duties and responsibilities were at the WHPSP. From the documents entered into evidence, it appears that the medical officer at the WHPSP at HC has an administrative role and refers fitness-to-work evaluations (FTWE) to health care professionals who are not employed by HC.

[74] Entered into evidence was a copy of a letter dated November 27, 2009, from Ms. Ptasznik to Dr. Glass at HC, requesting an assessment. The relevant portion of the letter stated as follows:

...

Over the last year and half the Employer has been working closely with Mr. Shreedhar to afford him training and coaching so that he may perform the full range of duties of the IEO position. However, despite the ongoing training and development, Mr. Shreedhar has not been able to retain or apply the direction and guidance provided to him. In discussion with MR. Shreedhar, it has been suggested that an assessment by Health Canada be conducted to determine whether a learning disability exists which may be precluding Mr. Shreedhar from acquiring and applying the knowledge and skills needed to perform his full range of duties. Should it be determined that a medical condition exists, the Employer asks that Health Canada advise as to the nature of the duties which Mr. Shreedhar could be reasonably expected to perform.

...

It should be noted that Mr. Shreedhar is willing to learn and does work hard to try to grasp the requirements of the position. Based on what Management has seen, the performance problems seem to suggest that Mr. Shreedhar can learn legislation, policies and procedures, but has difficulty evaluating and applying the information needed to recommend appropriate action and seems to demonstrate deficiencies in the proper implementation and proper sequencing of policies and procedures.

...

At this time, and in anticipation of the medical assessment, Mr. Shreedhar is no longer performing his full range of duties and is limited to processing straight-forward files in the Removals Screening Unit. This arrangement is not sustainable, however the Employer has decided to allow for these limited duties until information is provided as to whether a medical condition is precluding Mr. Shreedhar from performing specific job functions. Should a medical condition exist, the Employer would ask that clarification be provided insofar as the nature of the duties which Mr. Shreedhar could be expected to perform and the most appropriate method of training.

...

 

[75] Upon receipt of the request for an assessment, Dr. Glass wrote to Ms. Ptasznik on January 20, 2010, seeking clarification. The relevant portion of the letter states as follows:

I have reviewed the information that you have provided and I require further clarification. The issues that you feel require consideration include competence testing, skill testing, difficulty with training issues and academic ability, and poor judgement which you feel may have been demonstrated by Mr. Shreedhar. As you well know a Fitness to Wok [sic] Evaluation is generally conducted when an employee requires assessment or consideration regarding medical issues. You are questioning as to whether Mr. Shreedhar has a learning disability. Would you please provide further information as to your suspicion as to any medical problems that may be apparent, in contrast to the performance issues that you have outlined. Has Mr. Shreedhar ever reported to his employer that he has medical issues causing performance problems? Or, has he reported to his employer that he has been diagnosed as having a learning disability? Was he hired as a person who has self-declared as having a disability? Has he provided any medical notes or certificates asking for special consideration?

It would also be extremely helpful if his direct Supervisor could outline specific difficulties relating to each area of the job description for Mr. Shreedhar’s FB-03 job of Inland Enforcement Officer.

...

 

[76] On February 25, 2010, Ms. Ptasznik replied in a letter to Dr. Glass, the relevant portion of stating as follows:

...

While the Employer is not aware and has not been notified of an existing medical condition, Mr. Shreedhar’s union representative has indicated that she is of the view that a learning disability, which currently remains undiagnosed, is likely connected to this employee’s failure to meet the Employer’s expected performance standards

In this regard, the employee has never reported any medical issues which may relate to his inability to perform the full range of duties and accordingly did not self-declare as having a disability or provide medical notes or certificates to this effect. Conversely the employee has advised the Employer of his academic achievements and their successful completion.

...

 

[77] On April 15, 2010, Dr. Glass replied in a letter to Ms. Ptasznik, the relevant portion stating as follows:

...

Your letter which was received in this department on February 26^th, was not brought to my attention until today. I apologize for this delay. I have reviewed your letter and I must admit I am having some difficulty understanding the nature of this referral. From your letter I assume.

1. The employer is not aware and has not been notified of medical conditions that maybe affecting this employee’s performance.

2. The employees Union Representative feels that the employee may have a learning disability.

3. The employee has never reported any medical issues which may relate to his inability to perform his duties.

It appears that there are performance issues that may not yet be explained, and the Union Representative feels that this is a medical problem. As you are aware WHPSP does not accept referrals that are based on issues that are purely performance oriented, but are medically oriented.

In order to accept this case I will need further information:

1. Please ask the Union Representative if he or she, with the employee’s consent, will provide a letter to this department outlining the exact nature of his or her concerns. Detailed and specific examples should be provided.

2. The employee should write a similar letter addressed to me explaining the nature of his problems and any past medical history. I note that you have advised that Mr. Shreedhar has been able to complete previous academic responsibilities. It would be unlikely that he would be successful in school with a learning disability, and not be successful at work.

When I receive this further information I will consider it.

...

 

[78] On May 31, 2010, a meeting took place between the grievor, Ms. Lebon, and Mses. Cuvalo and Alexander-Nash to follow up on Dr. Glass’s letter of April 15, 2010. Ms. Cuvalo made notes of the meeting, which were entered into evidence and to which she testified as an accurate reflection of the discussion at the meeting. The relevant portion of the notes states as follows:

...

This is the second follow-up letter from WHPSP requesting additional information from the employee and the union representative.

Neil has never provided anything from a doctor regarding a learning disability and he has never stated that he has a learning disability. The WHPSP request needs to be actioned as soon as reasonably possible, preferably within the next 2 weeks, as this letter is dated April and it is already June. It is almost a year since the request for an assessment has been submitted. If submissions on this request are not made then we will be proceeding with the performance issue. We need to move forward on this as Neil cannot stay in his current position indefinitely.

Janina and Neil stated that they will have their submissions completed on or by June 15^th, 2010....

...

 

[79] In an undated letter to Dr. Glass, Ms. Lebon forwarded another undated letter signed by the grievor to Dr. Glass, which also had attached examples that he felt disclosed the difficulties he was having.

[80] On November 3, 2010, Dr. Glass referred the assessment of the grievor to Dr. Edward Glassman. In his covering letter to Dr. Glassman, Dr. Glass stated as follows:

...

Thank you for agreeing to see Mr. Shreedhar on November 19, 2010 at 9:30 am for a Screening Psychological Assessment. The issue of concern is whether there may be cognitive difficulties or underlying psychological issues which may have significant impact upon his ability to work in his substantive position at the Canada Border Services Agency. My understanding is that the employer has noticed no medical issues which may account for possible failures to meet employer’s deadlines. Apparently his union representative has advised him that he likely has a learning disability which might be affecting his work performance.

Upon questioning this employee, to the best of my understanding he does not specifically report difficulty with medical issues, however he feels that he may have some issues with learning style. I feel that a psychological screening may be beneficial in determining if this employee has learning disabilities, medical issues, or performance difficulties.

Based upon your testing results, I would ask you to comment upon his fitness for work, as well as your opinion as to the need for any workplace accommodations.

...

 

[81] As of the hearing, and since June of 1990, Dr. Glassman has been a registered psychologist licensed to practise in Ontario. In 1978, he obtained his bachelor of arts degree with a major in psychology from Trinity College in Hartford, Connecticut. In 1982, he obtained his master’s degree in psychology from York University, and in 1989, he obtained his PhD, also from York University. He testified that he started practising in 1989, the first year under supervision and independently after that. His work, generally since 1992, has included an independent practice in psychology providing cognitive screening, personality assessments, and individual psychotherapy to adult clients presenting with a range of emotional and psychological difficulties. From 2001 to 2015, his practice focused on FTWEs and psychological injury assessments in a medical-legal context.

[82] As of the hearing, and since September of 2015, Dr. Glassman had been an instructor in York University’s graduate program in psychology. As part of those responsibilities, he was responsible for supervising one or two PhD clinical assessment students per year. Dr. Glassman’s CV indicated that from March of 1989 to May of 2015, he was a staff psychologist in the Adult Mental Health Program at North York General Hospital. His responsibilities included cognitive screening and personality assessments and individual and group psychotherapy. Between February of 2002 and March of 2006, he was the professional practice leader for psychology, the duties and responsibilities of which were to represent and promote psychology to the hospital at large and to ensure that psychology practice standards were maintained and to promote continuing education, research, and quality assurance activities. Between September of 1997 and May of 2015, he was the practicum supervisor for the York University graduate program in psychology and the University of Toronto’s Ontario Institute for Studies in Education.

[83] Dr. Glassman met with the grievor on December 3, 2010, for 3.5 hours, followed by a telephone discussion with him on December 6, 2010. In his evidence before me, Dr. Glassman explained what he did and his assessment, which was also set out in his letter of December 7, 2010, to Dr. Glass (“the Glassman assessment”).

[84] Dr. Glassman testified that the assessment started with an interview and that he then conducted the four auditory-verbal memory tests in line with the Wechsler Adult Intelligence Scale (WAIS), which is the standard adult IQ test. Dr. Glassman administered the test based on the third version, despite that the fourth version (an updated version) had come into use by the time he was assessing the grievor. Dr. Glassman said that if a person is reporting learning difficulties, the purpose of the WAIS tests is to gain a sense of their intellectual abilities. The WAIS gives a global sense but also breaks things down. He said that it is a good starting point for screening. He stated that the test has four indices that make the determination: verbal comprehension (reasoning), perceptual organization (visual-spatial abilities), working memory, and processing speed.

[85] Dr. Glassman said that he felt that he understood the grievor’s difficulties, although he said that he usually received information from the employer as well, as to what it perceives. In this case, he received only what the grievor told him. He also confirmed that he did not test the grievor with respect to the autism spectrum. He was asked if there is a difference between a learning disability and Asperger’s. He said that Asperger’s is on the autism spectrum. He said that it does not imply that there is an intellectual disability. However, he did say that the problem can be the interpersonal aspects of the job versus the ability to do the work.

[86] In cross-examination, Dr. Glassman stated that he had no expertise in learning disabilities. He confirmed that he assessed general cognitive issues and stated that if he thought that there were issues of depression or anxiety, he would have said so and suggested a reference to psychiatry. He said that he did not see a reason to assess visual memory, as nothing in the grievor’s work description suggested that visual memory would be an issue.

[87] Dr. Glassman said that he reviewed the following documents that would be relevant to his assessment of the grievor:

· Dr. Glass’s referral letter dated November 3, 2010;

· Dr. Glass’s correspondence dated in July of 2010 wherein Dr. Glass outlines the nature and purpose of the FTWE and the grievor’s understanding of the evaluation;

· The undated letter from the grievor that set out his conception of his work difficulties and learning style and examples that illustrated his understanding of his work issues;

· The IEO work description dated January of 2007 ....

 

[88] In his summary and recommendations following his assessment, Dr. Glassman observed that the grievor is inclined to work at certain tasks with slow deliberateness, patience and persistence, which contributes to accuracy but also to his lower work load volumes. In contrast, he stated that “for example on verbal reasoning tasks he may quickly voice an answer without first thinking it through.” He further stated that “... his inclination to frequently ask questions, perhaps before giving himself a chance to fully think through a problem, may also give the impression that he is slow to comprehend a concept.” However, Dr. Glassman notably found that these observations reflected a cognitive or personality style rather than a diagnosable learning disability. He added that he felt the grievor would be “ill-suited for work that demands rapid decision making” going on to state that he would be “well suited for work that demands meticulous attention to detail and process.” He said the grievor can learn new work skills but requires a patient instructor and a positive learning environment. He concluded by saying “I do not know, however, whether these issues of fit and learning style can be accommodated by his work place.”

[89] In turn, on January 5, 2011, Dr. Glass wrote to Ms. Ptasznik, outlining the assessment findings. The relevant portions state as follows:

Mr. Shreedhar has seen one of our medical consultants who has evaluated Mr. Shreedhar and provided us with current information. I am in agreement with the information provided by our consultant. Based upon this information I wish to make the following recommendations:

1. Formal testing did not demonstrate that Mr. Shreedhar has cognitive problems that would require workplace accommodation.

2. No medical issues were identified that might have a bearing upon Mr. Shreedhar’s Fitness for Work and the need for workplace accommodation.

3. It is appropriate that Mr. Shreedhar’s supervisor has revised his caseload expectations. It is recommended that a supportive work environment be provided by the employer, which would tolerate a slower performance due to Mr. Shreedhar’s particular learning style. Optimally, Mr. Shreedhar would benefit from a patient instructor or supervisor and a positive learning environment.

4. Formal testing has revealed that Mr. Shreedhar is best suited to work that requires meticulous attention to detail and process, and it would be best to avoid work that required rapid decision making.

...

 

[90] There is no evidence that anyone at the employer saw the Glassman assessment.

[91] On February 21, 2011, the grievor, together with Ms. Lebon, met with Mses. Cuvalo and Alexander-Nash. At this time, the letter of Dr. Glass was presented by Ms. Cuvalo to the grievor and Ms. Lebon. Ms. Cuvalo’s notes of the meeting were entered into evidence. All of Mses. Cuvalo and Alexander-Nash and the grievor testified about the meeting. The employer’s position on the assessment was that the conclusion was that there was no identified learning disability, and as such, no workplace accommodation was required. It was the evidence of both Mses. Cuvalo and Alexander-Nash that the grievor was still not meeting the competencies of the IEO position. Ms. Lebon advised the meeting that the grievor would ask that the assessment go to the Medical Advisory Committee (MAC).

[92] As of the hearing and since 2009, Dr. Jeffrey Chernin was an overseas medical advisor for HC and worked in Toronto. He obtained his medical degree from Dalhousie University in Halifax, Nova Scotia. He also has a master’s degree in public health and is a member of the American College of Preventative Medicine. He testified that he specializes in preventative medicine as well as occupational medicine and workplace health issues.

[93] Dr. Chernin advised that the MAC is part of HC and the PSOHP and that it is there to carry out reviews of assessments. He said that it has no legal function and that his signature appeared on documentation relevant to the grievor’s issues because he was the acting recording secretary of the MAC at the time in question.

[94] Dr. Chernin testified that the grievor’s case came to the MAC at the written request of the grievor dated March 4, 2011. By letter dated April 13, 2011, Dr. Chernin confirmed to the grievor that the MAC would review his matter at the next meeting, which he advised would likely be held in June or July of 2011. The MAC did review the grievor’s case, on an undisclosed date. On August 15, 2011, Dr. Chernin wrote to Dr. Gary Shapiro (who appears to be Dr. Glass’s replacement at the WHPSP as the employer contact) about the MAC review of the grievor’s case, stating as follows:

...

The Medical Advisory Committee, consisting of [names redacted], reviewed the file in detail, including the reports of Dr. Glassman and Dr. Glass. It was the opinion of the MAC that, while the report of Dr. Glassman clearly addresses the psychological aspects of Mr. Shreedhar’s case, there was the possibility that it could be a physical issue which might be either causing or contributing to his work issues. In this regard, it was the consensus of the committee that, to fully address this possibility, that [sic] Mr. Shreedhar be referred to your physical medical consultant for an assessment to determine if there were physical issues which may have been affecting his work abilities.

...

 

[95] On August 16, 2011, Dr. Shapiro wrote to Ms. Ptasznik at the CBSA. He advised of the MAC’s finding and recommendation and requested updated consents to pursue the physical medical examination of the grievor. An appointment was arranged, and the grievor saw Dr. John Goldsand on October 3, 2011. Dr. Goldsand wrote to Dr. Shapiro that same day and reported that there was no physical impairment that would prevent the grievor from performing all the duties of his IEO position. On October 14, 2011, Dr. Shapiro wrote to Ms. Ptasznik at the CBSA. He advised her that the grievor had been further assessed as recommended by the MAC, that the further medical assessment “did not detect a medical condition that would require workplace accommodations”, and that the “previous recommendations made by Dr. Glass in his letter of January 5, 2011 remain unchanged”.

[96] Neither of Drs. Glass or Shapiro carried out any health examination of the grievor; nor did they assess him.

[97] Entered into evidence was a copy of the grievor’s performance evaluation report dated October 18, 2011, and prepared by and signed by Mr. O’Sullivan, with revisions noted January 16, 2012. The relevant portions of it state as follows:

Supervisor’s Comments

Neil has been limited to duties assigned in the Removals Screening for this reporting period.

It should be noted that since Neil’s previous PEP that it has been identified that Neil does not meet the competencies of an FB03.

He has remained assigned to the Removals Screening Unit since June/July 2009 subject to ongoing coaching, counselling, and management’s assessment period. Neil will continue to do so until such time the final determination is made.

...

In the RSU, Neil has been limited to working on screening less complex Non Criminal files only. While working on the Non Criminal files, over the course of the year, Neil has been provided feedback on cases/situations where there were NCMS staging issues or errors made on files during the screening process.

Since Neil’s last evaluation in 2010 a number of errors with Neil’s work have been found that have resulted in significant issues and impact on the department. They included NCMS entry errors that if not identified could have negatively impacted our case work and the respective clients’ situation; two Airline Liability cases which if not caught would have lead to the department incurring unnecessary removals costs; screening a case forward for the scheduling of a removals interview, violating a Federal Court Order staying the removal of the client while a subsequent PRRA decision was being allowed and screening forward a case for a PRRA interview where PRRA had already initiated, resulting in the scheduling and completion of an unnecessary interview.

...

Overall, I would say Neil’s work in the Removals Screening Unit can be described as needing regular supervision and occasional intervention. I remain committed to continuing to work with Neil while he is in RSU.

...

 

[98] Entered into evidence was a letter dated June 27, 2012, from the grievor to Lucy Butts, who was identified in the letter as being the regional director of HC for the Toronto area. The gist of the letter was a complaint by him about being referred to Dr. Goldsand. The relevant portions of that letter state as follows:

Briefly, I have had difficulties in learning the various aspects of the Inland Enforcement Officer position at work. After careful consideration I attributed this to a learning difficulty. This is more prevalent during stressful situations which sometimes occur during the work

...

 

[99] By letter dated August 23, 2012, Mr. Vragovic, the regional DG for the GTEC of the CBSA, demoted the grievor from his FB-03 IEO position to a CR-05 enforcement assistant position in the Enforcement, Intelligence and Criminal Investigations Division in the GTEC, effective September 13, 2012. Mr. Vragovic testified that he decided to demote the grievor because over a three-year period in which the grievor was given training, coaching, and mentoring, he continued to not be successful in the IEO position. He said that although there was a suggestion by the Customs and Immigration Union (CIU)( a component union of the Alliance) that the grievor might have a learning disability, the HC assessment had not disclosed one. He said that there were no other positions to which he could demote the grievor as there were no FB-01 or FB-02 positions.

[100] As a result of the demotion, the grievor suffered a significant reduction in pay, as the pay of an IEO at the FB-03 level is much higher than that of an enforcement assistant at the CR-05 level.

[101] As of the hearing, and for the previous six years, Murray Star was a human rights officer with the CIU,. Before that, he had been an employee in the federal public service with either the CBSA or one of its predecessors for approximately 30 years. He became involved with the grievor and the issues in the matters that are before this Board sometime in late 2012 and appeared to be the catalyst for the referral of the grievor to Cornerstone Psychological Services (“Cornerstone”) for an assessment.

[102] As of the hearing, Melissa Cait was a psychologist and the clinical director of Cornerstone. In 1982, she received a BA with honours from York University, in Toronto, with a specialization in psychology. She received her master’s in psychology from the University of Toronto in 1986. In July of 2009, she received her Diplomate from the American Board of School Neuropsychology from studies taken at Texas Women’s University and became an active member as a psychological associate and psychologist and a member of the College of Psychologists of Ontario in 1984. She founded Cornerstone in 2012.

[103] Ms. Cait testified about neuropsychology, stating that it is the study of the brain; the different areas of the brain are responsible for different things. She stated that her specialty is the educational field and the brain and how it affects learning and how it plays out in peoples’ everyday lives.

[104] Ms. Cait testified that she first met the grievor in November of 2012. It appears that he was referred to her through the CIU. In her evidence before me, Ms. Cait testified as to the testing that she and her colleagues carried out on the grievor. As part of her testing, she contacted Dr. Glassman to get a sense of what he had seen. She stated that in her discussion with Dr. Glassman, she asked him if he had screened the grievor for Asperger’s Disorder because when she was working with the grievor she had become concerned about his social communication style. Entered into evidence was a complete set of the grievor’s file, which included a copy of the Glassman assessment.

[105] Ms. Cait said that the overall testing and assessment time of the grievor was about 24 hours, the consultation dates being November 30, 2012; December 2, 10, 13, and 17, 2012; and January 7 and 13 and February 8, 2013. She stated that she did most of the testing and assessing, although she did have colleagues participate. She stated that she diagnosed the grievor as having severe challenges in social communication or mild autism-spectrum disorder, also known as Asperger’s Disorder. She also stated that he could also have attention-deficit hyperactivity disorder, known as ADHD.

[106] She said the following about the grievor:

· [he] is smart but his learning is uneven;

· has difficulty learning;

· can understand the theoretical but has problems with verbal cues and with nuances stating that it is hard for him to get feedback from things going on around him;

· has difficulty noticing and discerning small social details; he misses the mark with subtleties such as a roll of the eyes or someone nodding for him to move on;

· has problems with cognitive processing;

· has difficulty doing things quickly; speed is an issue when he is doing tasks; he may be able to scan and notice things and get the complete information but for it to be accurate it will take him twice as long as it should;

· has challenges with respect to mental flexibility. He is very rules oriented. He does very well in a ‘Cookbook’ approach, meaning when things are laid out for him. He has to follow a pattern: A comes first, then B, then C, and so on;

· needs structure;

· will veer off topic;

· doesn’t understand vocal tones, he doesn’t catch when he needs to be quiet;

· views things as a lecturing style versus a conversational style;

· has difficulty switching gears or changing tasks when necessary. Most people can change tasks (in most aspects of life) seamlessly. Someone with Asperger’s needs to warm up the gears (so to speak) before changing gears; if they don’t they will get into difficulty and it is anxiety provoking;

· has difficulty with the visual landscape, meaning when his goal and the actual goal are different he can get caught in a loop and not be able to get out of it. So he will have difficulty completing a task and moving on;

· has difficulty multi-tasking; he makes a lot of errors when he has to split his attention;

· has challenges remembering what is most important;

· will overwork something that is not important;

· will lose track of what is important;

· will often do double the amount of work necessary to get things done;

· has difficulty with inhibition and self regulation; people with Asperger’s often tend to go through their own agenda, and don’t notice other people’s lack of interest or that they have moved
on ....

 

[107] Ms. Cait set out her findings in a detailed but undated assessment (“the Cornerstone report”). In it, she set out the following background information:

REASON FOR REFERRAL

Mr. Shreedhar requested a psychological assessment in order to better understand his own learning and adaptive profile so that he could acquire better strategies and/or accommodations to support his productivity and interpersonal relationships.

...

Interview with Mr. Shreedhar

... he noted that he can be awkward interpersonally and has remained challenged to read social cues and interpret subtleties in social nuances ... he can misunderstand situations and/or be misunderstood.

From an attentional standpoint, Mr. Shreedhar reported that he easily is distracted by small things in his environment, he can be inattentive to the “right details” and he is prone to making errors. He noted that he finds his mind “wanders” when he is asked to sit and concentrate for long periods of time and he frequently loses his place while reading drier material or he loses track of his thoughts while working. He noticed that he has problems shifting his focus and applying different rules/skills when needed and he reported challenges in tuning in/tuning out and dividing his attention. Related concerns were highlighted with respect to his short-term memory in that he often needs questions repeated, he cannot easily follow multiple stepped directions and he sometimes feels that he “knew it but forgot it”.

As a result, Mr. Shreedhar conceded that he gets overwhelmed with busy and detailed tasks and struggles to manage his time, make decisions, plan, remain organized, multi-task and work in an efficient manner... Mr. Shreedhar admitted that he can be very concerned about “making mistakes” and so he can be somewhat perfectionistic and then “spin his wheels” in what others believe is minutia or not related to the task at hand.

...

Mr. Shreedhar is very keen to improve and committed to doing a good job at work, he requested this assessment to clarify how he learns and works with other [sic] so that he can acquire strategies to support his productivity and personal development.

...

 

[108] The Cornerstone report sets out in extensive detail the results of the testing undergone by the grievor by Ms. Cait and her team, and disclosed that the grievor exhibited the characteristics of Asperger’s disorder and perhaps ADHD, as described by Ms. Cait in her testimony to me and as outlined earlier in this decision.

[109] The grievor, Mr. Star, and Mses. Cuvalo and Clarke all testified about emails entered into evidence and dated February 12 and 13, 2013, the topics of which were to try to schedule a meeting. From the grievor’s perspective, the purpose of the meeting was to provide to management the results of the Cornerstone assessment; however, the emails do not disclose that in the subject line. Nor, up to that point, was there any evidence that the Cornerstone report had been provided to the employer in any format.

[110] Also entered into evidence and identified by Ms. Clark was a set of typed chronological notes that she identified as being made by her and that contained a note dated February 21, 2011, which referred to a meeting on that day (“the Feb. 21 meeting”) and stated as follows:

-On February 21, 2013 Marija Cuvalo and I met with Neil and union rep. Murray Star regarding Neil’s Request for an Accommodation based on a disability. The documentation provided was not a medical letter but an unsigned Word document describing his condition. Neil and Murray claimed that it was cut and pasted from a psychologist’s report. The demands were that Neil receive back pay at an FB-03 level, that software be purchased to assist him and also that a vigourous [sic] attempt be made to find Neil a suitable position at the same classification (FB-03).

 

[111] Entered into evidence was a Microsoft Word document that was not a medical report or letter and that appeared, as described by both Mses. Cuvalo and Clark and as confirmed by both the grievor and Mr. Star, to consist of cut-and-pasted parts of the Cornerstone report.

[112] In his evidence, the grievor confirmed that he recalled attending the Feb. 21 meeting and stated he recalled discussing his accommodation request. When asked what information he provided to the meeting, the grievor said that he recalled being cautious. He said that he and Mr. Star wanted only to provide just the information that was necessary to obtain for him an accommodation. When he was asked if he disclosed a diagnosis at the meeting, the grievor’s response was this: “I just wanted to give them what they needed.” When he was asked if he recalled having a discussion with Mr. Star about the diagnosis or having a discussion at the meeting about the diagnosis, the grievor said that he did not recall and that to the best of his knowledge, the Word document was the only information provided at the meeting. In cross-examination, it was put to Ms. Cuvalo that it was disclosed at the Feb. 21 meeting that the grievor has Asperger’s, to which she said that she did not recall that happening.

[113] Ms. Cuvalo stated that the problem with the Word document was that it appeared to be some form of an assessment; however, it had no identifying information as to who did it and when and what that person’s (or persons’) credentials were with respect to carrying out the assessment. She stated that while she had concerns, they were not discussed at the Feb. 21 meeting but at a later meeting.

[114] Mr. Star testified that he created the cut-and-pasted Word document. He said that the Cornerstone report was too detailed; it referred to a diagnosis, which was not required under the TB’s accommodation policy. He said that he agreed that the Word document did not appear to look like a medical note as stated by Ms. Cuvalo. He said that he told them that he did not want them to know, and he thought that they would use the diagnosis against the grievor.

[115] Mr. Star testified that during the course of the meeting, he noticed that the grievor’s anxiety was increasing, so a break was held. By the time he and the grievor returned, the grievor had given him permission to disclose the diagnosis. He then testified that Ms. Cuvalo asked what it meant; he testified that Ms. Clark appeared to understand and stated that the difficulties the grievor was having in doing his job made sense. Mr. Star said that the meeting ended with him telling Mses. Cuvalo and Clark that the grievor would send the full report to them.

[116] Both Mses. Cuvalo and Clark had testified by the time Mr. Star testified. The specifics of what Mr. Star said about the Feb. 21 meeting were not put to either of them.

[117] Ms. Clark’s notes record a meeting of March 11, 2013, again attended by her, the grievor, Mr. Star and Ms. Cuvalo. The notes state as follows:

-On March 11, 2013 Marija Cuvalo and I met with Neil and Murray Star. Neil is not willing to have another Health Canada Assessment. Murray indicated that the information can come from Neil’s own medical practitioner. It was indicated that Neil’s doctor would confirm the psychologist’s assessment. They indicated that they wanted to “speed up” the accommodation process. It was requested that we remove the Health Canada Assessments from his file, that we sit down with Neil and see where he will be a fit, and that it be at the FB-03 level or equivalent.

 

[118] Ms. Clark’s notes indicate that on March 14, 2013, the grievor provided a medical note to Ms. Cuvalo. Also entered into evidence was an email dated March 18, 2013, sent by Ms. Cuvalo to the grievor and Mr. Star, and copied to Ms. Clark. The relevant portion of the email states as follows:

...

Neil submitted a medical note to me on March 14, 2013.

I have reviewed this medical note and given that there is no evidence that a medical professional conducted the assessment and made recommendations based on that assessment, the following is required:

-documentation that has clearly been completed by a medical professional that outlines the restrictions and accommodations as they relate to his assigned duties and hours of work as a CR5 Enforcement Assistant and the duration of said restrictions and accommodations.

Attached is a copy of the job description. Please have the medical professional review the job description and identify the restrictions and accommodations in conjunction with Neil’s medical condition.

...

 

[119] No other medical report or note dated in or about March of 2013 was produced or entered into evidence.

[120] Mr. Star advised the grievor against a further HC assessment. He said that he did so because an assessment had already been done. He said that the Cornerstone report was detailed and that the CBSA’s representatives could look at the data but that to repeat the information and testing was redundant.

[121] Entered into evidence was a letter dated April 2, 2013, authored by Ms. Cait and addressed to “To Whom It May Concern” (“the Cornerstone Apr. 2 letter”), the relevant portions of which state as follows:

Mr. Shreedhar was evaluated in December 2012/January 2013 here at Cornerstone. I was and continue to be the supervising psychologist on his case. At that time, he was identified with Asperger’s Disorder, which is part of the Autism spectrum of disorders. This is considered to be organic and neurological in nature, rather than behavioural in its origins and is a life-long condition. While this can affect certain interpersonal interactions and the interpretation of subtle social nuances, in Mr. Shreedhar’s circumstances, he is a very intelligent and well-intended man who presents as a high functioning individual with the disorder.

In fact, intellectual testing revealed that Mr. Shreedhar has overall High Average verbal abilities. ......By comparison, a number of his visuospatial and fine-motor skills are weaker with many falling within the Low Average range. This is common in many individuals with Asperger’s Disorder. Predictably, he struggles with some aspects of visual memory and he has some difficulty with working memory but his retention of meaningful verbal content is good. Still, this significant unevenness in cognitive functioning is further reflective of a learning disability.

...... Mr. Shreedhar has struggled to be focused and productive and so attentional concerns also surfaced during testing and, as such, these could be indicative of an underlying attention-deficit hyperactivity disorder (ADHS) although the unevenness in his abilities also could mimic an attention deficit. Regardless, this means that in a work environment, he will require accommodations to support his Asperger’s, learning disability and attention span.

...

Bearing in mind all of these factors, Mr. Shreedhar should be eligible for accommodations in the workplace so that he can suitably perform his job functions and contribute as a full team member. To assist with this, the following recommendations have been generated:

1. Sensitivity in the work place, particularly, around Asperger’s Disorder;

2. Opportunities to be stimulated by his work;

3. Provision of well structured, clear and consistent guidelines;

4. Worked [sic] chunked into smaller and more manageable pieces with repetition as needed;

5. Structured and planning/organization sessions and ongoing meetings with respect to project deadlines and time management with kind but direct feedback;

6. Use of a computer, tablet and/or Smartphone with adaptive technology. Training in the use of relevant technology (e.g. task management system with reminders; speech to text/text to speech. LiveScribe pen for recording and reviewing orally presented information; annotation software);

7. Reading material in PDF/electronic format so adaptive technology can be used;

8. Provision of an executive summary of reading material;

9. Avoid tests that contain “tricks”. Provide a quieter or private room with extended time limits (50-100%) more time) and grant breaks during tests or in exam situations that should not be counted against his extended time limits;

10. Use of adaptive technology for tests/exams of [sic], if he prefers oral testing/oral elaboration with opportunities for clarification; and

11. Access to others’ notes; capacity to take pictures of flipcharts, white boards.

If you have any further questions or concerns, please feel free to contact me. I can be reached at the telephone number listed on the letter head. Alternately, I am accessible through e-mail at [email address redacted].

...

 

[122] Ms. Cait testified that she did not have a job description when she performed her assessment of the grievor. She was asked by counsel for the grievor for the grievor’s prognosis. She stated that it had been eight years since she had seen him and that the prognosis could be good because he shows significant interest and great effort. She said that he is very intelligent. For work, the right fit must be found and then the accommodation worked out. She did, however, confirm that at a date that was not identified, but closer to the Apr. 2 letter, she was asked to provide an abbreviated letter with respect to accommodation and was provided with a copy of the enforcement assistant (CR-05) work description.

[123] Entered into evidence was an email dated April 5, 2013, from Christopher Collier, an IEO and a CIU representative in the GTEC, to Ms. Raposo, the subject matter of which were potential positions that the grievor could fill that could accommodate his needs. The email states as follows:

I understand you’ll be the person handling Officer Shreedhar’s file moving forward. We have given some thought as to some positions that would accommodate Neil’s needs. Some of the positions identified include, but are not limited to: hearings advisor; working in deferrals, archiving or the 44 unit; AVRR; PRRA officer; a position in human resources at Matheson. There are still many positions Neil could work. I’m only trying to help brainstorm where Neil could be most effective within CBSA.

 

[124] Ms. Raposo was asked about Mr. Collier’s email of April 5, 2013, and whether she discussed it with either him or the grievor. She said that she did discuss it with them although when, she could not say; however, she did state that she could not discuss moving the grievor to a higher level.

[125] Mr. Collier did not testify.

[126] On May 2, 2013, the grievor emailed a copy of the Cornerstone Apr. 2 letter to his immediate supervisor, who at that point was Ms. Jelani, with a copy to Mr. Star and Ms. Raposo, who at that time was Ms. Jelani’s immediate supervisor.

[127] On May 27, 2013, the grievor emailed Ms. Raposo and copied Mr. Star and Mses. Jelani and Ptasznik, the relevant portions stating as follows:

Although you are requesting another evaluation, I think it may not be necessary – especially after you read this note of clarification. In any case, everyone having my best interests at heart, and the organization’s best interests at heart ... – I don’t think we want to lose ground and, more importantly, time – backpedaling – a constant struggle going back and forth – costly to all, especially me.

...

Khalida Jelani asked me ... what accommodation I might need and I replied that the information was on Melissa Cait’s ... recommendations ....

...

[Emphasis in the original]

 

[128] Ms. Jelani testified that she was a newly appointed FB-05 supervisor in April of 2013. That was when she became the grievor’s supervisor, when he was in the court tracking unit. She identified troubles the grievor was having when he reported to her. She stated that one of his tasks in that unit was preparing statutory declarations, which consisted of general information and then more specific information extrapolated from several different computer systems and then inputted into a template document. She stated that he struggled with extrapolating information from the systems into the template. She said that he sat next to a colleague who was supporting him.

[129] Ms. Jelani said that she could not recall when she became aware of the grievor’s health issue, whether it was initially when she met with him or when she received the Cornerstone Apr. 2 letter. However, she said that she did meet with him and discuss it. She said that the grievor had brought forward to her the difficulty he had with extrapolating the information from the computer systems. She said that she told him that she would try to find other work that he could do that he could accomplish. She said that she told him that she would try to find tasks that would fit into the parameters of the Cornerstone Apr. 2 letter.

[130] On June 12, 2013, the grievor emailed Ms. Raposo and copied Mr. Star and Mses. Jelani and Ptasznik, the relevant portions stating as follows:

I appreciate the fact that you are trying to make attempts to ‘accommodate’ me, yet as Murray stated to me, real Accommodation starts with steps such as getting me the appropriate tools....

1. Has someone read the recommendations made by Ms. Melissa Cait?

2. Has someone looked into getting the(se) various tools to aid me at work?

3. How soon will someone from IT come over to assist and fit me?

Someone needs to take the lead on this and Anne, you said that you would to maintain continuity (as supervisors are constantly being moved around within our office).

...

So....for your and my mutual benefit, I have gleaned information from the documents that I have already provided you (as you may recall recommendations provided both on the two page summary, and from Ms. Cait’s recent note).

 

[131] Entered into evidence was a letter dated June 17, 2013, from Cornerstone, signed by Ms. Cait and addressed to Luc Portelance, the president of the CBSA. The relevant portions of that letter state as follows:

Mr. Shreedhar received a very thorough evaluation through this clinic in December2012/January 2013. After the culmination of more than 20 hours of assessment and interviews, I established that he is very bright but that he also has a learning disability as well as Asperger’s Disorder. In addition, there is a strong possibility that he also has an attention-deficit/hyperactivity disorder (ADHD).

Unfortunately, Mr. Shreedhar has relayed to me that he has not been accommodated at work since this assessment was completed more than 5 months ago. Subsequently, he feels his needs have been marginalized and this has tarnished his confidence and increased problems with his mood and anxiety.

To be clear, Mr. Shreedhar wants to be successful and to contribute to his workplace. However, the unresponsiveness at work to meet his needs and insistence that he undergo yet another assessment (without even consulting me about the existing evaluation that was conducted) seems unduly stressful for him and is failing to meet his needs as an individual with a disability.

Rather than creating more obstacles to stall supporting Mr. Shreedhar, I am hopeful that you or a member of your agency will contact me directly if you have any further questions or concerns so that we can minimize the impact that an even greater delay in accommodating him can have.

I can be reached at the telephone number listed on the letterhead. Alternately, I am accessible through email at [email address redacted].

[Emphasis in the original]

 

[132] On June 20, 2013, the grievor emailed Ms. Raposo and copied Ms. Ptasznik, the relevant portions stating as follows:

Since February I haven’t heard from anyone in regards to the Duty to Accommodate, and even when we bumped into one another yesterday and I asked you what was happening, unfortunately you weren’t able to provide me with information that would be useful to my immediate situation.

Anne – this is quite disturbing. The psychological report clearly indicates what software can be used to enhance my work output, yet no one has gotten back to me – either from IT or from management, in terms of questions they want answered so that management can satisfy any queries they might have.

...

The fact is that management has had this information since February, and now it is almost end of June 2013. Four months have gone by with no concrete action on this in terms of what the psychologist has recommended.

I am still waiting...and it’s not fair, right and furthermore it can be very stressful for anyone to have to wait so long....

...

 

[133] Entered into evidence was a letter dated July 11, 2013, from Ms. Raposo to the grievor, the relevant portions stating as follows:

...

The following refers to your email of June 12, 2013 wherein you have enquired into the status of your request for tools to assist you in completing your assigned duties. To provide context to this reply, I would like to take this opportunity to summarize the information and steps, which have been taken to date to understand the arrangements which are currently in place.

Beginning in 2008, management initiated a three-year period of extensive coaching and counselling as part of a performance management process to improve your performance as an Inland Enforcement Officer. During that period, management received no information from you as to whether you required any workplace accommodations. However, following solicitations by your employee representative that a medical opinion was required to better understand your performance issues, you agreed to undergo a Health Canada medical assessment.

It is my understanding that this medical assessment was conducted by Health Canada on January 5, 2011. The results indicated that neither a vocational disability nor any medical issues existed warranting a workplace accommodation. However, Health Canada provided two general recommendations to support your particular learning style. It is management’s opinion that these recommendations have been implemented and respected. I further understand that in October 2011 you appealed the Health Canada assessment to the Health Canada Medical Advisory committee, but the results of the original assessment were upheld. In other words, there were not identifiable medical limitations affecting your job performance.

In April 2013, a letter was submitted by you written by a representative of the Cornerstone Psychological Services. This letter indicated that you have Asperger’s Disorder and included a list of suggestions to how management could assist you in your position.

Upon receipt of this information, you were advised by your Chief and Supervisor that CBSA employee medical evaluations are generally conducted by Health Canada physicians. You were further advised that given management’s lack of expertise in this area, associated questions and clarifications surrounding employee medical assessments should be reviewed and interpreted for the CBSA by Health Canada. You indicated that you would not participate in another Health Canada assessment or allow the CBSA to seek clarification from Health Canada to either validate or clarify the details of the information submitted by you.

It is noted that given Health Canada’s understanding of the culture, mandate and duties performed by the CBSA and specifically positions such as yours, they are able to assist management in determining the appropriate assignment of duties and the applicable restrictions. This point is of particular importance, as it would provide clarity to any medical limitations you may have that may require accommodation. The current information provided by Cornerstone Psychological Services, proscribes a number of recommendations that do not identify specific limitations. The Cornerstone representative alludes to having reviewed your job description, but I cannot validate this nor validate whether you are a patient of this individual. A fundamental part of the duty to accommodate process is that when requesting information pertaining to medical limitations, employers are entitled to ask medical professions questions pertaining to job limitation.

Notwithstanding my concerns above, the correspondence from Cornerstone Psychological Services has been carefully reviewed. In this regard, you will note that many of the recommendations have already been implemented as part of pre-existing management practises and as legacy considerations from your previous Health Canada assessment.

With regards to other recommendations, it should be emphasized that management is not in a position to invest in specific technologies for unknown limitations. If you suspect that you have specific medical limitations affecting your job duties, I would like to remind you that I am willing to consider the results of a further Health Canada assessment. Moreover, for those Cornerstone recommendations indicating that you require accommodations during candidate testing, I would like to remind you that it is incumbent upon candidates to indicate that they have accommodation needs during the job processes with assessment board members.

1. Sensitivity in the workplace, particularly, around Asperger’s Disorder. The CBSA is inclusive to all disability related conditions and therefore respects a process-driven approach to duty to Accommodate based on individual needs.

2. Opportunities to be stimulated by your assigned work. Given the ongoing performance related issues, management is currently working with you to ensure assigned duties are successfully completed. Management cannot create work that is not part of the existing and required duties.

3. Provisions of well-structured clear and consistent guidelines. The provision of well structured, clear and consistent guidelines has been and continues to be provided as part of good management practices.

4. Work chunked into smaller, more manageable pieces with repetition of direction as needed. Currently and continues to be provided as part of good management practices.

5. Structured planning/organizations sessions and ongoing meetings with respect to project deadlines and time management with kind but direct feedback. Management currently and continues to provide structure in the assignment of duties.

6. Use of computer, tablet and/or smartphone with adaptive technology. Training in the use of relevant technology (e.g. task management system with reminders, speech to test [sic]/text to speech; Live Scribe pen and/or audio note-taking software for recording and reviewing orally. Management is unaware as to how the above-noted technology relates to assigned duties. Health Canada is responsible for advising the CBSA as to technology requirements and their application to specific tasks when an accommodation is identified.

7. Reading material provided in PDF/electronic format so adaptive technology can be used. Implementation can easily be provided. Management is unclear as to how this will facilitate work assigned given the nature of the duties.

8. Provision of an executive summary of reading material. Management remains unclear as to what would constitute an executive summary and how this would relate to routinely assigned duties.

9. Avoid tests that contain “tricks’, provide a quieter or private room with extended time limits (50-100% more time) and grants breaks during tests or in exam situations that should not be counted against time limits. Responsibility rests with employees to identify specific accommodation requirements to specific assessment board members.

10. Use of adaptive technology for tests/exams of [sic], preferred oral testing/oral elaboration with opportunities for clarification. Responsibility rests with employees to advise specific assessment board members of any particular testing requirements.

11. Access to others’ notes; capacity to take pictures of flipcharts, white boards. Employees may take pictures of flip charts and white boards, subject to access to information and third party privacy restrictions.

...

Finally, if you have specific medical limitations preventing you from satisfying particular job duties, I encourage you to complete the attached Duty to Accommodate Request form. Information provided in this form will assist management to identify and address any applicable needs that you may have.

...

[Emphasis in the original]

 

[134] On July 30, 2013, the grievor emailed Ms. Raposo and copied Ms. Jelani and Mr. Star, forwarding a consent form completed and signed by him. The relevant portion of the email stated as follows:

...

I confirmed the requested form from Health Canada should be fine to fill out, especially given the clear explanations made by Murray Star at our last meeting. The form appears to be a way to get the dialogue started between Health Canada and Melissa Cait of Cornerstone. So I think at this point it is good to go forward in a timely manner and in faith that the process will work itself out.

...

 

[135] The consent form signed by the grievor on July 25, 2013, was an HC “Consent to Release Personal Information to a Third Party Occupational Health Service Provider” form, and the relevant parts of that form indicate that the grievor consented to HC providing Ms. Cait and Cornerstone with the information it had. Ms. Raposo said that the grievor had consented to Ms. Cait and representatives of HC having a dialogue.

[136] Entered into evidence was a 1-page CBSA template form entitled, “Accommodation Request” that the grievor testified he filled in and signed. It is dated July 11, 2013. At the hearing, attached to this document was the 17-page Cornerstone report, as well as an 8-page appendix that is a summary of the grievor’s test scores. In cross-examination, both were put to Ms. Raposo, who said that she had seen the 1-page Accommodation Request but had never seen the Cornerstone report and the appendix. She stated that she believed that she saw the Accommodation Request form, not on July 11 but sometime later, between July 13 and August 2, 2013. When counsel for the grievor put it to her that the grievor would testify that he provided it to her, Ms. Raposo said that she could not contradict that but that she had not seen the report. In re-examination, she said that she had not seen the Accommodation Request form but instead the HC consent form that the grievor signed on July 25, 2013.

[137] When the grievor testified, he identified both the 1-page CBSA template form entitled, “Accommodation Request”, signed by him on July 11, 2013, and the 17-page Cornerstone report together with the 8-page appendix. When he was asked in his examination-in-chief if he provided it to the CBSA, he said that he would have done so. When asked to whom, he said that he was not positive, but stated this: “it appears I would have given it to Ms. Raposo.” The document provided at the hearing was a copy, and on the top of it was handwritten, in square brackets, “My copy”.

[138] Entered into evidence was a copy of a letter that is dated August 12, 2013, and that appears to be from Dr. Anusha Kathiravelu (who in the letter identified himself as the grievor’s family physician) to Mr. Portelance. The relevant portions of the letter state as follows:

...

As the family physician for Mr. Neil Shreedhar, I have become aware of his increasing levels of frustration. To my knowledge Mr. Shreedhar has provided you with recommendations as suggested by the specialist and these are yet to be implemented. There are even a number of computer software programs that would help make Neil more effective in his employment role, however none of these are being utilized.

I was very disappointed to learn that Mr Shreedhar was demoted instead of being accommodated and feel that an organization of the CBSA calibre would have policies and a duty to accommodate the needs of their employer’s [sic].

As mentioned, I have noticed an increase in Mr. Shreedhar’s frustrations and his levels of stress/anxiety; The CBSA would be accountable for any deterioration in my patient.

...

 

[139] Dr. Kathiravelu did not testify.

[140] Entered into evidence was a copy of a letter dated September 12, 2013, from Dr. Shapiro to Ms. Ptasznik. The relevant portions of the letter state as follows:

...

Thank you for your letter of Aug. 21, 2013 concerning Mr. Shreedhar. In this letter you indicate that you are having difficulty reconciling the recommendations from Health Canada with those of Melissa S. Cait, M.A., C. Psych. The recommendations from Health Canada were outlined in our letters of Jan. 5, 2011 and Oct. 14, 2011 and the recommendations from Ms. Cait were noted in her report of Apr. 2, 2013.

Please be advised that we can only consider the information provided by Ms. Cait in the context of another Fitness to Work Evaluation. This framework would enable us to obtain additional consultations if/as required, in order to answer your queries.

If you choose to proceed with another Fitness to Work Evaluation, please accompany your request with the required consent forms.

...

 

[141] Entered into evidence was an email exchange dated September 18, 2013, between the grievor and Ms. Ptasznik. The relevant portions of each email are as follows:

[The grievor to Ms. Ptasznik, at 08:28:]

Yesterday I received the copy of the letter from Dr. Shapiro from Health Canada (I wish I would have heard from management about this). We both know, as it has been discussed extensively, what the next step should follow.....

As you have already procured my authorization to release information in regards to the comprehensive evaluation that was performed by Ms. Cait, please now go ahead as agreed and have that information released to Health Canada (if needed) so that we can gain their approval and support.

In this regard, I have a couple of questions:

Have you sent over to Dr. Shapiro the test scores provided by Ms. Cait? (If not, why not, since that is what we had agreed to?)

Also, at any time have you yet contacted Ms. Cait with any questions that you might have that you may better understand the nature of the Accommodation that I need?

Anything less than the above, and as discussed at length through your various representatives, the last of which was A/Chief Anne Raposo, would be considered as impeding me, and my progress, and detrimental to my health.

...

[Ms. Ptasznik to the grievor, at 09:10:]

Please note that I received the letter to which you refer below, late in the day yesterday. Accordingly management has not yet been apprised of the details which had been contained therein. In reviewing the correspondence from Health Canada, you will note that they have not yet agreed to provide any services outside of the [sic] their standard operating procedures. To expedite this matter, I have already contacted Health Canada to discuss options which may be available under these circumstances

...

Further, in the interest of ensuring that this situation is given due and careful consideration, the assessments which you had provided to management were sent to Health Canada along with the signed consent forms. With regard to your enquiry regarding contact with Ms. Cait, the purpose of Health Canada’s intervention in this respect is specifically intended to assist management in clearly understanding what if any restrictions and/or accommodations are required for the duties to which you have been assigned. It is my understanding that management has previously explained to you that Health Canada, as the Employer’s medical expert, has been asked to speak to Ms. Cait on behalf of the CBSA and to provide the Employer with a clear understanding of any required equipment, etc. and/or clarification of duties within the context of your position.

...

 

[142] Ms. Jelani said that she discussed the Cornerstone Apr. 2 letter with Ms. Raposo and LR and that to assist the grievor, they came up with having him do less court tracking but instead do file processing. He would work half a day in court tracking and half a day in file processing. She said that with the file processing, he would have a checklist to ensure that the steps to be done were done with respect to the files that came into the office. She said that this started in September or October of 2013 and that he continued to do it for two or three months, after which he was moved to archiving, which management felt would be a better fit. She said that this move was precipitated by the grievor coming to her and telling her that he found the file processing challenging. She said that he agreed to the move to the archiving unit.

[143] She said that upon his transfer to the archiving unit, he reported to another supervisor for attendance and work but that his personnel file remained with her. She said that this was done because his file had been through a number of other managers, and many mangers were moved in and out of acting supervisory positions for short four-month periods. As such, his file would become the responsibility of any new supervisor, including acting ones. It was decided that in the interest of stability, it would be best to have one manager responsible for his file, and she was the one designated.

[144] Ms. Jelani was asked whether the recommendations set out in the Cornerstone Apr. 2 letter were implemented; she answered that they were. In her examination-in-chief, the recommendations set out in the Cornerstone Apr. 2 letter were reviewed with her. She stated that recommendation nos. 1 through 4 and recommendation nos. 7 and 11 were implemented. She noted the recommendations that she said she did not believe were implemented; namely, nos. 5 and 6 as well as nos. 8 through 10.

[145] Ms. Jelani stated that she believed that the grievor was given meaningful work. She said that file processing was challenging for him, so management moved him to archiving, which seemed to suit him. She said that she recalled the grievor telling her that he wanted to change things at different times and that he enjoyed putting files away. She said the work was at the CR-03 level, but he liked it. She said that he was given instructions in a format and that they were mostly in the form of a checklist. She said that the checklists were often broken down into three or four different sections of steps in both the file-processing and archiving units. She said that it could not be set up in the court tracking unit because of the complexity of the work and the variety of the steps required. She stated that she did not believe that the grievor was given deadlines, but the work was volume based, and he had to do less work than others did.

[146] With respect to recommendation no. 6 and the use of a computer, tablet, or smartphone with adaptive technology, Ms. Jelani said that she had a discussion with the grievor that it would not help in the court tracking unit, as his job was to extrapolate information from different computer systems, and that there was a template document; she said that he was not writing essays but doing analytical thinking. She said that they also would not have helped with his file-processing and archiving work. She said that for the duties he was carrying out, these would not have been helpful. She said that his response when she said no was that the technology would still be neat to have. She said that with respect to adaptive technology, if there is a need, it is fine, but that “nice to have” does not cut it, as the CBSA answers to the public.

[147] Ms. Jelani stated that he was provided with checklists, likely in Word, but that the checklists were printed and attached to the files. She said that he was not provided with executive summaries; nor was she aware that he was given any tests or examinations (recommendation nos. 9 and 10). With respect to recommendation no. 11, she said that the grievor would have been given notes and would have had the ability to take notes.

[148] Ms. Jelani stated that while they discussed the Cornerstone Apr. 2 letter in general, she explained to the grievor why some of the recommendations were implemented, while others were not. She said that the grievor usually raised the issue of technology.

D. The grievor’s alleged misconduct in May of 2014 and the subsequent two-day disciplinary suspension

[149] On July 18, 2014, the grievor received a two-day disciplinary suspension as evidenced by a document entitled, “NOTICE OF DISCIPLINARY ACTION” and dated that same day and signed by Mr. Kamin, the relevant portions of which state as follows:

You were assigned to your position in August 2013. Approximately 3-4 months of training and direction had been provided to assist you in the satisfactory completion of your assigned duties. Written manuals and specific guidelines were provided along with ongoing assistance from your colleagues. No concerns surrounding training, coaching or counselling were raised by you at any time. A fact finding meeting was held with you on Wednesday May 28, 2014 with your union representative Michael Gurr. During this meeting you did not dispute the evidence indicating that you had not performed your assigned duties during the period of May 06, 2014 to May 16, 2014. You indicated that you did not perform your assigned duties as they were not commensurate with your higher level skills and abilities. You referenced management’s requirement to provide you with accommodations without specifying the exact tools or support that precluded you from doing your work.

It was further noted that on May 12, 2014, you failed to report to your duties at the front counter when you left the workplace for 1.5 hours from 11:00hrs to 12:38hrs without advising management of your whereabouts. Accordingly CBSA clients were subject to an inordinate delay while you attended to your personal interests.

Your actions are considered a breach of the Agency’s Code of Conduct specifically as it relates to Neglect of Duty as follows:

Although this Code sets out expected standards of conduct for all employees at CBSA, they are not all-inclusive. Our CBSA value of Professionalism encompasses being attentive, alert and reliable. Therefore, neglecting our duty falls short of our high standards. For example, as professionals we: carry out policies, procedures or assignments or instructions from our management without delay; follow applicable laws, rules, regulations or policies; avoid a general lack of attention; attend work as scheduled; and are not absent from work without reasonable cause or authorization.

...

Given the above and to impress upon you the seriousness of your actions, a 2 day suspension is being issued to be served July 21, 2014 to July 22, 2014 inclusive.

In reaching this decision, consideration has been given to the fact that you did not provide any clear and reasonable explanation to account for your failure to perform your assigned duties as directed. Consideration was further given to information submitted by you in connection with a duty to accommodate.

...

 

[150] In May of 2014, the grievor was still working in the CR-05 enforcement assistant position but carrying out archiving work. While in this unit, the grievor reported to Mr. Uzoruo for attendance and work; however, as stated earlier, his LR file and personnel matters were dealt with by Ms. Jelani, to maintain needed stability.

[151] Entered into evidence were Mr. Uzoruo’s typed notes for the period of May 6 to 16, 2014. The relevant portions of these notes state as follows:

12May2014

I asked Trishann to complete Nilesh’s tasks for 2010 for the first half of the day while completing her own duties.

She was able to complete 35 files in less than 3 hrs while being interrupted consistently from other staff and her regular break.

Neil had interview at1051 hrs. Did not meet client. Took lunch from 11-12. Did not return until approx. 12:38 hrs. No explanation given until he came into office.

Came to office stating that he did not appreciate me letting Jonathan and [other employee name redacted] know that he was absent. Said that I should have told him directly instead.

Advised that I have notified Trishann as she was looking for him on my behalf. Jonathan was made aware as he has the right to know in the event of any complaints.

Told Nilesh that one of the clients was getting agitated because of the wait time and I could not account for his whereabouts.

He then told me that he was with the Director immediately after his lunch break.

I advised him that common courtesy would be to notify the front counter of his lunch and myself for the extended absence. It is inexcusable to have clients waiting over an hr and a half.

He proceeded to say that normally it would be quiet and that he didn’t expect any client’s to be there.

I reminded him that the first client reported prior to his lunch break. He also knew that he was on the schedule and should have either returned to his desk to check his email or advise the front counter staff that he would be unavailable for a short period of time.

Khalida had knocked on my door and I invited her to come in to have a seat.

I told Nilesh that there was another issue that I would like to bring up with him.

Told him that since Shred It had removed the boxes on the 6^th May, he has not produced one box over 7 business days. During this time he was on the schedule only once [Emphasis in the original]for the front counter.

15th May 2014

Came into my office after seeing his clients around 1pm to tell me that he was able to complete the requests quickly as they were simple. Approached me and told me that he did not appreciate me notifying Trishann, Khalida and Jonathan by email. He said that I should speak to him in person.

I advised that I will be leaving shortly and the matter was serious enough to notify our chief. Khalida is his direct contact and Trishann, who typically serves as my backup should also be made aware. I told him that my tenure was ending in a few weeks and that they should be notified in the event of a complaint.

Khalida entered my office. I decided to bring up the matter of him not producing any of his primary duties (file destruction) in 8 days. I asked him to explain why he was not able to produce anything in that time.

I then advised him that the other CR5 was tasked with completing his tasks in addition to hers. She was able to complete the equivalent of 3 boxes in less than two hours.

Nilesh had not produced anything.

He said that he just felt that what he did was not important and that it is known that he has a Master’s degree. I advised him that compared to the Prime Minister’s position, my current position is less critical. However, without my role the entire unit would not b able to function effectively.

I advised him that the Records Room had a fixed amount of space. It costs us tens of thousands of dollars to realign the Records Room before the end of fiscal. A critical part of Records Room management was to remove files as quickly as possible.

He said that he left because he did not expect any clients to report. I reminded him that we do not schedule clients. Some days may be busy (7 clients) and some may be quiet. I asked him why he hadn’t checked his email before 11am and why he had not notified any manager about his extended absence. He had no answer.

I reminded him that his files were generally larger and easily identifiable. They do not take a significant amount of time to complete.

He was told that my expectation was that he completes at least 60 per day.

16MAY2014

Nilesh responded by email insinuating that he had similar duties to a previous FB03. This is false and not the case. Nilesh only does File Destruction for Visa (Landing) files. The previous FB03 and the other CR05 complete both Archiving and Destruction of all files.

Nilesh claimed that he was responsible for Digit 6. An email was sent to all staff advising that all files and attachments were put away by CR3 since the beginning of March. Three CR3s dedicate an hr each of their time daily to put away files. Occasionally, I have put away files as well. Nilesh is not responsible for any digit and I have never witnesses him putting away files since my tenure.

Nilesh has included that he provides front counter reception assistance. This is quite rare. For the month of April, he was scheduled for a total of 1hr.

In May 2014, schedule for 5.5 hrs for the entire month.

For CR5 front counter duties, he was schedule for an equivalent of 2 days for the month of April. For May 2014, he was schedule for a total of 4 days. He was absent for 1.5 days. He has also been removed from this primary duty as of 21MAY2014.

As a result of a favourable schedule, Nilesh should have been producing a significant number of destroyed files per month. There should be at least 60 boxes a month by him. To date Nilesh has not process one box.

Nilesh stated that he does not believe that he has to notify front counter reception or management of when he takes his lunch breaks as directed. He was asked to follow this practice, which is already completed by his peers to ensure that are notified in the event of another situation where he could not be found.

He states that he does not understand why there was panic due to his 1.5 hr ‘legitimate’ absence and has failed to acknowledge that he should have checked his email prior to 11 and should have notified management of his extended absence from the front counter.

During our meeting, I advised him that the clients were upset due to his extended absence, his written response was that this is the role that I have signed up for a supervisor.

I had only started to search for Nilesh at 1206 hrs after multiple notifications to Nilesh at the front counter. At this time, Nilesh should have returned to his desk.

...

[Sic throughout]

 

[152] In his testimony, Mr. Uzoruo identified the notes and explained the following two issues that were identified in them that ultimately led to the discipline of a two-day suspension from work for the grievor:

1. his absence over a lunch hour; and

2. he did not do any work for over a week.

 

[153] The archiving unit was responsible for keeping and storing files. Due to the records room’s limited capacity, one of the tasks of the enforcement assistants was going through old files and determining which ones were to be destroyed. Mr. Uzoruo testified that different types of files were to be retained for different periods, after which they would be removed and destroyed by an external shredding company.

[154] Mr. Uzoruo testified that one aspect of the grievor’s job required him to respond to enquiries at a front desk. There were several employees who worked in this area, and there was a schedule that set out which employees were responsible for the front desk and at what time during their shifts.

[155] On May 15, 2014, the grievor was responsible for the front counter for a time, and two people arrived and were not served. Entered into evidence was an email exchange between Mr. Uzoruo and the grievor in which Mr. Uzoruo told the grievor that his first appointment had been waiting at the counter since 10:50 and the second one at 11:18. In his email to the grievor, Mr. Uzoruo stated that the grievor had not advised him that it was his intention to be absent; nor had any coverage been arranged by the grievor. The grievor’s email in response said that he had taken lunch at 11:00 “as usual” and that he had made a “swap” for another employee’s sake. In his evidence, the grievor explained that the swap was not a switch of the lunch break but the duties.

[156] The grievor stated that he went for lunch at his usual time but that he did not understand what the problem was. When he was asked if he was absent, he said that he did not mean to be absent and that he had taken his lunch. He said that he took an hour and that employees often combined their half-hour lunch and two 15-minute breaks to have an hour-long break.

[157] Mr. Uzoruo said that the grievor was responsible for a certain type of file that was generally thin and labelled. He stated that there was a fixed schedule with the external shredding company and that the unit had software provided by that company that allowed them to coordinate it to come and pick up the files for shredding. Files for shredding were removed from the file room and placed in bankers boxes.

[158] The employer’s evidence was that the grievor did not produce any boxes of materials for removal and shredding over a period of seven business days, despite this being his assigned task over that period. Some of the evidence suggested that it was no work for eight days. Mr. Uzoruo said that when he became aware that the grievor had not done anything, he raised it with the grievor, and stated that the grievor’s response to him was that he had a master’s degree and that the destruction of files was not important. Mr. Uzoruo said that he told the grievor that the file room had limited space and that the work had to be done. He said that he also had a discussion with the grievor about how much was expected from the grievor in this respect and that he told the grievor that he expected 60 boxes per month. Entered into evidence was an email exchange on May 16, 2014, initially between the grievor and Mr. Uzoruo, which was later forwarded to Mr. Kamin, and Ms. Jelani and Mr. Star were included. It is as follows:

...

[The grievor to Mr. Uzoruo, copied to Ms. Jelani and Mr. Star, at 10:39:]

I am following up on our discussion of yesterday in regards to work expectations for my function in Archiving. As you are aware, the FB03 that used to work with me [name redacted] has been accommodated to another position. So I work by myself and do the best that I can fulfilling the many roles expected of me. So please tell me why I would have to produce 60 files per day (apparently because I am more intelligent?) and [name redacted] has to produce only 30 such files or less daily...? This seems very arbitrary and unfair....I would like an explanation in writing for this.

 

[Mr. Uzoruo to the grievor, copied to Ms. Jelani and Messrs. Star and Kamin, at 11:06:]

It appears that you have misunderstood the expectations that were verbally given to you yesterday.

This conversation came about due to the fact that you have not produced any files for eight (8) working days and your explanation was that you did not feel that your position held any significance.

The FB03 that used to work with you has rotated to another unit. Your responsibilities would not equate to those that have been assigned to her nor have her duties been allocated to you after her relocation.

As I had explained yesterday, the sole other CR5, [name redacted] was able to produce 35 files in less than 3 hrs while being persistently interrupted for another tasks.

Based on this calculation, she has produced approximately 12 files per hr.

In a standard workday, we are all scheduled for 7.5 hrs.

If we account for the extra 30 min. lunch and two 15 min breaks, the we are looking at 6.5 hrs of workable hrs.

To be more rational, I have also factored in additional time (30 mins) for washroom breaks etc. The end result would be a minimum expectation of6hrs of productive hours.

At 10 files per hr minimum, you should be producing at least 60 files per day (10x6). The upper range would be 72 files per day (12x6).

As required, a DAR documenting the files that have been completed will be required daily and written documentation will follow.

 

[Mr. Kamin to the grievor, copied to Mr. Uzoruo and Ms. Jelani, at 11:22:]

Please come see me when you have a moment.

 

[The grievor to Mr. Kamin, copied to Messrs. Uzoruo and Star and Ms. Jelani, at 11:37:]

Bad timing. To avoid further complications, I would be willing to see you after lunch if that’s ok.

 

[Mr. Kamin to the grievor, copied to Mr. Uzoruo, at 11:42:]

I asked you to come into my office and you refused. I don’t know why, but you could assume it was in relation to the email that I was copied on earlier today. You had no idea what I was going to say, but you outright refused to attend.

We will address this behaviour next week, and in the meantime, both individuals in archives will complete a Daily Activity Report, the substance of which will be provided by your supervisor.

 

[The grievor to Mr. Kamin, at 12:53:]

I hope this doesn’t come as a surprise......My reporting supervisor is Khalida, just so you know, not Chukwu. So, unless I hear otherwise, I will provide a DAR to her as I don’t report to Chukwu directly.

 

[Mr. Kamin to the grievor, at 13:53:]

Well you can provide it to me if you have an issue with it. If Khalida was in I would ask her to give it to the unit. As she is not in, Chukwu is acting for her in some areas as per my direction.

Are you saying that you are not going to adhere to managerial direction?

 

[The grievor to Mr. Kamin, at 14:02:]

No Jonathan,

I was merely suggesting an alternative in saying it should go to someone familiar with my situation since the beginning (and actually I didn’t realize Chukwu was covering for Khalida). Did you still want me to provide you a copy? I don’t know how much sense it’ll make to you if you’re not used to my explanatory style, but additionally I can provide one to Khalida before I go (shortly) if you wish. That seems reasonable under these particular circumstances.

 

[Mr. Kamin to the grievor, at 14:05:]

In the end, as long as you provide the required data to either supervisor. Chukwu is also accepting the data for your unit member so he can keep track. It makes sense that way, but if you wish to send it to Khalida that is fine. Managerial direction is not for your discretion to choose.

 

[The grievor to Ms. Jelani, at 15:04:]

I will send it in a separate email. I can’t seem to attach it in Excel for some reason....

...

[Sic throughout]

[Emphasis in the original]

 

[159] As referenced in the email exchange on May 16, 2014, the grievor sent the Daily Activity Report (DAR) to Ms. Jelani by email on May 16, 2014, at 15:05. A copy was entered into evidence.

[160] In his examination-in-chief, the grievor was brought to Mr. Uzoruo’s notes and was asked about the discussion he had with Mr. Uzoruo on May 15, 2014. He stated that he did not recall it, just that he recalled being yelled at. He was asked by his counsel a second time if he recalled the meeting, which he said he recalled “in a transient way” and that it was “a fog in [his] mind.” When he was brought to the reference that said no work for eight days, the grievor said that he had been stuck on a file, that it could have been a box, that he was tasked with an important job, and that he checked documents and tried to cover himself by trying to not destroy a file or data. He said that Mr. Uzoruo saw things differently and that he did not know why he was being questioned by Mr. Uzoruo. He was then asked by his counsel why he did not say something about this to Mr. Uzoruo. He said that there was so much anger that he did not get an opportunity to explain. He then said that he was frightened of Mr. Uzoruo; he had been too scared.

[161] Mr. Uzoruo testified on September 23 and 24, 2020. The grievor was present for Mr. Uzoruo’s testimony. No questions were put to Mr. Uzoruo in cross-examination suggesting that Mr. Uzoruo had been angry with the grievor, had acted in a manner that could be perceived as angry, had raised his voice or yelled at the grievor, or had acted in a manner that would have frightened or scared the grievor.

[162] The grievor was asked in his examination-in-chief if he told Ms. Jelani that he was working on one file or one box, to which he said that he did. When his counsel asked him when he told her, he said this:

Let me clarify; what I am trying to say, I figured she knew all goings on. We had an open relationship. She knows I am doing my best. That is what I mean by being informed. I felt she was aware of what I was doing. I thought Mr. Uzoruo knew all about my accommodation. These were premises I was operating under.

 

[163] In his examination-in-chief, the grievor was asked about his refusal to attend at Mr. Kamin’s office after he was requested to by Mr. Kamin on May 16, 2014. He said that he refused because it made no sense. He then stated that he had been so scared, that this was the yelling incident, and that he was leery of management. He said that he discussed it with his union representative and that he would not go to a meeting with management all alone. He stated that it would have been discipline, which was all he had experienced up to that point.

[164] By email dated May 22, 2014, Mr. Kamin instructed the grievor to attend at his office, with a union representative if he so chose, for the purpose of fact finding in relation to the duties and responsibilities of his job and his performance. In response, the grievor told Mr. Kamin that he would see if his representative was available, to which Mr. Kamin told him that if his union representative of choice was not available, he would have to choose someone else, as the meeting would proceed on May 28, 2014. The grievor then emailed Mr. Kamin on May 23, 2014, stating as follows:

Jonathan, up to now management has extended me courtesy and consideration...what we call fair play.

Are you anticipating a positive outcome? It appears to me that you have already made up your mind about things...?

I don’t know if you realize it, but having known me as long as you have, you are actually in a perfect position to understand my needs...as previously discussed with management.

...

 

[165] A number of emails were exchanged between Mr. Kamin and the grievor between May 22 and 27, 2014. In addition, the grievor dropped by Mr. Kamin’s office unannounced and without an appointment. Subsequent to that brief encounter, the grievor sent Mr. Kamin a lengthy email dated May 27, at 13:57, in which he wrote in general terms about accommodation, his situation (without actually setting out any specifics as to what the actual issue was), and his privacy rights. Mr. Kamin wrote back to the grievor at 14:20, stating as follows:

...

Nilesh I don’t profess to understand what you’re talking about.

As you can appreciate, my time is quite limited and I have many pressing matters. For that reason we set up a meeting so that time is set aside appropriately. I did not have the time to get into a discussion with you this morning, and it was neither the time nor the place to address things. This is not the first time you have dropped by without consideration of the chain of command – meaning your supervisor, or of the fact that I simply cannot drop everything to address what likely should be addressed or discussed at our scheduled meeting.

With regard to what I said about your union representation, I said that I want to address your performance issues privately and uninterrupted. I also said that I Your [sic] union rep is there for you and it will be for you to address the concerns or issues or questions put forth at that meeting. You may consult with your rep and that is why he is there. That is all I said.

...

 

[166] On May 28, 2014, between 10:20 and 12:00, a meeting was held. In attendance were the grievor and his union representative, Michael Gurr, along with Messrs. Kamin and Uzoruo and Ms. Jelani. Entered into evidence were the printed notes of Ms. Jelani of the meeting. The notes referenced who was speaking as follows: “J” was Mr. Kamin, “C” was Mr. Uzoruo, “K” was Ms. Jelani, “N” was the grievor, and “M” was Mr. Gurr. The relevant portions of the notes are as follows:

Purpose: performance issue, satisfying job description, not related to accommodation

J – Why are you not doing your duties as required? Why are you refusing to follow direction from management?

On May 15 it was brought to my attention that only 1 file was completed by you in archiving during a period of approximately 2 week cycle.

C – Explained Nilesh’s duties, boxes are filled with archived files and put in the records room for destruction. Only [other employee] and Nilesh work in the unit. – [other employee] was instructed to keep her archiving files at her desk

N – I’m doing my best, I have nothing to add, and management has everything in my file

J – Did you not get one- on-one training?

N – You have all the information that you need. It’s completely unfair (me being here). This whole process is wrong.

J – how is that unfair?

N – I can’t elaborate at all, you have all the information, and it’s just a matter of you reading it.

J – This could lead to discipline

N – It shouldn’t happen. I think you know I’m a hard worker. I have no qualms about saying that. ...... You know I work hard, like when I was in the gum........

J – It’s one thing to work hard in the gym, but how do you work hard at your job?

N – I’m trying to get you to look at the bigger picture. You are looking at the smaller picture.

C – You are considering archiving to be the smaller picture. What is the bigger picture?

N – Who do I have to answer to? I thought this was Jonathans meeting.

J – This is a management meeting you have to answer the question, whoever asks.

N – Me being here is completely wrong. I’ve had a lengthy career here; you don’t last in the public service if you don’t make some valuable contribution.

C – Please explain your day to day work

N – Cukwu I’ve already answered this. I answer to 3 people, you Chukwu, Khalida and Trishann.

C – In operational support – you report to Khalida, but here in operational support you have different duties like every else, depending on the role that you are assigned to.

N – Khalida is involved in my situation. I’ve been advised not to say anything further. Uniion has advised not to say anything. Michael is here an di’ve been advised by Murray not to say anything.

J – You are aware that your failure to respond may lead to our notes going forward as such.

N – How unfortunate that it has come to this.

...

J – “As you are aware I wear many hats, I will inform you” (Nilesh’s email) explain?

N – I think I’ve said enough here. I really think you should look into my situation here in more depth.

J – You also allude to your hours of work and your health breaks?

First we will start with your hours?

N – My hours are 7-3

J – Lunch?

N – 11-12 roughly.

...

C – 10:51am and 11:18am clients came in and Nilesh’s lunch is from 11-12. 12:39 sent email to Nilesh asking him to report as client was waiting. 12:27pm Nilesh emailed as he had to stop and talk to the director. Client was waiting for 1.5hours agitated as no service was provided. Assuming that Nilesh could be back at 12:00 at 12:39 I directed him to come to the front counter to speak to the client.

N – I was trying to deal with it as best as I could. Trying to gather the info before I spoke to him as that was my training as an FB.

J – So when did this become aware to you that a client is waiting for you?

N – It is unfair for me to be here, you should be looking into the
“ into the whole history (

C – Nilesh did not appreciate me giving the example of how important the Prime Minister’s job is compared to mine.

N – How much importance archiving is given? I said that management should give more importance to the archiving. More importance is given to the front end removals etc.

C- What I explained your role in EIOD and the importance of your job. You identified with your job. You say it’s important but it doesn’t feel important.

N – The way files have been scattered throughout the office there is a reduction of staff, you can say it’s important but it doesn’t feel like it.

M – You are feeling undervalued, you do not believe your job is not important.

N – I’d like to feel the role is valued

C – You mentioned that you are undervalued and tied in that you have a master’s degree. That’s why I tried to explain that ever5y staff member has to perform their duties and that every contribution is important.

N – If you looked at my file than you would know what my issues are.

C – For a two week period there was not production. I sent an email to all of Operational Support re-returning documents; you sent me a follow-up email to make sure you are doing something properly.

My concern is that within the last 2 weeks you have requested feedback for the passport, whey were you not able to approach me.

N – I’ve kept Khalida updated to my progress and the challenges. It was kept only to Khalida. Both you and I have a lot to say but.

J – you mentioned your skills and abilities in EIOD. Is the work beyond you or are you beyond the work?

N – [name not relevant] had mentioned that I would be a best fit for intelligence

J – How does that explain no work for 2 weeks?

N – I think we have hashed that out. This is causing a great deal of difficulty

C – Fact checking – you put away files for digit # 6 are you aware of the roles of the CR03. I send an email with the schedule that the CR03s are putting away files and attachments. I’ve never see you put away the digits.

K – Clarify – I’ve allowed him to put files away

C – NCMS was down for a few hours, you did not put away digit 6.

J – Just trying to address Chukwu’s concer5n as he supervises that area

C – Nothing came in (no files came in) I have seen that the rack was full.

N – I take some files or grab a buggy and put away files.

You don’t even realize that I put away figits. I run into so many people when I am doing that.

J – Are you completing the DAR (Daily Activity Report)

N – Yes

J – That brings to light another issue. If you are performing other functions, just say you did the attachments for 1 hour as an example. Don’t give a minute by minute detail. Just say you did front counter from what time to what time.

N – Ok

J – The other thing that comes up is pages and pages of opinions or concerns. Please go through your chain of commands. You are writing these emails on your own time unless it is operational or someone has asked you to do something.

You mentioned about accessing GCMS, do you have access to GCMS?

N – Yes

J – You’ve had the training?

N – It’s a tricky database, I’m getting it.

J – You’ve had 2 months training in archiving, are you comfortable doing your job?

N – I’ve mentioned to Chukwu that I would like to get training from [name not relevant].

J – Are you comfortable that you can do the job?

N – I can do it but not as fast as I’d like. I get frustrated when I can’t perform at a certain level, something’s bog me down.

...

The severity of the issues that Nilesh was having in archiving was not addressed with me by Nilesh. I check up on all my employees regularly and Nilesh has been mentioned that it was better when there were more people in the unit (example [name not relevant]). I explained that the plan is to put more CR05s in the unit to help with the backlog. At no time did he mention that he was stuck and did not know what to do or could not perform his duties. I was not aware to what extent Nilesh was troubled with his daily duties.

...

[Sic throughout]

 

[167] “Digit 6” was explained by Mr. Uzoruo. Each file has eight digits, and the last number of the eight (a numeral, one through nine) designates the cabinet it is to go in. Digit 6 files have a file number that ends in a six, and thus, they go to the file cabinet for digit 6.

[168] Mr. Uzoruo explained that the non-citizens and other clients who may come to the counter would not just be able to enter an empty room. He said that clients or non-citizens would schedule a time and that employees are responsible for certain time frames. He said that employees can switch lunches and responsibilities; however, they have to ensure that there is backup if they are to be away when it is their responsibility, such as for lunch or during their breaks. He said that generally, if employees switch, there is no problem; he described this incident as isolated.

[169] Ms. Jelani testified about the May 28, 2014, meeting and stated that the grievor did not give any explanation for not performing any work. She said that after the meeting, she and he had a further discussion and that at that time, he said that he was stuck. She said that she had a discussion with the grievor about the non-performance of his duties and the issue of accommodation. She said that the difference between the two was very clear. She said that the grievor did not perform work for a significant amount of time and that all he said was that he was stuck. If he was stuck, he provided no explanation as to why he did not speak to someone. Over the entire period that the employer determined that he had done no work, he did not speak to anyone about getting unstuck or about what he should do. She said that there was no reason he could not have sought assistance. She said that she asked him why he did not say anything, to which she said that he said that he was told by the CIU not to say anything. She said that she told him that he should have sought someone’s assistance. She said that the grievor did not elaborate on why he had been stuck or what had caused him to be stuck.

[170] Mr. Star testified that he did not attend the May 28, 2014, meeting because, since accommodation would not be discussed, another member would go. He confirmed that he told the grievor to not say anything about accommodation at the meeting and not to answer questions.

[171] Mr. Uzoruo stated that he was never made aware of the grievor’s Asperger’s. Nor was he aware that the grievor had any disability or that he required any accommodation.

III. Summary of the arguments

A. For the grievor

[172] In addition to the Act, the grievor referred me to the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “the CHRA”) and to McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536, Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (“Stewart”), Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC)(“Central Okanagan”), H. (K.). v. C.E.P., Local 1-S, 1997 CarswellSask 826, Complainant v. Alberta Union of Provincial Employees, 2015 CanLII 51529 (AB LRB), British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35, Nicol v. Treasury Board (Service Canada), 2014 PSLREB 3, Lloyd v. Canada Revenue Agency, 2009 PSLRB 15, Federated Cooperatives Ltd. v. Teamsters, Local 987 (2010), 194 L.A.C. (4th) 326, Association of Justice Counsel v. Canada (Attorney General), 2017 SCC 55, Grover v. National Research Council of Canada, 2005 PSLRB 150, Herbert v. Deputy Head (Parole Board of Canada), 2018 FPSLREB 76, Hare v. Treasury Board (Department of Indian Affairs and Northern Development), 2019 FPSLREB 59, Willoughby v. Canada Post Corporation, 2007 CHRT 45, Ontario (Liquor Control Board) v. OLBEU (Sanfilippo), 2005 CarswellOnt 10936, Wm. Scott & Co. v. Canada Food and Allied Workers Union, Local P-162, [1977] 1 Can. LRBR 1, Desjardins v. Deputy Head (Shared Services Canada) and Treasury Board (Shared Services Canada), 2020 FPSLREB 43, Zettel Manufacturing Ltd. v. CAW-Canada, Local 1524, 2005 CarswellOnt 7877, Kinsey v. Deputy Head (Correctional Service of Canada), 2015 PSLREB 30, Johnstone v. Canada Border Services, 2010 CHRT 20, Richards v. Canadian National Railway, 2010 CHRT 24, Stringer v. Treasury Board (Department of National Defence), 2011 PSLRB 110, Rogers v. Canada Revenue Agency, 2016 PSLREB 101, First Canada ULC v. International Union of Operating Engineers, Local Union No. 955, [2020] AGAA No. 22 (QL), LaBranche v. Treasury Board (Department of Foreign Affairs and International Trade), 2010 PSLRB 65, Canada Post Corp. v. Canadian Union of Postal Workers, [2010] C.L.A.D. No. 219 (QL), and Gallinger v. Deputy Head (Canada Border Services Agency), 2020 FPSLREB 54.

[173] With respect to Board File No. 566-02-9129, the grievor submitted that he does not seek a ruling or a remedy; nor does it present any argument with respect to jurisdiction.

[174] With respect to Board File No. 566-02-9130, the grievor withdrew this grievance.

[175] With respect to Board File Nos. 566-02-9131 and 9132, the grievor requests the following:

1. that the demotion be set aside and that he be reinstated to his FB-03 IEO position;

2. that he be paid the lost salary and benefits difference between his FB-03 IEO position and the CR-05 enforcement assistant position;

3. that he receive interest on any lost income; and

4. that he receive damages under ss. 53(2)(e) and 53(3) of the CHRA.

 

[176] With respect to Board File No. 566-02-12599, the grievor requests damages under ss. 53(2)(e) and 53(3) of the CHRA.

[177] With respect to Board File No. 566-02-12600, the grievor submitted that he does not seek a ruling or a remedy; nor does it present any argument with respect to jurisdiction.

[178] With respect to Board File No. 566-02-12601, the grievor requests the following:

1. that the two-day disciplinary suspension be set aside (he acknowledged that the employer has stated that it would compensate him for the two days of lost pay);

2. that he receive interest on the lost pay; and

3. that he receive damages under ss. 53(2)(e) and 53(3) of the CHRA.

 

B. For the employer

[179] The employer also referred me to Central Okanagan and Stewart and to Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 SCR 1095, Layne v. Deputy Head (Department of Justice), 2017 PSLREB 10, McLaughlin v. Canada Revenue Agency, 2015 PSLREB 83, Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 SCR 561, Magee v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 1, Leclair v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 97, and Topping v. Deputy Head (Department of Public Works and Government Services), 2014 PSLRB 74.

[180] With respect to the disciplinary grievance that is Board File No. 566-02-12601, the employer stated that it was prepared to reimburse the grievor the two days of lost salary due to the two-day suspension.

[181] The employer requested that the grievances be dismissed.

[182] In the alternative, if the grievance with respect to the failure to accommodate is allowed, and damages are granted, those damages should be minimal, as the employer acted in good faith, and its actions were not reckless.

IV. Reasons

A. The request to seal documents

[183] Entered into evidence were copies of the health care assessments and medical records and reports authored by health care professionals with respect to the grievor’s health issues during the period at issue. In Basic v. Canadian Association of Professional Employees, 2012 PSLRB 120 at paras. 9 to 11, the PSLRB stated as follows:

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

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

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

...

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

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

...

 

[184] As noted recently in Sherman Estate v. Donovan, 2021 SCC 25 at para. 7, an aspect of privacy is an important public interest for the purposes of this test. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified.

[185] While much of the medical issues were relevant to the hearing and to determining the grievances, the totality of the grievor’s medical records should not be in the public domain. This is highly sensitive personal information that poses a serious risk to his privacy. Therefore, I order sealed the documents that were submitted and marked as follows:

· Exhibit G-1, tab 36: 6 pages of test results from the grievor’s testing by Dr. Glassman, carried out on December 6, 2010;

· Exhibit E-1, tab 41, and Exhibit G-1, tab 35: letter dated December 7, 2010, from Dr. Glassman to Dr. Glass;

· Exhibit E-1, tab 42, and Exhibit G-1, tab 38: letter dated January 5, 2011, from Dr. Glass to Ms. Ptasznik;

· Exhibit E-1, tab 44, and Exhibit G-1, tab 47: letter dated August 15, 2011, from Dr. Chernin to Dr. Shapiro;

· Exhibit E-1, tab 44, and Exhibit G-1, tab 49: letter dated August 16, 2011, from Dr. Shapiro to Ms. Ptasznik;

· Exhibit E-1, tab 44, and Exhibit G-1, tab 53: letter dated October 3, 2011, from Dr. Goldsand to Dr. Shapiro;

· Exhibit G-1, tab 88: letter dated April 2, 2013, from Cornerstone (Ms. Cait) to “To Whom It May Concern”;

· Exhibit G-1, tab 95: undated 17-page psychological assessment authored by Cornerstone (Ms. Cait), together with an 8-page test-score result summary; and

· Exhibit G-1, tab 126: all the third volume of Exhibit G-1, which is all the raw data with respect to the assessment of the grievor by Cornerstone.

 

[186] Also entered into evidence was the grievor’s notebook for the period from July 22, 2008, to June 11, 2009 (Exhibit E-12). This document contains names and information about people and events that are not germane to the issues that I have to decide; however, much of the information it contains details highly sensitive personal information about travellers or people who potentially will be removed from the country and as such should not be in the public realm. As the document is a copy of a small notebook that law-enforcement officers carry, the notes appear in such a manner that some information should be redacted, while other parts are irrelevant. Therefore, I order that this document be sealed for the period of 30 days, to allow the employer to provide a copy with names of persons, file numbers, and any other personal information, such as addresses and telephone numbers, redacted.

[187] Also entered into evidence were a number of documents, the purpose of which was to identify shortcomings in the grievor’s performance that identified third parties, mostly non-citizens, who would have dealt with the grievor in his capacity as an IEO. Some of this information is the personal information of these third parties and should not be in the public realm. These documents should be sealed for a period of 30 days, to permit the parties to provide redacted copies for the record. The documents in question are as follows:

· Exhibit E-1, tabs 12, 14, 15, and 16: notes containing non-citizens’ names;

· Exhibit E-1, tab 19: note to file dated February 14, 2009, containing non-citizens’ names;

· Exhibit E-1, tab 25, and Exhibit G-1, tab 19: “Assessment of Performance Chart” with notes containing non-citizens’ names and file number references; and

· Exhibit E-1, tab 26: assessment notes containing non-citizens’ names, file numbers, or both.

 

B. The merits of the grievances

1. The grievance in Board File No. 566-02-9129

[188] This grievance was filed on November 1, 2011. The grievance is a complaint about the CBSA not complying with the process and procedures found in the HC FTWE and referring the grievor to HC for a FTWE that did not properly assess his medical condition. In his submissions, the grievor acknowledged that he does not seek a ruling on it or a remedy; nor did he submit that the Board had jurisdiction.

[189] As the grievor does not seek any ruling or remedy on it, and there is no evidence that the Board has jurisdiction, the grievance is dismissed.

2. The grievance in Board File No. 566-02-9130

[190] At the outset of the arguments, this grievance was withdrawn.

3. The grievances in Board File Nos. 566-02-9131 and 9132

[191] The grievance that would become Board File Nos. 566-02-9131 and 9132 was filed on September 5, 2012, against the grievor’s demotion from his IEO position at the FB-03 group and level to the enforcement assistant position at the CR-05 group and level. He alleged in the grievances that he had been discriminated against and that the employer had failed to accommodate him. At the time this grievance was filed, the grievor had not identified any particular disability; nor had a disability been diagnosed by a health care professional of the grievor’s or the employer’s choosing.

[192] The grievance did not make any specific mention of the collective agreement, but the grievance was referred to adjudication using Board Form 20 (Interpretation or application of a provision of a collective agreement or arbitral award – s. 209(1)(a) of the Act) and Form 21 (– s. 209(1)(c)(i) of the Act - Demotion or termination of an employee in the core public administration under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of the Act for any reason that does not relate to a breach of discipline or misconduct).

[193] Article 19 of all the relevant collective agreements provides that 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 mental or physical disability, among other grounds.

[194] In addition, according to s. 226(2) of the Act, the Board may, in relation to any matter referred to adjudication, interpret and apply the CHRA other than the provisions of the CHRA that are related to the right to equal pay for work of equal value. Section 7 of the CHRA states that it is a discriminatory practice, directly or indirectly, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Disability is a prohibited ground (s. 3(1) CHRA) and is defined in s. 25 of the CHRA as any previous or existing mental or physical disability, including disfigurement and previous or existing dependence on alcohol or a drug.

[195] In Diks v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 3, the Board stated 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).

...

 

[196] As set out in Stewart, to make a case of prima facie discrimination, a complainant (or grievor as the case may be) is required to show that he or she has a characteristic protected from discrimination, that he or she 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.

[197] The employer may refute the allegation of discrimination by demonstrating that it has reasonably — not perfectly — accommodated the employee’s needs, or that accommodating the employee’s needs would impose undue hardship on the employer (s.15(2) CHRA) (see McMullin v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 55 at para. 76).

[198] The New Dictionary of the American Language, Second College Edition, defines “disability” as: “1. a disabled condition 2. that which disables, as an illness or injury 3. a legal disqualification or incapacity 4. Something that restricts; limitation; disadvantage.”

[199] I heard no evidence from any of the medical professionals as to a definition of “learning disorder”. Simply put, I understand it to mean a disability that somehow negatively affects a person with respect to learning in the same manner in which the majority of people learn.

[200] The undisputed evidence of Ms. Cait is that she assessed the grievor as having Asperger’s, which was often referred to as autism. Ms. Cait stated in her evidence and in the Cornerstone report that Asperger’s is a recognized disorder that undermines social awareness, social responsiveness, and different aspects of learning and productivity.

[201] In addition, the Cornerstone report and the Cornerstone Apr. 2 letter refer to the grievor as also likely having ADHD. None of the health care professionals explained ADHD to me, however I understand it to be a condition that shares many of the same attributes as Asperger’s.

[202] Based on the explanations of both Asperger’s and ADHD and how they affect people who have those conditions, it is clear that they both would fall within the meaning of a disability for the purpose of the assessment of discrimination and accommodation under the CHRA and article 19 of any of the relevant collective agreements.

[203] As the disability has been identified, the next question that must be asked, to determine if the grievor was subject to discrimination, is whether he suffered an adverse effect or differentiation due to his disability. It is patently obvious to me that the grievor did suffer an adverse effect due to his disability as he was demoted from his IEO position at the FB-03 group and level to the enforcement assistant position at the CR-05 group and level. This demotion was based on evidence that the grievor was having significant difficulties adapting to his IEO position, which as detailed in the evidence were particularly telling, in that the problems outlined mirrored the examples of problems experienced by persons with Asperger’s and ADHD in general, and the grievor in particular, as set out by Ms. Cait both in her evidence before me and in the Cornerstone report.

[204] The grievor’s difficulties appeared to have started when his previous CIO position was converted to the IEO position. I heard from several of the grievor’s immediate supervisors, who detailed the difficulties the grievor was experiencing, as well as from Mses. Cuvalo, Alexander-Nash, and Clark, who were all responsible managers. They explained the steps they took to try to raise his performance to the level expected of an IEO performing the full range of duties.

[205] What makes this situation difficult to address is that the grievor’s disorder was not known to him before Ms. Cait’s diagnosis in early 2013, by which time he had already been demoted. Then, after the diagnosis, he and his union were not candid with the employer. The evidence was not clear as to when he and his union were advised by Ms. Cait as to the diagnosis. However, what the evidence did disclose was that Mr. Star cut-and-pasted information out of the Cornerstone report and created an undated Word document that was presented at the Feb. 21 meeting.

[206] I heard evidence from four people who were at the Feb 21 meeting. Neither Mses. Cuvalo nor Clark testified that the grievor had identified that he had been diagnosed with Asperger’s, and when he was pressed, he also did not say that he and Mr. Star went so far as to disclose this to them. Mr. Star, on the other hand, said that the grievor had been diagnosed with Asperger’s.

[207] The documentary evidence also refers to a medical note that was allegedly provided to Ms. Clark on March 14, 2013. The evidence was unclear as to what exactly this medical note was, as there was no medical note dated that date or in March of 2013 that was produced into evidence. This note was also referenced in Ms. Cuvalo’s email of March 18, 2013, to the grievor and Mr. Star, copied to Ms. Clark, and said, “that there is no evidence that a medical professional conducted the assessment and made recommendations based on that assessment.” Based on all the evidence before me, I suspect that the medical note referred to might be the undated Word document, which Mr. Star had produced by cutting and pasting portions of the Cornerstone report; however, I cannot say this with any certainty or that it could have been the Cornerstone report.

[208] While it is not entirely clear when or even if the employer was provided with the Cornerstone report, on May 2, 2013, the grievor provided it with a copy of the Cornerstone Apr. 2 letter. This letter clearly stated that the grievor has Asperger’s, which “... is considered to be organic and neurological in nature, rather than behavioural in its origins and is a life-long condition.” It further states that the testing undergone by the grievor disclosed that while he has:

“overall High Average verbal abilities ... a number of his visuospatial and fine-motor skills are weaker with many falling within the Low Average range ... Predictably he struggles with some aspects of visual memory and he has some difficulty with working memory ... this ... unevenness in cognitive functioning is further reflective of a learning disability.”

 

[209] It then states this with respect to ADHD:

Mr. Shreedhar has struggled to be focused and productive and so attentional concerns also surfaced during testing and, as such, these could be indicative of an underlying attention-deficit hyperactivity disorder (ADHD) although the unevenness in his abilities also could mimic an attention deficit. Regardless, this means that in a work environment, he will require accommodations to support his Asperger’s, learning disability and attention span.

 

[210] The best evidence is that the employer became aware of the grievor’s disability on May 2, 2013, when he produced the Cornerstone Apr. 2 letter to Ms. Jelani, who was his supervisor at that time. This is the critical point, as it clearly identified to the employer that the grievor has a disability that was identified as a learning disability, organic and neurological in nature, and a lifelong condition. Before this point, no one from the employer had anything from a health care professional to suggest that the grievor had a learning disability.

[211] Determining that the grievor had a learning disability was the critical starting point of the process, which was the identification of a protected ground. Now that this is established, and it is clear based on the overwhelming amount of evidence (brought forward largely by the employer itself) that the difficulty the grievor had in being able to carry out the functions of the IEO position was very likely tied to his learning disability and that it in turn led to the adverse effect of being demoted, the question arises of whether the employer reasonably accommodated the grievor.

[212] The Supreme Court of Canada stated in Central Okanagan, at pages 994 and 995, as follows:

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

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

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

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

 

[213] The employer demoted the grievor based on his inability to meet the competencies of the IEO position. From the time the grievor was moved into the IEO position in February of 2007 until July of 2009 (approximately 28 months), neither the employer nor he had any inkling that there was a disability that perhaps was causing an issue. The grievor is well educated and holds university undergraduate and graduate degrees and a college certificate and had never been diagnosed with any learning problems or identified disability. In July of 2009, when his union representative raised the possibility of a learning disability, the employer did not dismiss the suggestion out of hand but acted on it in good faith, maintaining the grievor in the IEO position at the FB-03 group and level for pay and benefits through a prolonged HC assessment process, which in the end did not disclose a disability. Only after the assessment process was complete, including an appeal, did the employer act to demote the grievor.

[214] This was not the end of the inquiry. The grievor did have a learning disability that did have an adverse affect on him. As stated, there is no question that the Asperger’s, and likely ADHD, played a role in his difficulties with learning and with being able to perform in his IEO position, which led to his demotion. He grieved that demotion, albeit even he did not know at the time of the grievance what his problem was. However, that does not mean that the Asperger’s and ADHD were not present or that one, the other, or both were not the catalyst for the difficulties; it just meant that no one knew.

[215] The accommodation process cannot start until a disclosure of the disability is made; if no one knows of the disability, then the process cannot start. The catalyst for the accommodation is the disability, which was not made clear to the employer until the Cornerstone Apr. 2 letter was produced in May of 2013. While the Cornerstone report existed likely as early as sometime in February of 2013, it is not clear that it was provided in its entirety to the employer.

[216] Until the Cornerstone Apr. 2 letter was produced, the only evidence was that the grievor did not suffer from a disability. It was incumbent on him and his representative to be forthcoming with the employer, and yet, they were not. Four people were at the Feb. 21 meeting: the grievor, Mr. Star, and Mses. Cuvalo and Clark. Neither of Mses. Cuvalo and Clark recalled being advised that the grievor has Asperger’s; nor was a copy of the Cornerstone report provided to them. The grievor’s evidence on this point was that he recalled being cautious as to what he and Mr. Star revealed at that meeting, and he could not say if they revealed the Asperger’s diagnosis.

[217] While the undated and untitled Word document that Mr. Star had cut and pasted from the Cornerstone report was provided to the employer, it was understandably leery of it. If the grievor and Mr. Star felt that the Cornerstone report was too revealing, they could have requested a less-detailed letter, albeit one that would have satisfied the employer (which they eventually did, as the Cornerstone Apr. 2 letter was eventually produced to the employer on May 2, 2013). Mr. Star’s determination that the grievor’s condition was not relevant in the accommodation process was misplaced. To this point, there was no accommodation process, as no protected grounds had been identified.

[218] It is at this juncture, when the multi-party inquiry for the search for accommodation should have been steaming forward that instead it went off the rails and quite literally stayed off the rails pending the hearing of this matter before me that started some six years later, in February of 2020, and that ended after 14 days of hearing in November of 2020.

[219] The Cornerstone report is very detailed; it identifies that the grievor has Asperger’s and perhaps ADHD, which are lifelong, organic, and neurological in nature. Ms. Cait identifies it as a learning disability. The very beginning of the Cornerstone report sets out the stated reason for the referral to Cornerstone as being that the grievor wanted “... a psychological assessment in order to better understand his own learning and adaptive profile so that he could acquire better strategies and/or accommodations to support his productivity and interpersonal relationships.”

[220] The evidence of Ms. Cait was that she was not in possession of his IEO (FB-03) work description when Cornerstone assessed the grievor. What the Cornerstone assessment was not was a review of the grievor’s ability to carry out the functions of his IEO position. What it identified, albeit in extensive detail, were his difficulties, and it explained how they could be addressed in a general fashion. It was only the starting point for the “multi-party inquiry”, which unfortunately never got off the ground.

[221] While the Cornerstone Apr. 2 letter appears to have been written with the grievor’s enforcement assistant (CR-5) position in mind (as Ms. Cait had been provided with the work description for that position), again, it is only a starting point. The evidence did not disclose that the grievor had any further meetings or interviews with anyone from Cornerstone after February 8, 2012, and as such, the fact that the enforcement assistant work description was provided to Ms. Cait, without more detail either from the grievor or his supervisor or supervisors, has little impact with respect to that position and does not assist at all with respect to the IEO position as no information with respect to that position was given to Cornerstone.

[222] What should have happened was that the parties should have gotten together and pushed forward; instead, they retreated to their own corners, maintaining their positions, and the process came to a halt. The employer asked the grievor to submit to another HC assessment, which, on the surface, was logical from the employer’s perspective, but the grievor saw it as redundant.

[223] I understand the grievor’s reluctance to having to undergo a further HC assessment, and his position is not without some merit. Simply sending him back to HC to be assessed was not necessarily the answer. The evidence before me disclosed that the HC’s process for evaluating the grievor was flawed.

[224] In the evidence before me, a frequent phrase was used by employer witnesses: “HC was the employer’s expert”. The evidence, however, does not bear this out. The process the grievor was put through was slow and clunky and did not necessarily reflect some sort of employer-related or job-related expertise vis-a-vis a health issue. This is not a reflection of the competency of the health care professionals but of a process or system that does not, in this day and age, seem fit for its intended purpose.

[225] In the grievor’s case, the employer coordinated with HC’s WHPSP, or PSOHP, through its LR department. Once he was referred to HC, an HC medical professional did not actually carry out the assessment. That assessment was done by a psychologist, Dr. Glassman, who was not employed by HC or the employer but was a private-practice professional paid a fee to carry out the assessment. Dr. Glassman carried out the assessment but did not report to the employer, the management team, or even the LR department but back to HC and its contact person, who in this case was Dr. Glass. Dr. Glass then put his own spin on the Glassman assessment and sent it to the employer.

[226] HC did not conduct the assessment of the grievor. Dr. Glassman did. It is hard to accept that somehow, HC is an expert in the field and area, when it farmed out the actual assessment to someone else. This is not to suggest that Dr. Glassman is not competent or was not an appropriate choice for the assessment. It is to put to rest the ill-informed suggestion that somehow, HC has some expertise in a field when there is not any evidence that it has some. In any event, in this particular case, it did not conduct any of the assessing.

[227] That said, I heard no evidence that would suggest that Dr. Glassman had any expertise in the business of the CBSA let alone that of the CBSA’s Immigration Enforcement division that the grievor was working in. This, in and of itself, is not necessarily cause for concern, as many a family physician or health-care general practitioner can diagnose illnesses, ailments, and disabilities and in the right circumstances provide appropriate advice vis-a-vis accommodations. However, the suggestion that somehow HC bore some special expertise is a fallacy. Both Dr. Glassman and Ms. Cait were appropriately trained in their fields and specialized in an area relevant to the circumstances.

[228] Given what the grievor went through participating in the process and the excessive length of time it took for the process to be completed (more than two years from the July 8 meeting (in 2009) to the final medical-examination report from Dr. Goldsand on October 3, 2011), it is not surprising that he was less than enthusiastic about going through a further process.

[229] However, while the Cornerstone report was quite clear on the diagnosis of Asperger’s, it suggested only that the grievor could potentially also have ADHD. As set out earlier, this disorder has many traits and characteristics that are similar to Asperger’s; however, no conclusive diagnosis had been made. In that respect, a more thorough assessment with respect to this issue would have been appropriate, such that all the parties would have had a fuller and better understanding of the hurdles or challenges that they faced.

[230] The Supreme Court said in Central Okanagan that the parties were to engage in a multi-party inquiry. It did not set out the rules for doing this. They left it to the different LR communities to work out how to make the implementation and set out the general parameters for the process. In this the 21^st century we are, and I hope should be, long past the very simplistic accommodation inquiries of the past.

[231] The grievor is an intelligent individual who has, what appears to be, a complex learning problem that did not surface until he was well into his professional life. I have no doubt that the federal LR community has the expertise to address issues like the grievor’s that are coming forward. The employers and bargaining agents have to adapt to the changing complexities of the workplace and the advances in health care. They cannot simply rely on an outdated and clunky adversarial process that in cases like the grievor’s, are doomed to fail.

[232] That said, as a starting point in this matter, once the Asperger’s and potential ADHD diagnosis was determined and provided to the employer in mid-2013, the parties should have sat down with the appropriate health care professionals. It should not have been just the grievor, Mr. Star, and Mses. Cuvalo and Clark. The Cornerstone report identified a complex learning issue that had clearly demonstrated the likely reason or reasons that he was not successful in the training of and working as an IEO. The parties and their representatives, as well as perhaps Ms. Cait and an appropriate HC health care professional who had reviewed the Cornerstone report and worked in the Asperger’s and ADHD field, should have come together as that “multi-party inquiry” to see what, if anything, could be done with respect to the grievor in his IEO position. This might well have necessitated a further HC evaluation, in the face of the Cornerstone report.

[233] I say this because based on the extensive evidence of how the grievor performed in 2007 to 2010 and on what is set out in the Cornerstone report, Ms. Cait’s evidence, and what limited information has been presented about ADHD, it is impossible for me to assess whether the grievor can actually carry out the functions of an IEO.

[234] The tasks, competencies, and work environment of an IEO, as set out in the work description provided, disclose that many of the requirements of the job require skills and competencies that the Cornerstone report not only disclosed that the grievor lacks, but also, it does not indicate he will be able to necessarily carry them out, even with an accommodation.

[235] When one reviews the difficulties identified in the evidence and those outlined in the Cornerstone report, they mirror the description of the difficulties described in the evidence about the grievor’s performance, including his ability to pick up on social cues, to multitask, to prioritize, to make decisions, to complete tasks, and to manage time, to name a few. The IEO is a law-enforcement position that requires the IEOs to do those things that the grievor appeared to have been unable to do or appeared to have significant difficulty doing.

[236] The question as to whether the grievor could do the tasks in the IEO position were legitimate. If he could do them, how he could be accommodated was not as simple as following the recommendations set out in the Cornerstone Apr. 2 letter, which were limited in their usefulness. They did not address the IEO position, and the employer (and the grievor for that matter) had no input. At best, it set out in general terms important and helpful criteria that however were insufficient to put into place an accommodation. Indeed, in reviewing the enforcement assistant position, Ms. Cait stated the following:

...

Recently, Mr. Shreedhar brought to my attention a job description of his current work and I was asked to comment on it (Job title: Enforcement Assistant – Effective Date 2011). While he likely possesses most of the attributes and skills needed for the job, there are some unsettling features about it. Specifically, he may find a “hectic, high-stress and deadline-driven” work environment challenging, especially, if it lacks structure and specific guidelines or if he does not have his colleague’s sensitivity and/or supervisory understanding or support. Second, he may struggle if asked to deal with “hostile individuals” where he is required to “defuse anger” and make “on the spot” judgment calls.

...

 

[237] The grievor’s difficulties, as described to me, appear to be particularly troubling for someone such as him in the IEO position, as an IEO may deal with criminals and other individuals who may act in an uncharacteristic and a violent manner as they are subject to proceedings to be removed from the country. I noted carefully the evidence with respect to the grievor’s difficulty handling an arrest at a Toronto police station, his improper use of the tool belt and handcuffs, and his inability to assess the situation, pick up visual or other social cues, and act on them quickly and efficiently. These are critical to the health and safety of the grievor as an IEO, any colleagues who are working with him, the individual (or individuals) under arrest, and the general public.

[238] However, the grievor nonetheless suffered an adverse effect on account of his disability, which constitutes discrimination. An accommodation may or may not have worked in his situation but whatever the case, the employer has not demonstrated that it reasonably accommodated him nor that it could not accommodate him without undue hardship.

[239] Having determined that the grievor was discriminated against on the basis of his disability and that the employer did not establish a defence of reasonable accommodation, it is difficult to determine what would be the appropriate remedy today. The stumbling block in fashioning one lies in the fact that such an extensive amount of time has passed. The grievor’s difficulties date back some 14 years, to 2007. Dr. Glassman assessed the grievor in late 2010, and Ms. Cait did so in late 2012-early 2013. The particulars of the job may have changed. The tools of the job may have changed. The grievor has not been carrying out any of the tasks of the job for close to 10 years. On the other hand, the grievor’s abilities, now that he is aware of his diagnosis, may have also changed. It also did not help that from the time the grievance was filed in 2012 to its referral to the Board’s predecessor in 2014, it did not come up for a hearing before February of 2020, a period of 6 more years.

[240] As the grievor and his bargaining agent were complicit with the employer in not properly participating in the accommodation process as envisaged by Central Okanagan, I decline to reinstate the grievor to his position as an IEO at the FB-03 group and level retroactively to May of 2013, which is the date on which all parties appear to have been aware of the Asperger’s and probable ADHD diagnosis.

[241] The evidence is not conclusive that accommodations could be made to allow the grievor to carry out the functions of the IEO position and that if they could be, whether the grievor either could or could not carry out the functions of the IEO position with an accommodation. The accommodation assessment process has to be carried out correctly and by persons who are familiar with the position as it is today and with the knowledge and assistance of appropriate health care professionals in the field of Asperger’s and potentially ADHD. I say “potentially” because the Cornerstone report was not conclusive in the assessment of ADHD, what if any other effect it may have on the grievor’s ability to carry out the functions of an IEO position, and whether any accommodation may be effective.

[242] Therefore, I order that the grievor be reinstated into his IEO position (or whatever the equivalent FB-03 position is today) effective February 11, 2020, being the first day on which the hearing before me started.

[243] The grievor’s salary as of February 11, 2020, shall be at the point in the FB-03 salary grid he would have reached had he been on leave without pay from the date of his demotion to February 11, 2020, and shall be set off against those amounts he earned in his enforcement assistant position as a CR-05.

[244] Section 226(2)(c) of the Act states that an adjudicator may, in relation to any matter referred to adjudication, award interest in the case of grievances involving termination, demotion, suspension or financial penalty, at a rate and for a period that the adjudicator or the Board considers appropriate. As the grievor was demoted, I consider it appropriate to award interest on the amount owed to the grievor for lost salary. The amount paid to the grievor shall bear interest as set out in the Ontario Courts of Justice Act, R.S.O. 1990, c. C-43, at the prejudgement rate to the date of these reasons and at the post-judgement rate after that.

[245] Given the time that has passed since the grievor was first converted into the IEO position and given that there might have been changes made to the job functions, competencies, and tools, the employer shall provide the grievor with the appropriate training as it would any new recruit to the position to bring him up to speed and to allow the appropriate managers and health care professionals to be involved in that training and to work toward an accommodation. I leave it to the parties to work out the logistics of this process; however, I shall remain seized of the matter in this respect, for a period of 120 days, to provide further direction, if necessary.

[246] As I have determined that the grievor was discriminated against and that the employer did not establish a defence of reasonable accommodation, I must now determine an appropriate compensatory remedy. The grievor requested compensation under both s. 53(2)(e) and 53(3) of the CHRA.

[247] With respect to s. 53(2)(e) of the CHRA, I have no doubt that the grievor suffered due to the discrimination and the failure to accommodate. However, the failure of the accommodation process cannot be laid solely at the feet of the employer. Both the grievor and his union share in this failure and must bear some part of the responsibility for this matter not moving forward and coming to some resolution. As the Supreme Court of Canada has stated, accommodation in matters such as these is a tripartite process. Given these considerations, I am prepared to assess the sum of $5000 in relation to his pain and suffering.

[248] Section 53(3) of the CHRA, is meant to provide compensation when the actions of the discriminating party are adjudged to be wilful or reckless. Based on the evidence, I do not find that the employer’s actions in this matter were either wilful or reckless. At all times prior to being made aware of the grievor’s disability, the employer acted in good faith. I heard a significant amount of evidence of the actions of managers and supervisors who worked diligently over an extended period to find a way to assist the grievor to succeed. When it was suggested that the grievor may have a learning disability, again the employer took steps to try and establish that this was the case. This process again was quite lengthy. They maintained the grievor in his IEO position at his IEO FB-3 salary throughout the process. The employer only moved to demote the grievor when the only evidence it had before it disclosed no disability.

[249] While it appears that the Cornerstone report may have been available sometime in February of 2013, it is unclear when, or even if, it was ever provided to the employer in its entirety. Rather than producing it to the employer, the grievor and his union produced an undated Word document that clearly came from parts of the Cornerstone report. It wasn’t until May of 2013 that the Cornerstone Apr. 2 letter was brought forward. Upon receipt of the Cornerstone Apr. 2 letter, the employer attempted to move the accommodation process forward, however that process stalled, by virtue of the actions of all of the employer, the grievor and the union. As such, the case for compensation under s. 53(3) of the CHRA, has not been made out and as such none shall be granted.

[250] In this grievance the grievor also alleged harassment. The evidence did not disclose harassment.

4. The grievances in Board File Nos. 566-02-12599 and 12601

[251] On June 10, 2014, the grievor filed the grievance that would become Board File No. 566-02-12599 that stated that the employer had failed to accommodate him and that it had failed to provide him with a respectful workplace free of harassment. On July 28, 2014, the grievor filed the grievance that would become Board File No. 566-02-12601 in response to a two-day disciplinary suspension he was given by Mr. Kamin on July 18, 2014, which was served on July 21 and 22, 2014; as a result, the grievor was not paid two days of salary. In this grievance, he also claimed that he had not been accommodated.

[252] With respect to the grievance that would become Board File No. 566-02-12601, the employer undertook during the course of its submissions to repay the two days of salary lost due to the disciplinary suspension. If the employer has not already paid this to the grievor, it shall pay him the equivalent of the two days of salary at the CR-05 group and level that was in effect as of July 21 and 22, 2014, and interest on that amount from August 1, 2014, to the date of payment at the rates for prejudgement and post-judgement interest set out under the Ontario Courts of Justice Act, R.S.O. 1990, c. C-43.

[253] The grievance against the two-day suspension discipline arose due to the grievor’s alleged conduct at the beginning of May 2014, when the employer stated that the grievor was not performing work for an extended period, and on May 15, 2014, when he was away from the workplace over the lunch hour for an extended time and failed to serve clients who attended during that time.

[254] The grievance that is Board File No. 566-02-12599 was filed on June 10, 2014. As grievances must be filed within 30 days of the incident complained of, the events or incidents complained of in this grievance must have occurred sometime in the previous 30 days or sometime that appears to coincide with the events that gave rise to the discipline and grievance that has become Board File No. 566-02-12601. With respect to Board File No. 566-02-12599, the grievor states that the failure to accommodate is continuing.

[255] In May of 2014, the grievor was working in the archiving unit and was being supervised in what can be best described as a unique way. Mr. Uzoruo was responsible for the archiving unit; however, Ms. Jelani was responsible for the grievor’s personnel file issues involving his accommodation issues. The reason given for this morphed type of supervision was that many short-term acting assignments were being made in general, specifically in the archiving unit, and as such, it was determined that rather than educate a whole host of actors as to the grievor’s situation, it was easier to assign Ms. Jelani. She was aware of the grievor’s Asperger’s and potential ADHD, while Mr. Uzoruo was not.

[256] In principle, it likely seemed like a good idea, and there clearly were benefits both from a workload and privacy perspective and, given the nature of the grievor’s situation, continuity; however, given his Asperger’s and potential ADHD, it is a little perplexing as to how it was that management could fathom that Mr. Uzoruo could, or would, be able to supervise, monitor, and manage the grievor’s work without having the requisite information relating to his Asperger’s and ADHD or at the very least, the Cornerstone Apr. 2 letter and its recommendations.

[257] As disclosed by the evidence, certain traits of both Asperger’s and ADHD are common and are characteristic of people who have the disorders. The recommendations made in the Cornerstone Apr. 2 letter address a number of characteristics that Ms. Cait and her team saw in the grievor. Knowing these traits or characteristics, and having had the opportunity to review the work description of the enforcement assistant, the recommendations might have assisted the grievor and his immediate supervisor in overcoming what became stumbling blocks in his position at the archiving unit. However, the fact that Mr. Uzoruo did not know of the grievor’s health issues does not necessarily amount to discrimination or a failure to accommodate or mean that the discipline with respect to his behaviour was linked to a failure to accommodate.

[258] The first incident that led to the discipline was that the grievor had not served some clients at the front desk, and he was missing from the office for an extended period. The evidence disclosed that he had switched his duties with another employee.

[259] The grievor was the only one who could explain why he was not available to carry out the duties at the front desk and why he was away for an extended period. He explained what he had done. There is no evidence that his disability kept him from understanding what was expected of him or that the accommodation recommendations, whether they were implemented or not, had any bearing on what happened on May 15, 2014.

[260] The other conduct that led to the discipline was the determination by the employer that the grievor had done little or no work over an extended period of either seven or eight days. The evidence of the lack of work being carried out was not disputed. The grievor’s position was that since the employer was aware of his Asperger’s and potential ADHD, therefore, it failed to accommodate him, and the result was this lack of production due to him becoming stuck on one file.

[261] Much of the evidence surrounding this failure to do any work over seven or eight days came from Mr. Uzoruo and notes taken by him, as well as notes taken at the fact-finding meeting and the testimonies of (in addition to Mr. Uzoruo) Mr. Kamin, Ms. Jelani, and the grievor.

[262] The fact that the grievor has Asperger’s and, potentially, ADHD does not necessarily mean that he does not know the difference between right and wrong. His recounting before me of what happened with respect to the failure to produce any work did not meet the test 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....

...

[Emphasis added]

 

[263] Mr. Uzoruo’s notes and his testimony stated that when he broached with the grievor the fact that the grievor had not produced any work for seven days, he said that the grievor told him that he felt that the work was not important and that he has a master’s degree. On May 16, 2014, an extensive email exchange took place between the grievor and Mr. Uzoruo, parts of which also included Ms. Jelani and Messrs. Kamin and Star. Nowhere in this exchange is there any suggestion that the grievor got stuck on one file or did not understand what he was to do.

[264] A fact-finding meeting took place on May 28, 2014, which was attended by the grievor and his union representative, Mr. Gurr, as well as Messrs. Kamin and Uzoruo and Ms. Jelani. Nowhere in the notes or in the evidence of any of Messrs. Kamin or Uzoruo or Ms. Jelani did the grievor explain why he had either carried out no work or become stuck on one file. The evidence disclosed that the grievor objected to being in the archiving unit and that he had been advised by the CIU not to say anything more.

[265] Ms. Jelani testified that after the May 28, 2014, meeting, she had a discussion with the grievor, during which she said that he told her that he had become stuck. Yet, she also said that he gave no reason for not speaking to anyone about becoming “unstuck”. Nor, she said, did he say why he was stuck or what had caused him to become stuck.

[266] When the grievor was asked questions about the seven or eight days of no work and if he could explain why he did not do any work, he talked about recalling being yelled at by Mr. Uzoruo. He reiterated this at a later point in his testimony. When asked why he did not tell anyone that he was stuck, he answered that he was afraid. The grievor testified after all the employer witnesses, which included Messrs. Kamin and Uzoruo and Ms. Jelani. He heard their evidence and had seen the notes and emails that had been produced. All of them were cross-examined by the grievor’s legal counsel, and it was never put to any of them that the grievor either had ever been yelled at by Mr. Uzoruo or anyone else for that matter or had been frightened. Neither of these things is recorded in any documents with respect to this incident. Mr. Gurr did not testify, and Mr. Star did not relate any information of the yelling or the fear that the grievor spoke of (despite not being present for the fact-finding meeting).

[267] The employer’s allegation with respect to the non-production was quite straightforward. Yet, the grievor’s story changed over time, including the new allegation by him of the yelling and being afraid. Given his initial responses to the inquiries made about the work of the archiving unit not being important, his view that his talents were being wasted there (his reference to having a master’s degree), and this lack of production coinciding with him being called onto the carpet for the May 15 incident, his latest explanation that he just recalled yelling and was afraid is just not credible.

[268] While there is no doubt that the grievor has a disability, the evidence did not disclose that it played a role in his actions that led to his discipline. I am not convinced on a balance of probabilities that the disability played a role in the actions the led to the discipline. On a balance of probabilities, the grievor acted in a manner that he knew was inappropriate and simply attempted to lay the blame elsewhere.

[269] The usual basis for adjudicating discipline issues is by considering the following three questions (see Wm. Scott & Co.): Was there misconduct by the grievor? If so, was the discipline imposed by the employer excessive in the circumstances? If it was excessive, what alternate penalty is just and equitable in the circumstances?

[270] As I have found that there were grounds for a finding of misconduct with respect to one of the two incidents for which the grievor was disciplined, the second question in the Wm. Scott test is whether the discipline imposed was excessive. However, as the employer has already stated that it will reimburse the two days of lost pay, I shall order that this shall take place if the employer has not already done so.

[271] In grieving the discipline, the grievor also stated he had not been accommodated under the duty-to-accommodate policy and the relevant collective agreement. As I have found that the misconduct occurred and that there was no link to the disability or failure to accommodate, this allegation fails.

[272] The grievance in Board File No. 566-02-12599 simply alleges this: “Management has failed to Accommodate me as per my request and failed to provide me with a respectful workplace free of harassment, placing me in work situations where I am geared to fail due to my medical condition.” As set out earlier, the date of this grievance was June 10, 2014. The time this would relate to coincides with the time frame of the misconduct I have just addressed in reference to the grievance in Board File No. 566-02-12601. I have already found that discrimination did not play a role in relation to those incidents.

[273] The only other significant evidence I heard with respect to this time frame was that the grievor felt that he was not accommodated because he was not provided with the appropriate tools. In this respect, the Cornerstone Apr. 2 letter suggested some recommendations, including recommendation no. 6, which stated this:

Use of a computer, tablet and/or Smartphone with adaptive technology. Training in the use of relevant technology (e.g. task management system with reminders; speech to text/text to speech. LiveScribe pen for recording and reviewing orally presented information; annotation software)

 

[274] In her evidence, Ms. Jelani spoke about the use of a computer, tablet, and smartphone with adaptive technology; she said that she had discussions with the grievor and stated that he was told that they would not help with his work in the court tracking unit. She stated that they would not have helped in the archiving unit or with file processing. She said that checklists were used that assisted the grievor. In a letter dated July 11, 2013, Ms. Raposo responded to the grievor’s requests for these electronic tools and stated that management was unaware of how the technology related to his assigned duties.

[275] When referencing the recommendations in the Cornerstone Apr. 2 letter, Ms. Cait stated that they were general guiding principles. She did not provide any evidence as to how or in what manner the suggested technology could be applied to assisting the grievor or accommodating him or that they were even required. I also did not hear this from the grievor. The fact that these recommendations might have been made and not implemented does not equate to a failure to accommodate. There were other recommendations in the Cornerstone Apr. 2 letter that were also not applicable, such as recommendations nos. 9 and 10, which reference tests and examinations.

[276] The grievances also refer to harassment. The evidence adduced did not establish that there was harassment being perpetrated against the grievor.

[277] As the grievor has failed to establish that his disability was a factor in the discipline that was imposed on him and that he was otherwise discriminated against, these grievances are dismissed.

5. The grievance in Board File No. 566-02-12600

[278] In Board File No. 566-02-12601, the grievor grieved the two-day suspension discipline and that he had not been accommodated under the duty-to-accommodate policy and relevant collective agreement. That grievance was denied, was referred to the Board, and has been dealt with in these reasons.

[279] The grievor filed this grievance (Board File No. 566-02-12600) in response to the response to that other grievance (Board File No. 566-02-12601).

[280] For the reasons that follow, this grievance (Board File No. 566-02-12600) is dismissed.

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

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

[283] The grievor filed this grievance despite having also referred the grievance that became Board File No. 566-02-12601 to the PSLRB for adjudication.

[284] I heard no evidence with respect to this grievance and to how it is any different from the grievance that became Board File No. 566-02-12601. In essence, it is a grievance against the same discipline that seeks the same relief. In his submissions, the grievor stated that he would not make presentations on jurisdiction or seek a ruling or a remedy. As it is a matter that is already before the Board that has already been dealt with, it is res judicata, and it is dismissed.

V. Conclusion

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

(The Order appears on the next page)

VI. Order

[286] The grievance in Board File No. 566-02-9129 is dismissed.

[287] The grievance in Board File Nos. 566-02-9131 and 9132 is allowed as set out in these reasons.

[288] The grievor shall be reinstated into his IEO or equivalent position at the FB-03 group and level effective February 11, 2020. Within 30 days of this decision an accommodation process involving the grievor, the employer and the union shall commence, engaging the appropriate health care professionals as necessary.

[289] The grievor shall be reimbursed the difference between his FB-03 and CR-05 salaries for the period starting February 11, 2020 and ending on the date on which he begins to receive his appropriate FB-03 salary.

[290] The employer shall pay the grievor $5 000 in compensation for pain and suffering under s. 53(2)(e ) of the CHRA..

[291] The employer breached s. 19 of the 2014 FB collective agreement.

[292] The grievance in Board File No. 566-02-12599 is dismissed.

[293] The grievance in Board File No. 566-02-12600 is dismissed.

[294] The grievance in Board File No. 566-02-12601 is dismissed.

[295] The employer shall pay the grievor the equivalent of two days’ salary at his CR-05 group-and-level pay rate as it was on July 22, 2014.

[296] Interest shall accrue and be paid on all amounts at the rates of prejudgement and post-judgement interest set out under the Ontario Courts of Justice Act, R.S.O. 1990, c. C-43, as follows:

1. For the amounts of lost salary between the FB-03 and CR-05 positions from February 11, 2020.

2. For the two days of salary for the suspension that took place in July of 2014, from August 1, 2014.

 

[297] The following documents are ordered sealed:

· Exhibit G-1, tab 36: 6 pages of test results from the grievor’s testing by Dr. Glassman, carried out on December 6, 2010;

· Exhibit E-1, tab 41, and Exhibit G-1, tab 35: letter dated December 7, 2010, from Dr. Glassman to Dr. Glass;

· Exhibit E-1, tab 42, and Exhibit G-1, tab 38: letter dated January 5, 2011, from Dr. Glass to Ms. Ptasznik;

· Exhibit E-1, tab 44, and Exhibit G-1, tab 47: letter dated August 15, 2011, from Dr. Chernin to Dr. Shapiro;

· Exhibit E-1, tab 44, and Exhibit G-1, tab 49: letter dated August 16, 2011, from Dr. Shapiro to Ms. Ptasznik;

· Exhibit E-1, tab 44, and Exhibit G-1, tab 53: letter dated October 3, 2011, from Dr. Goldsand to Dr. Shapiro;

· Exhibit G-1, tab 88: letter dated April 2, 2013, from Cornerstone (Ms. Cait) to “To Whom It May Concern”;

· Exhibit G-1, tab 95: undated 17-page psychological assessment authored by Cornerstone (Ms. Cait), together with an 8-page test-score result summary;

· Exhibit G-1, tab 126: all the third volume of Exhibit G-1, which is all the raw data with respect to the assessment of the grievor by Cornerstone;

· Exhibit E-12: the grievor’s notebook for the period from July 22, 2008, to June 11, 2009;

· Exhibit E-1, tabs 12, 14, 15, and 16: notes containing non-citizens’ names;

· Exhibit E-1, tab 19: note to file dated February 14, 2009, containing non-citizens’ names;

· Exhibit E-1, tab 25, and Exhibit G-1, tab 19: Assessment of Performance Chart with notes containing non-citizens’ names and file number references; and

· Exhibit E-1, tab 26: assessment notes containing non-citizens’ names, file numbers, or both.

 

[298] I shall remain seized for a period of 120 days from the date of these reasons to address any issues with respect to the accommodation process that the parties shall engage in that may arise out of the implementation of my decision.

January 25, 2022.

John G. Jaworski,

a panel of the Federal Public Sector

Labour Relations and Employment Board