Date: 20241217

File: 566-02-11217

 

Citation: 2024 FPSLREB 178

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

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

BETWEEN

 

Josée Beaudoin

Grievor

 

and

 

TREASURY BOARD

(Correctional Service of Canada)

 

Employer

Indexed as

Beaudoin v. Treasury Board (Correctional Service of Canada)

In the matter of an individual grievance referred to adjudication

Before: Steven B. Katkin, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Marie-Pier Dupont, counsel

For the Employer: Alexandre Toso, counsel

Heard by videoconference,

February 8 and 9, March 3, May 4 and 5 and July 26, 2023.
(Written submissions filed August 25 and September 8 and 15, 2023.)
(FPSLREB Translation)

REASONS FOR DECISION

FPSLREB TRANSLATION

I. Individual grievance referred to adjudication

[1] At the time of the events relevant to the grievance, the grievor, Josée Beaudoin (“the grievor”) was an inmate pay assistant with the Correctional Service of Canada (CSC or “the employer”) at the Federal Training Centre (FTC) in Laval, Quebec. Her manager at the time was André Lamoureux, manager of programs at the FTC, from August 2013 to March 2015.

[2] The grievor was covered by the collective agreement between the Treasury Board and the Public Service Alliance of Canada (“the union”) for the Program and Administrative Services group, which expired on June 20, 2014 (“the collective agreement”).

[3] In her grievance, the grievor challenges the employer’s requirement that she provide a medical certificate to justify her absences for medical reasons. The grievor alleges that the employer discriminated against her in its application of the National Attendance Management Program (NAMP).

[4] On June 3, 2015, the grievor referred her grievance to adjudication before the Public Service Labour Relations and Employment Board. On June 19, 2017, the name of the Board was changed by legislation (S.C. 2017, c. 9) to the Federal Public Sector Labour Relations and Employment Board (“the Board”). For the purposes of this decision, the term “Board” includes the Board’s predecessors.

II. The employer’s preliminary objection

[5] At the hearing, the employer raised an objection based on Burchill v. Attorney General of Canada, [1981] 1 FC 109 (CA), 1980 CanLII 4207 (FCA), alleging that certain facts presented by the grievor, such as her relationship with Mr. Lamoureux, were beyond the scope of the grievance referred to adjudication. I allowed this evidence subject to the objection, which I will deal with later in this decision.

III. Summary of the evidence

A. Agreed statement of facts

[6] The parties filed an agreed statement of facts (ASF) and a joint book of documents. The ASF reads as follows:

[Translation]

…

1. At the time of the events relevant to the grievance, the grievor (“the grievor”) was an inmate pay assistant with the Correctional Service of Canada (CSC) at the Federal Training Centre (FTC). Her manager, Mr. André Lamoureux, was the manager of programs from August 2013 to March 2015.

2. The grievor was subject to the collective agreement between the Treasury Board and the Public Service Alliance of Canada (Program and Administrative Services) that expired on June 20, 2014. A copy is attached at Tab 1 of the joint book of documents.

3. In July 2013, the grievor returned from a period of sick leave that began in April 2013. When Mr. Lamoureux arrived as manager in August 2013, the grievor was making a gradual return to work. She returned to full-time work in September 2013. The grievor also had a compressed work schedule at the time, working 8.33 hours a day with every second Friday off.

4. In March 2014, Mr. Lamoureux came to the conclusion that the grievor had demonstrated a pattern of repetitive and unusual leave usage over the previous 12 months. He noted several instances of sick leave, family-related responsibility leave and medical appointment leave since April 2013 that he considered to be in conjunction with other scheduled leave (e.g., weekend, compressed day, statutory holiday). Those instances of leave are as follows:

· Friday, April 19, 2013: sick leave (2.75 h)

· Tuesday, August 6, 2013: leave for family-related responsibilities (7.5 h)

· Tuesday, October 15, 2013 (following a statutory holiday): leave for family-related responsibilities (7.5 h)

· Monday, October 28, 2013: leave for family-related responsibilities (3.75 h)

· Friday, November 1, 2013: leave for medical or dental appointment (4.17 h)

· Friday, November 1, 2013: leave for family-related responsibilities (3.75 h in conjunction with leave for medical or dental appointment)

· Friday, November 15, 2013: sick leave (4 h)

· Thursday, November 21, 2013 (before compressed day): sick leave (8.33 h)

· Friday, November 29, 2013: sick leave (8.33 h)

· Monday, December 23, 2013: leave for medical or dental appointment (2 h)

· Thursday, January 2, 2014 (after statutory holiday and before compressed day): leave for family-related responsibilities (7.5 h)

· Monday, January 6, 2014: sick leave (8.33 h)

· Thursday, January 16, 2014 (before compressed day): leave for medical or dental appointment (2 h)

· Tuesday, January 21, 2014: sick leave (3 h)

· Thursday, January 23, 2014: sick leave (8.33 h)

· Friday, January 24, 2014: leave for family-related responsibilities (7.5 h)

5. On March 28, 2014, Mr. Lamoureux emailed Labour Relations with his observations. A copy of the email is attached at Tab 2 of the parties’ joint book of documents. Mr. Lamoureux added a handwritten note regarding leave that had been requested that same day for a medical or dental appointment on Thursday, April 10, 2014, before a compressed day.

6. Labour Relations informed him of the provisions of the National Attendance Management Program (“NAMP”) and suggested an informal interview with the grievor. They indicated that if management determined following the meeting that her absences were not justified, she could be required to produce a medical certificate to justify her sick leave. A copy of the Labour Relations email is attached at Tab 2 of the parties’ joint book of documents.

7. As stated in the NAMP, the purpose is to ensure consistent, supportive and fair management of employees’ attendance throughout CSC, while maintaining the spirit of the collective agreements and promoting attendance. As indicated in the statement, the focus of the NAMP is on improving employee attendance through awareness, intervention and individual case management. A copy of the NAMP is attached at Tab 3 of the parties’ joint book of documents.

8. As such, supervisors must monitor and review their employees’ leave usage on a monthly basis. One of the keys is to identify a repetitive scenario of leave usage over the previous 12 months. The patterns described in the following non-exhaustive list are noted:

· Unusual duration of leave

· Significant history or pattern of usage which is considered unusual

· Use of unscheduled sick leave and family-related responsibility leave

· Negative balance of sick leave

· Use of unscheduled leave on a day that a shift exchange has been denied

· Use of three or more separate occasions of unscheduled sick leave or family-related responsibility leave in a month

· Use of leave during a scheduled shift

· Use of unscheduled leave in conjunction with annual leave

· Use of unscheduled leave in conjunction with a statutory holiday

· Use of unscheduled leave on a specific day of the week or a certain day each month over a period of several months

· Use of unscheduled leave coinciding with other events

· Use of unscheduled leave following double shifts or overtime

9. Informal interviews are initiated with employees when a supervisor has a concern. Supervisors explore the reasons for absence by encouraging employees to discuss the reasons for their absenteeism. What appears to be leave misuse/abuse may not be, once all the facts are known.

10. On April 10, 2014, Mr. Lamoureux met with Ms. Caroline Turcotte, Assistant Warden, Interventions, to discuss the points to be addressed at a subsequent meeting with the grievor:

· Patterns of leave usage that are considered unusual;

· Compressed working hours beginning at 7:00 a.m. and ending at 3:50 p.m., rather than 3:30;

· Leave for family-related responsibilities should be 8.33 hours rather than 7.5 hours, and discussion of leave recording (informal procedure for requesting leave that was established by the previous management team); and

· Explanation of history of requested 698 leave, particularly the outstanding request from January 16, 2014.

11. On April 15, 2014, the meeting took place between Mr. Lamoureux, Ms. Turcotte, the grievor and her union representative.

12. Mr. Lamoureux and Ms. Turcotte drafted a memo following the meeting. The memo states that:

a. Ms. [Beaudoin]’s explanations for her absences are unsatisfactory. It was decided that, in future, medical certificates will be required for sick leave requests.

b. 698 leave must be requested as soon as possible, i.e., as soon as the appointment is scheduled and no later than 48 hours before the appointment. It was decided that two 698 leave requests will be denied, that sick leave requests will be required for those dates, and that moving forward, Ms. Beaudoin must comply with the guidelines for this type of leave.

c. Ms. Beaudoin submits requests for 7.5 hours of leave for family-related responsibilities, but those work hours are subject to a compressed work schedule. It was decided that the three May 2014 family-related requests for 7.5 hours will be denied and that three new requests for 8.33 hours must be submitted.

d. Ms. Beaudoin begins her day outside working hours, at 6:45 a.m., despite two requests from her manager to respect the normal hours stipulated in the collective agreement. It was decided that working hours from 6:45 a.m. to 3:35 p.m. will be permitted.

A copy of this memo can be found at Tab 4 of the parties’ joint book of documents.

13. On May 21, 2014, Ms. Beaudoin filed a grievance, a copy of which can be found at Tab 5 of the parties’ joint book of documents. The statement of grievance indicates the following:

I grieve the employer’s violation of the No Discrimination article of my collective agreement; the Sick Leave with Pay article of my collective agreement; and/or the Leave with Pay for Family-Related Responsibilities article of my collective agreement and all other relevant articles of my collective agreement.

14. In the grievance, Ms. Beaudoin requests the following corrective actions:

a. Compensation in the amount of $20 000 for pain and suffering;

b. Compensation in the amount of $20 000 for the employer’s wilful and reckless discriminatory practice;

c. Full reimbursement for lost wages, benefits, expenses and interest that have resulted from this discriminatory practice;

d. That any documentation or references to this practice be immediately purged from her personnel file in her presence and/or that of her union representative;

e. That this grievance not create any prejudice for her; and

f. To be present at all grievance levels.

15. On May 24, 2014, Ms. Turcotte left her position at the FTC. Ms. Micheline Beaubien replaced her as Assistant Warden, Interventions.

16. On June 3, 2014, the grievance was heard by the employer at the first level. The first-level response, issued on June 6, 2014, is attached at Tab 6 of the parties’ joint book of documents. The employer rejected the grievance, but noted that “the letter given to the grievor imposes a requirement for a medical certificate for SL. That decision should have been made by the NAMP coordinator. I am therefore asking the AWI to review the situation and determine whether it should be referred to the NAMP coordinator. The April 15 letter must be amended accordingly.”

17. On July 18, 2014, Ms. Beaudoin was summoned to a meeting with the NAMP coordinator, Mr. François Luneau. The memo indicates that the meeting was to include Mr. Lamoureux, Ms. Beaubien and, if the grievor wished, a union representative. A copy of this memo is attached at Tab 7 of the parties’ joint book of documents.

18. On July 24, 2014, Mr. Luneau and Mr. Lamoureux met with Ms. Beaudoin, who was accompanied by her union representative, Gervais Bernier. Ms. Beaubien did not attend the meeting. At the meeting, Mr. Lamoureux presented the grievor with a calendar of her leave-related absences in the previous year. However, the parties do not agree on what else occurred at the meeting.

19. On July 25, 2014, the grievor emailed Mr. Luneau about the meeting. A copy of that email is attached at Tab 8 of the parties’ joint book of documents.

20. On August 15, 2014, Mr. Luneau sent an email to Ms. Beaudoin summarizing the July 24, 2014, meeting and next steps. Mr. Luneau advised the grievor that for the three-month period from August 18, 2014, up to and including November 14, 2014, the grievor would be required to provide a medical certificate for every sick leave absence. A copy of that email is attached at Tab 9 of the parties’ joint book of documents.

21. On November 14, 2014, the requirement to provide a medical certificate came to an end. On June 3, 2015, the grievor referred her grievance to adjudication before the Federal Public Sector Labour Relations and Employment Board.

22. On or about August 10, 2015, the employer issued a decision at the final level of the internal grievance process. A copy of that decision is attached at Tab 10 of the parties’ joint book of documents.

23. A leave of absence report for the grievor from April 2013 to December 2014 can be found at Tab 11 of the parties’ joint book of documents.

[Emphasis in the original]

 

B. Testimony at the hearing

[7] The grievor testified and called her treating physician, Dr. Michel Paquin, to testify. The employer called the following witnesses: Caroline Turcotte, Assistant Warden, Interventions (“AWI”), and manager of the grievor’s supervisor; Micheline Beaubien, who replaced Ms. Turcotte as of May 24, 2014; François Luneau, NAMP coordinator from June to August 2014; André Lamoureux, the grievor’s supervisor from 2013 to October 2014. (Note that the ASF indicates that Mr. Lamoureux was the manager of programs from August 2013 to March 2015, but he testified that he left in October 2014.)

1. Chronology of events

[8] The facts reported by the witnesses at the hearing rounded out the facts already summarized in the ASF.

[9] In March and April 2013, the grievor asked her former supervisor, Vicky Houde, for a variable schedule of four days a week. The March 21, 2013, request was denied in a memo from Ms. Houde to the grievor dated April 8, 2013. The second request was supported by a medical certificate from her physician, Dr. Paquin, dated April 11, 2013, which stated: [translation] “Chronic pain… Work 4 days/week. Ergonomic assessment of the position.” The medical certificate was related to medical condition A, one of the two medical conditions from which the grievor suffered.

[10] In a letter to Dr. Paquin dated April 17, 2013, Ms. Houde asked him for certain clarifications, namely the period for which the instructions were valid and when he planned to see the grievor again for follow-up. The grievor testified that Dr. Paquin did not respond to the letter because her request was delayed. After discussion with Dr. Paquin, she was placed on long-term leave.

[11] The grievor returned to full-time work the week of September 2, 2013. She testified that she was still feeling fragile and had to take more leave for medical reasons.

[12] As to her family situation from the fall of 2013 to 2014, she said she was married with three children and had no relatives nearby. Her leave for family-related responsibilities mainly involved her children. She also had to take such leave for her mother, who underwent cancer surgery in late April/early May 2014, as there was only the grievor and her father. She accompanied her father to the hospital, and he looked after her mother.

[13] The grievor also had another medical condition for which she underwent surgery in 2016 (“medical condition B”). That medical condition sometimes caused severe symptoms, which forced her to leave work suddenly in 2014.

[14] The grievor testified that when she began working with Mr. Lamoureux in September 2013, he told her that he did not know her, but that she had a poor reputation. He informed her that another person had taken over her position during her absence and that he could not terminate their employment immediately. As the other person was using her office, the grievor had to move to another building before she could return to her position a few weeks later. Meanwhile, Mr. Lamoureux did not give her any work. The grievor said she had the impression that Mr. Lamoureux wanted to [translation] “get rid of” her and keep the other person. According to her, Mr. Lamoureux also said that he had been made aware of concerns regarding her absences.

[15] Mr. Lamoureux testified that Ms. Houde had informed him of concerns about the grievor’s absences. He said that he was honest and transparent in his discussion with the grievor, telling her that he expected regular attendance. He did not recall telling her that she had a poor reputation, but that was not his style or vocabulary. Mr. Lamoureux denied not giving work to the grievor when she was assigned to another office.

[16] On January 21, 2014, the grievor did not feel well. She experienced symptoms of her medical condition B, which forced her to leave work. Mr. Lamoureux was out of the office, so she called him, but when he did not answer, she emailed him around 11 a.m. to let him know that she was leaving for the day.

[17] Mr. Lamoureux recalled that she emailed him that she was leaving. However, he had no recollection of crossing paths with her that day, and when she informed him that she had to leave, he replied that she could not abandon her post. She said that she was not abandoning it, but that she was not feeling well and had to leave. He said that when he saw the grievor between 8 a.m. and 10 a.m. on January 21, 2014, she looked fine to him, although he admitted that he has no medical training. He referred to a discussion he had at 10 a.m. that same morning with the grievor and the other assistant, Pascal Kajiji, concerning the organization of tasks. The grievor wanted to be given a certain job that had been assigned to Mr. Kajiji, and Mr. Lamoureux had decided to leave the work with Mr. Kajiji.

[18] Mr. Lamoureux’s attention was drawn to his follow-up notes in which he describes, among other things, a discussion he had with Lucie Jolicoeur, a manager, on January 31, 2014, about the grievor’s health issues and her departure on January 21, 2014. Ms. Jolicoeur told Mr. Lamoureux about a conversation she had had with the grievor. The notes include the following line: [translation] “Ms. Jolicoeur did not provide any details about her health condition, but is convinced that they cannot [sic] her early departure, particularly as she was bursting with energy that same morning.”

[19] By notice dated January 27, 2014, the grievor was called to a disciplinary interview concerning her unauthorized absence on January 21, 2014. The interview with Ms. Turcotte and Mr. Lamoureux took place on January 30, 2014. The grievor was accompanied by her union representative.

[20] The grievor was uncomfortable discussing her health issues, but offered to provide a certificate from her doctor, whom she was supposed to see on February 17, 2014. She did indeed provide this certificate justifying her absence to the employer. The incident did not result in any disciplinary action.

[21] The employer objected to the notice of the interview being filed on the grounds that it went beyond the scope of the grievance. I allowed it, subject to the objection. I decided to allow this evidence because it provides context and was the subject of testimony at the hearing.

[22] At the time, the employer was implementing the NAMP to maintain attendance at work. It is not clear from the testimony exactly when the program began to be applied.

[23] Mr. Lamoureux observed that the grievor had several absences in conjunction with weekends or other days off. There were also last-minute absences, which, from an operational point of view, put pressure on Mr. Kajiji. The Program Division was growing, and management required two assistants. Mr. Lamoureux testified that prior to the meeting with the grievor on April 15, 2014, he told her that Ms. Houde had reported to him that the grievor’s absences were an issue and were affecting operations. According to Mr. Lamoureux, when he discussed this with the grievor, she told him it was her right.

[24] Noting that the trend was continuing, Mr. Lamoureux emailed Labour Relations on March 28, 2014, to discuss the grievor’s absences and ask whether a medical certificate should be required for sick leave. Labour Relations suggested an informal meeting with the grievor. If she did not provide satisfactory explanations, management could ask her for a medical certificate for sick leave. Mr. Lamoureux informed Ms. Turcotte that several of the grievor’s leave requests were in conjunction with her rest days. He had already spoken to Labour Relations about whether the NAMP should apply. Ms. Turcotte was of the opinion that it should.

[25] The meeting to discuss the grievor’s absences in the context of the NAMP took place on April 15, 2014. Ms. Turcotte and Mr. Lamoureux both attended. The grievor was accompanied by her union representative, Alain Lalancette. The meeting focused on the grievor’s absences for the period January 2013 to April 2014.

[26] The grievor testified that the managers told her that she had a tendency to take leave in conjunction with weekends or other days off, and asked her for an explanation. The grievor explained the reasons for the leave for family-related responsibilities, i.e., for her children, but felt uncomfortable explaining her medical issues. Ms. Turcotte told her that the medical certificates were not sufficiently detailed and needed to state the nature of the medical condition. She was told that 698 leave was not for follow-ups, but for one-time medical or dental appointments. For follow-ups, she had to use sick leave. The grievor informed them that she had made accommodation requests in the past that had not been granted. She testified that she was not offered accommodation at the meeting.

[27] According to Mr. Lamoureux, at the meeting, they discussed the patterns of her absences and the need for explanations. According to him, the grievor’s explanations were limited to saying that she needed to rest. He could not recall her mentioning any other details. The grievor said that she was tired and needed a rest, but she took leave in conjunction with weekends or other days off. The grievor’s explanations were not acceptable.

[28] When told that the grievor testified that he and Ms. Turcotte had asked questions about her medical condition, Mr. Lamoureux denied it, as it would have been an invasion of her privacy. He could not recall whether Ms. Turcotte had done so or whether the grievor had provided information.

[29] Mr. Lamoureux did not remember whether the grievor requested accommodation. There may have been talk of doing other tasks, as she was unhappy in her position.

[30] Mr. Lamoureux could not recall whether any questions were asked about the health of the grievor’s mother, or whether she refused to answer their questions. He felt that the meeting was tense, and he sensed anger on the part of the grievor.

[31] Ms. Turcotte remembered the meeting as having been cordial. At the hearing, she could not recall the specific questions she asked, but stated that she would have inquired about the grievor’s health and the consequences of her medical condition for her work, such as any functional limitations. If the absence was to care for a family member, she would have asked how that person was doing.

[32] The grievor said Ms. Turcotte wanted details, although she did not ask for the diagnosis. The grievor said that her union representative objected to Ms. Turcotte questioning her about leave for family-related responsibilities, since it is not covered by the NAMP, and she stopped.

[33] The managers decided to require the grievor to provide medical certificates for her sick leave requests because they were not satisfied with her explanations, and she was approaching her leave limit. According to Mr. Lamoureux, an employee whose leave bank is almost depleted may have to take leave without pay. Since it is difficult to rebuild the bank, the employer wants to ensure that the employee has some leave available. Management chose this option over another because it would not create undue hardship in terms of documentation, it was simple to implement and it ensured adequate employee presence for service requirements.

[34] On cross-examination, Ms. Turcotte admitted that the grievor had no attendance problems while under her authority between 2009 and 2013. Ms. Turcotte could not remember whether she applied the NAMP to other employees during the same period.

[35] The grievor took handwritten notes in the days following the April 15, 2014, meeting while the facts were still fresh in her mind. The employer objected to the notes being filed into evidence on the grounds that they were not contemporaneous. I allowed them subject to the weight to be given to them.

[36] The grievor testified that at the meeting, Ms. Turcotte and Mr. Lamoureux asked her a lot of questions about her health, and she had to be transparent with her managers. She felt like she was under attack and got the impression that they were suggesting that she was not a good employee. She felt that the managers were trying to invade her privacy. She recorded in her notes that Ms. Turcotte asked her several times if there was anything else she wanted to share. That is when the grievor told them that she might be due for a job change, and they offered her several positions. The grievor testified that she liked her job, but wanted to stop talking about her health. I would point out that this testimony is consistent with her notes.

[37] According to the grievor’s testimony, Mr. Lamoureux asked for details about her mother’s cancer, what hospital she was in and how long the operation took. This does not appear in her notes.

[38] Following that meeting, the grievor received the memo dated April 15, 2014, that was described in paragraph 12 of the ASF. She filed this grievance on May 21, 2014. On June 6, 2014, the employer responded at the first level of the grievance procedure and denied the grievance, stating that requiring a medical certificate for each sick leave falls under the responsibility of the NAMP coordinator. In its response, the employer asked the AWI to review the situation and determine whether the requirement for a medical certificate should be referred to the NAMP coordinator. The first-level response further indicated that the memo of April 15, 2014, should be amended accordingly.

[39] The grievor testified that she never received the amended memo and was not told to stop providing medical certificates. Ms. Turcotte acknowledged that the memo should have specified an end date for the grievor’s obligation to provide medical certificates for sick leave. She also testified that she was not aware of the employer’s response at the first level of the grievance procedure and did not know whether the April 15, 2014, memo was amended. Mr. Lamoureux also testified that he was unaware of both the grievance and the first-level response.

[40] On Monday, June 9, 2014, the grievor emailed Mr. Lamoureux with the subject line [translation] “Medical Test,” advising him that she had to undergo tests on Thursday morning, that she would be late for work, and that she was taking sick leave for the appointment. He replied the next day, saying that this was not a problem, but that she should ask for a certificate of attendance because he had to ensure that the NAMP was applied.

[41] The grievor pointed out that Mr. Lamoureux requested a certificate of attendance despite the employer’s response at the first level of the grievance procedure on June 6, 2014, to the effect that the decision to impose a requirement for medical certificates was the responsibility of the NAMP coordinator.

[42] The grievor referred to her performance appraisal for 2013–2014. She said she rejected the appraisal because she disagreed with the inclusion of a paragraph about her time off, which reads:

[Translation]

…

Furthermore, we should mention that on 2014-04-15, Ms. Beaudoin’s supervisor and the Assistant Warden, Interventions, met with her, and her union representative, to discuss a pattern of leave usage observed during the current appraisal period that is considered unusual.

…

 

[43] The grievor considered this paragraph to be an attack on her integrity, since the appraisal would be available to other managers when she applied for other positions. Mr. Lamoureux explained that the passage concerns attendance and was relevant given that absences affect performance. As for the grievor’s testimony that she was dissatisfied with her appraisal and had asked for it to be revised, the final version retains that passage and includes the following statement: [translation] “Follow-up on her work attendance targets set on 2014-04-15.”

[44] The employer objected to the performance appraisal being filed on the grounds that it was not part of the grievance. I allowed it subject to the objection.

[45] I am allowing the performance appraisal to be submitted into evidence. It is part of the grievance, in that it integrates application of the NAMP into the grievor’s employment situation, which is exactly what she is challenging in her grievance. I also note that the performance appraisal appears in the employer’s book of documents.

[46] On July 18, 2014, the grievor was called to a meeting with Mr. Luneau, who was the NAMP coordinator, Mr. Lamoureux and Ms. Beaubien, who had replaced Ms. Turcotte. The grievor said that the same day, she met with Ms. Beaubien to inform her of her experiences with Mr. Lamoureux. The grievor testified that Ms. Beaubien reassured her that her situation would improve with time. At the hearing, Ms. Beaubien had no precise recollection of that conversation, or even of that period.

[47] Ms. Beaubien did not attend the meeting, which took place on July 24, 2013. The grievor testified that at the meeting, the managers repeated what had been said at the meeting of April 15, 2014, namely that she had to be more transparent with them and that regardless of the situation, she had to tell them everything. She shared some information about her health because she felt trapped. She told them she had a medical condition that had caused her sudden departure. As for her mother, they told her that she had to tell them everything. The grievor said that she was not offered any accommodation during the meeting.

[48] Mr. Lamoureux testified that the meeting dealt solely with absences and the NAMP. He presented the grievor with a calendar of her absences in conjunction with other days off. Mr. Luneau told the grievor what was expected of her. He had no recollection of he or Mr. Luneau asking about the grievor’s health, and they did not ask questions about her mother’s health. According to Mr. Lamoureux, the grievor voiced a sense of injustice and perhaps a little anger.

[49] Mr. Luneau remembered the meeting as being relatively positive. He did not recall discussing the grievor’s medical condition or that of any member of her family; it was possible, but he did not remember that. Nor did he recall that the grievor had been asked in April 2014 to begin providing medical certificates, or that she had filed a grievance in that regard.

[50] The day after the meeting, the grievor sent an email to Mr. Luneau stating the following:

[Translation]

…

Following our meeting yesterday, I would just like to inform you that I was really not comfortable disclosing everything to you in front of my immediate superior, Mr. André Lamoureux.

In fact, I would have liked my AWI, Ms. Beaubien, to have been there, as I had a meeting on Tuesday afternoon about the fact that I really have a problem with Mr. Lamoureux.

By the way, as I mentioned, I am in the process of filing a human rights complaint (related to my grievance) and am seriously considering filing another labour standards harassment complaint against Mr. Lamoureux.

What I did not mention to Ms. Beaubien either is that Mr. Lamoureux continues to make inappropriate comments about me… I intend to talk to her about that too.

If you need a note from my doctor, please let me know and I will be happy to make an appointment with him and get one for you.

I understand the principle of not wanting to know about my physical problems, but they are the ones who forced me in a meeting to inform them, and in fact the AWI, Ms. Turcotte, told me, “Yes, you must inform your manager of your health problems”! As I told you, my doctor did not agree with me disclosing personal information about my health problems either.

For your information, I am currently being treated for problems [caused by medical condition B] and have been for some time.

…

 

[51] The grievor did not feel that the meeting was intended to help her, but rather was part of a personal vendetta on Mr. Lamoureux’s part. She felt harassed and discriminated against. Despite her offer, she was not asked to provide medical certificates.

[52] When Mr. Luneau was referred to the grievor’s email, he testified that he had no recollection of reading it until it was shown to him at the hearing. He could not recall what happened with the harassment complaint. As for the grievor’s offer to obtain a medical certificate, he did not remember asking her for one. Mr. Luneau’s interpretation is that the grievor was referring to her current or past medical condition, but he had asked her for medical certificates for future absences. Mr. Luneau had no recollection of discussing medical condition B at the meeting, nor of asking the grievor about it.

[53] The decision to ask the grievor to provide a medical certificate for sick leave absences was taken because doubts had been raised about her ability to perform her job. Mr. Luneau testified that he was unaware of the employer’s response to the first level of the grievance procedure to the effect that the April 15, 2014, decision to require the grievor to provide medical certificates should have been the responsibility of the NAMP coordinator.

[54] The grievor testified that she filed a human rights complaint. However, she did not file a complaint or grievance for harassment. She did not use the informal conflict management service because she did not know it existed. She did not file a complaint of workplace violence either because she did not know how to proceed.

[55] As to the nature of Mr. Lamoureux’s disparaging comments, the grievor said that he told her that she was difficult, that she reacted disproportionately to situations, that she had a hostile attitude and that she was constantly challenging him.

[56] On August 15, 2014, Mr. Luneau sent an email to the grievor summarizing the July 24, 2014, meeting. Mr. Luneau advised her that from August 18 to November 14, 2014, inclusive, she would be required to provide a medical certificate for every sick leave absence. According to the grievor, Mr. Luneau was aware that she had been providing medical certificates since April 15, 2014. According to him, he was not. He admitted at the hearing that the requirement for the grievor to provide medical certificates in the April 15, 2014, memo should have been taken into consideration in his request to provide medical certificates for a three-month period from August 18 to November 14, 2014.

[57] The email included the following passage:

[Translation]

…

At the meeting, Mr. Lamoureux presented a calendar of your absences in conjunction with other days off. Last year, this type of situation occurred 14 times. While we are not questioning health problems in any way, this type of “pattern” (absences in conjunction with leave) may raise questions.

…

 

[58] Asked about this, Mr. Luneau said he accepted that the grievor had a valid medical reason. What he did not accept was the timing of her leave.

[59] The grievor testified that these events had a significant impact. She called them an attack on her integrity and reputation, and said that she felt that her performance as an employee was being called into question. She lost her self-confidence and returned to work reluctantly. It took a while for her to get back on her feet.

[60] By letter dated May 22, 2014, the grievor requested leave with income averaging. According to the grievor, the employer does not normally require a reason for such a request. Ms. Beaubien confirmed that this was not standard practice and that she had never done it. However, Mr. Lamoureux reportedly told the grievor that a letter could support her request. It was therefore important for her to provide reasons, but there was no certainty that her request would be granted.

[61] The reasons given by the grievor were that her spouse had left his job to start a business. This would require him to travel the entire month of September 2014, and she wanted to go along to support him. The grievor admitted that she lied in her reasons: her spouse had not quit his job and had not started a business. She testified that she lied given that she could not write that she was requesting the leave because of her problems with her manager, Mr. Lamoureux. Her request was granted and the grievor took leave with income averaging from September 2 to October 6, 2014.

[62] Mr. Lamoureux testified that he was not aware of that request. The letter on file does not bear the name of the addressee.

[63] The grievor testified that Vicky Brassard, her new manager who had replaced Mr. Lamoureux, told her that she should not have been placed under the NAMP and would no longer be under it, as her leave balance was never negative. The grievor has had no issues with absenteeism since.

[64] At the hearing, the grievor was asked to explain the reasons for each of her sick leaves or leaves for family-related responsibilities listed in paragraph 4 of the ASF. She could not remember the details of most of her leaves, with the exception of the following: November 1, 2013, was for a dental appointment, but she could not remember the reason for the leave for family-related responsibilities taken the same day; December 23, 2013, was for a medical appointment with a specialist; January 2, 2014, was to care for her children on a professional development day; January 16, 2014, she made the request that very day for a dental appointment after she was called due to a cancellation; January 21 and 23, 2014, were due to her medical condition B. According to the leave of absence report for the grievor, all the leaves listed in paragraph 4 of the ASF were approved by the employer.

2. Dr. Paquin’s testimony

[65] The grievor was Dr. Paquin’s patient from 1989 to the fall of 2022.

[66] In the summer of 2013, the grievor was on medical leave because of her medical condition A. This condition first manifested in September 2012. There was no leave of absence at the time. In January 2013, the grievor was awaiting an assessment of her position by an ergonomist. The first leave of absence for this condition was on April 24, 2013.

[67] Medical condition A results from repetitive movements. It starts as an occasional problem, but often becomes a chronic condition that can last from six months to a year. A leave of absence is necessary. Rest is recommended. A gradual return to work is sometimes recommended, and there may be periodic relapses and absences.

[68] Asked why his medical certificate of April 11, 2013, indicated a four-day work week, Dr. Paquin replied that it was probably as a result of a phone call from the grievor prior to the April 24, 2013, leave of absence. He believed that medical condition A was progressing and wanted to give the grievor a day off to recuperate.

[69] Dr. Paquin was referred to his December 23, 2013, notes in the grievor’s medical file mentioning another medical condition. He stated that medical condition B is an illness in itself that recurs repeatedly over several months. Dr. Paquin referred the patient to a specialist. In June 2014, the condition was still manifesting.

[70] As for his February 17, 2014, medical certificate stating, [translation] “Absence for cause on January 21,” Dr. Paquin said he saw the grievor on that date. The grievor had called to tell him what was going on. She experienced symptoms of medical condition B on January 21, 2014. He said that the symptoms experienced that day could compromise the performance of the grievor’s daily functions, and there is also pain associated with the condition.

[71] On cross-examination, Dr. Paquin was first referred to a certificate dated March 19, 2013, stating, [translation] “Patient can work 37.5 hours in 4 days.” He acknowledged that this meant working more hours than over five days. Dr. Paquin said he saw the grievor on March 14, 2013, and that the certificate was likely related to her medical condition A, which requires rest.

[72] Dr. Paquin said that the grievor did not inform him of her March 21, 2013, request to the employer for a modified schedule, or of the employer’s refusal on April 8, 2013. He stated that the certificate was not related to that request and there is nothing in the medical record about the request.

[73] With regard to the grievor’s disability insurance claim for medical condition A, Dr. Paquin said that he prepared the document and that the information contained therein is accurate. He made the diagnosis based on what the grievor told him, as well as a physical examination.

[74] To question 1 of the document, Dr. Paquin responded that he was first consulted about the illness on April 11, 2013, but testified that he could have indicated the fall of 2012. He gave the same answer for question 7 asking for the date on which the first symptoms of medical condition A appeared. To question 8 of the document, namely whether the patient had ever presented with a similar or related condition, Dr. Paquin did indeed indicate a similar condition, in 2005. He testified that between 2005 and 2013, she had perhaps two separate episodes.

[75] When it was suggested to Dr. Paquin that his April 11, 2013, medical certificate did not indicate a medical reason for working four days a week, he stated that it was related to a medical condition.

[76] Dr. Paquin did not remember Ms. Houde’s letter of April 17, 2013, seeking clarification regarding that certificate, or whether he responded to it. He said that normally such a letter would be on file, but did not see it there when he checked during his testimony.

[77] At question 3 of the disability insurance claim, Dr. Paquin indicated that he had recommended a leave of absence on April 24, 2013. When asked if he had explored whether the grievor could work with accommodations, he replied that he had put her on a leave of absence, not accommodations. She did not have any restrictions.

[78] Dr. Paquin was referred to his August 14, 2013, medical certificate indicating the schedule for the grievor’s gradual return to work. He pointed out that the notes at the bottom of the certificate were not his, and said that there were no subsequent certificates indicating reduced hours.

[79] As for his notes regarding his consultation with the grievor on February 17, 2014, Dr. Paquin said that she had contacted him about her medical condition B. Dr. Paquin said that they also discussed the other medical condition, although that was not mentioned in his notes. His notes also indicate that an MRI (magnetic resonance imaging) was requested, but that she did not go because her condition had improved. It takes four to six months to get an MRI, and Dr. Paquin saw in the file that they called the grievor after four months to see if there had been any improvement.

[80] Dr. Paquin testified that the medical certificate of February 17, 2014, indicating, [translation] “Absence with grounds on January 21,” was probably related to medical condition B, despite there being no specific notes in the file in this regard. The certificate was based on what the grievor told him had happened on January 21, 2014. Dr. Paquin did not write any further medical certificates for absences due to medical condition B after February 17, 2014. Asked if he had prepared a certificate stating that the grievor might have to be absent at any time for her medical condition B, he replied that he saw none in the file.

[81] When asked, Dr. Paquin indicated that he had no recollection of the grievor ever speaking to him about conflict in the workplace.

[82] On re-examination, Dr. Paquin said that his notes of December 23, 2013, indicate that the grievor began to experience symptoms associated with medical condition B in 2011. He said that she might need to be absent from work at any time due to those symptoms.

[83] The grievor asked for her medical documents to be sealed. That request is the subject of an order later in the decision.

IV. Summary of the arguments

[84] At the close of evidence, the parties agreed to submit their arguments in writing. The grievor filed 38 pages of arguments and a 9-page reply. The employer filed 32 pages. I do not intend to report all their representations here, only those that are most relevant to the issues that I must decide.

A. For the grievor

[85] The grievor argued that she was subjected to discriminatory treatment by the employer in connection with the application of the NAMP, and that she suffered adverse impacts as a result of her absences, which were due to a disability or family obligation under the collective agreement. She alleged that she suffered the following adverse impacts:

[Translation]

a. intimidating, stressful and anxiety-provoking meetings;

b. being placed under the NAMP;

c. the requirement to provide medical certificates for eight months, a disciplinary requirement;

d. several notes/memo in the file;

e. a reference to the NAMP in her performance appraisal; and

f. the need to take leave with income averaging to get out of the situation.

 

[86] The grievor emphasized that her grievance does not challenge the employer’s right to adopt the NAMP, but rather its application to her and the employer’s conduct in the circumstances.

[87] The grievor then addressed the employer’s objection that relies on Burchill to argue that certain facts presented by the grievor, such as her relationship with Mr. Lamoureux, are beyond the scope of her grievance. She argued that this evidence was presented to establish a factual basis for the events central to the grievance. She asserted that this is relevant to establishing discrimination and her right to damages under subsection 53(3) of the Canadian Human Rights Act (R.S.C. (1985), c. H-6; CHRA). The grievor further claimed that nothing in the file she submitted to adjudication came as a surprise to the employer or caused it any prejudice. She asked that the employer’s objection be dismissed.

[88] The grievor argued that the witnesses’ credibility should be assessed, since many of her allegations of discrimination are related to her discussions with the employer’s representatives. She cited in this regard the criteria set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA); [1952] 2 DLR 354.

[89] The grievor asserted that her testimony was clear, credible, candid and frank and that she had a good recollection of the central facts, which was consistent with the documentary evidence and the evidence in general. She pointed out that her version of events was not shaken under cross-examination.

[90] The grievor made a number of comments regarding the testimony of the employer’s witnesses.

[91] Although Ms. Beaubien’s testimony was candid, she admitted that she had little recollection of the events. Her testimony was therefore of little use.

[92] Ms. Turcotte’s recollection of events was quite vague. Moreover, her answers on cross-examination were candid. She frankly admitted when she did not remember something clearly, while acknowledging that it was possible.

[93] As for Mr. Luneau, apart from what was contained in the documents, his recollection of events was limited. With regard to the grievor’s offer to provide a medical certificate, Mr. Luneau acknowledged that he did not seek any information to justify her absences. He admitted that he did not know why he did not ask the grievor for a medical certificate or tell her to see her doctor, as this could have explained her absences. Mr. Luneau admitted to gaps in his memory of the events.

[94] The grievor contended that Mr. Lamoureux was defensive on cross-examination, and became hostile when confronted with her version of the facts. He had memory lapses, but denied the grievor’s allegations. The grievor suggested that there were inconsistencies in Mr. Lamoureux’s testimony, citing as an example the fact that he denied having asked for details of her mother’s medical condition, but that this would be consistent with his seeking reasons for her absences. The grievor argued that, faced with a contradiction between her testimony and that of Mr. Lamoureux, her version should be preferred.

[95] The grievor acknowledged that in order for her grievance to be allowed, she must establish a prima facie (at first view) case of discrimination under the NAMP. If she does, it will be up to the employer to demonstrate that it acted in a reasonable and non-discriminatory manner in the circumstances.

[96] The grievor referred to the well-known criterion for establishing an allegation of discrimination, namely that she must demonstrate: (1) that she belongs to a group with a protected characteristic; (2) that she has experienced an adverse impact; and (3) that the protected characteristic was a factor in the adverse impact (see Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360 at paragraph 33).

[97] The grievor argued that this criterion was considered in the context of the NAMP by the Board and the Federal Court of Appeal in Bodnar v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 71; application for judicial review allowed: Canada (Attorney General) v. Bodnar, [2017] FCA 171.

[98] The grievor claimed that applying the NAMP to her was discriminatory and caused her adverse impacts. She argued that in deciding to proceed in this manner, the employer considered absences related to her medical conditions. She asserted that the April 15, 2014, meeting was the official NAMP meeting and dealt with several topics not directly related to her attendance.

[99] The grievor contended that she established that she has a protected characteristic, namely a disability, and that the following facts demonstrate that she experienced adverse impacts: her managers were intrusive when they met with her; a memo was placed in her file; and she had to provide medical certificates for every sick leave absence for eight months.

[100] The grievor asserted that medical evidence is not required to prove the existence of a disability. This is determined by a preponderance of the evidence (see Mellon v. Canada (Human Resources Development), 2006 CHRT 3, at paras. 84 to 86). The grievor argued that the evidence demonstrates that she had two disabilities, medical conditions A and B. She contended that, as stated in Mellon, at paragraph 88, it is not solely those that constitute a permanent impairment that can be considered a protected characteristic.

[101] The grievor argued that the employer knew that her absences were partly related to disabilities. The employer did not challenge the medical certificates she submitted, and approved sick leave without medical certificates. If the employer had doubts about the grievor having a disability, it should have requested additional information to determine whether accommodation was possible or necessary.

[102] The grievor argued that she suffered an adverse impact in the course of her employment and disability was a factor. She considered this to be due to the actions taken by the employer against her, including placing her under the NAMP; requiring her to submit medical certificates for all her sick leave, which was effectively for an eight-month period; placing the April 15, 2014, memo in her employee file; and indicating in her 2013–2014 performance appraisal that there had been a meeting with her regarding her leave-taking and that follow-up was required.

[103] In addition, the meetings on April 15 and July 24, 2014, had adverse impacts, as they created negative emotions for her. She had the impression that the employer did not trust her, that she was a bad employee and that they were trying to invade her privacy. She felt attacked, diminished and stressed in the context of her employment.

[104] The grievor argued that the adverse impacts were related to her disabilities, since the actions were in response to the leave she took due to her disabilities, among other things. She submitted that she has established a prima facie case of discrimination.

[105] The grievor argued that the employer failed to provide reasonable justification for requesting medical certificates for her sick leave. In her opinion, none of the employer’s witnesses could explain why this measure was imposed, nor did they indicate that her absences were causing operational issues. Furthermore, the employer’s witnesses all confirmed that they had not considered whether the accommodation process would be more appropriate in the circumstances, despite the fact that this is clearly indicated in the NAMP.

[106] The grievor argued that the employer violated article 43 of the collective agreement concerning leave for family-related responsibilities by using it under the NAMP to demonstrate an irregular pattern of leave-taking. This was an attempt by the employer to circumvent the collective agreement to obtain personal information from employees that it has no right to request.

[107] Moreover, in challenging the validity of leave for family-related responsibilities under the NAMP, the employer is challenging the validity of the right in the collective agreement by characterizing it as culpable behaviour through the suggestion that such authorized absences constitute an unusual pattern of leave.

[108] The grievor asserted that the grievance should be allowed. As redress, she asked for a declaration that the employer violated article 43 of the collective agreement. She also requested damages pursuant to paragraph 53(2)(e) (pain and suffering) and subsection 53(3) (wilful or reckless practices) of the CHRA in the amount of $13 000 under each provision. (I note that in her grievance, the grievor had asked for $20 000 under each provision.) She argued that the employer caused her pain and suffering and that she felt attacked and belittled as an employee. Furthermore, the employer’s actions were disorganized and unreasonable. This justifies an award of damages under paragraph 53(2)(e) of the CHRA. The grievor further submitted that her pain and suffering were aggravated by the delay between the filing of her grievance and the hearing before the Board.

[109] As for the claim for damages under subsection 53(3) of the CHRA, the employer was careless in its treatment of the grievor by including notes in her file and her performance appraisal. The employer had no justification for its decision to require medical certificates and could not explain why it had not implemented an accommodation process.

B. For the employer

[110] The employer argued that while the key events are not in dispute, there are discrepancies between the parties’ evidence regarding what happened at the April 15 and July 24, 2014, meetings. The employer submitted the following observations which, in its opinion, justify preferring its evidence where there are discrepancies.

[111] First, the employer’s position is corroborated by the documentary evidence. Nothing in the evidence supports the grievor’s testimony that she was harassed, that she was asked inappropriate questions, or that the employer imposed any consequences on her other than the request to provide a medical certificate to justify a medical absence. The grievor did not file a complaint with the Canadian Human Rights Commission (CHRC) or a harassment complaint against Mr. Lamoureux.

[112] Second, the grievor’s testimony concerning the two meetings was not corroborated by a witness, even though she was accompanied by a union representative at both meetings. According to the employer, this justifies drawing a negative inference regarding the grievor on all the points on which the union representatives could have testified.

[113] Third, there is reason to doubt the accuracy of the grievor’s testimony in light of the circumstances motivating the actions of the various witnesses. Upon her return from sick leave in late summer 2013, the grievor did not renew her request for a four-day schedule. According to the employer, she appears to have taken matters into her own hands by taking the leave to which she felt she was entitled in conjunction with other days off, without making a request for accommodation or providing medical evidence substantiating this need. The grievor was antagonistic towards Mr. Lamoureux because he had intervened under the NAMP. Furthermore, she was disdainful of him during her testimony, even though he had not shown any antagonism or hostility. However, the grievor did not display this antagonism towards the employer’s other witnesses.

[114] Finally, the employer claimed that the grievor lacked credibility, since she tended not to tell the entire truth, and even to lie. The employer referred to Ms. Houde’s April 17, 2013, letter to Dr. Paquin and argued that the employee herself should have passed it on. As for the February 17, 2014, medical certificate, Dr. Paquin had no recollection or note indicating that the grievor had a heated discussion at work regarding the distribution of tasks on January 21, 2014. The employer argued that this was probably the real reason for her sudden departure. According to the employer, this raises the question of how Dr. Paquin could really certify the grievor’s medical condition almost a month later.

[115] The employer also referred to the fact that the grievor gave false reasons to justify her leave with income averaging as another example of lack of credibility.

[116] The grievor testified on cross-examination that her absence on January 2, 2014, for family-related responsibilities was due to a professional development day at her children’s school. According to the employer, this does not make sense because January 2 is a statutory holiday in Quebec.

[117] The employer asserted that the inaccuracies in the grievor’s testimony raise doubts that her leave in 2013–2014 was taken for the reasons claimed.

[118] The employer argued that the issue is whether its request that the grievor provide a medical certificate to justify her medical absences was discriminatory. It contended that introducing issues that go beyond this would contravene the principle of the Burchill judgment, since this is not in the wording of the grievance and was not discussed in the grievance procedure. According to the employer, issues involving alleged harassment suffered by the grievor or an alleged breach of the duty to accommodate would be a fundamental change in the nature of the grievance.

[119] The employer argued that the issues are as follows: (1) Did the grievor establish a prima facie case of discrimination? (2) If so, was the requirement to submit a medical certificate a bona fide occupational requirement? (3) If not, what is the appropriate order in this case?

[120] The employer asserted that the grievor did not meet her burden of proving a prima facie case of discrimination. Referring to the criterion for establishing an allegation of discrimination, the employer argued that the grievor did not belong to a group with a protected characteristic, since the mere existence of a medical condition or pain is not sufficient to conclude that a disability exists. The grievor must demonstrate that her medical condition is severe enough to prevent her from performing her work. In support of this argument, the employer cited the following decisions: Ahmad v. Canada Revenue Agency, 2013 PSLRB 60, at paragraph 124; and Riche v. Treasury Board (Department of National Defence), 2013 PSLRB 35, at paragraphs 130 and 131. According to the employer, there is insufficient evidence to conclude that there is a disability protected by the CHRA.

[121] The employer claimed that the grievor’s medical condition A was not a chronic condition, since Dr. Paquin indicated on the disability insurance form he filled out that the first symptoms appeared on April 11, 2013, and that her last episode occurred in 2015. The employer pointed out that the symptoms appeared three days after Ms. Houde’s refusal on April 8, 2013, to grant the grievor a modified four-day schedule. In addition, there was never a request for accommodation related to this condition, or a response to Ms. Houde’s request for clarification.

[122] The employer argued that the fact that it agreed to the grievor going on sick leave did not relieve her of her burden of proof (see Ahmad, at para. 126). The evidence does not indicate how medical condition A completely prevented the grievor from working. The employer contended that after her return to work in 2013, there was insufficient evidence that her two medical conditions or any other medical condition would meet the threshold required to prevent the grievor from reporting to work and to constitute a disability within the meaning of the CHRA. Once Dr. Paquin certified the grievor’s return to work on a full-time basis, there were no further medical certificates substantiating a need for consecutive or contiguous days off, a four-day week, or a need to leave work at any time.

[123] According to the employer, the evidence shows that, on January 21, 2014, the grievor left work due to a disagreement over the distribution of tasks and not for a medical reason. Dr. Paquin’s medical certificate justifying the absence is dated February 17, 2014, which is a few weeks after the absence, and he testified that he relied on what the grievor had told him. The results of the examination carried out that day revealed nothing abnormal. It is not clear how the condition would have prevented the employee from performing her duties or remaining at work.

[124] The employer argued that the grievor did not meet her burden of demonstrating that she satisfied the criteria for a protected family status. However, I note that in her reply submissions, the grievor clarified that she made no representations with respect to the protected characteristic of family status, and does not allege that she met the test for this characteristic. There is therefore no need to deal with that argument from the employer.

[125] The employer argued that it has the right to ask reasonable questions to ascertain the legitimacy of leave taken for family-related responsibilities, even though this article of the collective agreement (art. 43) is not worded in the same way as that for sick leave. According to the employer, the grievor was unable to explain in her testimony the exact nature of the family responsibility involving her children for any of the days on which she took leave for family-related responsibilities.

[126] The employer argues that the grievor did not suffer any adverse impacts as a result of the application of the NAMP or the collective agreement. Meeting with the grievor and asking for a medical certificate to justify medical absences does not rise to the level required to constitute an adverse impact. Nor is it enough that the grievor feels unfairly treated. Case law requires an additional element that must be harmful, hurtful or hostile (see Cheung v. Treasury Board (Correctional Service of Canada), 2014 PSLREB 1 at para. 75; and Tahmourpour v. Canada (Attorney General), 2010 FCA 192 at para. 12). These two decisions were cited in Eady v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 71, at paragraphs 107 and 108. The employer asserted that Eady establishes that there is no adverse effect from calling an employee to meetings under an attendance management program or preparing a memo. Moreover, according to article 35.02(a) of the collective agreement, it is up to the employer to determine how an employee may justify a sick leave absence.

[127] The employer pointed out that there is a broad arbitral consensus that the employer can make reasonable requests for medical information even if an employee has already provided a medical certificate.

[128] The employer had no choice but to request a medical certificate to ensure that the grievor’s absences were legitimate since she did not provide documentation indicating that she had a disability within the meaning of the CHRA and she did not request accommodation, even though her managers invited her to do so at the April 15, 2014, meeting. The employer asserted that the grievor’s handwritten notes regarding this meeting indicate that Ms. Turcotte explained the accommodation issue to her.

[129] According to the employer, the adverse impacts alleged by the grievor are not supported by the evidence as a whole. For example, there is no evidence that the meetings on April 15 and July 24, 2014, took place in an intimidating, stressful or anxiety-provoking atmosphere, or that inappropriate questions were asked. The employer’s witnesses testified that the meetings were cordial and that they did not force the grievor to disclose confidential information about her medical condition or her mother’s condition, nor did they inquire about a diagnosis. The employer pointed out that the grievor did not have the union representatives who were present at the meetings corroborate her testimony, and did not keep notes of the July 24, 2014, meeting.

[130] The employer argued that taking leave with income averaging cannot constitute an adverse impact because, among other things, it was taken at the grievor’s request and not imposed by the employer. If the grievor felt her situation was untenable, among other things she could have filed a harassment complaint or grievance.

[131] The employer argued that the reference to the NAMP in the grievor’s performance appraisal did not constitute an adverse impact, since it was relevant to performance. Furthermore, there is no evidence that anyone consulted the performance appraisal or that the appraisal damaged her reputation, nor that it had any impact on a staffing or promotion process for which the grievor applied. Furthermore, she admitted that she did not file a staffing complaint.

[132] According to the employer, the grievor did not establish the existence of an adverse impact.

[133] The employer argued that, assuming the grievor has a protected characteristic and suffered an adverse impact, the onus is on her to show that there is a connection between the protected characteristic and the adverse impact. She must prove that the employer asked her to submit medical certificates for sick leave absences that she required because of a protected characteristic.

[134] The employer asserted that, according to the evidence, the request for medical certificates was in response to absences that were taken in conjunction with statutory holidays, compressed days or weekends, which is an unusual use of leave, as indicated in the non-exhaustive list in the NAMP reproduced at paragraph 8 of the ASF. According to the NAMP, the employer can intervene in the event of this type of unusual use.

[135] The employer referred to Mr. Luneau’s testimony that his decision was not impacted by the grievor’s medical condition, but rather the unusual use of leave that the grievor was unable to explain satisfactorily. No protected characteristics were a factor.

[136] The employer argued that the application of an attendance management program is not discriminatory in itself and that an employee’s impressions are not sufficient to demonstrate a connection between the protected characteristic and the adverse impact (see Carvalho v. Toronto Transit Commission, 2019 HRTO 862, at paras. 44 and 45). The request to provide medical certificates was due to the grievor’s absences and was based on article 35.02 of the collective agreement or the NAMP, for the sole purpose of maintaining her presence at work.

[137] In addition, the grievor did not make a request for accommodation to justify her absences. The request for medical certificates was not motivated by a protected characteristic of the grievor.

[138] The employer argued that, even if the grievor had established a prima facie case of discrimination, the request to provide a medical certificate was a bona fide occupational requirement that satisfied the three-step test set out in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 (Meiorin), at paragraph 54.

[139] The employer contended that the first two steps of the test were met because of paragraph 7 of the ASF, which sets out the purpose of the NAMP to ensure the management of employee attendance, and the fact that the grievor is not challenging the employer’s right to adopt the NAMP. In addition, the requirement to provide a medical certificate is justified by article 35.02 of the collective agreement.

[140] The employer claimed that the NAMP was adopted for a purpose rationally connected to the performance of the job, namely attendance, and in an honest and good faith belief that it was necessary to the fulfillment of the purpose of maintaining attendance at work.

[141] The employer argued that keeping track of employee absences is recognized as a bona fide occupational requirement that is neither stereotypical nor arbitrary (see Honda Canada Inc. v. Keays, [2008] 2 SCR 362, 2008 SCC 39, at para. 49).

[142] The employer contended that its witnesses explained that the grievor’s unscheduled absences affected operations and had an impact on Mr. Kajiji, given that only he and the grievor occupied the same functions and had to support each other.

[143] On the issue of undue hardship, the question is not whether the grievor’s absences themselves caused undue hardship, since there was no request for accommodation or grievance regarding the duty to accommodate. Arguing that the grievance relates to the duty to accommodate would fundamentally change the nature of the grievance, contrary to Burchill. The employer asserted that it would be an undue hardship for an employer to not be allowed to track employee absences by requesting medical certificates.

[144] As for the claim for damages, the employer argued that if the Board found that there was discrimination, the damages awarded should be minimal. If the grievor experienced pain and suffering pursuant to paragraph 53(2)(a) of the CHRA, such suffering is minimal since it is largely attributable to factors other than the application of the NAMP. In this regard, the employer referred to the grievor’s antagonism towards Mr. Lamoureux since her return to work—among other things because she felt excluded—as well as to the discussion regarding the distribution of tasks in January 2014. This is not attributable to the application of the NAMP.

[145] With regard to wilful or reckless practices under subsection 53(3) of the CHRA, the employer argued that there was no evidence that its witnesses had acted as such. They testified that they acted in good faith and chose a measure that imposed the fewest restrictions and was reasonable in the circumstances.

[146] The employer asserted that the time between the April 15 and July 24, 2014, meetings was due to changes at the FTC, including a reorganization that increased the inmate population, a change of AWI and a change of NAMP coordinator. According to the employer, the grievor should have brought the first-level response to her grievance to the attention of her supervisors, as this would have resolved the situation more rapidly.

[147] The employer argued that, if the Board concludes that damages are appropriate, it should be guided by the Board’s decision in Bodnar. That decision dealt with the application of the NAMP, and prior to its decision being overturned by the Federal Court of Appeal, the Board found that there was discrimination and that damages should be in the amount of $250 for pain and suffering and $500 for wilful or reckless practices.

[148] The employer contended that, in this case, damages for pain and suffering should be limited to $250. Since there is no evidence that the delay between the filing of the grievance and the hearing before the Board is attributable to the employer, it should not be required to compensate the grievor for that delay. Damages should not be awarded for wilful or reckless practices, but if they are awarded, they should be minimal.

C. The grievor’s reply

[149] With regard to the employer’s argument that the grievor did not file a complaint against Mr. Lamoureux, the grievor pointed out that she filed a complaint with the CHRC, but the complaint could not proceed due to the precedence of the grievance procedure.

[150] The employer asked the Board to draw a negative inference from the fact that the union representatives did not testify to corroborate the grievor’s testimony. The grievor asserted that a negative inference can be drawn in the absence of evidence on an issue central to the dispute, where the witnesses who could have given such evidence are under the exclusive control of one party to the dispute. In this case, the employer could have called the two union representatives as witnesses to corroborate its own version of events.

[151] The employer suggested that the grievor wilfully destroyed or failed to provide Ms. Houde’s April 17, 2013, letter to Dr. Paquin, who testified that he never received it. The grievor argued that there is no indication that the letter was given to her to pass on to Dr. Paquin, and she was not cross-examined on this point. The employer did not call Ms. Houde to testify in this regard.

[152] The employer alleged that the grievor tended not to tell the entire truth or to lie. The grievor argued that this was not supported by the evidence and that the employer failed to discredit her on cross-examination.

[153] Regarding her absence on January 2, 2014, which she testified was due to a professional development day at her children’s school, the grievor pointed out that the collective agreement (art. 30.02) does not list January 2 as a paid holiday and that contrary to the employer’s assertion, the Quebec Act respecting labour standards does not provide for a statutory holiday on January 2.

[154] The grievor admitted that she lied to justify the leave with income averaging. The lie was necessary because Mr. Lamoureux demanded justification for the leave, and she did not want to write that her real reason was her problems with him. Furthermore, Ms. Beaubien confirmed that no justification was required.

[155] As to the existence of a protected characteristic based on a medical condition, the grievor claimed that her evidence and that of Dr. Paquin support the existence of a medical condition that can require spontaneous and recurrent absences from work and that constitutes a disability within the meaning of human rights. The grievor pointed out that the employer did not present any medical evidence to contradict Dr. Paquin’s evidence.

[156] With regard to the grievor’s departure on January 21, 2014, and the employer’s argument that Dr. Paquin had no recollection of the grievor talking to him about a heated discussion, the grievor argued that she had no reason to talk to him about it since medical condition B was the reason for her departure. It was only Mr. Lamoureux who spoke of a heated discussion, whereas Mr. Kajiji was present and was not called to testify by the employer.

[157] The grievor asserted that medical condition B was a chronic condition that could not be helped by a single visit to the doctor. Dr. Paquin indicated that her condition could require absences and interfere with daily activities. The grievor pointed out that the employer did not cross-examine her on her medical condition, its severity, the reported symptoms or the fact that medical condition B was the reason for her departure on January 21, 2014.

[158] With regard to medical condition A, both the grievor and Dr. Paquin testified, supported by the grievor’s medical history, that it was a chronic condition. According to Dr. Paquin, long-term leave became necessary as the condition was not improving, and only complete rest could remedy the problem caused by repetitive movements at work. The grievor argued that the symptoms did not recur three days after the refusal of a modified schedule; they were in fact the condition behind her request for a modified schedule.

[159] With regard to adverse impact, in Bodnar (FCA), the Federal Court of Appeal did not rule out adverse impact in the context of individual meetings.

[160] As to the employer’s reference to the existence of a broad arbitral consensus that the employer can make reasonable requests for medical information, the grievor acknowledged that this is correct. However, she asserted that this was not what happened here. The employer did not seek a medical explanation or request a medical examination. It decided to impose a form of monitoring with no logical connection to its attendance concerns.

[161] The grievor argued that, because of her schedule, it would have been practically impossible for her to take one-time leave that was not in conjunction with other days off or compressed days, and that this was demonstrated by the fact that her leaves were taken on Mondays, Tuesdays, Thursdays and Fridays.

[162] According to the grievor, she gave an explanation for what the employer considered an unusual use of leave, namely her medical condition, but the employer did not believe her. This is not the same as saying, as the employer indicated, that the protected characteristic was not a factor in the decision.

[163] Regarding the employer’s reference in its arguments to article 35.02 of the collective agreement to justify its request for medical certificates for all future sick leave absences, the grievor argued that this was the first time the employer referred to that article to justify its request, which was always based on the NAMP. Moreover, this interpretation is not permitted by the scope of article 35.02, and would be contrary to article 35.03.

[164] The grievor contended that the occupational requirement in question was the requirement to present a medical certificate for all future absences, the two meetings with her and the constant monitoring of her absences.

[165] The employer cannot rely on acceptance of the NAMP to assert that the first two steps of the Meiorin test have been met. There is no rational connection between the requirements imposed on the grievor and the employer’s concerns.

[166] The grievor stressed her disagreement with the employer’s characterization of the issue of undue hardship and submitted that this case is not about the employer’s right to track employee absences. The issue is rather whether not imposing these requirements on the grievor would have caused undue hardship. Since there was no evidence to show that this is the case, there was no undue hardship for the employer.

V. Reasons

A. Confidentiality order

[167] The grievor asked that her medical file (Exhibit S-2) be sealed. The employer did not object to that request.

[168] The Board has often issued sealing orders for private information, such as medical information.

[169] The test for granting a confidentiality order was restated by the Supreme Court of Canada in Sherman (Estate) v. Donovan, 2021 SCC 25, in the following terms:

[38] … the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

 

[170] The Supreme Court states at paragraph 73 of Sherman (Estate) that “… protecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.” Exhibit S-2 contains personal information about the grievor’s health, the disclosure of which threatens her dignity.

[171] In this case, there is no practical alternative to a sealing order. Almost every page contains personal information about the grievor’s health. The documents in Exhibit S-2 and the diagnoses of the grievor’s two medical conditions A and B are not necessary for an understanding of this decision.

[172] The order does not impede the fairness of the proceedings, but does protect the grievor’s dignity. The advantages of the order outweigh its negative impact on the principle of judicial transparency.

[173] Exhibit S-2 will therefore be sealed.

B. Issues

[174] I will provide a few preliminary remarks before setting out the issues.

[175] In their arguments, each party questioned the credibility of the other’s witnesses. The leading case in this respect is Faryna, which is referred to in the grievor’s argument. My takeaway from that decision is that the credibility of testimony depends on the overall situation, including the documentary evidence.

[176] After nine years, memories have faded. I do not doubt the good faith of all the witnesses I heard from. Any apparent discrepancies in their memories can be explained by time and their different perspectives. Mr. Lamoureux was a manager keen to ensure staff attendance, backed by the NAMP. The grievor was struggling with family concerns and serious medical conditions. She did not view attendance management in the same light. Other witnesses had vague recollections, attributable, in my opinion, to the passage of time.

[177] I take from the testimonies what seems reasonable to me, and I give preference to testimonies confirmed by contemporaneous documents.

[178] The employer raised a number of objections, some of which were dealt with in the summary of the evidence. I will deal here with the employer’s objection that relies on Burchill to argue that the grievor’s relationship with Mr. Lamoureux goes beyond the scope of the grievance.

[179] The grievance does not concern the relationship with Mr. Lamoureux, but rather the application of the NAMP to the grievor’s situation, which she maintains is discriminatory. However, it is important to contextualize the communications that took place between the grievor and the employer at the time of the events giving rise to the grievance. The strained relationship between Mr. Lamoureux and the grievor was certainly a factor in the grievor’s perception of the situation.

[180] Burchill is not used to rule out anything that is not specifically stated in the grievance. The essence of Burchill is that the nature of the grievance cannot be changed when it is referred to adjudication. In Burchill, the grievor attempted to turn a grievance against an administrative measure into a grievance against a disciplinary measure.

[181] That is not the case here. The grievance clearly concerns the discriminatory nature of imposing the NAMP on the grievor. It is important to understand who was involved and what their respective roles were. That is how I look at the relationship between Mr. Lamoureux and the grievor. The employer’s objection is dismissed.

[182] Finally, certain comments from either side will not be dealt with in the following analysis, because they are not relevant. I would point out, however, that January 2 is not a statutory holiday in Quebec (unless January 1 falls on a Sunday), but in any event, if January 2 had been a holiday, the grievor would not have requested leave for family-related responsibilities.

[183] The issues are as follows, from the grievance: was the grievor discriminated against? Did the employer violate the articles of the collective agreement relating to discrimination, sick leave and leave for family-related responsibilities?

1. Discrimination

[184] With regard to the allegation of discrimination, it should be noted that the grievor argued that her grievance does not challenge the employer’s right to adopt the NAMP, but rather contends that its application to her was discriminatory.

[185] In accordance with section 210 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; the Act), the grievor gave notice to the CHRC that her grievance raised an issue involving the interpretation or application of the CHRA. The CHRC advised the Board that it does not intend to make submissions regarding the issue raised.

[186] Article 19.01 of the collective agreement reads as follows:

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

19.01 Il n’y aura aucune discrimination, ingérence, restriction, coercition, harcèlement, intimidation, ni aucune mesure disciplinaire exercée ou appliquée à l’égard d’un employé-e du fait de son âge, sa race, ses croyances, sa couleur, son origine nationale ou ethnique, sa confession religieuse, son sexe, son orientation sexuelle, sa situation familiale, son incapacité mentale ou physique, son adhésion à l’Alliance ou son activité dans celle-ci, son état matrimonial ou une condamnation pour laquelle l’employé-e a été gracié.

 

[187] The collective agreement does not define the word “discrimination.” Section 7 of the CHRA, which deals with discriminatory practices in the employment context, provides as follows:

7 It is a discriminatory practice, directly or indirectly,	7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
(a) to refuse to employ or continue to employ any individual, or	a) de refuser d’employer ou de continuer d’employer un individu;
(b) in the course of employment, to differentiate adversely in relation to an employee,	b) de le défavoriser en cours d’emploi.

 

[188] Subsection 226(2) of the Act gives the Board legislative authority to interpret and apply the CHRA to employment matters.

[189] I will begin this section of the decision by analyzing whether the grievor has met her burden of establishing a prima facie case of discrimination. To establish a prima facie case of discrimination, the grievor must make an allegation which, if believed, would justify a finding in her favour in the absence of an answer from the employer. As already mentioned, this requires the grievor to demonstrate: (1) that she belongs to a group with a protected characteristic; (2) that she experienced an adverse impact; and (3) that the protected characteristic was a factor in the adverse impact.

[190] The grievor alleged that she had a protected characteristic, namely a disability. She contends that she has two disabilities: her two medical conditions, A and B.

[191] Disability is one of the prohibited grounds of discrimination listed in subsection 3(1) of the CHRA. It is defined as follows in section 25 of the CHRA: “… any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug”.

[192] The grievor asserted that medical evidence is not required to prove the existence of a disability. This issue is determined by a preponderance of the evidence. According to the employer, the grievor did not belong to a group with a protected characteristic, since the mere existence of a medical condition or pain is not sufficient to conclude that a disability exists. The grievor must demonstrate that her medical condition is severe enough to prevent her from performing her work.

[193] A medical condition does not have to permanently prevent an employee from performing his or her duties in order to be considered a disability within the meaning of the CHRA. As stated at paragraph 123 of Ahmad: “A disability arises only when a particular physical or mental condition prevents an employee from performing an important part of his or her job.” See also Mellon, at paragraph 88, which states as follows: “… it is not only those that constitute a permanent impairment that must be considered.”

[194] For the reasons that follow, I find that the preponderance of the evidence demonstrates that the grievor had a protected characteristic, namely a disability.

[195] I accept Dr. Paquin’s uncontradicted testimony that the grievor suffered from medical condition A, which may require a leave of absence from work.

[196] Dr. Paquin’s April 11, 2013, medical certificate stated: [Translation] “Chronic pain […] Work 4 days/week. Ergonomic assessment of the position.” Dr. Paquin testified that he believed medical condition A was progressing, and he wanted to give the grievor a day off to recuperate. In a letter to Dr. Paquin dated April 17, 2013, Ms. Houde asked him for certain clarifications, namely the period for which the instructions were valid and when he planned to see the grievor again for a follow-up. Dr. Paquin testified that he did not remember whether he had replied, and that the letter was not in the grievor’s medical file. Contrary to the employer’s argument, there is no evidence that the letter was given to the grievor to pass on to Dr. Paquin. Ms. Houde did not testify and the grievor was not cross-examined on the matter.

[197] Dr. Paquin testified that medical condition B can compromise daily functions and is painful. Moreover, he acknowledged that he did not write any further certificates for absences due to this medical condition after the one of February 17, 2014, and that there was no certificate indicating that the grievor might need to be absent from work at any time as a result of this condition.

[198] However, Dr. Paquin’s notes of December 23, 2013, indicate that the grievor had been suffering from the symptoms of medical condition B since 2011, and he testified that she might need to be absent from work at any time due to these symptoms. He stated that this condition is an illness in itself that recurs repeatedly over several months, and that it is painful. He referred the grievor to a specialist, and the condition was still manifesting in June 2014.

[199] The grievor testified that her departure from work on January 21, 2014, was due to medical condition B. According to the employer, her departure was actually due to a heated discussion led by Mr. Lamoureux regarding the distribution of tasks between her and Mr. Kajiji. Mr. Lamoureux is the only person who testified to such a discussion, since Mr. Kajiji, who would have been there, did not testify. In any case, even if such a discussion did take place, this does not contradict the grievor’s testimony that she had to leave because of her medical condition, and the employer presented no further evidence to the contrary. Dr. Paquin testified that his February 17, 2014, medical certificate was based on what the grievor told him happened on January 21, 2014. In addition, the employer accepted the medical certificate dated February 17, 2014, for that sick leave absence, thereby terminating the disciplinary process it had initiated.

[200] Furthermore, when the grievor was asked in cross-examination to explain the reasons for her leaves, she testified that her sick leave absences on January 21 and January 23, 2014, were due to medical condition B.

[201] The employer is correct that after the grievor’s return to full-time work was certified, there were no further medical certificates justifying a need for consecutive or contiguous days off, a four-day week or a need to leave work at any time.

[202] However, this does not contradict Dr. Paquin’s testimony regarding the effects of the two medical conditions on the grievor that caused her to miss work.

[203] The evidence shows that the two medical conditions in question could cause either periodic work stoppages or absences that are not necessarily foreseeable. I believe that, in this case, this is sufficient to conclude that the grievor had a protected characteristic, i.e., a disability.

[204] I will now determine whether the grievor suffered any adverse impacts. As a reminder, the grievor alleged that she suffered the following adverse impacts:

[Translation]

a. intimidating, stressful and anxiety-provoking meetings;

b. being placed under the NAMP;

c. being required to provide a medical certificate for eight months, a disciplinary requirement;

d. several notes/memo in the file;

e. a reference to the NAMP in her performance appraisal; and

f. the need to take leave with income averaging to get out of the situation.

 

[205] The two meetings in question are those of April 15 and July 24, 2014. The one of April 15 was called in order to examine the reasons for the grievor’s absenteeism and determine whether her absences were justified. At these meetings, the grievor was confronted with her pattern of absences. There is no doubt that the meetings were stressful and intimidating and may have caused anxiety.

[206] As for being placed under the NAMP, the fact is that the grievor’s managers did not follow the prescribed procedure. This should have been rectified by the employer’s level-one response, but curiously, nothing came of that response, and none of the managers who testified were aware of the grievance or the response. The grievor had the impression that no one was listening to her, that her integrity was being questioned, and above all, that her real health problems were not being taken seriously. The obligation to provide a medical certificate is certainly permitted by the collective agreement when the employer has doubts about the validity of requests for sick leave. In the grievor’s case, however, that requirement was unduly extended because Mr. Luneau was not informed that the requirement he imposed from August to November 2014 had in fact been in effect since April 2014. Moreover, that obligation arose from the fact that the employer found it [translation] “unusual” for sick leave to precede or follow rest days. Minimal understanding of the chronic pain from which the grievor suffered (a condition identified in Dr. Paquin’s note), due to repetitive movements, would have enlightened the employer as to the need for rest.

[207] It is curious to note that Mr. Luneau did not doubt the veracity of the grievor’s health problems, but felt that absences should not follow work weeks. With respect to the grievor’s allegation that notes placed in her employee file constitute an adverse impact, according to the evidence, there was only the April 15, 2014, memo, which states at point 1:

[Translation]

1. Leave use habits that are considered unusual

Over the past year, the file shows that Ms. Beaudoin had several absences (15) involving leave (sick leave, leave for family-related responsibilities and 698 leave) taken in conjunction with other days off (weekend, compressed, statutory holiday). This is a repetitive scenario of leave usage that is considered unusual. Ms. Beaudoin explained that with the exception of 698 leave, this trend was the result of a need for rest arising from her health situation. However, she has no medical evidence to support her claims. As such, her explanations are insufficient to justify these absences.

Decision: From now on, produce a medical certificate for sick leave requests

[Emphasis in the original]

 

[208] The placing of a memo in the file is provided for as follows at section 6.1 of the NAMP: “All interviews are confidential and are documented by the supervisor in a memo to file format, to be placed on the Employee’s Leave File with a copy given to the employee.” [Emphasis in the original]

[209] The grievor argued that, according to the employer’s witnesses, the memo may still be in her employee file. She submitted that this tells anyone seeing the file that the employer considers her absences to be problematic, and she therefore appears to be a problem employee. This damages her reputation and chances of obtaining other positions and affects her perception of herself as an employee.

[210] There is no evidence that the memo is still in the grievor’s file or that anyone ever consulted it.

[211] There is no reference to the NAMP in the grievor’s performance appraisal, but there is mention of a meeting regarding her attendance. According to testimony, before and after that year (2013–2014), there was no discussion of the grievor’s attendance with her supervisor. The impact of one appraisal by one specific supervisor seems minimal.

[212] The grievor views the need to take leave with income averaging as an adverse impact. It is not possible to fully determine why she took leave with income averaging. Admittedly, the situation with Mr. Lamoureux seems to have escalated, but the leave with income averaging was her choice and was taken freely. It also gave her time to rest. I am not prepared to attribute it to the situation with the NAMP.

[213] I find that there was an adverse impact on the grievor through the imposition of the NAMP, which led to the July 24 meeting and the requirement to submit medical certificates for eight months. During that time, the grievor felt stressed and anxious about her job, and thought the employer did not trust her.

[214] In addition, the NAMP was imposed due to the grievor’s absences. At first, the employer targeted all her absences, but in the end focused only on medical absences. Based on the evidence presented by Dr. Paquin, those medical absences were connected to her disabilities. I therefore consider that the grievor has presented prima facie evidence of discrimination. I agree with the grievor that the employer did not demonstrate that application of the NAMP was justified in the circumstances. I do not question the merits of such a program. In the grievor’s case, however, it was misapplied.

[215] First, imposing a requirement for certificates for every absence was not the responsibility of Mr. Lamoureux or Ms. Turcotte, but that of the NAMP coordinator, as stated in the response at the first level of the grievance procedure. The employer tried to argue that it was up to the grievor to inform the employer of its own decision. No. It was up to the employer to rectify the situation, but that was not done.

[216] Second, the July 24, 2014, meeting with Mr. Luneau is rather incomprehensible since the grievor had already been under the NAMP for three months. Mr. Luneau did not seem to be aware of that, however. Mr. Luneau himself conceded that the conclusion of that meeting would have been different had he known that the grievor had already been required to provide medical certificates since April 2014.

[217] Finally, despite the fact that the NAMP allows employees to explain their absences, the employer seems to have been completely closed to the grievor’s explanations. Her explanation of needing rest was dismissed out of hand, and yet according to Dr. Paquin, it is consistent with the needs of someone suffering from medical condition A. Mr. Luneau said he was not interested in an explanation for the past, only justifications for the future. That speaks to a remarkably closed mind.

[218] This flawed application of the NAMP cannot justify the discrimination suffered by the grievor.

[219] The employer argued that the requirement to submit a medical certificate was a bona fide occupational requirement. The grievor did not question the justification for the NAMP, but the employer did not take the grievor’s situation into account. The employer alleged that it would be an undue hardship not to follow up on absences with its employees, including requiring medical certificates. The onus is on the employer to establish a bona fide occupational requirement. The employer has the burden of establishing undue hardship in order to raise this argument under section 15 of the CHRA. However, apart from the general allegation of undue hardship, the employer provided no evidence to support this allegation, nor did it explain the undue hardship in the situation in which the grievor found herself.

2. Violation of the collective agreement

[220] In her grievance, the grievor invokes three articles of the collective agreement: no discrimination, sick leave and leave for family-related responsibilities.

[221] I have already found that there was discrimination in how the grievor was treated.

[222] The article on sick leave stipulates that it will be granted if the employee is ill, and that the employer is entitled to request justification for the leave. That article was not violated, since the employer granted the leave requested, and was entitled to seek justification. The violation is at the level of discrimination, which has already been established.

[223] As for leave for family-related responsibilities, although it was initially noted by Mr. Lamoureux as indicating an unusual trend, it no longer appears to have been included in the NAMP following the April 15, 2014, meeting, and is not mentioned in the subsequent memo. All leave requests were granted. As a result, I find no violation of that provision.

3. Redress

[224] The employer showed a lack of understanding of the grievor’s situation, and imposed on her intimidating meetings and an attendance monitoring program that should not have been implemented.

[225] Moreover, the requested leave was granted, and while the leave with income averaging may have led to a certain drop in income, that was the grievor’s choice. As a result, I do not see any material damage.

[226] However, compensation for pain and suffering should be awarded to the grievor pursuant to the CHRA for causing her stress and an affront to her dignity.

[227] The employer argued that I should award minimal damages, if any. It cited Bodnar to that effect. The grievor provided me with two decisions on the issue of the amount to grant: Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35, and Lloyd v. Canada Revenue Agency, 2009 PSLRB 15.

[228] In Bodnar, the adjudicator awarded $250 for pain and suffering and $500 under subsection 53(3) of the CHRA for reckless practices.

[229] The situation here is different. The NAMP is not being challenged, but rather its flawed application. In my opinion, the grievor was unnecessarily subjected to a stressful situation at a time when she was dealing with health issues. I do not believe, however, that the employer engaged in a wilful or reckless practice. The managers acted in good faith, but there was poor communication between them.

[230] In Cyr, the adjudicator awarded $8 000 for pain and suffering and $10 000 in special damages.

[231] The facts are not comparable to the facts in this grievance. Ms. Cyr suffered from environmental hypersensitivity that was greatly aggravated by the work environment. The solution, which was telework, was confirmed by her physician. However, this accommodation was not implemented satisfactorily, which caused numerous problems for Ms. Cyr. Furthermore, the situation went on for an extended period.

[232] In this case, the grievor never made a clear request for accommodation. In her mind, no doubt, taking time off as needed was an accommodation, which the employer challenged by insisting on justification. The situation lasted from April to November 2014, and the constraint was the requirement to obtain a medical certificate. I have already recognized the discriminatory aspect, and the adverse impact, but the harm in itself has nothing in common with the situation of a sick employee forced to fight for the right to a workplace that respects her physical health.

[233] Likewise, in Lloyd, the adjudicator ruled that the accommodation was inadequate because the employer ignored her physician’s recommendations. He awarded her $6 000 for pain and suffering, but nothing for special damages, finding that Ms. Lloyd did not establish that the employer had acted wilfully or recklessly.

[234] Once again, I find it difficult to compare the situation in that decision with that of the grievor. The situation was unpleasant for her for some time, but her leave was always granted, and the situation was resolved without further consequences.

[235] The requirement for medical certificates, the unnecessary application of the NAMP and the stress this caused warrant, in my opinion, compensation of $1 000 under paragraph 53(2)(e) of the CHRA.

[236] However, I do not believe that special damages should be awarded under subsection 53(3) of the CHRA. The employer acted clumsily, and Mr. Lamoureux may have been overzealous, but in his defence, he consulted Labour Relations, which gave him bad advice, and the authority who decided the grievance at the first level did not bother to inform him of the outcome. In my opinion, the actions were not relentless or sufficiently serious to justify special damages.

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

(The Order appears on the following page.)

VI. Order

[238] Exhibit S-2 is sealed.

[239] The grievance is allowed.

[240] The employer shall pay the grievor the sum of $1 000 pursuant to paragraph 53(2)(e) of the Canadian Human Rights Act within 60 days of this decision.

December 17, 2024.

FPSLREB Translation

Steven B. Katkin,

a panel of the Federal Public Sector

Labour Relations and Employment Board